



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: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    the victim shall not be published in any document or broadcast or transmitted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. D.R., 2021 ONCA 460

DATE: 20210622

DOCKET: M52556

(C69272)

Brown
    J.A. (Motions Judge)

BETWEEN

Her
    Majesty the Queen

Respondent

(Responding
    Party)

and

D.R.

Appellant

(Applicant)

Laurence Cohen, for the applicant

Mabel Lai, for the responding party

Heard: June 15, 2021 by video conference

ENDORSEMENT

OVERVIEW

[1]

The appellant, D.R.
[1]
,
    applies for release pending the determination of her appeal from convictions
    on: three counts of sexual assault, uttering a death threat regarding the
    complainants father, assault, and assault with a weapon (
R.
    v. R. (D.),
2020 ONSC 5578).

[2]

The applicants two-day trial took place in the Superior Court of
    Justice before a judge alone. The only witnesses were the applicant and the
    complainant.

[3]

On March 11, 2021, the sentencing judge imposed the following sentence:
    (i) 4.5 years for the sexual assaults that occurred after the complainant moved
    in with the applicant in December 2017; (ii) 6 months concurrent on the May
    2018 assault, assault with a weapon, and uttering a death threat; and (iii) 3
    years concurrent on the two counts of sexual assault involving events in
    September 2017. After giving credit for pre-sentence custody, the resulting
    global sentence to serve was 4 years and 174 days:
R. v. R.
    (D.),
2021 ONSC 1808.

BACKGROUND

[4]

The applicant and complainant met at college in September 2017. At that
    time, the complainant was 16 years old and the applicant was 18 years old.

[5]

Twice that September the complainant and applicant went for walks near
    the campus during which the applicant penetrated the complainant. The
    relationship continued and from late December 2017 until late May 2018 the
    complainant lived with the applicant in the applicants mothers home. The
    applicant introduced the complainant to marijuana. In April and May 2018, on
    approximately 15 occasions, the complainant fell asleep after smoking marijuana
    only to awake and find the applicant having sexual intercourse with her.
    Several times the complainant awoke to find the applicant inspecting her vagina
    through a tube from a vaping device.

[6]

At some point, the applicant sent the complainant text messages in which
    she threatened to stab the complainants father with a screwdriver.

[7]

Ten recordings made by the complainant in April and May 2018 were
    introduced at trial. They recorded the applicant screaming at the complainant,
    and sometimes at the complainant and the applicants mother.

[8]

In May 2018, while the complainant was out on a walk, the applicant met
    up with her, physically pulled on the complainant to accompany her and, when
    the complainant said she would call the police, the applicant threw the
    complainants cell phone at her.

[9]

The applicant appeals against conviction and sentence. As described in
    the notice of appeal, the main grounds concern the trial judges assessment of
    the credibility of the applicant and complainant.
[2]
The notice of appeal asserts that the trial judge erred in her credibility
    assessment by:

(i)

Placing undue emphasis on a series of recordings the complainant made of
    conversations with the applicant, which demonstrated fits of rage by the
    applicant;

(ii)

Failing
    to engage in a specific analysis of the sexual assault allegations, especially
    those concerning the two September 2017 sexual assaults, other than examining
    the applicants general abusive behaviour;

(iii)

Rejecting
    the applicants credibility notwithstanding the lack of challenge during
    cross-examination to the applicants evidence regarding the sexual assaults;
    and

(iv)

Failing to
    use the complainants return to the applicants home after the sexual assaults
    and the complainants report to the police as evidence relevant to the
    complainants credibility.

[10]

At the hearing, applicants counsel focused on
    the lack of analysis by the trial judge in her reasons in regard to the sexual
    assault counts. He submitted that the reasons disclose no facts upon which the
    trial judge made her assessment of the applicants credibility, which amounts
    to a misapprehension by the trial judge of the evidence on those counts.
    Counsel further submitted that while the complainants continued relationship
    with the applicant after the assaults was not determinative of her credibility,
    it was a factor that the trial judge should have considered in her assessment
    of the complainants credibility. Her failure to do so constitutes reversible
    error.

[11]

The respondent submits that the applicant has
    failed to demonstrate that her appeal is not frivolous:
Criminal Code
,
    s. 679(3)(a). The respondent acknowledges that if the court finds the applicant
    has discharged her burden on that branch of the test, the applicants release
    is otherwise appropriate on the bail conditions in the draft order, which
    substantially mirror those in effect at the time of the trial.

[12]

Since the transcripts of the trial are not yet available, on this
    application the applicant relies upon the written reasons of the trial judge.

HAS THE APPLICANT ESTABLISHED THAT HER APPEAL
    IS NOT FRIVOLOUS?

[13]

The bar for establishing that an appeal is not
    frivolous is very low:
R. v. Oland
, 2017 SCC 17, [2017] 1
    S.C.R. 250, at para. 20. As described by Watt J.A. in
R. v.
    Manasseri
, 2013 ONCA 647, 312 C.C.C. (3d) 132, at para. 38: An
    appeal is not frivolous if the proposed grounds of appeal raise arguable
    issues. An applicant need not establish a likelihood, much less a certainty of
    success on appeal, but must be able to point to a viable ground of appeal that
    would warrant appellate intervention if established.
The purpose of the
    not frivolous threshold is to require the applicant to demonstrate that the
    appeal has some merit. If this were not so, the appellate process could be
    abused by those intent on forestalling the execution of a custodial sentence:
R.
    v. T.S.D
., 2020 ONCA 773, at para. 24.

[14]

Credibility determinations by a trial judge attract a high degree
    of deference; the sufficiency of a trial judges reasons must be assessed in
    light of that deference:
R. v. Vuradin
, 2013 SCC 38, [2013] 2 S.C.R.
    639, at para. 11;
R. v. G.F.
, 2021 SCC 20, at
    para. 81. However, as stated in
R. v. Dinardo
, 2008 SCC 24,
    [2008] 1 S.C.R. 788, at para. 26:

Nevertheless, a failure to sufficiently articulate how
    credibility concerns were resolved may constitute reversible error (see
R. v. Braich
, [2002] 1 S.C.R. 903, 2002 SCC
    27, at para. 23).  As this Court noted in
R. v. Gagnon
, [2006] 1 S.C.R. 621, 2006 SCC
    17, the accused is entitled to know why the trial judge is left with no
    reasonable doubt.

[15]

The trial judges assessment of the applicants
    credibility proceeded in the following fashion: the trial judge rejected the
    applicants explanation of texts she sent to the complainants mother and the
    threats about her father as far-fetched and not making sense; she then
    concluded that the audio recordings confirmed the applicants animus against
    the complainants family; she found that the applicants explanation about
    restraining the complainant in May 2018 from leaving did not make sense; the
    applicants denial of ever dosing the complainant with marijuana was
    contradicted by text messages between the applicant and a friend; and there
    were inconsistencies between the applicants evidence at trial and her
    statement to the police of the effect of steroids on the applicants behaviour.
    That led the trial judge to conclude, at para. 84:

For all of these reasons, I did not find [the
    applicant] to be a credible witness. Her evidence was incredible, defied logic
    and common sense and is contradicted by trustworthy evidence. I do not believe
    her evidence. Given my findings that [the applicant] willingly mislead the
    court, her evidence does not raise a reasonable doubt.

[16]

The trial judge then considered whether the
    Crown had met its burden on each count, in accordance with the principles in
R.
    v. W.(D.)
, [1991] 1 S.C.R. 742. The trial judge started with the count
    alleging the applicant uttered a death threat to the complainant on May 24,
    2018 and acquitted. But the trial judge then convicted on the count concerning
    the uttering a death threat in respect of the complainants father.

[17]

The trial judge next found that the complainant
    was a credible witness and did not view the complainants continuation in the
    relationship after the alleged offences as detracting from her credibility. She
    held that the audio recordings demonstrated how the applicant abused and
    manipulated the complainant and accepted the complainants explanation about
    why she stayed in the relationship.

[18]

Accordingly, whatever relevance the
    complainants continuation of the relationship after the sexual assaults might
    possess in light of the decision of the Supreme Court in
R. v. A.R.J.D.
,
    2018 SCC 6, [2018] 1 S.C.R. 218, at para. 2, the trial judge in fact examined
    the evidence on that issue, accepted the complainants explanation, and did not
    regard the conduct as detracting from the complainants credibility. On the
    face of her reasons, the trial judge did not commit the error now alleged by
    the applicant.

[19]

The trial judge continued her examination of the
    evidence on the counts by accepting the complainants version of the events of
    May 24, 2018 and convicted the applicant on the assault and assault with weapon
    counts.

[20]

The trial judge concluded her reasons by dealing
    with the three counts of sexual assault. In respect of the count concerning the
    sexual assaults while the complainant lived with the applicant, the trial judge
    wrote at paras. 109-112:

Count 7 alleges that during the time [the
    complainant] and [the applicant] were living together, [the complainant] would
    wake up to [the applicant] sexually assaulting her, sometimes with a vaping
    tube. I accept [the complainants] testimony that [the applicant] introduced
    her to marijuana in an effort to calm her down and lessen the conflict between
    them. Her evidence on this point is corroborated by the text messages sent by
    [the applicant] to her friend.

The defence contends that there is no
    corroboration with respect to these sexual assaults. I disagree. The audio
    recordings made leading up to this timeframe demonstrate [the applicants]
    pattern of obsessive and abusive behaviour towards [the complainant]. The level
    of rage demonstrated by these audio recorded tirades is difficult to describe
    in words. It is jarring, shocking, and horrifying. Not only is the level of
    rage displayed by the volume with which [the applicant] yells, but the words
    screamed demonstrate how [the applicant] tried to manipulate [the complainant].
    For example, [the applicant] turned a situation where [the complainant] is
    clearly concerned about the steroids [the applicant] was using into a situation
    where [the complainant] is led to believe that she has done something wrong in
    hiding the drugs.

I am cognizant of the fact that there is no
    mention of the sexual assaults on the audio recordings. It was not [the
    complainants] evidence that she recorded every argument with [the applicant].
    I accept her evidence that arguments that occurred immediately after she was
    awoken would have been difficult, if not impossible, to surreptitiously record.
    [The complainant] testified that she made the recordings to remind herself what
    [the applicant] was capable of, not to create corroborative evidence to be used
    in a future court proceeding. Although there is no mention of the sexual
    assaults on the audio recordings, I find that they corroborate the overall way
    that [the applicant] treated [the complainant] throughout their relationship.
    They demonstrate [the applicants] hatred of women and her need to dominate,
    manipulate, demean and intimidate [the complainant]. This is consistent with
    [the applicant] not respecting [the complainants] physical and emotional
    integrity including sexually assaulting her.

I therefore find [the applicant] guilty of
    Count 7, that being that she sexually assaulted [the complainant] while she
    slept during the months of December 2017 through May 2018.

[21]

The trial judge then turned to the two counts
    regarding the sexual assaults that took place when the complainant and
    applicant went on walks in September 2017 stating, at paras. 113-114:

Counts 3 and 4 in the indictment allege that
    [the applicant] sexually assaulted [the complainant] in the woods near campus
    on two occasions in September 2017. [The applicant] categorically denies this.
    For reasons given I do not accept [the applicants] evidence, nor does it raise
    a reasonable doubt. Having found [the complainant] to be an honest, credible
    and forthright witness I accept her evidence that these sexual assaults
    occurred as she described them. I do not find her less worthy of belief because
    she failed to report these assaults immediately and continued to see [the
    applicant].

Therefore, I find [the applicant] guilty of
    Counts 3 and 4. Specifically, I find that she sexually assaulted [the
    complainant] on September 17, 2017 and September 24, 2017.

[22]

Contrary
    to the applicants submissions, the trial judge in fact engaged in a specific
    analysis of the sexual assault counts. On the face of her reasons, she did not
    commit the error the applicant alleges.

[23]

Since the applicant has not filed the transcript of her evidence
    at trial, her submission that the trial judge erred by rejecting the
    applicants credibility notwithstanding the lack of challenge during cross-examination
    to the applicants evidence regarding the sexual assaults cannot be assessed in
    the concrete context of what took place at trial. However, I would make two
    observations.

[24]

First, unlike the circumstances in
R. v. Paris
(2000),
    150 C.C.C. (3d) 162 (Ont. C.A.), at para. 22, leave to appeal refused, [2001]
    S.C.C.A. No. 124, upon which the applicant relies, here the complainant
    testified that the applicant had sexually assaulted her
before
the applicant took the stand to give her evidence.

[25]

Second, where, as in this case, the accused is tried on a
    multi-count indictment, the presumptive rule that evidence on one count of an
    indictment may not be used to prove the guilt of the accused on another count
    where the counts do not arise out of the same events does not apply to the
    assessment of witness credibility:
R. v. T.C.
, 2019 ONCA 898, 383
    C.C.C. (3d) 341, at para. 45. As stated by the Supreme Court in
R. v.
    P.E.C.
, 2005 SCC 19, [2005] 1 S.C.R. 290, at para. 1:

The verdict on each count of an indictment must, of course, be
    based on evidence admissible with respect to that count; in assessing the
    credibility of each witness, including the accused, the trial judge was
    entitled, however, to consider the totality of the evidence given by that
    witness.

[26]

Consequently,
    it is difficult to see, on the record before me, how the trial judge erred by
    applying her extensive reasons on why she did not regard the applicant as a
    credible witness following her review of several of the counts to the
    assessment of the applicants credibility that informed her analysis of the
    sexual assault counts.

[27]

In
    sum, while the not frivolous criterion sets a very low threshold, given the
    detailed reasons of the trial judge on the assessment of credibility, I am not persuaded
    that the applicants credibility-based grounds of appeal exceed that very low
    threshold.

DISPOSITION

[28]

For the reasons set out above, I dismiss the applicants
    application for bail pending appeal.

David Brown J.A.





[1]
At the time of the offences, the applicant identified as a man.
    Mid-trial, the applicant advised the trial judge that she now identifies as a
    woman, with she/her pronouns.



[2]

Although
    the notice of appeal also seeks leave to appeal from sentence on the basis that
    the sentence was unduly harsh and unfit given the applicants age and lack of a
    criminal record, the applicant did not make submissions about this ground on
    the application for bail pending appeal.


