



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C. 2014, c. 25, s. 22(2),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    shall not be published in any document or broadcast or transmitted in any way.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. Sutherland, 2016 ONCA 674

DATE: 20160913

DOCKET: C59603

Watt, Pepall and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Hopeton Sutherland

Appellant

Hopeton Sutherland, acting in person

Russell Silverstein, duty counsel

Michael Bernstein, for the respondent

Heard: July 14, 2016

On appeal from the convictions entered by Justice Nancy
    Kastner of the Ontario Court of Justice on October 22, 2014, with reasons
    reported at 2014 ONCJ 551, and sentence, dated October 31, 2014.

Tulloch J.A.:

A.

Introduction

[1]

This appeal stems from events occurring around May 3, 2014, when it is
    alleged that the appellant assaulted the complainant and forced her to have
    intercourse with him at knife point. The appellant was convicted of assault
    causing bodily harm, sexual assault with a weapon, theft under $5,000, and
    breach of probation. He was sentenced to six years imprisonment.

[2]

The appellant now appeals against his conviction and sentence. With the
    assistance of duty counsel, he argues that the trial judge misunderstood the
    evidence and erred by taking judicial notice of certain evidence concerning the
    complainants underwear and by misapplying the rule in
Browne v. Dunn
(1893),
    6 R. 67 (U.K. H.L.).

[3]

For the reasons that follow, I would dismiss the appeal.

B.

BACKGROUND

(1)

Facts

[4]

At the time of the relevant events, the appellant, Hopeton Sutherland,
    was approximately 45 years old. He was a crack user believed to be running a
    crack house or flop house in the Mississauga area. He abused alcohol and helped
    others get drugs.

[5]

The complainant, R. G., was approximately 36 years old. She was an
    essentially homeless woman as her common law husband had recently been
    imprisoned. She squatted between a couple of crack houses, friends homes, the
    park and a mall. She stayed mostly at a crack house occupied by a man who went
    by the name, The General. Like the appellant, the complainant was also a
    crack user who abused alcohol. She drank several beers each day and would take
    oxycodone by prescription when she was unable to get crack.

[6]

In the winter preceding the relevant events, the complainant visited the
    appellants home with her husband. The appellant lived in a townhouse shared
    with several other men and occupied another mans room on the upstairs level.
    During the visit, the appellant told the complainant and her husband that if
    they had smoke, they could do it at his house.

[7]

By May 2014, the complainant was going to the appellants house every
    day to get crack and to smoke it there. The appellant would call a dealer and
    get the drug.

[8]

On May 2, 2014, the complainant went to the appellants home to smoke
    cigarettes and make some noodles. She decided to leave to get money to purchase
    crack and beer. Sometime between 7:00 p.m. and 9:00 p.m., she returned to the
    home with beer and $40 for the crack. The appellant and two other women were
    also there. The appellant took her money and cell phone to call a dealer and
    then left for about 15 minutes to pick up the drugs. All four smoked their own
    drugs and the complainant drank four or five beers. She was high.

[9]

After the two other women left, the complainant said that she did not
    want to stay and that she was going out for cigarettes. She testified that the
    appellant held her, saying she could not go and locked the door. After that, he
    threw her down.

[10]

According to the complainant, she went outside but the appellant
    followed her. He proceeded to push her again, banging her head against a wall
    or door frame and causing an injury to the side of her head. The injury bled
    and required stitches. Photographs of the injury were also taken and entered
    into evidence at trial.

[11]

The complainant testified that the appellant then took her back inside.
    She was scared and intimidated to return, but no physical force was used. She
    asked him to return her cell phone because she wanted to call the police, but
    he refused.

[12]

Given her fatigue, the injury and the appellants refusal to let her
    leave, the complainant testified that she lay down on couch cushions scattered
    on the floor. It was approximately 2:00 a.m. on May 3, 2014. According to the
    complainant, the appellant proceeded to pick up a knife from the dresser next
    to them. He told her that he wanted to sleep with her and pulled down her
    pants. She said she did not want to sleep with him and pushed him.
    Notwithstanding her objections, however, the appellant proceeded to have
    intercourse with her on the floor of his room, extorting compliance with the
    knife pointed at her throat. He was not wearing a condom and ejaculated after
    four or five minutes. He was very angry, high on crack and drunk.

[13]

According to the complainant, the appellant then proceeded to put the
    knife to the side. She waited until she could sneak out in order to make her
    escape. She eventually fled, but the appellant chased her with a beer bottle as
    she went outside and followed her down to the road. The complainant saw another
    woman and asked her to call the police, but she did not.

[14]

The complainant testified that she ultimately decided to return to the
    home of The General to figure out her next steps. She did not sleep or clean
    up. She also did not change her clothing. She called a friend, Mr. Jervis
    Evans, and asked him to come with her to report the assaults to the police.

[15]

Mr. Evans testified that he received a call from the complainant around
    4:00 a.m. on May 3, 2014. He did not immediately go to see her, but waited
    until sometime later that afternoon.

[16]

When Mr. Evans arrived, the complainant made her way to the mall and
    eventually the nearby community police station. At the station, Police
    Constable Tonkin took her report with the assistance of a Punjabi-speaking
    officer. He observed her injury and had officers take her to the hospital.
    Police Constable Tonkin knew the complainant and noted that she was visibly
    upset whereas she was normally personable.

[17]

Police Constable Herren attended at the hospital to take the
    complainants statement. She was tired and upset. Her underwear was seized and
    later found to contain the appellants semen.

[18]

Although the complainant said that she consented to a sexual assault
    kit, she was too tired at the time to have one done. She was asked to go back
    to the hospital the next day to complete the kit, but did not show up at the
    appointed time to get a ride from the police. As a result, no sexual assault
    kit was ever completed.

[19]

After leaving the hospital on May 3, 2014, the complainant went with the
    police to the station to have photographs of her injury taken. The police
    photographs show a new shirt the hospital provided for her.

[20]

Around 9:45 p.m. that same evening, the police attended at the appellants
    residence and arrested him.

(2)

The Trial Proceedings

[21]

The appellant was tried by judge alone and convicted of assault causing
    bodily harm, sexual assault with a weapon, theft under $5,000, and breach of
    probation. He was sentenced to six years imprisonment.

[22]

The trial judge began her detailed reasons for conviction by noting that
    this was a case which turned on the issue of credibility. The appellant did not
    testify. The complainant did. The appellant argued that the complainant was not
    an honest witness and that, even if she were generally credible, the
    contradictions and inconsistencies in her evidence rendered it so unreliable to
    create a reasonable doubt as to his guilt. The trial judge disagreed.

[23]

The trial judge noted that there was no dispute that the complainant had
    an opportunity to make observations on the night of the assault and during the
    early morning hours of May 2 and 3, 2014. That said, the trial judge
    acknowledged that the complainants compromised sobriety required careful
    scrutiny of her evidence. Moreover, she stated that the complainants
    addictions could also affect her memory of the events.

[24]

The trial judge considered several alleged inconsistencies in the
    complainants evidence, noting that some matters alleged to be inconsistent
    were established to be consistent throughout, and that many others were
    inconsequential or had been explained adequately. In the trial judges view,
    the core of the complainants allegations was consistent: she wanted to leave,
    but the appellant would not let her; she attempted to go, but he pushed her
    down and caused her to hit her head; and she said no to sex, but he pointed a
    knife at her throat and forced her to have unprotected vaginal sex.

[25]

In addition, the trial judge made reference to three categories of evidence
    that corroborated the complainants evidence. First, physical evidence observed
    at the hospital and police station corroborated the complainants testimony
    that the appellant had pushed her and injured her head. Photographic exhibits
    also depicted the injury, which looked relatively fresh.

[26]

Second, the appellants semen was found in the complainants underwear
    that was seized by police from her on May 3, 2014. The trial judge noted that
    the complainant testified that she had had consensual sex with the appellant
    six to nine days prior to the incident, but not within the week prior. The
    appellants trial counsel asked the judge to take judicial notice that the
    semen could have been left from this prior sexual contact, but the trial judge
    declined to do so, noting that neither party had asked the complainant whether
    she had changed her underwear since the consensual contact and that such
    reasoning was entirely speculative and without foundation. The trial judge
    further stated that, consistent with
Browne v. Dunn
, the appellant
    should have made this suggestion to the complainant if relying on it for an
    innocent explanation to give her an opportunity to comment. In the trial
    judges view, the presence of the appellants semen in the complainants
    underwear was strongly corroborative of her complaint.

[27]

Finally, the third category of evidence that corroborated the
    complainants evidence was the testimony of Mr. Evans. The trial judge
    explained that Mr. Evans testimony was generally corroborative of the support
    the complainant sought from him in following through with the complaint.

[28]

The trial judge was ultimately satisfied that the Crown had met its
    burden of proof on all the essential elements of each charge. In reaching this
    conclusion, she noted that she subjected the complainants testimony to careful
    scrutiny and found her to be a credible witness. Bearing in mind the totality
    of the evidence, the trial judge was convinced beyond a reasonable doubt that
    the appellant was guilty of all four charged offences. She accordingly
    convicted him and sentenced him to six years imprisonment.

C.

ANALYSIS

[29]

The appellant appeals against his conviction and sentence. Aided by duty
    counsel, he argues that the trial judge misunderstood the evidence. According
    to the appellant, the trial judge, in looking for corroboration of the
    complainants evidence, erred in finding that the presence of the appellants
    semen in the complainants underwear could serve as strong corroboration of the
    complainants story. Given this error, the appellant contends that appellate
    intervention is warranted and a new trial is required.

(1)

The Conviction Appeal

[30]

The appellants conviction appeal centres on the evidence that his semen
    was found in the complainants underwear seized by the police on the day of the
    incident. The appellant argues that this evidence could not act as
    corroboration for the complainants story in the absence of other evidence to
    explain its meaning. More specifically, he contends that the trial judge
    effectively took judicial notice that the complainant would have washed or
    changed her underwear since her last consensual sexual contact with the
    appellant. Furthermore, he submits that the trial judge misapplied the rule in
Browne
    v. Dunn
in her analysis of the underwear evidence. In the appellants
    view, this alleged misunderstanding of the evidence warrants quashing his
    convictions.

[31]

I would reject this submission.

[32]

At the outset, I note that, in determining whether the Crown
    met its burden of proof, all of the evidence must be considered together,
    rather than assessing individual items in isolation:
R. v. Gostick
(1999),
    37 C.C.C. (3d) 53 (Ont. C.A.), at p. 59. Moreover, the trial judges
    appreciation of the evidence, including her assessment of the complainants
    credibility and her use of confirmatory evidence, is entitled to deference on
    review:

see
R. v. A.A.
, 2015 ONCA 558, 327 C.C.C. (3d) 377,
    at para. 121;
R. v. Robinson
, 2009 ONCA 626, 254 O.A.C. 171, at para.
    39.

[33]

In this case, the trial judge was acutely aware of the potential frailties
    in the complainants evidence and the need to subject it to careful scrutiny.
    After considering potential inconsistencies in the evidence, she examined the
    evidence capable of confirming or supporting it. One category of this confirmatory
    evidence was the fact that that the appellants semen was found in the
    complainants underwear that was seized by the police on the day of the
    incident. The parties had filed an agreed statement of fact that the semen was,
    in fact, the appellants. In discussing the evidence, the trial judge wrote:

[81] The complainants evidence is that she
    did not have sex with Mr. Sutherland within the week prior to the incident, or
    on that day, except by force at the time of the alleged offences. Her evidence
    stands, and is not contradicted by any other evidence on this point. Thus,
    the presence of Mr. Sutherlands semen in Ms. R. G.s underwear is some
    evidence capable of corroborating her evidence of sexual contact. The issue of
    proof of lack of consent is separate. However, the fact that the complainant
    previously had sexual contact with the defendant is inadmissible for the
    purpose of supporting the inference that by reason of the sexual nature of that
    activity, the complainant is more likely to have consented to the activity that
    forms the subject-matter of the offence or is less worthy of belief (see
Criminal
    Code
s.276).

[82] Mr. Zbarsky argues that semen has no
    shelf life, and that the Court ought to reject its presence as proof of the
    offence. He posits that it could be left on her underwear from a week before
    and asks the Court to take judicial notice of such. Although the burden rests
    on the Crown, neither party asked the complainant if she changed her underwear
    and such reasoning is entirely speculative in these circumstances and without
    scientific or other foundation. The Crown established the chain of continuity
    of the underwear. In my view, the defence should have made the suggestion to
    the witness if relying on it for an innocent explanation, so that the witness
    would have an opportunity to comment. This is a classic application of the
    principle in
Browne v.

Dunn
. It is a requirement that the
    witness be confronted on an important, significant or essential matter.

[83] The presence of Mr. Sutherlands semen
    located on Ms. R. G.s underwear, which she was wearing at the time of the
    assault, is strongly corroborative evidence of her complaint. [Footnotes
    omitted.]

[34]

I see no merit to the appellants argument that the trial judges
    analysis is flawed because, according to him, she took judicial notice that the
    complainant would have washed or changed her underwear since her last consensual
    sexual contact. A fair reading of her reasons reveals that she did not, as the
    appellant contends, take judicial notice of any such fact. Rather, in the
    absence of supporting evidence, she rightly rejected the appellants request to
    take judicial notice that the semen may have been left on her underwear from
    the prior consensual sexual contact the week before.

[35]

The threshold for judicial notice is high. A court can take judicial
    notice of a fact if it is: (1) so notorious or generally accepted that it is not
    the subject of debate among reasonable persons; or (2) capable of immediate
    demonstration by reference to sources of indisputable accuracy:
R. v. Find
,
    2001 SCC 32, [2001] 1 S.C.R. 863, at para. 48;
R. v. Spence
, 2005 SCC
    71, [2005] 3 S.C.R. 458, at para. 53. In this case, that threshold was not met
    and the trial judge accordingly declined the appellants request to take
    judicial notice of his speculative suggestion that his semen may have been left
    on the complainants underwear from their prior consensual sexual contact. The
    rejection of a request to take judicial notice of one thing, however, does not
    amount to taking judicial notice of another.

[36]

In my view, the trial judge rightly considered the evidence of the
    appellants semen on the complainants underwear as relevant and confirmatory
    of her complaint. As this court has observed, an item of evidence is relevant
    if it renders the fact or facts it seeks to establish slightly more or less
    probable than the fact or facts would be without the evidence:
R. v.
    Luciano
, 2011 ONCA 89, 267 C.C.C. (3d) 16, at para. 204. It does not
    become irrelevant simply because it can be interpreted in more than one way or
    because multiple inferences can be drawn from it. Rather, in such
    circumstances, it falls to the trier of fact  in this case, the trial judge 
    to decide on the strength or weight the evidence will receive in light of all
    the other evidence: see
R. v. Underwood
, 2002 ABCA 310, 320 A.R. 151,
    at para. 25; see also
Luciano
, at para. 205.

[37]

Here, the trial judge considered the evidence of the appellants semen
    in the complainants underwear and determined that it strongly corroborated her
    complaint. I see no error in this regard and reject the appellants suggestion
    that, in doing so, the trial judge effectively took judicial notice that the
    complainant must have washed or changed her underwear since her last consensual
    sexual contact with the appellant.

[38]

Similarly, I reject the appellants argument that appellate intervention
    is warranted because the trial judge misapplied the rule in
Browne v. Dunn
.
    That rule

establishes that if counsel seeks to challenge the
    credibility of a witness by calling contradictory evidence, the witness must be
    given the opportunity to address such evidence during cross-examination. The
    nature of the contradictory evidence must at least be put to the witness during
    cross-examination by the counsel who plans to lead it. [
R. v. McCaroll
,
    2008 ONCA 715, 238 C.C.C. (3d) 404]

[39]

The rule in
Browne v. Dunn
is one of fairness, aimed at
    preventing witnesses from being ambushed by not giving them an opportunity to
    state their position with respect to later evidence which contradicts them on
    an essential matter:
R. v. Dexter
, 2013 ONCA 744, 313 O.A.C. 226, at
    paras. 17-18;
R. v. Verney
(1997), 87 C.C.C. (3d) 363 (Ont. C.A.), at
    p. 376. The rules application is not fixed, but lies within the sound
    discretion of the trial judge and depends on the circumstances of each case:
R.
    v. Quansah
, 2015 ONCA 237, 125 O.R. (3d) 81, at para.
80;
R. v. Paris
(2000), 150 C.C.C. (3d) 162 (Ont. C.A.), at para. 22.
As
    this court explained in
Quansah
, at para
. 101:

Whether the rule in
Browne v. Dunn
is offended by
    failure to cross-examine on a specific matter in a particular case cannot be
    determined in the abstract. Each case is different. The rule is flexible, not
    rigid. It is rooted in fairness.
Reasonable people may
    differ about on which side of the line a failure to cross‑examine on a
    particular point falls. A trial judge should be accorded considerable deference
    on a decision about its application.
A trial judge has a reserved seat
    at trial. We have a printed record. [Emphasis added.]

[40]

In this case, the trial judge concluded that the appellants failure to
    put to the complainant that she may have still been wearing the underwear from
    her prior consensual sexual contact the week before with him fell within the
    ambit of
Browne v. Dunn
. The appellant did not question the
    complainant in this regard, but rather requested that the trial judge take
    judicial notice that his semen may have been left on the seized underwear from
    the prior consensual sexual contact, a fact that would make it less probable that
    the complainant had been sexually assaulted on the day in question and thus
    undermine her credibility. The trial judge denied the appellants request and
    stated that, if the appellant intended to rely on an argument that the
    complainant had not changed her underwear, he should have put it to her so that
    she would have an opportunity to comment.

[41]

In my view, it was within the trial judges discretion to find that the
    rule in
Browne v. Dunn
applied in this case. At no time did the
    appellant put to the complainant the allegation that his semen was left on her
    underwear from their prior consensual sexual contact and that she had not
    changed her underwear since then. As a result, she had no opportunity to
    respond to the allegation in any meaningful way.

[42]

In any event, the trial judge did not make any negative finding against
    the appellant as a result of his failure to put the allegation to the
    complainant. Rather, she found that the evidence of his semen in the underwear
    was relevant and confirmed the complainants evidence. This falls squarely
    within the trial judges function to weigh the evidence, make findings of fact
    and credibility, and decide the case.

[43]

Moreover, the evidence of the appellants semen must be assessed in the
    context of all the other evidence. The complainants
viva voce
testimony
    was confirmed not only by the semen evidence, but also physical and police
    evidence of her injury and the testimony of Mr. Evans. Notably, temporal
    photographs of the complainants head and scalp area taken by the police
    depicted an injury which looked relatively fresh and was consistent with the
    complainants testimony that the appellant had pushed her down and caused her
    to smash her head. Police Constables Tonkin and Herren also contemporaneously
    observed both the complainants head injury, which required three or four
    stiches, and staining on her shirt, which appeared to be blood. In addition,
    Mr. Evans testimony generally confirmed the support she said she sought from
    him in following through with the complaint.

[44]

Simply put, the appellant has failed to show that the trial judge erred
    in any way warranting appellate intervention. The complainant was consistent on
    the essence of the allegations, which were buttressed by confirmatory evidence
    and supported the convictions. I would accordingly dismiss the conviction
    appeal.

(2)

The Sentence Appeal

[45]

Although the appellant indicated in his notice of appeal that he also
    sought to appeal his sentence, the issue was not pressed at the hearing and
    duty counsel conceded that the sentence imposed fell within the appropriate
    range. I agree. The sentence is not demonstrably unfit and reflects no error in
    principle or disproportionate emphasis on any relevant factor.

D.

DISPOSITION

[46]

For these reasons, I would dismiss the appeal.

Released: DW SEP 13 2016

M. Tulloch J.A.

I agree. David Watt J.A.

I agree. S.E. Pepall J.A.


