



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: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    information that could identify the victim shall not be published in any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. Palmer-Coke, 2019 ONCA 106

DATE: 20190214

DOCKET: C64308

Feldman, Lauwers and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Denzel Palmer-Coke

Appellant

Faisal Mirza, for the appellant

Candice Suter, for the respondent

Heard: January 30, 2019

On appeal from the convictions entered on July 25, 2017
    by Justice Susan G. Himel of the Superior Court of Justice, with reasons
    reported at 2017 ONSC 4501.

Nordheimer J.A.:

[1]

Mr. Palmer-Coke appeals from his convictions, after a judge alone trial,
    of one count of sexual assault causing bodily harm and one count of unlawful
    confinement.

[2]

There does not appear to be any dispute regarding the basic facts that
    underlie the offences charged, although there is certainly a dispute as to what
    led up to the events and the context in which they occurred. There was a
    serious issue regarding the credibility of the complainant, especially
    regarding her memory of the events in question. However, as will become
    apparent, these issues became less serious in terms of the ultimate resolution
    of the charges because of various admissions made by the appellant.

Background

[3]

The basic facts are as follows. On Saturday July 21, 2012, the
    complainant travelled from St. Catharines to Toronto to attend a bachelorette
    party with several girlfriends. They were staying overnight at a hotel in two
    adjoining rooms. The complainant was 24 years old. The group went to a
    nightclub/bar just before midnight. The complainant returned by herself to the
    hotel alone around 1:30 a.m. in a cab. There is no dispute that the complainant
    was intoxicated.

[4]

The complainant got out of the cab and walked into the hotel alone. She
    did not recall talking to anyone. She said she went right to her room. She did
    not see anyone around her. However, video surveillance from the hotel showed
    her walking into the hotel, then touching the appellant, and walking into the
    elevator with him. They were holding each other.

[5]

The complainant testified that she went to her room on the sixth floor.
    When she entered room 608 using her card key, she noticed that none of her
    friends were there. She checked the adjoining room 607. Then she turned around
    and saw a man standing at the door between the adjoining rooms. She was shocked
    and asked what he was doing there. She recalled him cursing her. There is no
    dispute that this male was the appellant.

[6]

The complainant gave evidence that the appellant came further into the
    room and pushed her onto the bed closest to the window in the adjoining room.
    Then he straddled her with his knees on the edge of the bed. He ripped off her
    underwear, tried to pull the top of her dress down, and touched her near her
    vagina. She said she does not recall what he said but she screamed, fought back,
    and tried to push him off. As a result, he punched her in the face, injuring
    her eye and facial area. She then kicked him and managed to briefly break free.
    The appellant then pulled her back by the hair and punched her in the face,
    causing her to fall to the ground and hit her head. Once she got up, he came
    around in front of her and punched her again in the face. She fought him off by
    kicking again and, this time, was able to run out of the room into the hallway.
    Once in the hallway, she ran into another guest of the hotel and collapsed into
    his arms.

[7]

According to a friend, the complainant called the telephone of the
    friends boyfriend at approximately 1:30 a.m. The friend answered. The
    complainant said she was at the hotel. The friend knew that the complainant was
    in Toronto at a bachelorette party but did not know the details. The friend
    said she could hear the complainant speaking to someone and say, "you
    should leave now" and the male person said, "Why are you being so
    rude?" She heard the complainant say you can take the bottle.  She then
    heard a scuffle and the complainant say What the fuck? three times and the
    telephone went dead.

[8]

Another hotel guest had heard a commotion coming from the complainants
    room. She alerted hotel security who in turn alerted the police. The police
    arrived thereafter and commenced their investigation.

[9]

The appellant elected to give evidence at the trial. He has no criminal
    record and resides with his mother. The appellant was 19 years old at the time.
    The appellant was staying at the hotel while he attended a friends birthday
    party.

[10]

The
    appellant said he entered the hotel and was walking into the lobby when a girl
    bumped into him. There is no dispute that this girl is the complainant. He
    asked if she was all right and she said yes. Then he said she gave him her hotel
    key and had her arm wrapped around his arm. He walked her to the elevator and
    they were talking as they walked hand in hand. It was 1:29 a.m. She pushed the
    elevator button and they entered the elevator. They got off the elevator and he
    walked her to her room. He passed her the hotel key and she opened the door and
    said, "have a good night." Then she said, "No, come in" and
    he said "o.k."

[11]

The
    appellant testified that he walked into the room and she walked over to him. He
    said that she sat on the bed and motioned to him to come over and sit down. He
    walked over and sat beside her. Kissing and fondling ensued. The complainant raised
    her hips and her dress. The appellant said he was by her vagina with her dress
    raised when he tore her underwear. He said it was hard to do. When asked why he
    did so, he said "I thought that's how people had sex. I saw it in a dirty
    movie. I never had sex before. I was a virgin and I didn't know anything."

[12]

Immediately
    after this, the complainant started moving away from him and towards the
    headboard. She said, "who are you?" and "I don't know you."
    The appellant says he was shaken and jumped back. He said that he tried to talk
    to her to calm her down, but she got off the bed and crouched between the two
    beds. The appellant said he was standing by the edge of the bed and was trying
    to talk to her. He said he did not know what she was doing but that she was on
    the phone. The appellant said, "please calm down". Then he walked
    over to her to get the telephone and she started hitting him with open hands
    and kicking him. He said that he tried to get her to stop and to talk to him.
    She screamed and continued to hit and kick him. The appellant then punched the
    complainant twice and she fell back. The appellant said he started walking
    toward the door of the room when the complainant ran past him and out the door.
    The appellant then left the hotel. He was contacted by police a few days later
    and was eventually arrested and charged.

Analysis

[13]

Against
    that backdrop, I turn to the central issues raised on this appeal. While there
    were 11 grounds of appeal set out in the Notice of Appeal, at the hearing counsel
    distilled those grounds down to the following four:

1.

The trial judge erred in admitting certain expert evidence from the
    toxicologist.

2.

The trial judge erred in admitting hearsay evidence arising from the
    telephone call between the complainant and her friend.

3.

The trial judge erred in finding that the appellant had fabricated his
    evidence.

4.

The trial judge erred in convicting the appellant of unlawful
    confinement.

[14]

I
    will deal with each of them in turn.

(1)

The toxicologists evidence

[15]

The
    Crown called Robert Langille from the Centre of Forensic Sciences to give
    evidence regarding the level of intoxication of the complainant at the time of
    the events. The appellant complains with respect to two aspects of Mr.
    Langilles evidence. One involves Mr. Langilles commentary on the movement of
    the complainant as seen on the hotel security video in terms of evidencing her
    intoxication. The other is Mr. Langilles evidence that significant stresses produce
    adrenalin in the body and adrenalin increases your level of alertness and
    awareness for a short period of time. This evidence was directed at explaining
    why the complainant, while admittedly intoxicated and with limited memories of
    the events in question, might remember the specifics of the actual sexual
    assault.

[16]

In
    my view, the appellants complaints are well founded. On the first point, there
    was no need for the toxicologists commentary on the security video. The trier
    of fact, in this case the trial judge, was entirely capable of reviewing the
    video and making her own determinations as to what the video showed regarding
    the complainants movements as they related to her level of intoxication. The
    experts evidence was not necessary for that purpose and therefore did not meet
    the second criterion for the admission of expert evidence set out in
R. v.
    Mohan
, [1994] 2 S.C.R. 9, at p. 20.

[17]

On
    the second point, there was no direct evidence that Mr. Langille had expertise
    in the area of memory. Indeed, the word memory does not appear anywhere in
    his
curriculum vitae
nor does it appear to be encapsulated in any of
    the courses, seminars, and other experience therein referenced. Further, it is
    not clear that Crown counsel sought to have Mr. Langille so qualified. In
    seeking to qualify him, Crown counsel said:

Your Honour with respect to Dr.
    Langille, Id like him to be qualified as an expert in the detection,
    pharmacology and toxicology of drugs, alcohol and poisons and the physiological
    and behavioural effects of alcohol and drugs on the human body.

[18]

I
    understand that Mr. Langille did give some evidence regarding memory during the
voir dire
on his qualifications. Crown counsel failed, however, to
    identify that as one of the areas that she was seeking to qualify him as an
    expert. Further the trial judge did not expressly qualify Mr. Langille in this
    area. Rather, in ruling on his qualifications, the trial judge said:

I am satisfied that he is an
    expert in the detection, pharmacology and toxicology of drugs, alcohol and
    poisons, and in the physiological and behavioural effects of alcohol and drugs
    on the human body and that he may give opinion evidence in this regard.

[19]

I
    would reject any suggestion that memory, and impacts on memory, are embraced
    within the reference to physiological and behavioural effects of alcohol and
    drugs on the human body. Memory is a distinct subject that is usually dealt
    with by neurologists, psychiatrists, or psychologists. Mr. Langille is none of
    those.

[20]

In
    any event, I cannot determine, on the record before us, whether Mr. Langille
    might have been properly qualified as an expert in memory nor is it necessary
    that I be able to do so. It is sufficient for me to say that Mr. Langille was
    not properly qualified as an expert in memory based on the record that was
    before the trial judge. The trial judge ought not to have permitted Mr.
    Langille to give the evidence that he did regarding memory and the effects that
    stress and adrenalin might have in terms of heightening memory.

[21]

I
    am aware that trial counsel did not maintain a specific objection to this
    evidence although she referenced it initially. That does not change the fact
    that the trial judge as gatekeeper had an independent obligation to ensure that
    the expert, in giving his evidence, stayed within his established area of
    expertise:
R. v. Abbey
, 2009 ONCA 624, 97 O.R. (3d) 330.

[22]

Notwithstanding
    that conclusion, however, this improperly admitted evidence did not weigh
    heavily on the ultimate conclusion regarding guilt, as I shall come to explain.
    It does not therefore undermine the trial judges conclusion that a conviction
    was borne out on the evidence as a whole.

(2)

The hearsay issue

[23]

The
    appellant complains that the trial judge erred in admitting and relying on for
    its truth the statement that the complainants friend heard during the
    telephone conversation (to which I referred in para. 7 above), that the
    complainant asked the appellant to leave. I do not accept that the trial judge
    erred in this respect because I do not accept the fundamental point made by the
    appellant that this evidence was inadmissible hearsay. The friend was not
    repeating a fact that she was told by someone else. Rather, the friend was
    saying what she herself heard the complainant say. It was admitted to prove
    what the complainant said to the person she was talking to but not any fact
    contained in that statement. That is not hearsay.

[24]

The
    evidence was admissible as fact evidence. It was up to the trier of fact to
    weigh its probative value in conjunction with all of the other evidence, which
    the trial judge did. There is, however, no merit to the submission that the
    evidence ought not to have been admitted because it was hearsay that required
    the holding of a
voir dire
to determine whether it could be admitted
    under the principled exception to the hearsay rule.

(3)

Fabrication by the appellant

[25]

The
    submission on this point is included within a broader assertion that the trial
    judge applied unequal levels of scrutiny to the evidence led by the Crown as
    compared to the evidence of the appellant. It is also admitted that there is no
    express finding of fabrication made by the trial judge.

[26]

In
    my view, the latter admission is sufficient by itself to dispose of this ground
    of appeal. There is simply nothing in the trial judges reasons to suggest that
    she viewed the appellant as having fabricated his evidence or that she rejected
    his evidence on that basis. Rather, the trial judge pointed out, as she was
    entitled to do, that the appellant had given dramatically different versions of
    the events to the police than he gave when he was a witness at trial. That is
    not a finding equivalent to fabrication and ought not to be treated as such.

[27]

I
    would also reject the suggestion that the trial judge applied an unequal
    approach to the evidence. Nothing in the record establishes that suggestion
    which, as this court has noted in the past, is an extremely difficult position
    to make out:
R. v. Howe
(2005), 192 C.C.C. (3d) 480 (Ont. C.A.), at
    para. 59.

(4)

Unlawful confinement

[28]

The
    appellant submits that the conviction for unlawful confinement was improper in
    the circumstances of this case. I agree. The trial judge dealt with this issue
    in one sentence at the end of her reasons. She said:

He prevented her from leaving the
    room, grabbed her by the hair, pulled her back, striking her head, and made
    efforts to restrict her liberty.

[29]

The
    constituent elements of the offence of unlawful confinement are set out in
R.
    v. Pritchard
, 2008 SCC 59, [2008] 3 S.C.R. 195, where Binnie J. said, at
    para. 24:

The authorities establish that if
    for any significant period of time [the victim] was coercively restrained or
    directed contrary to her wishes, so that she could not move about according to
    her own inclination and desire, there was unlawful confinement within s. 279(2)
    [citations omitted].

[30]

The
    distinguishing element of a significant period of time was also addressed in
R.
    v. Rocheleau
, 2013 ONCA 679, 311 O.A.C. 295, where Tulloch J.A. noted in
    discussing this issue at para. 29:

On the facts as admitted in this
    case, there was domination and a coercive restraint of the victims of
    sufficient length to attract liability for confinement discrete from the
    liability for robbery. Nor, in my view, could the additional impact on the
    individual's freedom of movement and bodily integrity be seen as simply
    incidental to the robbery.

[31]

The
    opposite is true in this case, in my view. Here, the element of restraint that
    resulted from the appellant grabbing the complainant by her hair was momentary
    in nature. It was not for any significant period of time nor does the trial
    judge make any such finding. The conviction for unlawful confinement,
    therefore, cannot stand.

[32]

I
    would also note that, even if one could make out, on the facts of this case,
    that the restraint did involve a significant period of time, a conviction for
    unlawful confinement was not properly entered based on the principles set out
    in
R. v. Kienapple
, [1975] 1 S.C.R. 729. On that point, the circumstances
    of this case appear to be indistinguishable from those in
R. v. Alli
,
    1996 CanLII 363 (Ont. C.A.) where this court said:

We are, however, of the opinion
    that any confinement of the complainant formed an integral part of the
    convictions for sexual assault or assault
simpliciter
. By virtue of
    the principle enunciated in
R. v.
Kienapple
, 1974 CanLII 14
    (SCC), [1975] 1 S.C.R. 729, the conviction on the charge of unlawful
    confinement cannot stand. (See
R. v. D. (S.)
(1992), 1992 CanLII 7556
    (ON CA), 10 O.R. (3d) 402 (Ont. C.A.)).

[33]

In
    the same way in this case, the appellants grabbing of the complainants hair
    was clearly an integral part of the continuing sexual assault. There would thus
    be a sufficient factual nexus and a sufficient legal nexus between the offences
    to trigger the application of the
Kienapple
principle:
R. v. Prince
,
    [1986] 2 S.C.R. 480.

[34]

In
    the end result, I conclude that the trial judge erred in finding the appellant
    guilty of unlawful confinement in these circumstances. That conclusion does not
    affect the sentence imposed, however, since the 12 month sentence on the
    unlawful confinement conviction was made concurrent to the 15 month sentence on
    the sexual assault causing bodily harm conviction.

(5)

Summary

[35]

The
    conclusions on the first three grounds of appeal do not provide a basis to
    interfere with the conviction for sexual assault causing bodily harm. The
    conviction for unlawful confinement is a separate matter.

[36]

The
    evidence as a whole clearly establishes a basis for the conviction for sexual
    assault causing bodily harm. The appellant admits that he struck the
    complainant. The appellant admits that he tore her panties off as part of an
    intention to engage in sexual activity. The connection between the two events
    is sufficient to establish that the assault arose in a sexual context. The trial
    judge rejected the appellants explanation that the sexual component of the events
    was consensual. In light of the trial judges factual findings, a conviction
    for sexual assault causing bodily harm properly followed.

Conclusion

[37]

The
    appeal with respect to the conviction for sexual assault causing bodily harm is
    dismissed. The appeal with respect to the conviction for unlawful confinement
    is allowed, the conviction is set aside, and an acquittal is entered.

Released: February 14, 2019 K.F.

I.V.B. Nordheimer
    J.A.

I agree. K. Feldman
    J.A.

I agree. P. Lauwers
    J.A.


