



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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.M., 2019 ONCA 419

DATE: 20190522

DOCKET: C64428

Hourigan, Paciocco and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.M.

Appellant

Michael Lacy, for the appellant

Jeremy Tatum, for the respondent

Heard: May 8, 2019

On appeal from the convictions entered by Justice John P.
    Condon of the Ontario Court of Justice on November 17, 2016.

REASONS FOR DECISION

OVERVIEW

[1]

The appellant, R.M., was charged with ten offences arising from his
    domestic relationship with C.G. He was convicted of five of those offences,
    including: three charges of assault contrary to
Criminal Code
, R.S.C.
    1985, c. C-46, s. 266, a charge of sexual assault contrary to
Criminal Code
,
    s. 271, and a charge of unlawful confinement contrary to
Criminal Code
,
    s. 279(2). He was acquitted of four of those offences, including: another
    charge of unlawful confinement for which no evidence was led, a charge of assault,
    a charge of assault with a weapon contrary to
Criminal Code
, s. 267(a),
    and a charge of aggravated assault contrary to
Criminal Code
, s. 268.
    The remaining charge of uttering a death threat contrary to
Criminal Code
,
    s. 264.1(1)(a) was withdrawn by the Crown with leave of the court.

[2]

As a result of his convictions, R.M. was sentenced to 21 months in jail
    and placed on probation for three years.

[3]

R.M. now appeals his convictions. He claims that the trial judge erred
    in rejecting his
Charter
, s. 11(b) motion and failing to stay the
    charges, and that he committed several legal errors related to credibility
    evaluation when finding R.M. guilty of the five offences.

[4]

We do not accept R.M.s grounds of conviction appeal, and dismiss his
    sentence appeal as abandoned.

THE TRIAL JUDGE WAS CORRECT IN REJECTING THE S. 11(b)
    APPLICATION

[5]

In his s. 11(b) analysis, the trial judge proceeded on the basis that
    the total period of delay ended with his s. 11(b) decision. However, the
    parties have argued this appeal on the basis that the period of total delay
    should have ended with R.Ms conviction. Absent the benefit of complete
    argument, this is not the case to tackle the controversial questions relating
    to the proper end point in calculating total delay.  Nor would that
    determination affect the outcome of the instant appeal.

[6]

If we proceed on the basis that the appeal was argued  that the total
    delay was 650 days, or 21 months and 11 days  the remaining delay is
    presumptively reasonable. We can explain this conclusion by examining only
    three of the periods of delay.

[7]

R.M. takes issue with the trial judges decision to deduct 71 days, or 2
    months and 11 days, of delay on the basis that this delay arose from exceptional
    circumstances. Even if the trial judge was incorrect about this, he also found
    that R.M.s counsel made an explicit waiver of the adjournment time arising
    from the discre[te] event. This finding was not challenged by R.M. This waiver
    means that the entire period is defence delay that must be deducted from the
    total delay. This brings the remaining delay down to 579 days, or 19 months and
    9 days.
[1]

[8]

The trial judge also attributed significant delay to R.M. for inaction
    in arranging a pretrial. In this appeal, R.M. contends that much of this delay
    should not have been laid at his feet, but concedes that 35 days of that delay
    is properly attributable to the defence. This was a proper concession. This 35
    day delay was caused by R.M.s counsel being double booked for a pretrial and
    then seeking an adjournment to permit R.M. to obtain legal aid. Without
    resolving the controversy concerning the remaining portion of delay, this
    concession brings the remaining delay down to 544 days, or 18 months and 4
    days.

[9]

Among the other periods of delay deducted, the trial judge found that 14
    days of defence delay was caused when an adjournment was required because R.M.
    needed time to consider his election on mode of trial. R.M. does not contest
    this conclusion. This brings the remaining period of delay under 18 months,
    making the delay presumptively reasonable.

[10]

R.M.
    does not urge that in this case the presumptively reasonable delay should be
    found to be unreasonable. On this basis alone, R.M.s s. 11(b) appeal would fail,
    without having to consider the other periods of delay that are in dispute
    between the parties.

[11]

In
    any event, regardless of how the total delay is calculated  whether until the
    end of the verdict or until the end of the s. 11(b) decision, or even until R.M.
    was sentenced just a month or so after the s. 11(b) decision  the remaining
    delay would not be unreasonable in this transitional case. The trial judge made
    factual determinations that have not been effectively challenged and that make
    this outcome inevitable.

[12]

Specifically,
    the trial judge found that by the time
R. v. Jordan
, 2016 SCC 27,
    [2016] 1 S.C.R. 631

was decided, all of the evidence in the case had
    been heard. The next appearance date for reply evidence and submissions was
    already set and there was no opportunity for the Crown to remedy that delay.

[13]

He
    also found that the parties relied on the law as it existed prior to
Jordan
and that the defence never demonstrated concern about the delay that was
    occurring. This was a decision that was open to the trial judge to make on the
    facts of this case, given the various adjournment requests made, the defence inaction
    in setting the pretrial, and the failure of R.M. to be ready to elect mode of
    trial. R.M.s counsels sole relevant comment when setting trial dates, that he
    had many many early dates, is not enough to undercut the trial judges
    finding.

[14]

Against
    this backdrop, the trial judge appropriately invoked the transitional exception
    in a serious case where he found, as he was entitled to, that no meaningful
    case specific prejudice had been demonstrated.

[15]

That
    same conclusion applies in this case, however total delay is calculated. The s.
    11(b) appeal is therefore denied.

THERE ARE NO ERRORS IN THE SUBSTANTIVE JUDGEMENT

[16]

In
    his factum, R.M. raised three grounds of appeal relating to the trial judges
    decision to find him guilty of the five charges: (1) the trial judge erred by
    using the complainants admission of lying to bolster her credibility, (2) the
    trial judge erred by failing to explain why adverse credibility findings he
    made against the complainant on some of the counts did not undermine her
    credibility on the balance of the counts, and (3) the trial judge applied
    stricter scrutiny to R.M.s evidence than the complainants evidence,
    undermining the fairness and appearance of fairness of the trial. These
    arguments were each presented in oral argument, although structured
    differently. Mindful of the overlap between them, we will address the arguments
    in the order just identified.

A.

The Trial Judge did not use the Complainants lie to bolster her
    crediblity

[17]

In
    our view, the trial judge did not use the complainants admission that she lied
    about the aggravated assault incident to bolster her credibility. Instead, he
    used her readiness to admit having lied as an illustration of his conclusion
    that she was responsive to questions. Specifically, he said in the impugned
    passage that [s]he was responsive to the questions put to her, even agreeing
    that she had lied to some people about events that had occurred.

[18]

Indeed,
    rather than using the complainants admission to having lied to bolster her credibility,
    the trial judge found that the inconsistency between her statements and her
    testimony contributed to the reasonable doubt he had on the aggravated assault
    charge.

[19]

R.M.
    argues in the alternative that this latter finding is inconsistent with the former.
    Specifically, R.M. contends that when the trial judge found the complainants admissions
    that she lied to be responsive, he must implicitly have accepted that she actually
    was lying when making those prior statements. In other words, he must have accepted
    that her earlier claims that R.M. had not caused her injury were in fact false.
    Yet, the trial judge then relied on the inconsistency between those innocent
    accounts and her incriminating testimony as a reason for reasonably doubting
    her incriminating testimony. The two findings cannot co-exist, logically.

[20]

We
    do not agree. Recognizing an answer to be responsive does not require acceptance
    that the responsive answer is true. And that is all that the trial judge used
    her admission to lying to demonstrate - responsiveness. We cannot infer that
    the trial judge committed the error in logic that R.M. alleges.

[21]

In
    any event, even if the trial judge had accepted the complainants evidence that
    she was lying when she provided the innocent accounts, and avoided the logical
    error R.M. now raises, it would have worked against R.M.s case. Consistent use
    of a finding that the complainant was lying when making the prior inconsistent
    statements would neutralize those prior inconsistent statements, thereby strengthening
    the Crown case.

[22]

It
    follows in our view that even had the trial judge reasoned as R.M. alleges, the
    logical error would not be a material legal error undercutting the trial
    judges findings, nor would it be the basis for a finding that a miscarriage of
    justice has occurred.

[23]

We
    dismiss this ground of appeal.

B.

the trial judge did not err by failing to explain why his credibility
    concerns on some counts did not undercut his findings on other counts

[24]

R.M.
    argues that the trial judges decision to acquit R.M. of several of the charges
    reflects concerns he had about the complainants credibility. R.M. says that
    the trial judge erred by not considering these problems with the complainants
    evidence in convicting R.M. of the other charges, and in not explaining why
    these concerns did not raise a reasonable doubt on the other charges.

[25]

In
    our view, this argument would have more currency if the trial judge had
    affirmatively found that the complainant was lying in her evidence at trial
    about any one of the charges. He did not go that far. He went no farther than
    to identify credibility concerns that contributed to the reasonable doubt he
    had on some of the allegations. This is not a case where the trial judge chose
    to believe a demonstrated liar on some counts, without explanation.

[26]

Of
    course, we do agree that it would have been better had the trial judge been
    explicit about why the credibility concerns he had about some of the
    complainants testimony did not undercut the testimony she gave that he did accept.
    It is nonetheless apparent from the trial judges decision as a whole that he
    did not silo his credibility findings from count to count. He opened his
    judgment with general assessments of the credibility of R.M. and the
    complainant. For each of the counts on which he convicted R.M., he gave context
    specific reasons for crediting the complainant, in addition to observations he
    made about the manner in which she testified, the detail she offered on central
    and incidental details, and the fact that she avoided difficulty in
    cross-examination.

[27]

On
    two of the assault convictions, the trial judge found that photos of injuries
    confirmed her accounts.

[28]

On
    the conviction for unlawful confinement, the trial judge found that the
    strikingly similar and overlapping details between the complainants narrative
    and the testimony of R.M., relating to an incident with a vacuum chord and a wicker
    or willow chair, supported her evidence that this actually happened, a point we
    address in more detail below.

[29]

On
    the findings of guilt involving an assault by slap and then a sexual assault,
    the trial judge found the complainants evidence to be particularly credible
    because of her candid admissions. She testified that she agreed with R.M. the
    unwanted anal sex was good for her, and that despite her lack of consent she
    let him proceed. As it happens, actual consent or mistaken belief in consent did
    not become issues in the case because the only defence raised was denial so
    these admissions by her did not ultimately weaken the Crown case. However the
    trial judge was impressed by, among other things, the candour of her account,
    as he was entitled to be.

[30]

Ultimately,
    it was open to the trial judge to believe only some of the complainants
    evidence. In doing so, he explained why. We would reject this ground of appeal.

C.

the trial judge did not use Uneven Scrutiny in evaluating the evidence
    of r.m. and the complainant

[31]

R.M.
    seeks to make out this notoriously difficult ground of appeal by challenging
    several of the trial judges damaging factual findings. He urges that the trial
    judge made a series of discrete reasoning errors in salvaging the complainants
    evidence  including some of the findings we have just described. He says that
    when the two approaches are contrasted, uneven scrutiny becomes clear.

[32]

We
    disagree. We begin with the most obvious observation. The trial judge
    approached the evidence of both witnesses critically. He rejected some of the
    testimony of each of them, and acted on other evidence each gave. This alone
    does not undercut this ground of appeal, but it does place it on a less stable
    foundation.

[33]

More
    importantly, in our view the trial judge was quite entitled, on the evidence
    before him, to: (1) make the inferences he did in rejecting R.M.s story about
    the vacuum chord incident; (2) find inconsistency in R.M.s evidence about his
    physical capabilities, and (3) accept that the photos depicted the alleged
    injuries. These findings were derived from reasonable inferences that logically
    arose from the evidence in the case and do not demonstrate a pattern of easy
    rejection of R.M.s case.

[34]

We
    do agree that the trial judge should not have relied upon R.M.s testimony
    about the complainants request for anal sex on another occasion, and about her
    urinary incontinence, as illustrations of R.M. discrediting himself by taking
    advantage of opportunities to make extraneous negative or embarrassing
    comments about the complainant. His testimony about the anal sex and the
    urinary incontinence was prompted by direct (if not perplexing and even
    inadmissible) questioning by defence counsel. It is therefore unfair to blame
    R.M. for the answers he gave, or to call his answers extraneous. Nonetheless,
    in our view these improper illustrations are harmless, because the underlying
    conclusion is unassailable. A review of R.M.s evidence shows that he was indeed
    anxious to place the complainant in a negative light. The animus he showed did
    discredit him. Ultimately, the fact that the trial judge took the wrong path to
    a correct conclusion does not illustrate the intense and inappropriate scrutiny
    of his evidence that R.M. alleges.

[35]

Nor
    did the trial judge make the errors alleged in crediting the complainant. He
    did rely on her demeanour in giving evidence, but as already indicated, there
    were case specific reasons for accepting her evidence on the charges that
    resulted in findings of guilt.

[36]

Nor
    is there any evident inconsistency in the complainants account of how she came
    to be tied up. The trial judge was entitled to proceed on the footing that she
    was grabbed while standing, but then tied up while sitting.

[37]

The
    trial judge should not have used the term corroborated in finding support in
    the strikingly similar details between the complainants incriminating account
    and R.M.s exculpatory version of the unlawful confinement allegation. However,
    the trial judge was entitled to note that those overlapping peculiar features,
    which would not likely have been remembered by R.M. had the incident been as
    innocent as he claimed, provided support for the complainants version. She
    described a peculiar method of confinement in a woven wooden chair with a
    vacuum chord. So too did R.M. His evidence confirmed her testimony about his
    access to the tools she said he used in confining her. As well, when R.M.
    testified that he only threatened to restrain the complainant with a vacuum
    chord on the woven wooden chair, his argument about the implausibility of actually
    confining her in this way was compromised.

[38]

Finally,
    we do not agree that the trial judge erred by enhancing the complainants
    credibility because she admitted difficult facts. This case is not like
R.
    v. Kiss
, 2018 ONCA 184, at para. 107.

[39]

There,
    the complainant admitted to factual circumstances that supported the accuseds
    innocent narrative of events, but were inconsistent with her incriminating version.
    The error the trial judge made in
Kiss
was to credit the complainant
    with candour in making such admissions, but then disregard the fact that her
    admissions damaged her version of events.

[40]

Here,
    the difficult facts the complainant admitted are entirely consistent with the
    complainants narrative of being anally penetrated after saying no, but then
    participating in order to avoid further assault or injury and not confronting R.M.
    with the fact that she had not consented. While her co-operation with the anal
    sex and her agreement that it was good for her may have challenged the Crown
    in overcoming a defence claim of consent, or a defence of belief in consent had
    one been raised, the defence here was denial. The admitted facts were not
    difficult facts, because they did not weigh either against the Crowns case,
    or in favour of R.M.s case. There was no misuse of those facts by the trial
    judge.

[41]

Nor
    is there anything to the argument that the trial judge used R.M.s difficult
    admission  that he had threatened the complainant with a vacuum chord and a
    woven wooden chair  to reject his account and support conviction, while using the
    complainants difficult admissions to accept her account and support
    conviction. As indicated, her admissions were not difficult, but consistent
    with her allegation. R.M.s admission was not difficult either. He told an exculpatory
    story about the vacuum chord and the chair, not as an admission, but in a failed
    effort to tell the real story to cast doubt on her incriminating version.

[42]

In
    our view, the trial judges reasoning does not show uneven scrutiny.

CONCLUSION

[43]

For
    the reasons provided, we dismiss the conviction appeal and dismiss the sentence
    appeal as abandoned.


C.W. Hourigan J.A.
David M. Paciocco J.A.
Harvison Young J.A.





[1]
To assist in converting days into months, the trial judge assumed that a month
    has 30 days. Obviously, this method lacks precision.
This
    court has yet to settle the proper mechanism for converting days into months in
    an s. 11(b) case, and we do not purport to do so here without the benefit of
    argument. Since no issue was taken before us with the trial judges method of
    converting accumulated days into months, we will adopt it here and assume for
    the purpose of this decision that a month has 30 days.


