



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. Alisaleh, 2020 ONCA 597

DATE: 20200922

DOCKET: C68260

Fairburn
    A.C.J.O., MacPherson and Coroza JJ.A.

BETWEEN

Her
    Majesty the Queen

Respondent

and

Jawid Alisaleh

Appellant

Jawid Alisaleh, acting in person

Paul Alexander, appearing as duty
    counsel

Nicole Rivers, for the respondent

Heard: September 8, 2020 by video
    conference

On appeal from the
    conviction entered by Justice Breese Davies of the Superior Court of Justice,
    dated October 11, 2019, with reasons reported at 2019 ONSC 5859, and from the
    sentence imposed on March 6, 2020.

REASONS FOR DECISION

[1]

The appellant was convicted of one count of sexual
    assault and received a sentence of six months less one day in custody followed
    by two years of probation. He appeals from conviction and sentence.

[2]

At trial, there was no dispute that the
    appellant touched the complainant in a sexual manner. The issue was whether he
    continued to do so after the complainant withdrew her consent. According to the
    complainant, on March 8, 2017, she went to the appellants apartment and
    engaged in consensual sexual activity including vaginal intercourse. However,
    she verbally withdrew her consent when the sex became rough and started to
    hurt. The appellant ignored her, continued to touch her in a sexual manner, and
    unsuccessfully tried to anally penetrate her.

[3]

The complainant ended the assault by pushing the
    appellant off of her and getting dressed. She left the apartment to find out
    the address of the building because the appellant refused to drive her home.
    She left without her belongings and the appellant locked her outside of his
    apartment. The complainant called a friend to pick her up and her friends
    mother came to get her. They attempted to try and retrieve her belongings,
    however, the appellant refused to open the door. At that time, the complainant
    did not disclose that she had been sexually assaulted.

[4]

The complainant called 911 and asked for police
    help in retrieving her belongings. She was told to wait for the arrival of a
    police officer. After waiting some time, she called 911 a second time and was
    told by the operator that because there was no life and death emergency there
    would be a delay. It was at this point that she disclosed that she had been
    sexually assaulted and falsely claimed it occurred just 10 minutes before the
    call. At trial, the complainant acknowledged that she lied to the operator
    about the timing of the assault because she believed that if she told the operator
    that the assault had just happened the police would respond quickly.

[5]

The appellant did not testify at trial. His
    position was that the complainant was neither credible nor reliable because her
    evidence suffered from several flaws, including that she acknowledged lying to
    the police to retrieve her belongings. The trial judge disagreed. She accepted
    the complainants testimony that there was no consent to sexual intercourse
    once it became rough and the complainant told him to stop.

[6]

With the assistance of duty counsel, the
    appellant raises three grounds of appeal in relation to his conviction.

[7]

First, that the trial judge erred by treating a
    lack of embellishment in the complainants allegations as enhancing her
    credibility.

[8]

Second, that the trial judge reversed the burden
    of proof by focusing on whether flaws in the complainants evidence were
    sufficient to cause her to reject that evidence, when she should have focused
    on whether the complainants evidence was sufficiently cogent to be accepted in
    the first place.

[9]

Third, that the trial judge erred in her
    credibility assessment by acknowledging the flaws and contradictions in the
    complainants evidence but excusing them based on a misapprehension of their
    relevance and by unreasonably finding that the complainant was credible because
    she was corroborated on a peripheral fact.

[10]

The second and third grounds of appeal can be
    dealt with briefly.

[11]

With respect to the argument that the trial
    judge reversed the burden of proof, we note that a trial judge is presumed to
    know the law and that, on more than one occasion in her very detailed and
    thorough reasons, the trial judge stated that the burden was on the Crown to
    prove the case beyond a reasonable doubt.
The trial
    judge identified that the only issue was whether the complainant consented
    which turned on an assessment of the complainants credibility and the
    reliability of her evidence. The trial judge then went on to deal specifically
    with each submission made by defence counsel about why the complainants credibility
    and reliability should be rejected. She did not reverse the burden of proof.

[12]

Additionally, we do not accept that the trial
    judge erred in her assessment of the flaws in the complainants evidence, or in
    her treatment of the corroborating evidence. Although troubled by some aspects
    of the complainants evidence, the trial judge set out detailed reasons why the
    complainants misleading statement to the police and the inconsistencies in her
    evidence did not cause her to reject the complainants evidence that she had
    withdrawn her consent.

[13]

Turning to the first ground of appeal, the Crown
    concedes that the trial judge erred in finding that the complainants
    credibility was enhanced because she did not appear to exaggerate her
    allegations against the appellant. However, the Crown argues that the curative
    proviso under s. 686(1)(b)(iii) of the
Criminal Code
, R.S.C. 1985, c.
    C-46 should apply.

[14]

At trial, the Crown argued in its closing
    submissions that the lack of embellishment supported the complainants
    credibility. Defence counsel objected to this submission and argued that the
    lack of embellishment had no bearing on the complainants credibility. As
    defence counsel put it, you dont get points for not exaggerating. Defence counsel
    expressly stated that their position was not that the complainant was so angry
    that she embellished her testimony. Rather, their case was that the complainant
    lied to the police on the spur of the moment to retrieve her belongings.

[15]

When addressing why she
    believed the complainant, the trial judge explained: [t]here are two important
    factors that I find enhance [the complainants] credibility.
One of those two important factors
    pertained to the view that the complainant had not embellished during her
    evidence. As the trial judge explained,
although every
    allegation of sexual assault is serious the allegations made by the complainant
    were relatively modest and that the complainant gave a measured description
    of what took place between them without apparent exaggeration.
The
trial judge also emphasized that the
    complainants description of the assault was understated.

[16]

To be clear, it is not an error to simply note
    that there is an absence of embellishment in the complainants testimony. This
    court has held that the presence of embellishment can be a basis to find the
    complainant incredible, and there is nothing wrong with noting the absence of
    something that could have diminished credibility. However, it is wrong to
    reason that because an allegation could have been worse, it is more likely to
    be true:
R. v. Kiss
, 2018 ONCA 184 at para. 52, citing
R. v. G.(G.)
(1997), 115 C.C.C. (3d) 1, at p. 10 (Ont. C.A.);
R. v. L.L.
, 2014 ONCA
    892, at para. 2;
R. v. G. (R.)
, 2008 ONCA 829, 243 O.A.C. 1, at para.
    20. Our colleague Paciocco J.A. put it this way in
Kiss
at para. 52:

On the other hand, in my view, there is
    nothing wrong with a trial judge noting that things that might have diminished
    credibility are absent.
As long as it is not being used as a makeweight in
    favour of credibility
, it is no more inappropriate to note that a witness
    has not embellished their evidence than it is to observe that there have been
    no material inconsistencies in a witness evidence, or that the evidence stood
    up to cross-examination. These are not factors that show credibility. They are,
    however, explanations for why a witness has not been found to be incredible.
    [Emphasis added.]

[17]

In this case, the trial judge was not simply
    noting that the complainants evidence did not suffer from a problem of
    exaggeration or embellishment that diminished its weight in response to a
    defence argument that the complainant had embellished her allegations. Rather, the
    lack of embellishment was specifically noted as an important factor used to
    enhance the complainants credibility. Therefore, we agree with the Crowns concession
    on this error.

[18]

Notwithstanding the error, the Crown requests
    that we apply the curative proviso to uphold the conviction. Although there is
    no hard and fast rule that excludes the curative proviso in cases turning upon
    credibility, caution should be exercised prior to its application if credibility
    is the key issue at trial:
R. v. Perkins
, 2016 ONCA 588 at para. 32. In
    our view, the proviso is inapplicable in this case.

[19]

The core issue at trial was the credibility of
    the complainant. While we acknowledge that the trial judge gave another reason
    for finding the complainant credible, the lack of embellishment was cited as
    one of two important reasons that enhanced the complainants credibility. We also
    note that the trial judge had some concerns about the complainants evidence,
    and we cannot say for certain that a conviction would have been inevitable had
    the judge not considered the lack of embellishment to be a positive factor
    going to the credibility of the complainant. As this court affirmed in
Perkins
,
    at para. 26, as tracing the effect of the error on the verdict is necessarily
    a somewhat speculative exercise, any doubt as to the impact of the error must
    be resolved against the Crown.

[20]

The conviction appeal is allowed and a new trial
    on the sexual assault charge is ordered. In light of our conclusion on the
    conviction appeal, we do not reach the sentence appeal.

Fairburn
    A.C.J.O.

J.C.
    MacPherson J.A.

S.
    Coroza J.A.


