



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. H.K., 2022 ONCA 45

DATE: 20220120

DOCKET: C68669

Tulloch, Hourigan and Sossin
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

H.K.

Appellant

H.K., acting in person

Mark Ertel, appearing as duty counsel

Philippe Cowle, for the respondent

Heard: November 4, 2021 by video conference

On appeal from the convictions entered on
    May 8, 2020 and the sentence imposed on September 3, 2020 by Justice Ann Alder
    of the Ontario Court of Justice.

REASONS
    FOR DECISION

[1]

The appellant was convicted of various offences
    arising out of a sexual assault. He received a global sentence of three years,
    to be served consecutive to a sentence he is serving for previous convictions.

[2]

The appellants notice of appeal argues the
    trial judge erred in two respects. First, the trial judge failed to resolve conflicting
    evidence on the critical issue of consent. Second, the sentence imposed was
    excessive because it failed to properly take into account the sentencing
    principle of totality.

[3]

In oral submissions, duty counsel informed the
    court that the appellant did not wish to advance any arguments regarding his
    sentence appeal. Accordingly, leave to appeal the sentence was denied. At the
    conclusion of the hearing, we dismissed the appeal, with reasons to follow. We
    now provide our reasons.

Background Facts

[4]

The facts that form the basis of the convictions
    are as follows. The appellant and complainant were in a romantic relationship. In
    January 2019, the complainant took a trip to Miami, Florida with her sister. On
    her return layover, the complainant, her sister, and the appellant argued over
    the phone over the complainants lack of contact with the appellant during the
    trip. The complainant returned to her parents house from the airport, but
    later went to the appellants residence at the appellants request. The pair
    argued again, and the appellant accused her of infidelity. He also looked at
    her cellphone and found a photo of the complainant and her sister with two men
    during the Miami trip.

[5]

The complainant testified that she believed the
    appellant began to get violent after seeing the photo. The complainant could
    not clearly recall the order in which the events that followed occurred, and she
    offered inconsistent and shifting testimony on the order of the events.

[6]

The appellant gave the complainant an ultimatum:
    she could either be slapped by him or she could leave. The complainant agreed
    to receive the slaps and testified that she did so out of fear and in an
    attempt to fix the situation and their relationship.

[7]

At another point in the evening, the appellant either
    removed the complainants clothes or had her remove her own clothes. She could
    not recall clearly whether he continued to hit her. She testified the appellant
    digitally penetrated her vagina, and then they had sexual intercourse. She
    testified that she felt she had no choice but to engage in sexual intercourse
    with the appellant because she was scared that he was angry and violent, and
    she was upset and crying. At still another point in the evening, the appellant began
    punching the complainant in the ribs and around her tailbone. The appellant was
    angry, and the complainant was crying. The appellant offered to call 911 given
    the force of the strikes, but she declined because she did not want to involve
    the police.

[8]

The complainant eventually fell asleep and was
    woken by the appellant grabbing her and throwing her into the bathtub, which
    was filled with water. The appellant instructed her to remove her pajamas. He
    handed her a hairbrush with a hand towel wrapped around the handle and
    instructed her to clean the inside of herself with it. She attempted to comply
    out of fear of the appellant.

[9]

The complainant testified that the next thing
    she remembered was waking up the next morning to the appellant again throwing
    her in the bathtub, which was again filled with water. The appellant told her
    that he would look at the photo every morning to remind himself of her
    infidelity. The appellant then cut off some of her hair, and then proceeded to
    urinate on her. He made her insert her fingers in her vagina with the urine in
    the water. She complied because she felt completely powerless.

[10]

Over the course of the incidents, the appellant
    would give the complainant an ultimatum: either she could comply with his
    demands or she could leave. The complainant testified that she complied because
    she hoped that compliance would make him stop or would fix the issue.

[11]

The following day, the complainant left the
    appellants house without some of her belongings, including her phone. She went
    to her sisters house. The complainant and her sister returned to the
    appellants residence and tried to get her belongings back but were
    unsuccessful. The complainants sister contacted the police, who took reports,
    statements, and photographs. The complainant was then taken to the hospital,
    where X-rays revealed some bruising.

[12]

Following the complainants departure from the
    appellants house, he sent the complainant numerous text messages admitting to
    the facts of the sexual assault and apologizing; however, his text messages
    also stated that the complainant agreed to the acts that occurred and that the
    complainant voluntarily agreed to stay rather than leave.

Decision Below

[13]

The appellant was convicted of two counts of assault
    for punching the complainant in the ribs and tailbone area. The force of the
    strikes was corroborated by evidence presented by the complainants sister, the
    hospital records, photos, and the appellants text messages. The trial judge
    accepted the complainants testimony that she did not agree to being struck.
    While the complainant may have told the appellant at times that she would do
    anything to stay, this does not amount to consent to each act which occurred.

[14]

The appellant was also convicted of sexual
    assault with a weapon and fail to comply for the hairbrush incident. Despite
    the complainants inability to recall whether the punching occurred before this
    incident or not, the trial judge accepted the complainants account of the
    events. The trial judge also considered the digital penetration of the
    complainant and the sexual intercourse that followed as part of the context informing
    whether the complainant had subjectively consented to the hairbrush incident.
    Though the appellant was acquitted of sexual assault for the digital
    penetration and sexual intercourse on the basis that the Crown failed to
    establish an absence of consent or acquiescence as a result of the application
    of force or threats or the fear of force, the trial judge noted that these acts
    involved control, harassment, and some violence, and were relevant to her
    analysis. The trial judge considered the events leading up to the complainants
    attendance at the appellants home. She also considered the complainants
    statement that she would do anything to salvage the relationship and the fact that
    the complainant did not leave when given ultimatums to either stay and comply
    or leave. Having regard to all the evidence, the trial judge concluded the
    complainant did not consent to the hairbrush incident and convicted the
    appellant of sexual assault with a weapon. As the appellant was at the time
    subject to a recognizance prohibiting the possession of weapons, he was also
    convicted for fail to comply.

[15]

Finally, the appellant was convicted of sexual
    assault for coercing the complainant to insert her fingers in her vagina after
    he urinated on her and cut her hair. The trial judge accepted the complainants
    testimony that she again complied out of fear of further violence. She
    therefore did not consent to the act.

[16]

As stated earlier, the appellant was given a
    global sentence of three years in custody.

Issue on Appeal

[17]

The appellant argues that the trial judge failed
    to resolve conflicting evidence on the critical issue of consent. Duty counsel
    argues that the trial judge treated the credibility assessment in a piecemeal
    manner. Duty counsel contends that the trial judge did not find the complainant
    to be credible generally: the complainants evidence changed from her
    examination-in-chief, to her cross-examination, and at times also in her
    re-examination. Yet, in assessing the complainants credibility on the offences
    for which the appellant was ultimately found guilty, the trial judge failed to
    consider inconsistencies in the complainants evidence on other counts. The
    trial judge also failed to consider the complainants evidence that she had
    consented to some acts that she would not have otherwise because she had
    consumed prescription drugs earlier that day. The failure to resolve these
    issues with the complainants evidence amounts to an insufficiency of reasons
    which warrants appellate intervention. We do not agree.

[18]

The Supreme Court of Canada, in
R. v. G.F
.,
    2021 SCC 20, 459 D.L.R. (4th) 375, at paras. 81-82, clearly circumscribes
    the parameters of appellate intervention and the heightened deference owed to a
    trial judges credibility findings:

[81]   a trial judges findings of
    credibility deserve particular deference. While the law requires some
    articulation of the reasons for those findings, it also recognizes that in our
    system of justice the trial judge is the fact finder and has the benefit of the
    intangible impact of conducting the trial. Sometimes, credibility findings are
    made simpler by, for example, objective, independent evidence. Corroborative
    evidence can support the finding of a lack of voluntary consent, but it is of
    course not required, nor always available. Frequently, particularly in a sexual
    assault case where the crime is often committed in private, there is little
    additional evidence, and articulating reasons for findings of credibility can
    be more challenging. Mindful of the presumption of innocence and the Crowns
    burden to prove guilt beyond a reasonable doubt, a trial judge strives to
    explain why a complainant is found to be credible, or why the accused is found
    not to be credible, or why the evidence does not raise a reasonable doubt.

[82]   Credibility findings must also be
    assessed in light of the presumption of the correct application of the law,
    particularly regarding the relationship between reliability and credibility.
    The jurisprudence often stresses the distinction between reliability and
    credibility, equating reliability with the witness ability to observe, recall,
    and recount events accurately, and referring to credibility as the witness
    sincerity or honesty. However, under a functional and contextual reading of
    trial reasons, appellate courts should consider not whether the trial judge
    specifically used the words credibility and reliability but whether the
    trial judge turned their mind to the relevant factors that go to the
    believability of the evidence in the factual context of the case, including
    truthfulness and accuracy concerns.  [Citations omitted.]

[19]

We reject duty counsels argument that
    heightened deference to a trial judges credibility findings is only owed if
    the trial judge has found the complainant to be generally credible. A trier of
    fact is entitled to accept some, none, or all of the evidence given by a
    witness. The trial judge in this case conducted a thorough and detailed
    analysis of the entire evidence. She considered where the complainants evidence
    was consistent or corroborated by other evidence, and she explained where the
    complainants evidence was unreliable. This is entirely consistent with her
    role as the trier of fact.

[20]

Duty counsel also argues that, having found
    issues with the complainants evidence about some of the allegations, the trial
    judge was required to consider whether those weaknesses undermined the
    complainants evidence on other allegations. Duty counsel further suggested
    that had the trial judge stated in her reasons that she was accepting the
    complainants evidence notwithstanding issues with her evidence on other
    allegations, the trial judges credibility findings would be entitled to
    deference as stated in
G.F
.

[21]

Respectfully, this submission misunderstands the
    instruction in
G.F
.
G.F
. requires appellate courts to take a
    practical approach to reviewing a trial judges reasons. There is no magic
    incantation required of trial judges. Reading the trial judges reasons as a
    whole, there is no basis on which we find that they were insufficient so as to
    be inscrutable or incapable of meaningful appellate review. The trial judges
    reasons were careful and nuanced. She explained why she did not accept some of
    the complainants evidence and why she did accept other parts of the complainants
    evidence.
Moreover, the trial judge did not consider
    the complainants evidence alone but also had regard to corroborating evidence
    by other witnesses, photos, and text messages.

[22]

In our view, the trial judge made no error in
    her analysis.

Disposition

[23]

For the foregoing reasons, the appeal from the convictions
    is dismissed.

M.
    Tulloch J.A.

C.W.
    Hourigan J.A.

L.
    Sossin J.A.


