WARNING

The President of the panel
    hearing this appeal directs that the following should be attached to the file:

An order restricting
    publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or
    (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of
the
Criminal
    Code
provide:

486.4(1)       Subject
    to subsection (2), the presiding judge or justice may make an order directing
    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in
    proceedings in respect of

(a)     any of the
    following offences;

(i)      an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED: S.C.
    2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences being dealt
    with in the same proceeding, at least one of which is an offence referred to in
    paragraph (a).

(2)     In proceedings
    in respect of the offences referred to in paragraph (1)(a) or (b), the
    presiding judge or justice shall

(a)     at the first
    reasonable opportunity, inform any witness under the age of eighteen years and
    the victim of the right to make an application for the order; and

(b)     on application
    made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to
    subsection (2.2), in proceedings in respect of an offence other than an offence
    referred to in subsection (1), if the victim is under the age of 18 years, the
    presiding judge or justice may make an order directing that any information
    that could identify the victim shall not be published in any document or
    broadcast or transmitted in any way.

(2.2) In proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible,
    inform the victim of their right to make an application for the order; and

(b) on application of
    the victim or the prosecutor, make the order.

(3)     In proceedings
    in respect of an offence under section 163.1, a judge or justice shall make an
    order directing that any information that could identify a witness who is under
    the age of eighteen years, or any person who is the subject of a
    representation, written material or a recording that constitutes child
    pornography within the meaning of that section, shall not be published in any
    document or broadcast or transmitted in any way.

(4)     An order made
    under this section does not apply in respect of the disclosure of information
    in the course of the administration of justice when it is not the purpose of
    the disclosure to make the information known in the community.
2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b);
    2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s.
    18.

486.6(1)       Every
    person who fails to comply with an order made under subsection 486.4(1), (2) or
    (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2)     For greater
    certainty, an order referred to in subsection (1) applies to prohibit, in
    relation to proceedings taken against any person who fails to comply with the
    order, the publication in any document or the broadcasting or transmission in
    any way of information that could identify a victim, witness or justice system
    participant whose identity is protected by the order. 2005, c. 32, s. 15.

WARNING

The President of the panel
    hearing this appeal directs that the following should be attached to the file:

An order restricting
    publication in this proceeding under ss. 486.5(1), (2), (2.1), (3), (4), (5),
    (6), (7), (8) or (9) or 486.6(1) or (2) of the
Criminal
    Code
shall continue. These sections of the
Criminal Code
provide:

486.5 (1)     Unless an
    order is made under section 486.4, on application of the prosecutor in respect
    of a victim or a witness, or on application of a victim or a witness, a judge
    or justice may make an order directing that any information that could identify
    the victim or witness shall not be published in any document or broadcast or
    transmitted in any way if the judge or justice is of the opinion that the order
    is in the interest of the proper administration of justice.

(2)     On application
    of the prosecutor in respect of a justice system participant who is involved in
    proceedings in respect of an offence referred to in subsection (2.1), or on
    application of such a justice system participant, a judge or justice may make
    an order directing that any information that could identify the justice system
    participant shall not be published in any document or broadcast or transmitted
    in any way if the judge or justice is satisfied that the order is in the
    interest of the proper administration of justice.

(2.1) The offences for
    the purposes of subsection (2) are

(a) an offence under
    section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence
    committed for the benefit of, at the direction of, or in association with, a
    criminal organization;

(b) a terrorism offence;

(c) an offence under
    subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the
Security of Information Act
; or

(d) an offence under
    subsection 21(1) or section 23 of the
Security of
    Information Act
that is committed in relation to
    an offence referred to in paragraph (c).

(3)     An order made
    under this section does not apply in respect of the disclosure of information
    in the course of the administration of justice if it is not the purpose of the
    disclosure to make the information known in the community.

(4)     An applicant for
    an order shall

(a) apply in writing to
    the presiding judge or justice or, if the judge or justice has not been
    determined, to a judge of a superior court of criminal jurisdiction in the
    judicial district where the proceedings will take place; and

(b) provide notice of
    the application to the prosecutor, the accused and any other person affected by
    the order that the judge or justice specifies.

(5)     An applicant for
    an order shall set out the grounds on which the applicant relies to establish
    that the order is necessary for the proper administration of justice.

(6)     The judge or
    justice may hold a hearing to determine whether an order should be made, and
    the hearing may be in private.

(7)     In determining
    whether to make an order, the judge or justice shall consider

(a) the right to a fair
    and public hearing;

(b) whether there is a
    real and substantial risk that the victim, witness or justice system
    participant would suffer harm if their identity were disclosed;

(c) whether the victim,
    witness or justice system participant needs the order for their security or to
    protect them from intimidation or retaliation;

(d) societys interest
    in encouraging the reporting of offences and the participation of victims,
    witnesses and justice system participants in the criminal justice process;

(e) whether effective
    alternatives are available to protect the identity of the victim, witness or
    justice system participant;

(f) the salutary and
    deleterious effects of the proposed order;

(g) the impact of the
    proposed order on the freedom of
expression
of those affected by it; and

(h) any other factor
    that the judge or justice considers relevant.

(8)     An order may be
    subject to any conditions that the judge or justice thinks fit.

(9)     Unless the judge
    or justice refuses to make an order, no person shall publish in any document or
    broadcast or transmit in any way

(a) the contents of an
    application;

(b) any evidence taken,
    information given or submissions made at a hearing under subsection (6); or

(c) any other
    information that could identify the person to whom the application relates as a
    victim, witness or justice system participant in the proceedings.
2005, c. 32, s. 15; 2015, c. 13, s. 19

486.6 (1) Every person
    who fails to comply with an order made under subsection 486.4(1), (2) or (3) or
    486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2)     For greater
    certainty, an order referred to in subsection (1) applies to prohibit, in
    relation to proceedings taken against any person who fails to comply with the
    order, the publication in any document or the broadcasting or transmission in
    any way of information that could identify a victim, witness or justice system
    participant whose identity is protected by the order. 2005, c. 32, s. 15.

WARNING

The President of the panel hearing this appeal directs
    that the following should be attached to the file:

An order restricting publication in this proceeding
    under ss. 539(1), (2), (3) or (4) of the
Criminal
    Code
shall continue.
    These sections of the
Criminal Code
provide:

539(1)          Prior to
    the commencement of the taking of evidence at a preliminary inquiry, the
    justice holding the inquiry

(a) may, if application
    therefor is made by the prosecutor, and

(b) shall, if application therefor is
    made by any of the accused,

make an order directing that the evidence
    taken at the inquiry shall not be published in any document or broadcast or
    transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged; or

(d) if he or she is ordered to stand
    trial, the trial is ended.

(2)     Where an accused
    is not represented by counsel at a preliminary inquiry, the justice holding the
    inquiry shall, prior to the commencement of the taking of evidence at the
    inquiry, inform the accused of his right to make application under subsection
    (1).

(3)     Everyone who
    fails to comply with an order made pursuant to subsection (1) is guilty of an
    offence punishable on summary conviction

(4)      [Repealed,
    2005, c. 32, s. 18(2).]

R.S., 1985, c. C-46, s.
    539; R.S., 1985, c. 27 (1st Supp.), s.97; 2005, c. 32, s. 18.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. MacKenzie, 2020 ONCA 646

DATE: 20201019

DOCKET: C67166

Doherty, van Rensburg and
    Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ryan MacKenzie

Appellant

Chris Sewrattan and Ashley Sewrattan,
    for the appellant

Lorna Bolton, for the respondent

Heard: October 1, 2020 by video conference

On appeal from a conviction entered on
    May 3, 2019 by Justice James R.H. Turnbull of the Superior Court of Justice, sitting
    with a jury.

Doherty J.A.:

I

[1]

The appellant was convicted by a jury of sexual
    assault. He appeals conviction only.

[2]

The appellant advances two grounds of appeal.
    First, he submits his right to a fair trial was fatally compromised by several
    improper submissions made by Crown counsel in his closing address and by the
    trial judges failure to give the necessary correcting instructions. Second, the
    appellant submits the trial judges response to a question posed by the jury
    during its deliberations was wrong in law. He argues the trial judges response
    improperly narrowed the basis upon which the jury could be left with a
    reasonable doubt by excluding the possibility of a doubt based on the absence
    of evidence.

[3]

For the reasons that follow, I would reject both
    submissions and dismiss the appeal.

II

[4]

The complainant, R.W., and K.M. were good friends.
    Around midnight on June 16, 2017, K.M. invited R.W. over to her residence to
    party with K.M. and her new boyfriend, C.L. R.W. decided to go over to her
    friends house. She had been drinking before she left home. The drinking
    continued after she arrived at K.M.s.

[5]

In the early morning hours, K.M. spoke with the appellant
    and invited him to come over to pick up some of his belongings. K.M. and the
    appellant had previously dated. Apparently, the break-up had been difficult.
    R.W. knew the appellant through her friendship with K.M.

[6]

The drinking and partying continued after the
    appellant arrived. K.M. became very intoxicated and, according to her,
    eventually blacked out. R.W. described herself as heavily intoxicated.

[7]

C.L., who was not feeling well, did not drink as
    much as the others. He decided to go upstairs to bed around 5:30 a.m. After
    C.L. went upstairs, K.M. and the appellant began to make out. They had been
    flirting earlier in the evening. K.M. was very drunk.

[8]

According to R.W., when she saw K.M. and the
    appellant making out, she went upstairs to get C.L. He came downstairs and
    took K.M. up to the bedroom with him, leaving R.W. and the appellant
    downstairs.

[9]

Neither R.W., nor the appellant, had shown any
    sexual interest in the other that night or at any other time. R.W. turned on a
    movie. She and the appellant watched the movie and had one or two drinks. R.W.
    fell asleep on a loveseat. The appellant was sitting on a couch in the same
    room.

[10]

R.W. awoke sometime later, to find herself on
    her knees, facing the back of the loveseat. Her upper body was positioned on
    the loveseat. Her pants were down, exposing her buttocks.

[11]

R.W. was initially confused. It took her some
    time to realize the appellant was behind her, trying to force his penis into
    her vagina. R.W. repeatedly said no and started to cry. Over the next several
    minutes, the appellant continued to attempt to force his penis into R.W. She
    cried out for help.

[12]

C.L., who was sleeping upstairs with K.M., heard
    the scream. He went downstairs to find R.W. on her knees facing the loveseat
    with the appellant kneeling behind her. R.W.s pants were down and she was
    crying. The appellant was making thrusting motions, consistent with an effort
    to have sexual intercourse with R.W. When the appellant saw C.L., he moved away
    from R.W. and put his penis back into his pants. C.L. demanded to know what was
    happening and told the appellant to leave. When the appellant refused, C.L.
    called the police.

[13]

The appellant was arrested and taken to the
    police station. He told the police he recalled falling asleep on the couch. When
    he awoke, K.M. was on the floor next to the couch crying. R.W. was also on the
    floor crying. The appellant said he had no recollection of what happened, but repeatedly
    denied ever having any sexual contact with R.W. The appellant told the police
    R.W. was not sufficiently attractive for him to have had any sexual interest in
    her. He suggested R.W. may have touched him while he was sleeping.

[14]

At trial, the appellant testified and told a
    very different story. He admitted he had repeatedly lied to the police in his
    statement.

[15]

In his testimony, the appellant indicated after
    C.L. took K.M. upstairs, he and R.W. had another drink and put on a movie. He
    passed out on the couch. The appellant woke up to find R.W. lying on the couch beside
    him, facing away from him. She was pressing her buttocks into his crotch. R.W.s
    pants were a little bit down. The appellant said her name, but R.W. did not
    respond. The appellant, without saying anything more, pulled R.W.s pants and
    underwear down and unbuttoned his pants, exposing his penis. He then made
    thrusting motions toward R.W., attempting to insert his penis into her vagina.
    He did not know if he succeeded. According to the appellant, R.W. made noises,
    which the appellant interpreted as an indication she was enjoying his efforts
    to have sex with her.

[16]

The appellant testified R.W. continued to grind
    her buttocks into his penis for some 10 or 15 minutes. After one particularly strong
    thrust by the appellant, R.W. rolled off the couch onto the floor. The
    appellant asked her if she wanted to stop and she said yes. He immediately
    pulled up his pants and sat on the couch. C.L. arrived in the living room from
    upstairs and asked what was going on. R.W. started to cry. C.L. told the
    appellant to leave and he refused. He told C.L. he had consensual sex with R.W.
    A short time later, the police arrived and arrested the appellant.

[17]

At trial, with the agreement of counsel, the
    trial judge put two defences to the jury. He instructed the jury it must
    acquit the appellant unless the Crown proved beyond a reasonable doubt R.W. had
    not consented to the sexual activity. The trial judge also instructed the jury it
    must acquit unless the Crown proved beyond a reasonable doubt the appellant was
    not under the mistaken belief R.W. had consented to the sexual activity. On
    appeal, counsel for both the appellant and the Crown agree the defence of
    honest mistaken belief in consent was legally unavailable. The evidence gave no
    air of reality to a claim the appellant had taken reasonable steps in the
    circumstances known to him to determine whether R.W. was consenting to the
    sexual activity:
Criminal Code
, s. 273.2(b).

the grounds of appeal

A.

the crowns closing argument

[18]

Counsel in closing argument to a jury cannot
    make submissions that are unavailable as a matter of law, or on the evidence.
    Nor can counsel misstate the evidence or the law. On occasion, counsel, usually
    unintentionally, fall into one or more of those errors. When they do, the trial
    judge may be required to provide a timely and focused correction. If counsels
    allegedly improper submissions become a ground of appeal, it falls to this
    court to decide whether those submissions, considered beside any correction
    provided by the trial judge, and in the context of the entire trial, resulted
    in a miscarriage of justice: see
R. v. Boudreau
, 2012 ONCA 830, at
    paras. 14-20;
R. v. L.(L.)
(2009), 96 O.R. (3d) 412, at paras. 50-54.

[19]

Before turning to the appellants specific
    submissions, it is also important to acknowledge the limits specifically
    imposed on Crown counsel in closing argument. While Crown counsel should firmly
    and fairly advance the case for the Crown, Crown counsel must do so in a
    measured manner, avoiding comments or behaviour that could be taken as inflammatory
    or an invitation to the jury to decide the case based on emotion or the
    personal opinion of Crown counsel:
R. v. Daley
, 1992 O.J. No. 1504;
R.
    v. L.(L.)
, at paras. 55-57.

[20]

The trial judge was satisfied some of Crown
    counsels comments and his demeanour during parts of his closing address went
    beyond the kind of advocacy expected of the Crown. He told the jury so, in no
    uncertain terms. The trial judge firmly admonished the jury to approach the
    evidence dispassionately and without emotion, bearing in mind counsels
    personal opinions were irrelevant. This instruction ensured the improprieties
    in Crown counsels closing, identified by the trial judge, would not negatively
    impact on the fairness of the trial. The appellant does not suggest the trial
    judge did not adequately deal with this facet of Crown counsels closing.

[21]

The appellant contends, however, apart from the
    concerns identified by the trial judge, Crown counsel made four improper
    submissions which should have been addressed and specifically remedied by the
    trial judge. The appellant submits Crown counsel improperly:

·

told the jury it could acquit only if satisfied
    R.W., K.M., and C.L. were lying, or alternatively invited the jury to decide
    the case by choosing between the competing versions of events;

·

invited the jury to find R.W. had no motive to
    fabricate and to use the appellants failure to prove R.W. had a motive to
    fabricate to confirm her credibility;

·

gave evidence about the effects of alcohol
    consumption on human behaviour; and

·

invited the jury to use the appellants presence
    at trial when R.W. testified to make an adverse finding with respect to the appellants
    credibility.

(i)

Did the Crown improperly invite the jury to
    reach a verdict after an either/or determination of the credibility of the competing
    versions of events?

[22]

A jury cannot determine guilt simply by deciding
    which of two competing versions of the relevant events it believes. An accused
    must be acquitted if the jury has a reasonable doubt on any of the essential
    elements of the offence, even if the jury does not believe the accuseds
    version of events:
R. v. W.(D.)
(1991), 63 C.C.C. (3d) 397;
R. v.
    O.M.
, 2014 ONCA 503, at para. 42.

[23]

The appellant accepts the trial judge correctly
    instructed the jury on how it should approach the appellants evidence in the
    context of applying the burden of proof. The trial judge followed the well known,
    three-step approach in
W.(D.)
:

If you believe Ryan MacKenzies evidence that
    he did not commit the offence charged, you must find him not guilty. If, after
    a careful consideration of all the evidence, you are unable to decide who to
    believe, you must find Ryan MacKenzie not guilty, because Crown counsel would
    have failed to prove Ryan MacKenzies guilt beyond a reasonable doubt. And even
    if you dont believe Ryan MacKenzies evidence, if it leaves you with a
    reasonable doubt about his guilt, or about an essential element of the offence
    charged, you must find him not guilty of sexual assault, and even if Ryan
    MacKenzies evidence does not leave you with a reasonable doubt of his guilt or
    about an essential element of the offence charged, you may only convict him if
    the rest of the evidence that you do accept, proves his guilt of the offence
    beyond a reasonable doubt. I will repeat that to you again tomorrow, just
    before you go to the jury room.

[24]

As he had promised, the trial judge repeated
    this instruction near the end of his instructions.

[25]

The appellant argues Crown counsels submissions
    invited the jury to take a different approach than the one described by the
    trial judge. The appellant contends fairness required the trial judge to specifically
    identify and correct the improper submission made by the Crown.

[26]

I reject this submission for two reasons. First,
    the trial judge told the jury, on more than one occasion, to take instructions
    on legal matters, like the burden of proof, from him only. If Crown counsels
    submission could be understood as advocating a different approach to the burden
    of proof, I see no reason to conclude the jury would disregard the trial
    judges instructions and follow the Crowns suggested approach.

[27]

Second, and more importantly, Crown counsel did
    not invite the jury to decide the case by choosing between the evidence of the
    appellant and the conflicting evidence of the Crown witnesses. To the contrary,
    Crown counsel specifically told the jury it must acquit the appellant, even if it
    did not believe him, unless the Crown proved his guilt beyond a reasonable
    doubt. In his closing, Crown counsel used the same language from
R. v.
    W.(D.)
, as did the trial judge, in explaining the application of the
    burden of proof to the appellants evidence.

[28]

It is true Crown counsel forcefully urged the
    jury to disbelieve the appellants evidence. Crown counsel offered a variety of
    reasons for rejecting his evidence. In the impugned passage, Crown counsel argued
    the appellants evidence should be rejected because it conflicted with the
    evidence of other witnesses, particularly R.W. and C.L., who the Crown urged
    the jury to find were credible.

[29]

I see nothing wrong with the argument advanced
    by the Crown. The credibility of any individual witness, including the accused,
    must, of necessity, be assessed having regard to all of the relevant evidence
    and the jurys evaluation of the credibility of evidence given by other
    witnesses:
R. v. O.M.
, at para. 45.

[30]

Crown counsel did not invite the jury to reach its
    verdict by choosing between competing versions of events. Instead, counsel
    urged the jury to disbelieve the appellants evidence, for several reasons,
    including what the Crown argued was the presence of cogent conflicting evidence
    from other credible witnesses. On the Crowns argument, the appellant could be
    believed only if the others were disbelieved. For example, Crown counsel said:

You cannot believe Ryan [the appellant]. You
    cannot. Cause if you believe him, then as a matter of logic you have to be
    forced to believe that K.M., C.L. and R.W. were all lying to you, with this
    perfectly crafted story, some conspiracy to make Ryan pay for no real reason,
    common to all three of them. Yes, Ryan, everyones out to get you.

[31]

Although disbelief of the appellant, on its own,
    could not justify a conviction, and the Crown never suggested it could, the
    jury could not possibly convict the appellant if they did not disbelieve him.
    Not surprisingly, Crown counsel strenuously argued the jury should disbelieve
    the appellant for a variety of reasons, including the presence of conflicting
    evidence from other credible witnesses. In making this argument, Crown counsel neither
    suggested disbelief of the appellant equated with guilt, nor invited the jury
    to decide the case by choosing between competing versions of events.

(ii)

Did Crown counsel invite the jury to find R.W.
    had no motive to fabricate, and did he invite the jury to find the appellants
    failure to prove R.W. had a motive to fabricate was confirmatory of her
    credibility?

[32]

In his closing address, Crown counsel referred
    to the defence contention, R.W. was not merely mistaken or unreliable, but was
    deliberately lying about the relevant events. The Crown submitted to the jury, absent
    any evidence of a motive to lie, the jury should reject the defence argument. Crown
    counsel said:

In Ryans [the appellants] version, R.W. is
    not remembering it wrong, shes not mistaken, shes full on lying to you. You
    have to accept that. Do you? You need a real reason to conclude this. You cant
    speculate or conclude that people just do things for no reason. I, Ive talked
    about this. Theres just no ring of truth to the idea she just likes to make
    criminal allegations and submit to sex assault kits for fun.

[33]

Crown counsel then turned to the two possible motives
    to fabricate put forward by the defence. He argued neither made sense and
    neither had support in the evidence. In advancing this argument, Crown counsel
    was not purporting to instruct the jury on the law as it relates to a witnesss
    motive. Instead, he was making submissions to the jury challenging the merits
    of the defense position that R.W. had motives to fabricate the allegation
    against the appellant. The Crown argued there was no evidence R.W. had a motive
    to fabricate and, as a matter of common sense and human experience, the jury
    could conclude R.W. would not fabricate a serious allegation against the
    appellant if she had no reason for doing so.

[34]

It was open to the jury to reject the motives to
    fabricate offered by the defence and to conclude there was no evidence of a
    motive to fabricate. If the jury took that view, the absence of any evidence of
    a motive to fabricate could be used as one factor in assessing R.W.s
    credibility: see:
R. v. J.(H.)
, 2020 ONCA 165, at paras. 145-46.

[35]

In his instructions, the trial judge told the
    jury a witnesss reason or motive for testifying a certain way was one of many
    factors to be considered in assessing the witnesss credibility. He did not
    elaborate and neither counsel asked him to elaborate. For example, the
    appellant did not ask the trial judge to explain the distinction between the absence
    of evidence of a motive and a proved absence of motive. I take it counsel at
    trial did not see the distinction as important to the defence case.

[36]

Significantly, the trial judge said nothing to
    the jury to suggest there was no evidence R.W. had a motive to fabricate. To
    the contrary, he specifically reminded the jury of the motives put forward by
    the defence when summarizing the position of the defence. In doing so, the
    trial judge acknowledged R.W.s motive, if any, for testifying the way she did,
    was very much in play and open to different interpretations on the evidence. Absent
    any objection by counsel, or any request for more detailed submissions
    concerning R.W.s potential motives, I think the trial judge adequately
    addressed that issue in his instructions: see
R. v. J.(H.)
, at paras.
    150-55.

[37]

The argument Crown counsel invited the jury to put
    the onus on the defence to show the absence of a motive to fabricate relies on
    a single sentence in Crown counsels address. When discussing one of the
    motives offered by the defence as a reason for R.W. fabricating her evidence,
    Crown counsel said:

It does not prove some motive to lie.

[38]

There was no onus on the defence to prove R.W.
    had a motive to lie. The single sentence uttered by the Crown during his
    closing would suggest otherwise if considered in isolation. However, bearing in
    mind the trial judges repeated and correct instructions on the burden of proof,
    and the manner in which he dealt with the relevance of a witnesss potential
    motive, I have no doubt the jury understood the Crown carried the burden of
    proof throughout and the defence had no obligation to prove anything, including
    R.W.s motive. The jury could not have been under any misapprehension as to the
    manner in which it should consider the evidence and submissions pertaining to R.W.s
    alleged motives to fabricate her evidence:
R. v. Darnley
, 2020 ONCA
    179, at para. 38.

(iii)

Did Crown counsel improperly give evidence about
    the effect of alcohol consumption on human behaviour?

[39]

The jury heard a lot of evidence about drinking
    in the several hours before the alleged attack on R.W. K.M., R.W. and the
    appellant all consumed a significant amount of alcohol. R.W. described herself
    as very intoxicated. The defence claimed she overstated her degree of
    intoxication.

[40]

R.W.s alcohol consumption was relevant to her
    credibility and the reliability of her evidence in at least two ways. It
    potentially made her memory of the relevant events less reliable. It also potentially
    explained her actions and reactions during the sexual encounter. In the latter
    sense, R.W.s degree of intoxication arguably cut both ways. Significant
    intoxication offered an explanation for how R.W. came to fall asleep and her
    very confused state in the moments after she awoke to find the appellant
    sexually assaulting her. However, R.W.s significant degree of intoxication
    might also offer support for the inference, that because of her drinking, R.W.
    made a very bad decision to have sex with someone her friend cared for and who she
    hardly knew and quickly came to regret that bad decision. That scenario fit
    with one of the motives offered by the defence for R.W.s false allegation
    against the appellant.

[41]

Although R.W.s degree of intoxication was a
    significant issue, it was not directly relevant to consent, the crucial issue
    in the case. The Crown did not allege R.W. lacked the capacity to consent
    because she was intoxicated. The Crown alleged R.W. did not consent because she
    was asleep when the appellant attacked and sexually assaulted her. As my
    colleague, Trotter J.A., concisely put it in oral argument, this was a case
    about consent, not capacity to consent.

[42]

The appellant points to four references in Crown
    counsels closing, contending they amounted to the Crown giving evidence about
    the effects of alcohol consumption. I do not propose to review each separately.
    None are particularly controversial and none are consequential. There was no
    objection taken to any of Crown counsels comments about the effect of alcohol
    consumption. Trial counsels silence reflects the relative insignificance of
    Crown counsels comments. I see no possible prejudice to the appellant.

(iv)

Did Crown counsel improperly invite the jury to
    use the appellants presence at trial to make an adverse finding with respect
    to his credibility?

[43]

R.W. testified that she met the appellant
    several times while he was dating K.M., but barely knew him. In his
    cross-examination, the appellant indicated he had known R.W. for about 12 years
    and did not agree with her suggestion that they had known each other for a
    very brief time. The appellant also pointed out that they were Facebook
    friends. It is fair to say, in his evidence, the appellant suggested he and R.W.
    knew each other better than R.W. had indicated in her testimony.

[44]

The appellants description of the nature of his
    relationship with R.W. led the Crown to ask him what he knew about R.W. The
    appellant referred to four things. The appellant agreed with the Crowns
    suggestion R.W. had testified about those four things. Crown counsel asked if
    there was anything else the appellant knew about R.W. The appellant could offer
    nothing else.

[45]

In his closing argument, Crown counsel submitted
    the appellants evidence about how well he knew R.W. did not have a ring of
    truth. Crown counsel said:

I asked Ryan, tell me some things about R.W.
    If youve known her for 10 years, tell me some things. He told me four. She
    likes to play games on the computer and the Wii; she likes to drink; she has a
    boyfriend in New York; and that she was anti-social because of her anxiety
    issues.
We all know that, all of us know that, we heard
    her testify to that, weve met her only once
. [Emphasis added.]

[46]

The appellant was constitutionally entitled to
    be present throughout his trial. To suggest the appellant tailored his evidence
    to conform with evidence heard at trial could turn the exercise of that
    constitutional right into a strike against the appellants credibility: see
R.
    v. Jorgge
, 2013 ONCA 485, at paras. 12-19.

[47]

Crown counsel did not suggest the appellant had
    used his presence at trial to conform his evidence to evidence given earlier in
    the trial by R.W. Instead, Crown counsel cross-examined the appellant to suggest,
    contrary to the appellants evidence in-chief, he did not know R.W. very well
    at all. In an effort to make this point, Crown counsel cross-examined to demonstrate
    the appellant knew no more about R.W. than anybody who had been sitting at the
    trial and heard her testify. The appellants answers confirmed the Crowns
    suggestion. In closing, the Crown advanced a legitimate argument for the jurys
    consideration.

B.

The trial judges answer to the jurys question

[48]

The jury heard evidence blood samples were taken
    from R.W. as part of her sexual assault examination. They also heard these
    samples were typically sent to the Centre for Forensic Science (CFS) to test
    for the presence of drugs and/or alcohol. The jury did not hear any evidence
    the samples taken from R.W. were actually sent to the CFS or tested for
    blood/alcohol levels.

[49]

R.W. was cross-examined on parts of her preliminary
    inquiry testimony. Those extracts included references to tests having been done
    by the CFS and results suggesting a high blood/alcohol level. None of those
    references, however, were admissible for the truth of their contents. The trial
    judge so instructed the jury soon after the jury heard the evidence making
    references to the preliminary inquiry transcript.

[50]

In his jury charge, the trial judge summarized
    the evidence relevant to R.W.s consumption of alcohol when addressing the
    issue of consent. The trial judge said, in part:

On the evidence, its clear she had consumed
    considerable alcohol during the early morning hours of June 17, 2017. On the
    other hand, the police officers who attended after the 911 call did not comment
    on her state of sobriety or the lack of ability to comprehend what was being
    discussed. There was no evidence offered of any signs of evident intoxication.
    The Crown did not produce the complainants hospital records to prove her
    blood/alcohol level at the time of attending at the hospital, or alternatively,
    to produce evidence the blood/alcohol readings were not taken. I remind you,
    again, the onus is at all times upon the Crown to prove all elements of the
    offence charged beyond a reasonable doubt.

[51]

The trial judge properly alerted the jury to the
    absence of evidence that could impact on the jurys ultimate assessment of
    R.W.s state of intoxication.

[52]

About three hours into their deliberations, the
    jury had two questions:

Was R.W.s blood/alcohol ever tested/taken? If
    so, why wasnt it presented as evidence?

[53]

In answer to the jurys question, the trial
    judge repeated the instruction set out above (para. 50). He also told the jury:

You have to decide this case on the evidence
    which is presented to you in the courtroom and not speculate on why particular
    evidence has not been called.

[54]

The trial judges answers to the jurys
    questions were responsive and correct. In answer to the first question, he
    repeated his instruction there was no evidence of testing. He also repeated his
    instruction that the absence of evidence could impact on whether the Crown had
    met its onus.

[55]

In answer to the second question, the trial
    judge told the jury it must decide the case on the evidence presented, and not
    speculate about why evidence was not called. Given the jurys question, it was
    essential that the trial judge tell the jury it could not speculate either
    about why test results were not presented at trial, or what those results might
    have been.

[56]

The appellant submits the trial judge was wrong
    to tell the jury to decide the case only on the evidence heard in the courtroom
    and to not speculate why certain evidence was called. He argues this
    instruction removed the jurys ability to find a reasonable doubt from the
    absence of the evidence.

[57]

I reject this submission. A reasonable doubt can
    arise from the absence of evidence. The trial judge expressly said so in his
    instructions on reasonable doubt. An absence of evidence may preclude the jury
    from drawing inferences or conclusions necessary to a finding of guilt. A
    reasonable doubt cannot, however, arise from speculation about what uncalled evidence
    might have been, or why the evidence was not called.

[58]

In this case, there was an absence of evidence
    about the testing for blood/alcohol levels, just as there was absence of
    evidence concerning observations by police officers at the scene. Those gaps
    were part of the evidentiary picture. A jury could properly consider those gaps
    in deciding what inferences to draw or not draw. The jury could not, however,
    go on and fill those gaps with speculation about whether tests were done and,
    if so, why the results were not presented.

[59]

The distinction between improper speculation about
    uncalled evidence and considering gaps in the evidence when determining whether
    the case has been proved beyond a reasonable doubt is demonstrated in
R. v.
    Tebo
, 2003 O.J. No. 1853 (C.A.). In
Tebo
, the Crown had to prove
    the accused was in possession of certain items. The Crown offered no
    fingerprint or other forensic evidence connecting the accused to the items.
    Defence counsel argued the absence of any such evidence should leave the jury
    with a reasonable doubt. The trial judge effectively took that submission away
    from the jury, telling them counsel was inviting them to speculate about
    evidence that was not before the court.

[60]

This court held the trial judge erred. In
    allowing the appeal, Feldman J.A. said, at para. 9:

This was not an invitation to the jury to
    speculate as to why the Crown had not called any fingerprint evidence,
    implicitly suggesting that the Crown knew the appellants fingerprints were not
    on the cards and wallet. Rather, counsel was properly pointing out to the jury
    the frailties of the evidence that could link the appellant with the items,
    which included an absence of anything that could have provided that link.

[61]

The trial judge in this case did not err in his
    response to the jurys questions.

conclusion

[62]

I would dismiss the appeal.

Released: DD      OCT 19 2020

Doherty J.A.

I agree. K. van Rensburg J.A.

I agree. Gary Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mohamed, 2020 ONCA 653

DATE: 20201015

DOCKET: C67411

Pardu, Paciocco and Harvison
    Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jamal Mohamed

Appellant

Jamal
    Mohamed, acting in person

Gerald Chan, appearing as
    duty counsel

Michael
    Fawcett, for the respondent

Heard:
    October 8, 2020 by video conference

On appeal
    from the conviction entered on June 20, 2019 and the sentence imposed on September
    3, 2019 by Justice Trevor A. Brown of the Ontario Court of Justice.

REASONS
    FOR DECISION

[1]

The appellant, Jamal Mohamed, was convicted of
    aggravated assault, discharging a firearm and related charges arising out of an
    incident in which the victim was shot in the leg. He raises two grounds on this
    appeal from both conviction and sentence.

[2]

First, he argues that the identification
    evidence of the victim was unreliable and that it was unreasonable for the
    trial judge to rely upon it. Second, he argues that some of the counts should
    have been stayed on the basis of the
Kienapple
principle:
R. v.
    Kienapple
, [1975] 1 S.C.R. 729. This issue was never raised with the trial
    judge. The Crown agrees with the second ground. On consent, an order will issue
    staying counts 2, 3, 4, 5 and 10.

[3]

The appeal is otherwise dismissed for the
    following reasons.

Factual Background

[4]

The shooting took place shortly after 1:30 p.m.
    on a weekday afternoon.

[5]

There were two witnesses. The first one was the
    victim Albert McLeod and the second was a neighbour who lived in an apartment
    overlooking the street where the incident took place. The first officer to head
    to the scene was dispatched at 1:54 p.m. As he was approaching the scene, he
    noticed a green Saturn driving towards him at a high rate of speed which, he
    testified, made an evasive manoeuvre to bypass him. He was able to catch a
    partial plate, BTHM, from his drivers side mirror when the car slowed to
    make its evasive move.

[6]

As a result of information received from Mr.
    McLeod, the police proceeded to Mr. Mohameds residence almost immediately
    after the shooting. A car meeting the officers description was in the parking
    area. It appeared to have been recently driven, it bore the licence plate BTHM
    081 and it belonged to the appellant. A video camera at the building captured Mr.
    Mohamed entering the apartment building where he was living at 2:11 p.m.

[7]

At trial, Albert McLeod identified the appellant
    as the man who shot him in the leg. He testified that he knew him as Mike or
    Mikey because he used to buy crack cocaine from him and resell it at a profit
    to friends. Before the shooting, he testified, he had stopped buying drugs from
    Mikey because of their poor quality, and Mikey was not happy about this. He
    testified that he was walking in the area when he came upon Mikey. They had
    spoken by phone earlier in the day. After a brief discussion, Mikey pulled the
    gun from his pants and shot him in the leg. Mikey initially walked away,
    putting the gun behind his back, and then ran away.

[8]

Evidence was presented that Mr. McLeod had identified
    the appellant unequivocally from a photo lineup with which the appellant takes
    no issue.

Analysis

[9]

Mr. Chan submitted that the trial judge failed
    to scrutinize Mr. McLeods evidence as rigorously as he should have, given the
    dangers of eyewitness identification. He focused on a number of inconsistencies
    in Mr. McLeods evidence at trial, and also on the fact that he had been
    drinking the night before and was on his way to drink some more. He also noted
    that Mr. McLeod had failed to point to any particular identifying features of
    the appellant, saying only I know him.

[10]

We would not give effect to this argument.

[11]

The trial judge was alive to the dangers of
    eyewitness identification, and particularly the danger that an eyewitness may
    be honestly mistaken. He did note that this was not a case of a passing
    familiarity, but that Mr. McLeod knew the appellant and had a very good
    opportunity to see and recognize him at the time:
R. v. Olliffe
, 2015
    ONCA 242, 322 C.C.C. (3d) 501. It was broad daylight and there was a
    face-to-face verbal confrontation before the shooting at close range. As the
    trial judge commented, he knew the man. The trial judge recognized some of
    the difficulties with the reliability and credibility of Mr. McLeods evidence,
    such as the fact that he had been inconsistent about whether he had known the
    appellant for 5 months or 1 year. He expressly considered the fact that Mr.
    McLeod had been drinking. However, he ultimately accepted his evidence that the
    appellant was the man who shot him.

[12]

Important to the trial judges conclusion was
    the body of circumstantial evidence [providing] considerable support to the
    direct identification of Mr. Mohamed that was provided by Mr. McLeod. He
    stated that [a]ny concerns that I otherwise might have been left with by Mr.
    McLeods evidence have been resolved by the strong body of evidence. He found
    that Mr. McLeods description of the encounter, while not free of
    inconsistencies, was generally corroborated by the neighbour who observed the
    incident from his apartment nearby. The appellant acknowledged that he was
    known as Mike or Mikey, that he had seen Mr. McLeod in the area of the
    shooting on other occasions and that he would know him to see him. The fact
    that the appellant frequented the area was confirmed by video surveillance.

[13]

The testimony of the neighbour who observed the
    incident from a distance provided general corroboration to the evidence of Mr.
    McLeod as to the way the events unfolded. In addition, the trial judge found
    that the officers evidence concerning the green Saturn that had the partial
    plate matched that of the appellants car.

[14]

The trial judge carefully considered both the
    case law and its application to this case. He was entitled to find, on the
    record before him, that Mr. McLeods evidence was corroborated not only by the
    police evidence which recorded the partial license plate of the appellants car
    driving away from the area of the shooting in the minutes that followed, but
    the description of the witness who observed from his nearby apartment. We see
    no error in his analysis of the law and the evidence or in the trial judges
    conclusion that the Crown had proved beyond a reasonable doubt that the
    appellant was the man who shot Mr. McLeod in the leg.

Disposition

[15]

The appeal is allowed to the extent that the
    guilty verdicts on counts 2, 3, 4, 5 and 10 shall be set aside and stays are
    substituted. The appeal is otherwise dismissed.

G.
    Pardu J.A.

David
    M. Paciocco J.A.

A.
    Harvison Young J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Moore, 2020 ONCA 662

DATE: 20201020

DOCKET: C65350

Fairburn A.C.J.O., Watt and
    Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John Moore

Appellant

Najma Jamaldin, for the appellant

Jeremy Streeter, for the
    respondent

Heard and released orally:
    October 15, 2020 by video conference

On appeal from the conviction entered on
    July 27, 2017 by Justice David S. Rose of the Ontario Court of Justice with
    reasons reported at 2017 ONCJ 513.

REASONS FOR DECISION

[1]

This is an appeal from conviction for
    trafficking in fentanyl. The appellant raises three grounds of appeal.

[2]

First, he argues that the trial judge erred in finding
    that his s. 10(b)
Charter
rights were not breached shortly after his
    arrest.

[3]

The trial judge found that the appellant had
    been properly informed of his right to counsel at the time of his arrest, but chose
    not to exercise that right until many hours later. When the appellant finally
    decided to speak with a lawyer at 1:30 a.m., the police attempted to facilitate
    that contact, but could not reach the appellants counsel of choice. The trial
    judge concluded that a s. 10(b) breach crystallized only at that time because,
    when they could not get in touch with the appellants counsel of choice, the
    police did not follow-up with the appellant to see if he wanted to speak with
    another lawyer. Even so, the trial judge found that the breach was minor in
    nature and no evidence should be excluded from the trial.

[4]

The appellant argues that the trial judge erred
    by failing to conclude that his s. 10(b) rights were breached long before the
    attempt to facilitate contact with his lawyer. We do not agree.

[5]

The appellants objection is rooted in the trial
    judges findings of fact, to which we owe deference. There was ample evidence
    to have enabled the trial judge to conclude that the appellant was informed immediately
    upon arrest and repeatedly of his right to counsel and repeatedly waived that
    right until he requested to speak with his counsel around 1:30 a.m. In these
    circumstances, we do not accept the argument that his right to counsel was
    breached prior to the time when he requested to speak with counsel.

[6]

The s. 24(2) ruling is entitled to deference
    from this Court. There was a factual basis upon which the trial judge could
    conclude as he did, that the
Charter
breach at 1:30 a.m. was an
    isolated incident, and that the impact of the breach was minimal.

[7]

Second, the appellant challenges the search of a
    cellphone carried by David Abbott, another person who was arrested just before
    the appellant. Immediately prior to his arrest, Mr. Abbott was seen attending
    at the appellants apartment building. The police believed Mr. Abbott purchased
    fentanyl from the appellant and, when he was arrested, after emerging from the
    building. Mr. Abbott was in possession of 15 grams of fentanyl. The appellant
    and Mr. Abbott were co-accused at trial.

[8]

Mr. Abbotts cellphone was searched at the time
    of his arrest. Mr. Abbott did not challenge the legality of that search at
    trial. Nor did the appellant. The legality of that search is raised for the
    first time on appeal.

[9]

Among other things, as a prerequisite to
    advancing a new issue on appeal, there must be an adequate evidentiary record:
R.
    v. Reid
,
2016 ONCA 524, 132 O.R. (3d) 26, at para. 43.  In relation
    to the search of Mr. Abbotts cell phone, the evidentiary record is entirely
    lacking. Because the issue was not raised at trial, the record is silent on a
    number of points necessary to the resolution of this issue, including why the
    police looked at Mr. Abbotts phone at the time of arrest and how the
    investigation would have been adversely impacted had the phone not been looked
    at. The lack of an adequate evidentiary record is a bar to resolving this issue
    on appeal.

[10]

In any event, what is available on the record
    points to the lack of a s. 8 breach. Arguably, based upon the evidence available
    for consideration by this Court, the search was brief, tailored and related to only
    one communication that was open on Mr. Abbotts phone at the time of his
    arrest.

[11]

Finally, the appellant argues that the trial
    judge misapplied the burden of proof. The appellant argues that the trial judge
    failed to appreciate that there was a lack of evidence that should have led to
    a reasonable doubt as to his guilt. We do not agree. This was a strong
    circumstantial case for trafficking in fentanyl. The trial judges reasons are
    unassailable.

[12]

The appeal is dismissed.

CORRECTED DECISION:

Correction made on
    December 9, 2020: The on appeal from line at the outset of the judgment
    included a reference to a sentence appeal and a citation to the trial judges
    reasons for sentence. This reference and this citation have been deleted.

Fairburn
    A.C.J.O.

David
    Watt J.A.

J.A.
    Thorburn J.A.


WARNING

The President of the panel
    hearing this appeal directs that the following should be attached to the file:

An order restricting
    publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or
    (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
    sections of
the Criminal Code
provide:

486.4(1)       Subject
    to subsection (2), the presiding judge or justice may make an order directing
    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in
    proceedings in respect of

(a)     any of the
    following offences;

(i)      an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED: S.C.
    2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences being dealt
    with in the same proceeding, at least one of which is an offence referred to in
    paragraph (a).

(2)     In proceedings
    in respect of the offences referred to in paragraph (1)(a) or (b), the
    presiding judge or justice shall

(a)     at the first
    reasonable opportunity, inform any witness under the age of eighteen years and
    the victim of the right to make an application for the order; and

(b)     on application
    made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to
    subsection (2.2), in proceedings in respect of an offence other than an offence
    referred to in subsection (1), if the victim is under the age of 18 years, the
    presiding judge or justice may make an order directing that any information
    that could identify the victim shall not be published in any document or
    broadcast or transmitted in any way.

(2.2) In proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible,
    inform the victim of their right to make an application for the order; and

(b) on application of
    the victim or the prosecutor, make the order.

(3)     In proceedings
    in respect of an offence under section 163.1, a judge or justice shall make an
    order directing that any information that could identify a witness who is under
    the age of eighteen years, or any person who is the subject of a
    representation, written material or a recording that constitutes child
    pornography within the meaning of that section, shall not be published in any
    document or broadcast or transmitted in any way.

(4)     An order made
    under this section does not apply in respect of the disclosure of information
    in the course of the administration of justice when it is not the purpose of
    the disclosure to make the information known in the community. 2005, c. 32, s.
    15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25,
    ss. 22, 48; 2015, c. 13, s. 18.

486.6(1)       Every
    person who fails to comply with an order made under subsection 486.4(1), (2) or
    (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2)      For greater certainty, an order
    referred to in subsection (1) applies to prohibit, in relation to proceedings
    taken against any person who fails to comply with the order, the publication in
    any document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity
    is protected by the order. 2005, c. 32, s. 15.

WARNING

An order restricting publication in this proceeding
    was made under s. 517 of the
Criminal Code
and continues to be in
    effect.  This section of the
Criminal Code
provides:

517(1)         If the
    prosecutor or the accused intends to show cause under section 515, he or she
    shall so state to the justice and the justice may, and shall on application by
    the accused, before or at any time during the course of the proceedings under
    that section, make an order directing that the evidence taken, the information
    given or the representations made and the reasons, if any, given or to be given
    by the justice shall not be published in any document, or broadcast or
    transmitted in any way before such time as

(a)     if a preliminary
    inquiry is held, the accused in respect of whom the proceedings are held is
    discharged; or

(b)     if the accused in respect of whom
    the proceedings are held is tried or ordered to stand trial, the trial is
    ended.

Failure to comply

(2)     Everyone who
    fails without lawful excuse, the proof of which lies on him, to comply with an
    order made under subsection (1) is guilty of an offence punishable on summary
    conviction.

(3)     [Repealed, 2005,
    c. 32, s. 17]

R.S., 1985, c. C-46, s. 517; R.S., 1985, c. 27 (1st
    Supp.), s. 101(E); 2005, c. 32, s. 17.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. P.A., 2020 ONCA 673

DATE: 20201022

DOCKET: C67500

Fairburn A.C.J.O., Watt and
    Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

P.A.

Appellant

Sam Goldstein, for the appellant

Samuel Greene, for the respondent

Heard and released orally:
    October 15, 2020 by video conference

On appeal from the conviction entered on
    July 25, 2019 by Justice Michael Harpur of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

This is an appeal from conviction for sexual
    assault. The sole ground of appeal relates to a s. 11(b) ruling.
[1]

[2]

The appellant
    submits that the motion judge made two errors when dismissing the application.
    First, he submits that the motion judge erred by assigning some delay to the
    defence on the basis that months passed while the appellant waffled over
    whether he was going to retain private counsel or pursue funding from Legal Aid
    Ontario. Second, he submits that the motion judge erred by finding that a
    number of months were properly characterized as exceptional circumstances owing
    to interpreter issues that required multiple audits to determine the accuracy
    of the interpretation.

[3]

We see no error
    in the motion judges analysis of these issues or her resulting conclusions.

[4]

The appeal is
    dismissed.

Fairburn
    A.C.J.O.

David
    Watt J.A.

J.A.
    Thorburn J.A.

[1]
Reasons for the s. 11(b) decision were given by
Justice
    Susan C. MacLean dated July 11, 2019 with reasons reported at 2019 ONCJ 506.


WARNING

The President of the panel
    hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under
    ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the
Criminal
    Code
shall continue.  These sections of
the Criminal Code
provide:

486.4(1)       Subject to subsection (2), the
    presiding judge or justice may make an order directing that any information
    that could identify the victim or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of the following offences;

(i)      an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED:
    S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in paragraph (a).

(2)     In proceedings in respect of the offences
    referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)     at the first reasonable opportunity,
    inform any witness under the age of eighteen years and the victim of the right
    to make an application for the order; and

(b)     on application made by the victim, the
    prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice may
    make an order directing that any information that could identify the victim
    shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other
    than an offence referred to in subsection (1), if the victim is under the age
    of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of
    their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

(3)     In proceedings in respect of an offence under
    section 163.1, a judge or justice shall make an order directing that any
    information that could identify a witness who is under the age of eighteen
    years, or any person who is the subject of a representation, written material
    or a recording that constitutes child pornography within the meaning of that
    section, shall not be published in any document or broadcast or transmitted in
    any way.

(4)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community.
2005, c.
    32, s. 15; 2005, c. 43, s.  8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29;
    2014, c. 25, ss. 22,48; 2015, c.  13, s. 18.

486.6(1)       Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. R.P., 2020 ONCA 637

DATE: 20201009

DOCKET: C66242 & C66401

Watt, Harvison Young and Coroza JJ.A.

DOCKET: C66242

BETWEEN

Her Majesty the Queen

Respondent

and

R.P.

Appellant

DOCKET: C66401

AND BETWEEN

Her Majesty the Queen

Appellant

and

R.P.

Respondent

Margaret Bojanowska, for the appellant/respondent by way
    of cross-appeal

Amanda Rubaszek, for the respondent/appellant by way of
    cross-appeal

Heard: in writing

On appeal by R.P. from the conviction entered on July 10,
    2018 by Justice Irving W. André of the Superior Court of Justice, with reasons
    reported at 2018 ONSC 4288.

On appeal by the Crown from the sentence imposed on December
    13, 2018.

Harvison Young J.A.:

A.

Overview

[1]

In 2018, the appellant was convicted of one count of sexual interference
    in relation to the complainant (C.H.), his step-daughter. He was sentenced to
    a conditional sentence of imprisonment of 2 years less one day. The offence allegedly
    took place in 2012, when the complainant was around 10 years old.

[2]

The appellant challenges the conviction on the basis that the trial
    judge committed a number of errors assessing credibility, which was the only
    issue in this three-day trial. In particular, the appellant claims that the
    trial judge erred in his treatment of the motive to fabricate, failed to
    adequately scrutinize numerous and material inconsistencies in the evidence,
    misused a prior consistent statement of the complainant, and did not apply the
    second limb of test outlined in
R. v. W.(D.)
, [1991] 1 S.C.R. 742. The
    Crown appeals from the conditional sentence of two years less a day and asks
    this court to impose a sentence of imprisonment of 3 years.

[3]

For the reasons that follow, I would allow the appeal and order a new
    trial. As such, it is not necessary to consider the sentence appeal.

B.

Factual Background

[4]

In January 2016, when C.H. was 14, she told her guidance counsellor at
    school that she was not getting along with her mother and the appellant, with
    whom she lived at home. She had decided that she wanted to live somewhere else.
    In the course of this discussion with her guidance counsellor, the complainant
    disclosed that the appellant had sexually assaulted her a few years earlier. Later
    that day, the complainant gave a videotaped statement to the police.

[5]

The complainant alleged that she had been home alone with the appellant.
    She went into the guest room, which was across the hall from the master bedroom,
    and asked the appellant a question. She laid down on the bed in the guest room.
    The appellant tried to take off the complainants pants and open her legs and
    then got on top of her. She told him to stop but he persisted. He attempted to
    penetrate her but did not succeed. The complainant told the police the
    appellant used a condom.

[6]

The trial took place over three days in May 2018. The complainant (then
    about 16) and one of her older sisters testified as Crown witnesses. The
    complainants videotaped statement to the police was also admitted as part of
    the Crowns case. C.H.s mother (the appellants wife) was the only defence
    witness.

[7]

The complainants evidence at trial was that when she disclosed the
    incident to her guidance counsellor, she had already decided that she would
    leave home even if the Childrens Aid Society (CAS) did not become involved. She
    acknowledged that she was aware that the sexual assault allegation would have
    an impact on where she could live, in that she thought she would move to CAS.
    She also acknowledged that, at the age of 14, it was not a real possibility for
    her to leave home on her own.

[8]

The sister testified that C.H. had disclosed the assault to her within a
    week of the assault occurring. The sister testified that the complainant was
    very emotional at that time, and that she had cautioned C.H. that this
    allegation would have serious repercussions for everyone if she was lying. I
    will return to this evidence later, as it concerns the complainants prior
    consistent statement that the appellant submits was improperly used to
    corroborate the complainants account about the assault.

[9]

The mother testified about the complainants behavioural problems at
    school and at home. She said the problems began when C.H. was very young and
    long before the appellant had moved in and they were married. She said the
    complainant had a motive to lie, because the complainant did not like the
    appellant and did not want him living in their home. She denied that the
    complainant told her about the incident shortly after it occurred, saying that
    the first she heard about it was when the police contacted her in 2016.

[10]

The
    mother did say that when the complainant was somewhere around nine to eleven
    years old, the complainant told her that the appellant had asked her if she had
    ever had sex; that the appellant had been very upset when confronted about this
    accusation; and that she had decided that she did not believe her daughter. She
    also stated that if she had been told that the appellant had sexually assaulted
    C.H., she would have reported it to the police.

[11]

In
    convicting the appellant, the trial judge found the mother was not credible. He
    accepted the complainants testimony about the assault, finding her credible.
    In finding C.H. to be credible, he emphasized her sisters testimony, particularly
    her evidence that the complainant had been very emotional and had stuck to her
    story despite being warned about lying.

C.

Issues on appeal

[12]

The
    grounds of appeal from conviction are interrelated and concern different
    aspects of credibility assessment. As the parties acknowledge, credibility was
    the only issue at trial. While deference is generally owed to assessments of
    credibility, such assessments must be undertaken within the context of the
    presumption of innocence and the requirement that guilt be proved beyond a
    reasonable doubt.

[13]

The
    appellant claims that the trial judge erred in a number of ways, including:

1)

his
    treatment of the complainants motive to fabricate;

2)

failing to
    address material inconsistencies in the evidence;

3)

his use of
    the complainants prior consistent statement, which was introduced into
    evidence by the sisters testimony; and

4)

failing to
    consider whether the mothers evidence raised a reasonable doubt pursuant to
    the second step of
W.(D.)
.

[14]

I
    will address these issues in turn.

D.

Analysis

(1)

Motive to fabricate

[15]

There
    was no dispute at trial that, at the time that the complainant went to the
    guidance counsellor in January of 2016, she was unhappy and wanted to leave
    home. This was a key pillar of the defence theory at trial, which was that the
    complainant had fabricated the allegation as a way of getting out of the house.
    The Crown called the sister as a witness at trial in part to rebut this recent
    fabrication argument.

[16]

As
    Doherty J.A. noted in
R. v. Batte
(2000), 49 O.R. (3d) 321 (C.A.), at
    para. 120:

It is difficult to think of a
    factor which, as a matter of common sense and life experience, would be more
    germane to a witness' credibility than the existence of a motive to fabricate
    evidence.

[17]

Here,
    the trial judge found that that the complainants testimony contradict[ed]
    this alleged motive for fabricating a story. The trial judge highlighted C.H.s
    testimony that, on the day she disclosed the incident to the guidance
    counsellor, she had already decided that she was going to leave home, even if CAS
    did not get involved.

[18]

It
    is not clear, however, that this reasoning meaningfully addresses or resolves
    the recent fabrication argument. The complainants testimony that she would
    leave home, even without CAS involvement, does not necessarily negate a motive
    to fabricate. It is just as likely that the complainant made the allegation to
    bolster the chances of CAS becoming involved, as CAS had with her older sister
    (for unrelated reasons). As the complainant acknowledged, it would have been
    hard for her to leave home at 14 years old without support.

[19]

Moreover,
    the motive to fabricate argument had some strength given the tensions at home,
    which predated the alleged incident. This called for a closer examination of
    the complainants credibility, and of the various alleged inconsistencies in
    the evidence, which I will review in more detail shortly. However, the trial
    judge did not engage in the necessary close examination.

[20]

One
    particularly relevant but unaddressed inconsistency on this issue was that the
    sister testified that she had spoken to the complainant about going into the
    care of CAS, both in terms of her own experience, and also as an option for the
    complainant. The sister agreed in cross-examination that she told C.H. that C.H.
    would go into CAS care if she told an adult or guidance counsellor about the
    assault. The complainant, however, denied having conversations with her sister
    that she might be better off with CAS or a foster family. This conflicting
    evidence went directly to the complainants credibility and her motive to
    fabricate an allegation to leave home (perhaps with the assistance of CAS), but
    this is not addressed in the reasons. Given the centrality of credibility in
    this case, these issues required greater scrutiny.

(2)

Material inconsistencies

[21]

The
    appellant submits that the trial judge failed to address a number of material
    inconsistencies in the evidence. These inconsistencies were material, as they concerned
    issues critical to a credibility assessment, such as the manner of the
    complainants disclosure, the details of the alleged sexual incident, and as
    mentioned earlier, the complainants potential motive to fabricate the
    allegation. The Crown submits that the alleged inconsistencies were either
    immaterial or were not, in fact, inconsistencies. As this court has outlined in
R. v. A.M.
, 2014 ONCA 769, 123 O.R. (3d) 536, at para. 14:

A trial judge giving reasons for
    judgment is neither under the obligation to review and resolve every
    inconsistency in a witness evidence, nor respond to every argument advanced by
    counsel. That said, a trial judge should address and explain how she or he has
    resolved major inconsistencies in the evidence of material witnesses.
    [Citations omitted.]

[22]

It
    would be an error of law to suggest presumptions about a childs timing and
    manner of disclosure. A childs sense of timing may be different from that of
    adults. However, it is also the case that the credibility and reliability of a
    childs evidence, like that of any witness, still require careful assessment
    and scrutiny by the trier of fact:
R. v. W.(R.)
, [1992] 2 S.C.R. 122,
    at p. 134;
R. v. B.(G.)
, [1990] 2 S.C.R. 30, at p. 55. To suggest
    otherwise would undermine the presumption of innocence and the requirement that
    guilt be proven beyond a reasonable doubt.

[23]

In
    my view, the trial judge did not adequately address the major inconsistencies
    in the evidence.

[24]

I
    will only review the main inconsistencies. These relate to the question of
    when, how, and to whom the complainant disclosed, and to the details given by
    the complainant of the assault.

(a)

How, when and to whom the complainant disclosed the alleged assault

[25]

There
    was different testimony regarding when and how the complainant disclosed the
    assault. The complainant said she first disclosed the assault to a different
    sister (one who did not testify) and to their mother about a month or two
    months after the incident. The sister who testified said the complainant
    disclosed the assault to her within a week after the incident occurred. The
    mothers evidence was that she knew nothing of the alleged assault until after
    her daughter disclosed to the guidance counsellor in 2016, about four years after
    the alleged incident.

[26]

C.H.
    initially said the sister who testified encouraged her to tell her mom. Later,
    she said that she did not speak to this sister before disclosing the incident
    to her mother. On the other hand, the sister testified that she was sure that
    the complainant disclosed the allegation to her
before
she disclosed to her mother. It was during this conversation the sister warned
    the complainant that she should not lie about such serious matters.

[27]

The
    sister also testified that there had been a three-way telephone call between
    the complainant and her two sisters about the assault just after the
    complainant had disclosed to them. The sister said that in this three-way
    telephone call, they were just elaborating on everything and how [they] were
    going to tell mom. The complainant did not recall any such call having taken
    place.

(b)

The details of the alleged assault

[28]

With
    respect to the details of the alleged assault, the complainant testified at the
    preliminary inquiry that she saw the appellant go into the master bedroom
    across the hall from the guest bedroom, look through a dresser drawer, go into
    a bathroom, and then return to the guest room. At trial, in direct examination,
    C.H. testified she saw the appellant go into her mothers bedroom, enter the
    washroom in her mothers bedroom, and then leave the room, with no mention of
    rummaging through the dresser drawer. When C.H. spoke to police she made no
    mention of the appellant going to her mothers room at all to retrieve
    anything. C.H. claimed both versions of events were true and testified for the
    first time in cross examination at trial that the appellant went to both the
    dresser drawer and the washroom. Her mother testified that it would not have
    been possible to see the dresser from the guest bedroom. Her sister testified
    that the master bedroom was directly across the hall from the guest room, but
    the master bedrooms door itself was not directly across from the door to the
    guest room but was at an angle.

[29]

The
    trial judge did not address these inconsistencies, except to the extent that he
    stated that the sisters evidence about the location of the guest bedroom
    confirmed the complainants evidence. With respect to the timing of the
    disclosure to the sister (whether it was within a week or one or two months
    later), the trial judge referred to it as a discrepancy but did not address
    it further.

[30]

He
    did reject a few of the defences reasons for finding the complainant not
    credible. For example, there was evidence that the complainant had stolen a
    cell phone in 2015 from the pastor at their church. The trial judge stated that
    the complainants acknowledgment of her wrongdoing did not undermine her
    credibility. He also noted that the mother had inexplicably retained the cell
    phone instead of returning it to the rightful owner.

[31]

The
    trial judge also indicated that the complainant was frank and did not
    exaggerate her account of the events:

[The complainant] gave a candid
    account of what allegedly happened in the summer of 2012. She candidly admitted
    that she disliked [the appellant] because he carried untrue stories about her
    to [her mother.] She also admitted that she had attendance problems at school
    while she lived with her mother and after she left her mothers home. She did
    not appear to have embellished or exaggerated her account of what happened. Had
    she wished to demonize [the appellant] as much as possible, she would not have
    testified that he did not succeed in his attempts to penetrate her.
    Significantly, when the interviewing officer asked her what she thought should
    happen to [the appellant], she replied that the police should caution him. She
    made no mention of wanting to have him charged and/or imprisoned.

[32]

As
    the examples above illustrate, however, the trial judge did not grapple with
    the inconsistencies in and as between the testimony of the complainant and her
    sister. These were material here, both because there were a number of them, and
    also because the only issue in the case was that of credibility.

[33]

Some
    of the inconsistencies were more significant than others. For example, the
    differences about when the complainant told her sisters may not have been very
    significant, given that the complainant was only about 10 years old at the time
    of the incident. Another discrepancy, however, was whether there was a
    three-way conversation between the sisters after the complainants initial
    disclosure to them. The sister who testified clearly recalled a three-way
    conversation while the complainant did not. Although it would have been open to
    the trial judge to assess this inconsistency as not serious, it is arguably
    more significant than the timing of the disclosure because one might expect
    that even a 10-year-old would remember the fact that such an important
    conversation (in which the sisters strongly encouraged her to disclose) took
    place.

[34]

In
    my view, the most significant inconsistency is between the complainant and her
    sister as to whether the complainant had disclosed to her mother before
    disclosing to the sister who testified. Even if the previously mentioned
    inconsistencies may be given latitude because of the complainants age, it seems
    harder to resolve this inconsistency. There was evidence that the complainants
    relationship with her mother was fraught and she was scared to tell her mother.
    In my view, it is surprising that the complainant would not remember a conversation
    with her sister who told her the allegations would have serious consequences if
    she was lying and would not remember whether she disclosed to her mother before
    disclosing to the sister who testified.

[35]

In
    summary, it was open to the trial judge to resolve these and other inconsistencies
    raised by the defence. Had he explicitly done so, his conclusions would have
    attracted significant deference from this court. In this case, however, there
    was an absence of scrutiny or resolution of these inconsistencies, as well as a
    failure to explain why he did not consider them to be material.

(3)

Use of the complainants prior consistent statement

[36]

The
    sister testified that when the complainant disclosed the incident to her, the
    complainant was very emotional. The sister said that she had warned the
    complainant that this was a very serious allegation and that she should stop if
    it was not true, but the complainant insisted it was true.

[37]

When
    dealing with this testimony, the trial judge began by citing this court in
R.
    v. G.C.
, 2006 CanLII 18984 (Ont. C.A.), at para. 20:

[E]vidence of prior complaint
    cannot be used as a form of corroboration to prove that the incident in fact
    occurred. It cannot be used as evidence of the truth of its contents. However,
    the evidence can be supportive of the central allegation in the sense of
    creating a logical framework for its presentation  and can be used in
    assessing the truthfulness of the complainant.

[38]

The
    trial judge continued:

In
R. v. Khan
, [2017 ONCA 114, 136 O.R. (3d) 530,
    leave to appeal refused [2017] S.C.C.A. No. 139], the Court of Appeal noted at
    para. 41 that such evidence cannot be used for the prohibited inference that
    consistency enhances credibility, or the incorrect conclusion that the simple
    making of a prior consistent statement corroborated in-court testimony.

Based on these principles, I cannot use [the sisters] testimony
    as confirmative or corroborative of the account of [the complainant.] However,
    her evidence can be used, as the court noted in
G.C.
, to assess the
    truthfulness of the complainant: see
R. v. Nyznik
, 2017 ONSC 4392, at
    para. 198.

In that regard, there are two
    aspects of [the sister]s testimony that can be used to assess [the
    complainant]s credibility and the reliability of her testimony. First, [the
    sister] testified that [the complainant] was very emotional when she described
    what had allegedly happened. Second, [the sister] gave uncontradicted evidence
    that she warned [the complainant] that the allegations she was levelling
    against [the appellant] were very serious and that if she was lying, she should
    stop it immediately. Despite this warning, [the complainant] did not retract
    her statement about being sexually assaulted by [the appellant.]

[39]

The
    appellant argues that the trial judge improperly used the complainants prior
    consistent statements. I agree.

[40]

Here,
    as I have mentioned, the central purpose in calling the sister as a witness was
    to rebut the defence of recent fabrication. The trial judge found that the sisters
    statement supported the complainants credibility, because the complainant had
    stuck to her story despite the sisters cautions about lying. This use of C.H.s
    prior consistent statement went well beyond rebutting the defence of recent
    fabrication. In essence, the trial judge concluded that the fact that the
    complainant continued to make the same statements, despite the cautions of her
    sister, reflected positively on her credibility. I do not see how that is different
    from relying on the assertion that any statement that is repeated is more
    likely to be true  the very inference prohibited by the rule against prior
    consistent statements. Nor do I understand the logic of the trial judges
    finding that C.H. was credible and reliable because C.H. did not retract her
    story when she was warned by her sister that there would be consequences if she
    was lying. The trial judges reasons are silent on this point. The fact that
    C.H. did not retract her allegation was not a positive factor that enhanced the
    credibility of the complainant.

[41]

This
    case is very different from
Khan
. In that case, the complainants
    prior consistent statement was spontaneous. As this court stated in
Khan
,
    the fact of the statement, as well as its timing and spontaneity, could be used
    for a limited purpose, to [assess] the truthfulness of the complainants
    in-court testimony:
Khan
,
at para. 43. The statement in this case was not spontaneous. On the sisters
    evidence, the complainant disclosed the allegation to her a week after it had
    happened. The statement was also not admitted under the narrative as
    circumstantial evidence exception, nor did the statement have similar
indicia
that could be used to assess the complainants truthfulness in court.

[42]

This
    error compounds the problems outlined above, namely the failure to resolve the
    inconsistencies in the evidence and the motive to fabricate. This error was particularly
    important in this case where the evidence raised a clear motive to fabricate.
    There was also no dispute that C.H. disliked the appellant and believed he was
    always trying to get her in trouble with her mother. This had been the case,
    according to all of the evidence, since well before the alleged incident.

(4)

W.(D.)

[43]

The
    principles of
W.(D.)
are well known but are worth repeating:

First, if you believe the evidence of the
    accused, obviously you must acquit.

Second, if you do not believe the testimony of
    the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if
    you are not left in doubt by the evidence of the accused, you must ask yourself
    whether, on the basis of the evidence which you do accept, you are convinced
    beyond a reasonable doubt by that evidence of the guilt of the accused.

[44]

There
    is no dispute that these principles apply not only to cases where the accused
    testifies, but also to cases where there is other defence evidence called
    contradicting the Crowns case and/or conflicting evidence favourable to the
    defence in the Crowns case:
R. v. B.D.
, 2011 ONCA 51, 226 C.C.C.
    (3d) 197, at para. 105. Trial judges do not need to rigidly recite the three
    steps in the
W.(D.)
instruction. It is not a magical incantation. Rather,
    as Molloy J. summarized in
R. v. Nyznik
, 2017 ONSC 4392, 350 C.C.C.
    (3d) 335, at para. 14:

What is critical is for the judge
    to avoid turning the fact-finding exercise into a choice as to which is the
    more credible version of the events. This cannot be a credibility contest, with
    a conviction if the complainant wins the contest and an acquittal if the
    defendant does.

[45]

The
    appellant argues that the trial judge in this case did not refer to and did not
    apply the principles in
W.(D.)
. In particular, he argues the trial
    judge did not consider whether the mothers evidence raised a reasonable doubt,
    despite the fact that he did not find her to be credible. The Crown responds
    that it is implicit in the trial judges reasons that he did not accept the
    defence evidence and he was satisfied that it did not raise a reasonable doubt.
    Though the trial judge did not specifically mention
W.(D.)
, trial
    judges are presumed to know the law.

[46]

In
    my view, this is a case in which the defence evidence, seen in the context of
    all the evidence, could have raised a reasonable doubt, despite the fact that
    the trial judge rejected it. Much of the mothers evidence, particularly that
    which related to C.H.s behavioural issues, the conflict between the
    complainant and the appellant, and the existence of a motive to fabricate, was
    consistent with other evidence heard at the trial. In these circumstances, the
    trial judge was obliged to expressly consider whether the defence evidence
    raised a reasonable doubt. The reasons do not show that he did so.

[47]

This
    is compounded by a related problem. The trial judge found the mother was not
    credible. He referred in particular to the mothers evidence that she had not
    known about the sexual assault allegation before the complainant disclosed it to
    the guidance counsellor in January 2016 and that, had she known, she would have
    called the police. The trial judge cited the sisters evidence that the mother
    had been told well before 2016 as a reason for not believing the mothers
    testimony that she would have called the police had she known.

[48]

The
    sisters evidence on this point was not put to the mother and so she did not
    have a chance to explain or respond. The trial judges reasons do not indicate
    that he appreciated that the sisters evidence on this point was never put to
    the mother. The use of this evidence to reject the only defence evidence thus undermines
    the trial judges finding that the mother was not credible.

E.

Disposition

[49]

The
    trial judge in this case fell into a number of related and overlapping errors
    related to the assessment of credibility. While any one of these errors on its
    own might not have warranted a new trial, viewed as a whole, the guilty verdict
    cannot stand. I would therefore allow the conviction appeal, set aside the
    conviction, and order a new trial.

[50]

Given
    this disposition, it will not be necessary to consider the sentence appeal.

Released: October 9, 2020

DW

A. Harvison Young J.A.

I agree David Watt J.A.

I agree S. Coroza J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Soriano, 2020 ONCA 636

DATE: 20201006

DOCKET: C67521

Pardu, Paciocco and Harvison
    Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Alann Soriano

Appellant

Alann Soriano, acting in person

Michael Fawcett,
    for the respondent

Heard and released: October 5,
    2020 by video conference

On appeal from the convictions entered
    on August 16, 2019 by Justice Richard H. K. Schwarzl of the Ontario Court of
    Justice.

REASONS FOR DECISION

[1]

Mr. Soriano appeals from his convictions for
    breach of probation. He sought an adjournment when the hearing began, although
    this matter was made peremptory by previous order of this court.

[2]

The appellant indicated he wished to retain
    counsel and we are told he tried to do so unsuccessfully this morning. Mr.
    Soriano has had the appeal material for many months. Legal aid has been
    exhausted and there is no prospect that a s. 684 order would be granted in this
    case. Mr. Soriano is articulate and intelligent and was able to communicate his
    grounds of appeal. The sentence appeal has already been dismissed. The
    adjournment was refused.

[3]

Mr. Soriano asserts before this court the same
    defence that he advanced at trial, that he did not make the phone call leading
    to the convictions.

[4]

The trial judge found that he did make the call.
    The trial judges reasons are thorough and careful. We see no error in his
    assessment of credibility which assessment is owed deference.

[5]

The appeal from conviction is accordingly
    dismissed.

G. Pardu J.A.

David
    M. Paciocco J.A.

A.
    Harvison Young J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Spagnola, 2020 ONCA 638

DATE: 20201009

DOCKET: C67767

Pardu, Paciocco and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Frank Spagnola

Appellant

Brian Snell, duty counsel

Joseph Selvaratnam, for the
    respondent

Heard and released orally: October 7, 2020 by
    video conference

On appeal from the sentences imposed on November 20, 2019
    by Justice Allan G. Letourneau of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant appeals from sentences imposed for possession of
    methamphetamine for the purpose of trafficking, and possession of small amounts
    of marijuana and cocaine. In addition to sentences totalling 32 months, a
    forfeiture order was made.

[2]

The sentencing judge referred to the fact that the appellant had been
    offered an 18-month sentence in exchange for an early plea, but indicated that
    his guilty plea, approximately one year after he was arrested, did not qualify
    as an early plea. The sentencing judge gave no weight at all to the guilty
    plea. This was an error in principle which had an impact on sentence. The
    appellant planned on sharing the methamphetamine with friends and did not plan
    to sell it. The absence of a commercial motive was also a relevant mitigating
    factor to which no weight was given. The Crown agrees that the range of
    sentence for the possession for the purpose offence was from 24 to 36 months
    and that the sentence imposed here was somewhat excessive. The appellant is now
    off drugs and on a methadone program, a significant step for him.

[3]

We agree and would reduce the sentence for possession for the purpose of
    trafficking to 28-months (count 1 on the indictment). The minimum sentence
    within the range is not appropriate, given the appellants lengthy criminal
    record.

[4]

The appellant was also sentenced to 60 days concurrent for possession of
    less than a gram of marijuana (count 4 on the indictment). Given the nature of
    the drug and the amount possessed, we reduce that sentence from 60 days to ten days
    concurrent.

[5]

The appellant had $320.00 in his possession upon arrest. He intended to
    use that money to pay his hydro bill, which he showed to the arresting
    officers. The sentencing judge ordered forfeiture of these funds without making
    any finding that the money was drug related. The forfeiture order is set aside
    and the money is ordered returned to the appellant.

G. Pardu J.A.

David M. Paciocco
    J.A.

A. Harvison Young
    J.A.