



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    that could identify the victim or a witness shall not be published in any document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(iii)     REPEALED: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    shall not be published in any document or broadcast or transmitted in any way.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. Ghadghoni, 2020 ONCA 24

DATE: 20200116

DOCKET: C65659

Pardu, Roberts and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Saied Ghadghoni

Appellant

David M. Humphrey and Jill D. Makepeace, for the appellant

Hannah Freeman, for the respondent

Heard: December 6, 2019

On appeal from the conviction entered on June 9, 2017 and
    the sentence imposed on June 27, 2018 by Justice Hugh K. OConnell of the Superior
    Court of Justice.

Pardu J.A.:

[1]

Saied Ghadghoni appeals from his conviction for sexual assault and seeks
    leave to appeal from the 30-month sentence which followed upon his conviction. The
    basis for the conviction was a finding that the appellant initiated sexual
    intercourse with a sleeping woman, circumstances inconsistent with consent on
    her part.

[2]

The appellant submits that the trial judge applied uneven scrutiny to
    the evidence, rigorously scrutinizing his evidence but tolerating
    inconsistencies in the complainants evidence.

[3]

I would reject this ground of appeal. The appellants statement to the police
    regarding the relevant events was inconsistent with other objective, relatively
    uncontroversial evidence, which went to the heart of whether he had intercourse
    with a sleeping woman. The inconsistencies in the complainants evidence went
    to peripheral matters which the trial judge found did not materially affect the
    complainants credibility and reliability regarding the central sexual assault allegation.

[4]

I would allow the sentence appeal. The trial judge made an unreasonable
    factual finding that affected the sentence.

A.

Factual narrative

[5]

The appellant met the complainant at a gym. They exchanged a few social
    media and text messages. About a day later, they both separately went to a
    nightclub event. The complainant went with her own friends and family. They
    arrived at about 11:45 p.m. and sat at a booth they had reserved. The appellant
    said he met his own friends and family at the club.

[6]

The complainant said that she had less than three drinks, but she became
    profoundly intoxicated. The appellant did not consume alcohol. The appellant
    and the complainant interacted at some points throughout the evening, sometimes
    dancing together.

[7]

Video surveillance captured the appellant and the complainant leaving
    the nightclub at about 2:39 a.m. She had gone out for a cigarette but was so
    intoxicated she could barely stand up or light her own cigarette. The bouncer
    refused her re-entry. After a short discussion, the appellant took the
    complainant to his car. She needed his physical support to get to the car.

[8]

In his police statement, the appellant said the complainant told him she
    could not go home, and she agreed with his suggestion to go to his parents
    home, which was about 40 minutes away. According to the appellant, the complainant
    vomited in his car after they left the club. He said they arrived at his home
    around 3:30 a.m. He noted that the complainant was so intoxicated she could not
    get out of the car or walk by herself.

[9]

The appellant says he helped the complainant clean the vomit off her
    person, gave her clothing to wear, helped her change, and gave her food and
    water. Afterwards, according to the appellant, the complainant really wanted to
    have sex with him, initiated that contact, and participated enthusiastically and
    vigorously. The appellant said they then cuddled and fell asleep at around 5:00 a.m.

[10]

The appellant said he and the complainant slept until about 8:00 or 8:30
    a.m. She asked him the time and said she had to go home so she could be at work
    by 11:00 a.m. The appellant told the police that the complainant then initiated
    sexual intercourse again, and that she was a willing and active participant.

[11]

The complainant had no memory of events unfolding after 12:30 a.m. She
    testified that she woke around 8:00 a.m. to find herself naked, lying on her
    stomach with the appellant having intercourse with her from behind. She said
    she told the appellant stop two or three times and the appellant replied,
    hold on, hold on, at which point she got up from the bed. She said about 20
    seconds elapsed between the time she realized the appellant was having
    intercourse with her and the time she pushed herself off the bed.

[12]

The complainant asked the appellant to drop her off at her friend R.s
    home. She said she had no idea where she was and was nervous about antagonizing
    the appellant. Once she was dropped off at her friends car, she began crying
    and told her friend what she thought had happened. Her friend took her to a
    police station. An investigation began, leading to the charge against the
    appellant.

B.

The trial judges reasons

[13]

The trial judge concluded that the complainants intoxication level was
    incompatible with the appellants description of the first sexual encounter
    after they arrived at his home. The trial judge relied on the toxicologists evidence
    and video surveillance of the complainant and appellant outside the club, just
    before they left.

[14]

The toxicologist calculated that the complainant would have had a very
    high blood alcohol concentration at around 1:30 a.m. (between 175-344
    milligrams of alcohol in 100 milliliters of blood) and around 3:00 to 3:30 a.m.
    (between 155-314 milligrams of alcohol in 100 milliliters of blood). The trial
    judge noted the effects of such levels of alcohol at paras. 175-176 of his
    reasons:

[S]uffice it to say I do find that
    the B.A.C. contents as [the toxicologist] described them to be are [
sic
]
    consistent with the evidence of [the complainant] and the video outside of the
    bar of her level of impairment.

Some of the indicia of impairment referred to by this witness
    once you get higher up between the 150 and 200 milligrams of alcohol in your
    blood are consistent with the effects [the complainant] was showing: loss of
    balance, issues with gross fine motor coordination, and I refer to the video
    again, possibly nausea and vomiting and possibly severe sedation, which I take
    it is a very deep sleep.

[15]

The trial judge also described the video surveillance of the complainant
    outside the club, at paras. 94-96 and 142:

[I]n the video its clear she is having serious trouble gaining her
    balance
. She appears at one point in time on the video, and
    indeed does, not simply appears, to stumble backwards into the rope cord, and
    the bouncer has to actually put his hand up to ensure she doesnt fall over,
    and that is manifestly obvious.

I also note that in the video [the
    appellant] lights a cigarette for her. Perhaps he did so in a chivalrous
    manner, but I certainly find she has no recollection of this event and it
    appeared to my eye on that video that he lit her cigarette because she was in no
    position to actually stand there, hold it and light it herself.
Her motor skills were grotesquely affected, and
    again resort only be made [
sic
] to that video which is an exhibit in
    this proceeding.

...and there was some evidence
    there was ice outside, but Im completely satisfied on all the evidence this
    wasnt a slip based on ice.
This was
    loss of balance based on manifestly severe intoxication by [the complainant] on
    that evening.



But again, as I found,
    her inability to gain balance outside, even while standing still, and thats
    critical, and that video speaks a million words, is because she was so
    inebriated that she couldnt stand. And I remind again that it was the bouncer
    whose good hand stopped her from literally falling right over the velvet cord

[16]

The appellant also told police that the complainants phone was dead. When
    she woke around 8:00 a.m., the complainants cellphone was turned off and was on
    the appellants side of the bed. The complainant testified that the appellant told
    her he had turned off her phone as it had no battery power. However, when the
    complainant turned on her phone after waking, the battery was at 27 percent
    power, and she saw she had missed calls and texts from friends who were
    concerned about her after she disappeared from the club. As also reflected in
    the cellphone records produced, her use of the phone after she woke around 8:00
    a.m. and on the way to her friends home demonstrated that the battery was not
    dead at that time. The trial judge concluded that the appellant had turned off the
    complainants phone so that his activities with the complainant would not be
    interrupted.

[17]

The trial judge concluded that the appellants narrative of the events
    at his home was not true and did not raise a reasonable doubt. The complainant
    would have been incapable of the activities the appellant described as the
    first consensual sexual intercourse. The appellant himself said that the
    complainant was incapable of walking by herself when they arrived at his home.
    The trial judge found this first incident of intercourse described by the
    appellant did not occur. This rejection of the appellants evidence was
    grounded in other objective evidence and went to the central issue of consent
    to sexual contact between the parties.

[18]

The trial judge also found that the complainant was asleep when the
    appellant penetrated her in the morning, around 8:00 a.m. As the complainant
    was asleep, she could not and did not consent to the sexual intercourse. Consequently,
    the trial judge found the appellant guilty of sexual assault.

C.

Analysis

(1)

Appeal from conviction

[19]

I begin with the observation that the defences argument at trial was
    that the complainant regretted going to a near strangers home and having
    sexual relations with him. As a result, the complainant reinvented her
    account of what had occurred. Defence counsel indicated that he did not doubt
    the complainants sincerity but suggested to her that she decided this
    gentleman was not [her] best choice and [she] decided to block it.

[20]

The appellant submits the complainants evidence required heightened
    scrutiny because of the large gap in her memory, her intoxication, and various
    inconsistencies in her evidence.

[21]

The complainants intoxication level was incompatible with her stated
    alcohol consumption. The trial judge accepted her evidence that she had three
    drinks. However, he found that she clearly had had more alcohol than that, but
    he could not say how that came to pass. The toxicology evidence provided the
    most reliable evidence of the complainants intoxication level.

[22]

Defence counsel pointed out several inconsistencies in the complainants
    evidence. In examination in chief, she said she finished her third drink; in
    cross-examination she said she did not remember finishing it. At trial, she
    said that she held her shoes in her hands and was barefoot when she went out to
    the appellants car in the morning, when the appellant was about to take her to
    her friends home. Defence counsel pointed out that she had also said her shoes
    were on her feet at this time.

[23]

The trial judge did not view these as material inconsistencies. The
    complainant was testifying at trial about events occurring more than three
    years previously.

[24]

The appellant argues the trial judge unfairly scrutinized and did not
    give fair consideration to evidence favouring the defence.

[25]

There was video surveillance showing the appellant lighting a cigarette
    for the complainant, and dialogue with the bouncer outside the club. The
    appellant argues the trial judge should have used this footage to confirm the
    appellants evidence that the complainant initiated the departure from the bar.
    Instead, the trial judge found that the appellant initiated the departure. He
    concluded that:

she wasso inebriated the bouncer wouldnt let her back in. She
    couldnt get a jacket, and [the appellant]s mind at that point in time, Im
    completely satisfied, was to get her into the car and get her back to his place
    so that things could happen as he wanted them to, and in a situation where
    there is not one iota of consent to her doing it, even after I carefully have
    assessed [the appellant], the now found guilty partys evidence as to what he
    said happened at that house where he resided with his parents at the material
    time.

[26]

The appellant submits that the trial judges unfounded finding that the
    appellant initiated the departure became an integral component of his analysis
    that tainted his assessment of the entire evidence. Specifically, the trial
    judge viewed this as the first of several steps in what he concluded was the
    appellants deliberate scheme to isolate and take advantage of the complainant.
    The trial judges error resulted in uneven scrutiny leading him to accept the
    complainants evidence and reject any evidence that did not fit within this
    frame.

[27]

I agree that the evidence does not support that the appellant planned
    the offence from the time he and the complainant left the nightclub. This would
    have required the appellant to have foreseen that the complainant would go
    outside to smoke, that the bouncer would not allow re-entry into the club, and
    that the complainant would say she could not go home. The earliest indication
    of planning might be when the appellant took the complainants cell phone and
    turned it off, sometime after they were both in bed.

[28]

However, I do not accept that the trial judges error tainted his entire
    view of the evidence or his determination of the central issue in the case,
    namely, whether the appellant had sexual intercourse with a sleeping woman. As
    a result, the question of who initiated the departure from the bar was
    peripheral to the central issue in the case.

[29]

The appellant argues that the trial judge should have given more weight
    to his fathers testimony, who saw the complainant in the home after she woke
    up and was preparing to leave. The father testified that he came downstairs in
    the morning, said hello and that his son then introduced him to the complainant.
    He said the complainant did not appear upset during their brief exchange. After
    they left a few minutes later, the father went upstairs to a window on the
    second floor. He saw the appellant and the complainant in the car together and
    they appeared to be taking a selfie photograph and they were smiling. The trial
    judge found that the fathers evidence was embellished and held that the
    complainant was anxious to get out of the home, did not know who the person
    was, she was scared and was trying to stay calm.

[30]

The trial judge accepted that the complainant was anxious to get out of
    the home, did not know who the father was and did not exhibit any upset to the
    father during their meeting for understandable reasons.

[31]

The appellant submits that differences between the evidence of the complainant
    and her friend R. about the precise timing of the disclosure to R. and whether
    they went to Tim Hortons before going to the police station should have
    undermined the complainants credibility and reliability. The appellant makes
    the same argument about differences between the evidence of the complainant and
    R. about the frequency of the complainants visits to nightclubs on other
    occasions. Again, the trial judge did not regard these differences as material
    to his assessment of the complainants credibility and reliability.

[32]

The appellant argues that the trial judge erred by equating incapacity
    to consent to sexual relations with the entire period for which the complainant
    had no memory (i.e. from around 12:30 a.m. until the complainant woke up around
    8:00 a.m.). Whether or not she had the capacity to consent to sexual relations
    during this earlier period was not relevant to the question of whether the
    appellant initiated sexual intercourse with her when she was sleeping.

[33]

Nothing in either the appellants or the complainants narrative of
    events or defence counsels submissions suggests that the complainant was
    impaired by alcohol when she woke up to the extent that she could not be a
    reliable historian of what she experienced as she woke up. She got up, got
    dressed, looked for her underwear, found her phone, called and texted friends,
    spoke to the appellant and asked for a ride to a friends home. She went to the
    police station and the hospital and recounted her experience, as she saw it.

[34]

The trial judge expressly cautioned himself to apply
R. v. W.(D
.
)
,
    [1991] 1 S.C.R. 742, to the statement the appellant gave to police. He expressly
    considered the complainants reliability and credibility, and the other
    evidence. He cited
R. v. H.C.,
2009 ONCA 56, 241 C.C.C. (3d) 45, at
    para. 41, which states:

Credibility and reliability are
    different. Credibility has to do with a witnesss veracity, reliability with
    the accuracy of the witnesss testimony. Accuracy engages consideration of the
    witnesss ability to accurately

i.

observe;

ii.

recall; and

iii.

recount

events in issue. Any witness whose evidence on an issue is not
    credible cannot give reliable evidence on the same point. Credibility, on the
    other hand, is not a proxy for reliability: a credible witness may give unreliable
    evidence. [Citations omitted.]

[35]

To subject the evidence favouring the defence to a stricter level of
    scrutiny than the evidence of the Crown is an error of law, which displaces the
    deference ordinarily owed to the trial judges credibility assessment:
R.
    v. Phan
, 2013 ONCA 787, 313 O.A.C. 352, at paras. 30-31.

[36]

In
R. v. Howe
(2005), 192 C.C.C. (3d) 480 (Ont. C.A.), at
    paras. 58-59, Doherty J.A. described the difficulties associated with this
    argument,

Counsel  contends that the trial judge applied a higher
    standard of scrutiny in his assessment of the appellant's evidence and
    credibility than he did when considering the evidence and credibility of [the
    complainant].

This argument or some variation on it is common on appeals from
    conviction in judge alone trials where the evidence pits the word of the
    complainant against the denial of the accused and the result turns on the trial
    judge's credibility assessments. This is a difficult argument to make
    successfully. It is not enough to show that a different trial judge could have
    reached a different credibility assessment, or that the trial judge failed to
    say something that he could have said in assessing the respective credibility
    of the complainant and the accused, or that he failed to expressly set out legal
    principles relevant to that credibility assessment. To succeed in this kind of
    argument, the appellant must point to something in the reasons of the trial
    judge or perhaps elsewhere in the record that make it clear that the trial
    judge had applied different standards in assessing the evidence of the
    appellant and the complainant.

[37]

This difficulty was reiterated in
R. v. Aird
, 2013 ONCA 447, 307 O.A.C. 183
, at para.
    39:

The different standards of scrutiny argument is a difficult
    argument to succeed on in an appellate court. It is difficult for two related
    reasons: credibility findings are the province of the trial judge and attract a
    very high degree of deference on appeal; and appellate courts invariably view
    this argument with skepticism, seeing it as a veiled invitation to reassess the
    trial judges credibility determinations.

[38]

Here, I am not persuaded that the trial judge applied different scrutiny
    to Crown and defence evidence. He rejected the appellants evidence and accepted
    the complainants evidence based on the evidence as a whole, logical
    inferences, and the importance of particular testimony to the central issue in
    the trial. The trial judge expressly considered the same arguments about the
    credibility and reliability of the evidence now made on appeal.

[39]

This is not a case like
Howe
, where both the defence and Crown
    witnesses lied under oath, and defence evidence was rejected because of the
    lie, but the Crown witnesss lie did not affect the assessment of her
    credibility.

[40]

Nor am I persuaded that the trial judge materially misapprehended the evidence
    on the central issue,
which is whether the appellant had
    sexual intercourse with a sleeping woman
.

(2)

Appeal from sentence

[41]

When the appellant was a child, he suffered a severe head injury that
    left him with serious cognitive deficits. Dr. MacGregor explained that people
    with this type of brain injury, just cant put the brakes on, they just have
    to keep going, thats the impulsivity, distractibility, just cant stop it.
Dr. MacGregor further testified that

he has problems with impulsivity, distractibility and self-control.
    Expert evidence indicated that he has difficulty recognizing social cues in
    interactions with others. He has limited ability to learn from punishment.

[42]

The trial judge concluded that an appropriate sentence would have been
    36 months. However, he ultimately imposed a 30-month sentence, because serving
    prison time would be more difficult for the appellant, due to his disabilities.

[43]

The appellant submits that the trial judge erred by failing
    to recognize that his disabilities reduced his moral blameworthiness.
The appellant submits further that the trial judge erred in concluding that the
    offence was methodically planned over a sustained time. Finally, the appellant
    argues that the trial judge misidentified the appropriate range of sentence as
    from two years less a day to four years. The appellant submits that the usual
    range of sentence for intercourse with a sleeping or incapacitated victim is
    between 18 months and three years.

[44]

The trial judge did not mitigate the sentence further because he
    concluded that there was no causal link between the appellants disabilities
    and the offence. He noted the offence was not an impulsive act based on the
    personality defect based on his brain injury or that can rationally be
    connected to his brain injury. The trial judge observed that it was clear from
    the appellants videotaped police statement that he was well aware of the
    issue of consent.

[45]

Cognitive impairment, where it affects behaviour resulting in criminal
    liability, can attenuate the moral blameworthiness attached to that behaviour.
    It can also justify less emphasis on the principles of specific and general
    deterrence:
R. v. Manitowabi
, 2014 ONCA 301, 318 O.A.C. 175, at para.
    64.

[46]

On this record, however, it cannot be determined whether this offence
    was committed impulsively or whether the appellants cognitive deficits otherwise
    contributed to his commission of the offence.

[47]

However, as earlier explained in para. 27, I agree that the evidence
    does not support the trial judges finding that the offence was methodically
    planned from the time they left the club. The trial judge therefore erred in
    relying on this characterization of the offence as an aggravating factor that
    was not established by the Crown beyond a reasonable doubt.

[48]

I further agree that the usual range identified in past jurisprudence
    for sexual assaults committed in similar circumstances has been between 18
    months and three years: see, for example,
R. v. Christopher Smith
,
2015 ONSC 4304, at paras. 32-33. Even
    if the trial judge identified a range that slightly exceeds that imposed in
    similar circumstances, the actual sentence imposed is within the appellants
    proposed range. Deviation from a sentencing range is not, in itself, an error
    in principle:
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para.
    60.

[49]

The appellant submits that a lesser sentence would have been appropriate
    because he was only 22 years old at the time of the offence, the offence was
    not planned, his head injury reduced his moral blameworthiness, he immediately
    desisted when the complainant told him to stop, he had no prior record, and the
    offence was out of character. He argues that rehabilitation should have been
    given more weight in fashioning an appropriate sentence.

[50]

I agree further that the trial judge could have imposed a lesser
    sentence within the appropriate range that has been identified. The fact that
    he did not, does not open the door to appellate interference, absent an error
    in principle that had an impact on the sentence.

[51]

In my view, the trial judge erred by finding an aggravating factor, that
    the appellant methodically planned to commit the offence from the time he left
    the club; this was not proven beyond a reasonable doubt. As a result, I would
    reduce the appellants sentence to two years less a day.

[52]

Accordingly, the appeal from conviction is dismissed. I would allow the
    appeal from sentence and substitute a sentence of two years less a day.

Released: January 16, 2020

GP

G. Pardu J.A.

I agree L.B. Roberts
    J.A.

I agree J.A.
    Thorburn J.A.


