



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. Vlaski, 2019 ONCA 927

DATE: 20191126

DOCKET: C65792

van Rensburg, Hourigan and Thorburn JJ.A.

BETWEEN

Her
    Majesty the Queen

Respondent

and

Goran Vlaski

Appellant

David Humphrey and Jill Makepeace, for the appellant

Caitlin Sharawy, for the respondent

Heard: November 7, 2019

On appeal from the conviction entered on January 22, 2018,
    by Justice David Corbett of the Superior Court of Justice.

Hourigan J.A.:


I.

Introduction

[1]

The background facts of this sexual assault case may be briefly stated.
    The appellant and the complainant met in a bar on January 31, 2016. After a short
    discussion, they took a taxi to the appellants parents apartment.

[2]

Both parties had been drinking that evening. The appellant testified that
    the complainant was not intoxicated. The complainant testified that she was intoxicated
    but did not lack the capacity to consent to sexual activity.

[3]

The complainant remembers that she and the appellant engaged in
    consensual kissing in a spare bedroom in the apartment. She was concerned that
    their activities were heading toward sex, so she told the appellant that she
    did not want to have sex. The next thing the complainant says she remembers was
    lying on her front while the appellant was having vaginal intercourse with her.
    The complainant says that she told him to stop and he did not. According to the
    complainant, the appellant then engaged in anal sex with her and refused to
    stop when she told him to do so.

[4]

In contrast to the complainants evidence, the appellant testified that
    he engaged in consensual vaginal intercourse with the complainant and he denied
    having anal intercourse with her. The appellant also said he wore a condom.

[5]

The complainant left the apartment immediately after the incident. There
    is video footage of her riding in an elevator and leaving the building in her
    bare feet. She testified that she was distraught after the encounter, while the
    appellants evidence was that she appeared to be happy immediately before
    leaving the apartment.

[6]

The forensic evidence confirmed the presence of semen in the
    complainant's vagina. The analysis of two rectal swabs was inconclusive as to
    whether male DNA might be present.

[7]

The appellant was convicted of one count of sexual assault. He appeals
    his conviction, asserting three grounds of appeal: (i) the trial judges
    reasons are insufficient, in that they fail to address reliability concerns
    regarding the complainants evidence; (ii) the trial judge improperly used the
    complainants prior consistent statements to fortify her evidence; and (iii)
    the trial judge applied an uneven standard of scrutiny to the defence and Crown
    evidence.

[8]

For the reasons that follow, I would not give effect to any of these
    grounds and would accordingly dismiss the appeal.


II.

Analysis

(i)

Sufficiency
    of Reasons

[9]

The appellant concedes that this ground of appeal will only succeed if
    he can establish that the reasons are so deficient that meaningful appellate review
    is foreclosed: see
R. v. Vuradin
, 2013 SCC 38, [2013] 2 S.C.R. 639 at
    para. 10. Nevertheless, he submits that this standard has been met because the
    trial judge did not address two aspects of the complainants evidence that
    warranted meaningful consideration.

[10]

The appellant argues that the trial judge was obliged to explain why the
    complainants numerous memory lapses in her testimony did not render her
    evidence unreliable. In his factum, the appellant cites several instances where
    the complainant was unable to recall details of events that occurred during the
    evening of the alleged assault. I would reject this ground of appeal for two
    reasons.

[11]

First, the trial judge's reasons must be read in the context of the parties
    positions at trial. Defence counsel did not argue that the complainant's
    evidence was unreliable. Instead, he submitted that the complainant had a
    selective memory. In other words, the argument was not that she was unreliable
    but that she was not credible. The trial judges reasons were responsive to the
    defences position and therefore focused on the complainants credibility.

[12]

Second, many of the memory lapses complained of relate to peripheral
    matters, such as the apartments appearance and where exactly in the bar she
    met the appellant. The trial judge was not required to avert in his reasons to
    memory lapses on these peripheral matters.

[13]

There were other memory lapses regarding precisely what transpired
    immediately before the vaginal intercourse began. Examples include details
    regarding which articles of the complainants clothes were removed and how. The
    appellant also notes that the complainant does not remember what happened to
    her between her statement that she did not want to have sex and her memory of
    the appellant being on top of her.

[14]

It is inaccurate to suggest that the trial judge did not consider these
    issues in his reasons. While he did not reference the memory lapses in detail, the
    trial judge recognized that the complainants evidence was not clear about how
    quickly things unfolded after she expressed her lack of consent. He therefore
    looked for and found confirmatory evidence to substantiate the complainants
    version of events. The trial judge relied on the video footage from the
    elevator after the incident, which he found showed that the complainant was
    distraught.

[15]

In my view, the trial judge's reasons were not deficient because of his
    failure to detail the reliability concerns raised by the appellant.

[16]

The appellant further submits the trial judges reasons were insufficient
    because they failed to determine whether the complainant's allegation of forced
    anal penetration occurred. The trial judge is said to have compounded this
    error by finding that there was some kindof anal manipulation, whether it was
    digital or with the accuseds penis. The appellant argues that this was an
    unavailable compromise finding because the complainant did not raise the
    possibility of anal manipulation short of penetration in her testimony.

[17]

I would not give effect to this submission.

[18]

The trial judge recognized that he could not resolve the issue of anal
    penetration on the state of the forensic evidence. As he put it, the fact that
    semen was not found in the complainant's anus "does not mean there was not
    penetration". Based on the uncertainty in the evidence, he was not
    satisfied beyond a reasonable doubt that anal penetration took place.

[19]

This was a single count case and the trial judge accepted the
    complainant's testimony regarding the non-consensual vaginal intercourse. Consequently,
    it was unnecessary for the Crown to prove the
actus reus
of sexual
    assault by means of forced anal penetration.

[20]

Ultimately, the issue of whether anal penetration had occurred was
    relevant only to the complainant's credibility. In essence, the appellants
    complaint appears to be that the trial judge refused to draw the inference
    urged by the appellant, that in the absence of conclusive forensic evidence of
    penetration, the complainant must have been lying about the anal intercourse. On
    the record, it was open to the trial judge to find the possibility of anal
    manipulation short of penetration. This was a plausible explanation where the
    complainant testified that there was contact with her anus, and there was no
    confirmatory forensic evidence of penetration. In any event, the inclusion of
    this finding in the trial judges reasons does not assist the appellant on this
    ground of appeal, which alleges insufficient reasons.

[21]

In summary, the trial judges reasons were not deficient. They explained
    clearly and succinctly how he reached his finding of guilt. Appellate review is
    not foreclosed. This ground of appeal fails.

(ii)

Prior Consistent
    Statements

[22]

In support of his second ground of appeal, the appellant relies on a
    reference in the reasons to the complainants disclosure of the alleged sexual
    assault to a friend and a co-worker as follows:

As I have indicated, the complainant reported
    the incident to her friend and then her co-worker the next morning. The
    co-worker persuaded the complainant to call the police.

The complainants account of events to the
    friend and co-worker was consistent with her account to the court, and her
    demeanour with both was likewise consistent with her account.

As prior consistent statements, these
    statements are not admissible for the truth of their contents, that is, the
    statements to the friend and the co-worker. However, these immediate complaints
    do not serve to cast doubt on the complainants evidence as to what happened.

[23]

The appellant submits that although the trial judge explained that the
    statements were not admissible for the truth of their contents, the only
    reasonable inference is that he impermissibly used the complainants prior
    consistent statements to fortify the complainants evidence.

[24]

There is no basis to support the inference that we are invited to draw.
    In considering this ground of appeal, it is essential to carefully consider the
    trial judge's comments and the context in which they were made.

[25]

The reference to the prior consistent statements in the first paragraph
    of the quote is pure narrative. It explains how the complainants case came to
    be reported to the police. As such, it is a recognized exception to the rule
    that prior consistent statements are presumptively inadmissible:
R. v. Khan
,
    2017 ONCA 114, at para. 30, leave to appeal refused, [2017] S.C.C.A. No. 139.

[26]

The appellant makes two arguments concerning the remaining paragraphs in
    the quote. First, he says that the trial judge speculated that the statements
    were consistent with the complainant's court testimony because the Crown did
    not adduce any evidence about what precisely was said to the friend and the co-worker.

[27]

I do not read the trial judge's comments as meaning that the details of
    the statements were consistent. Instead, I read his comments as a limited
    observation that the complainant told her friend and her co-worker that she was
    sexually assaulted, and that she said the same thing in her testimony. To that
    extent only, the statements were consistent with her testimony.

[28]

The next issue is whether the trial judge impermissibly used the prior
    consistent statements to bolster the complainants credibility. I find that he
    did not.

[29]

While a prior consistent statement cannot be used for the impermissible
    purpose of confirming the truthfulness of an allegation, it can be used for
    the permissible purpose of showing the fact and timing of a complaint,
which
    may then assist the trier of fact in the assessment of truthfulness or
    credibility

(italics in original) :
R. v. Dinardo
, 2008 SCC 24
,
[2008] 1 S.C.R. 788
, at para.
37.

[30]

This exception to the prior consistent
    statement rule is referred to as narrative as circumstantial evidence
."
    It recognizes that, in t
he appropriate case,
    prior consistent statements can assist a trial judge to assess the truthfulness
    or reliability of the declarant:
Khan
, at paras. 31-34.

[31]

In the present case, the defence sought to impeach the complainant's
    credibility on the basis that it was her co-worker who initially called the
    police. In these circumstances, it was permissible for the trial judge to
    reference the statements for the limited purpose of assessing that argument.
    That is what he did when he concluded: "these immediate complaints do not
    serve to cast doubt on the complainant's evidence as to what happened."

[32]

For these reasons, I would dismiss this ground of appeal.

(iii)

Uneven Scrutiny

[33]

Finally, the appellant submits that the trial judge failed to
    meaningfully address the frailties in the complainants evidence, while
    immediately seizing upon three areas of his testimony to conclude that he was
    lying.

[34]

To succeed on this argument, the appellant must establish that the trial
    judge applied different standards of scrutiny. It is not enough that a
    different trial judge assigned the same task on the same evidence could have
    assessed credibility differently:
R. v. Radcliffe
, 2017 ONCA 176, 347
    C.C.C. (3d) 3, at paras. 24-25, leave to appeal refused, [2017] S.C.C.A. No.
    294.

[35]

The trial judge was cognizant of the need to be even-handed in
    considering the evidence of the appellant and complainant. He expressly reminded
    himself of this obligation:

I start, as I must, with my focus
    on the [appellants] evidence, not to apply heightened scrutiny to this evidence,
    or to treat it differently from the evidence of the complainant, but because
    the [appellants] evidence is the focus of the first two steps in the
W.D.
analysis.

[36]

There is nothing in the trial judges consideration of the complainants
    evidence that suggests uneven scrutiny. It is evident that the trial judge
    carefully considered her evidence and assessed that she was credible. He found
    that she was forthright, direct, and unshaken on cross-examination. Further, he
    noted that her demeanour on her way out of the building after the alleged
    assault reflected her account of what happened.

[37]

The trial judges analysis focused on three areas of the appellants
    evidence: whether the complainant was intoxicated, whether the complainant was
    upset when she left the apartment, and the appellants explanation for his
    activities after the complainant left the apartment. Below, I will consider
    each area in turn to determine whether the appellant has established uneven
    scrutiny.

[38]

The trial judge found that the appellant went to great pains in his
    testimony to explain that the complainant was not intoxicated. Of course, whether
    the complainant was intoxicated to the point of incapacity to consent was not a
    live issue at trial because her capacity was conceded. The trial judge found
    that the appellants testimony was false because it was contradicted by video
    footage of the parties entering the apartment building, which he found clearly
    showed that the complainant was intoxicated.

[39]

This testimony was a significant factor in the trial judges credibility
    analysis of the appellant. He stated, [h]owever, the fact that the accused is
    denying something that is obviously true - giving obviously false evidence
    about the state of inebriation of the complainant - gives me great cause to
    concern the veracity of everything he said. On appeal, the appellant does not
    challenge that it was open to the trial judge to reach this conclusion. Thus,
    this cannot be an instance of uneven scrutiny.

[40]

Regarding the issue of the complainants mood when she left the
    apartment, the appellant testified that she was happy when she left him. The
    trial judge concluded that this evidence was incredible given the video footage
    from the elevator recording her departure from the building. He found that the
    footage showed that the complainant was clearly upset. This is not an example
    of uneven scrutiny. The trial judge was properly conducting a credibility
    analysis having regard to objective evidence.

[41]

Before turning to the third area of the appellants evidence relied on
    by the trial judge, it is necessary to consider the appellants other argument
    regarding the complainants state of mind. The appellant submits that another
    equally reasonable inference is that the complainant was overcome by regret
    about having sexual relations with the appellant after she left the apartment
    and that her emotions erupted in the elevator.

[42]

This alternative inference was never put to the complainant in
    cross-examination. It is difficult to fault the trial judge for failing to
    explore an alternative inference that finds no basis in the evidence. Further, the
    trial judge was entitled to make the finding that he did based on the record.
    The fact that another judge might have reached a different conclusion does not
    make it an instance of uneven scrutiny.

[43]

The final area of the appellants testimony is with respect to his
    actions after the complainant left the apartment. The video evidence showed
    that he went to the underground parking garage in the building at approximately
    3 a.m., about 15 minutes after the complainant left him. The appellant said
    that he was retrieving a key fob from his parents car. He was seen on camera
    briefly and was then off camera for approximately a minute. At trial, he
    testified that he was urinating in the garage at that point. The appellant then
    proceeded upstairs to the ground level. He said that he went outside for some
    air and spoke with the complainant, who was waiting for an Uber.

[44]

The Crown theory was that the appellant understood the impact of what he
    had done and went downstairs to seek out the complainant. The appellant denied
    this was the case. The trial judge accepted that the Crowns theory was more
    likely than the appellants account, which he found to be far-fetched and
    improbable. However, he stated that he could not rule out the possibility that the
    appellants account was true. Ultimately, the trial judge used this evidence as
    another factor, combined with his other findings, to conclude that the
    appellant was not credible.

[45]

Trial judges are required to look at all of the evidence and reach
    conclusions regarding credibility. Those conclusions attract a high degree of deference:
Vuradin
, at para. 11.

In this case, the trial judge
    properly engaged in a credibility analysis based on his assessment of the
    appellants evidence in its entirety. This is not a case of uneven scrutiny.

[46]

In summary, the trial judge carefully considered and evaluated the
    evidence of the complainant and the appellant. He provided clear and compelling
    reasons why he accepted the complainant's evidence and rejected the appellant's
    evidence. The record amply supported these credibility assessments. I am not
    satisfied that he scrutinized the evidence unevenly.


III.

Disposition

[47]

For the foregoing reasons, I would dismiss the appeal.

Released: C.W.H. November 26, 2019

C.W.
    Hourigan J.A.

I agree. K.
    van Rensburg J.A.

I agree.
    Thorburn J.A.


