



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. V.E., 2021 ONCA 254

DATE: 20210422

DOCKET: C67695

Fairburn A.C.J.O., Doherty and
    Sossin JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

V.E.

Appellant

Cassandra Richards, for the appellant

Gregory Furmaniuk, for the respondent

Heard: April 14, 2021 by video conference

On appeal from a conviction on a charge
    of sexual assault entered by Justice Marc DAmours of the Ontario Court of
    Justice, dated April 1, 2019.

REASONS FOR DECISION


[1]

The appellant appeals his conviction on a charge of sexual assault.
[1]
At the end of counsels submissions, the court dismissed the appeal with
    reasons to follow. These are those reasons.

[2]

It is not necessary to go into the details of the evidence. This was
    essentially a two-witness case. The complainant testified she did not consent
    to sexual intercourse. The appellant testified the complainant consented and only
    told him to stop after he had ejaculated. The outcome at trial turned on the
    trial judges assessment of the credibility of the appellant and the
    complainant, and the proper application of the burden of proof to those
    credibility assessments.

[3]

The trial judges reasons demonstrate he appreciated the
    issues, the position of the parties, the centrality of his credibility assessments,
    and the importance of the burden of proof. He structured his reasons to a large
    degree to track the submissions of trial counsel. He also specifically directed
    himself on the three-step approach set down in
R. v. W. (D.)
, [1991] 1 S.C.R. 742.

[4]

The trial judge began
    with a consideration of the appellants evidence. After a thorough review of
    that evidence, the trial judge said, at p. 13:

Given all these contradictions, the testimony of the defendant
    cannot be believed. His testimony does not raise a reasonable doubt.

[5]

Having completed steps one and two of
R. v. W.D.
, the trial
    judge moved to the third step which, on the evidence adduced in this case, turned
    entirely on his assessment of the credibility of the complainant. Once again, the
    trial judge thoroughly reviewed the evidence. He ultimately determined the
    complainant was credible and the Crown had proved its case beyond a reasonable
    doubt.

[6]

On appeal, the appellant argues the reasons are so deficient as to constitute
    an error in law. In her oral submissions, counsel advanced three arguments in
    support of this submission. She claims the trial judge:

·

summarized, but did not analyze the evidence and failed to make
    necessary findings of fact;

·

failed to address the argument that the complainant had a motive
    to fabricate her allegation; and

·

made a finding that the appellant admitted wrongdoing in a text
    message when that finding could not be justified on the totality of the
    relevant evidence.

[7]

As the appellant acknowledges, the trial judge did thoroughly review the
    evidence. The reasons did not, however, stop there. The trial judge provided
    cogent, detailed reasons for rejecting the appellants evidence and concluding
    it could not raise a reasonable doubt. Those reasons are supported by the
    evidence.

[8]

The trial judge also explained why he accepted the complainants
    evidence, albeit in a somewhat less detailed manner. In the course of reviewing
    the complainants evidence, the trial judge referred to and explained why he
    rejected various arguments that had been advanced on behalf of the appellant,
    challenging the complainants credibility.

[9]

In the circumstances, it was not necessary for the trial judge to make discrete
    findings of fact in relation to matters other than whether the sexual conduct
    was consensual. The trial judges credibility findings, which are adequately
    explained in his reasons, lead inevitably to a finding the complainant did not
    consent to sexual intercourse. On reading these reasons, there is no doubt why
    the trial judge convicted the appellant.

[10]

The
    second submission arises out of the trial judges failure to deal with the
    defence argument that the complainant had a motive to fabricate an allegation
    of sexual assault against the appellant. The trial judge did not deal with this
    argument in his reasons. Given the credibility findings, however, it is
    implicit that the trial judge rejected the argument that the complainant
    decided to fabricate a false allegation of sexual assault to get the appellant
    out of her home.

[11]

A
    trial judge is not required to address each and every argument in the reasons
    for judgment. On the evidence adduced in this case, the argument the
    complainant fabricated the allegation of sexual assault to get the appellant
    out of her home, made little sense. She testified she called the police because
    she was physically afraid of the appellant and wanted him out of her home. When
    she called, she made no allegation of sexual assault and, on her evidence, did
    not intend to make any such allegation. The complainant first referenced the
    sexual assault when questioned by the police after they had arrived. The
    evidence concerning the manner in which the allegation of sexual assault was
    made to the police is not consistent with the complainant having formulated a
    plan to call the police and falsely accuse the appellant of sexual assault.

[12]

In
    the course of her able submissions in this court, counsel suggested a variation
    on the argument put forward at trial. She suggested the complainant may have
    formulated the false allegation after the police arrived to buttress her
    request that the police remove the appellant from the home. This suggestion was
    not put to the complainant and does not appear to have been part of the defence
    theory at trial. It is not surprising the trial judge did not advert to this
    possibility in his reasons.

[13]

The
    final point deals with the trial judges treatment of a text exchange between
    the appellant and the complainant, during which the appellant appears to
    acknowledge prior wrongs done to the complainant. The appellant argues the
    trial judge took this as an admission by the appellant in respect of the sexual
    assault charge. He argues not even the complainant put that interpretation on
    the appellants text message.

[14]

We
    do not read the trial judges reasons as making a finding of an admission with
    respect to the specific events giving rise to this charge. Rather, he took the
    appellants words as an admission of having treated the complainant in an
    abusive manner. That admission was relevant both to whether the sexual
    intercourse was consensual, and the appellants credibility.

[15]

In summary,
    the trial judges reasons adequately served their intended purposes. They
    explained why the trial judge reached the verdict he did, and they sufficiently
    exposed the trial judges reasoning to effective appellate review.

[16]

The
    appeal is dismissed.

Fairburn A.C.J.O.

Doherty J.A.

L. Sossin J.A.





[1]

The appellant pleaded guilty to other charges and was
    acquitted on still other charges. None of those charges are before this court.


