



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: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    shall not be published in any document or broadcast or transmitted in any way.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. Noftall, 2018 ONCA 538

DATE: 20180612

DOCKET: C64808

Lauwers, Pardu and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Edward Noftall

Appellant

Nader R. Hasan, duty counsel

Edward Noftall, in person

Leslie Paine, for the respondent

Heard: June 4, 2018

On appeal from the
    conviction entered on September 8, 2016 and the sentence imposed on December
    12, 2017 by Justice Brian W. Abrams of the Superior Court of Justice, sitting
    without a jury.

REASONS FOR DECISION

[1]

The appellant was convicted of sexual assault of
    his neighbor and sentenced to two years less a day imprisonment, followed by three
    years probation. He argues that the trial judge made many errors and that the
    conviction should be set aside. He also seeks leave to appeal from the
    sentence.

Findings of fact by the trial judge

[2]

We begin with a review of the findings of fact
    made by the trial judge.

[3]

The complainant lived in an apartment next door
    to the appellant. She was in the process of moving out and her own apartment
    was nearly empty. She went next door to the appellants apartment to become
    reacquainted with his dog, as she had agreed to look after the animal for the
    appellant. The appellant invited her to sleep at his apartment, and assured her
    he would not bother her.

[4]

She sat on the couch and played with the dog.
    The appellant was smoking marijuana and drinking beer after beer. The
    complainant had taken evening medication prescribed for her before going over
    to play with the dog and began to feel drowsy and wobbly. She told the
    appellant she was going home, but he insisted she should sleep at his place.
    She acquiesced and lay down on a chaise chair and curled up with a blanket
    tucked under her shoulder. She wanted to go home, but was nervous about what
    the appellant might do, as she thought he was drunk and stoned. She was half
    asleep. The next thing she knew, the accused was standing over her and forcing
    intercourse on her. She told him it hurt and told him to stop. He continued
    until he ejaculated.

[5]

The complainant had no memory of what happened
    afterwards. She attributed this to illnesses from which she suffered. She had a
    vague memory of going to the Smith Falls hospital. Hospital records show that
    she arrived in the emergency department at 3:08 in the morning. She asked for
    the morning after pill, but refused to be subjected to a sexual assault
    examination at the hospital because of previous traumatic experiences at that
    hospital.

[6]

The complainant testified that she was fully
    present when the appellant raped her, and that she told him no. The trial
    judge found that the complainants evidence was unequivocal, unshaken and
    uncontroverted. He was satisfied beyond a reasonable doubt that intercourse
    had occurred and that the complainant had not consented.

Honest but mistaken belief in consent

[7]

The appellant argues that the trial judge erred
    in concluding that there was no air of reality to mistaken belief in consent:

In the present
    case there is not even a mere assertion that the accused held an honest but
    mistaken belief in consent.  There is no evidence to support the assertion.

[8]

Testimony by an accused is not a prerequisite to
    an argument that the accused lacked the mental state necessary to support
    conviction. However, there must be some evidence to show that the complainant
    communicated consent to engage in the sexual activity in question and that the
    accused believed she had communicated that consent:
R. v. Ewanchuk
,
[1999]
    1 S.C.R. 330
, at para. 46. That evidence may be derived from
    the circumstances surrounding the event and the behavior of the involved
    parties. Here, however, there is no evidence of any words, conduct or
    circumstance suggesting consent by the complainant and no evidence that the
    appellant believed that
the complainant communicated

consent
. Under these circumstances, the trial judge did not err in
    concluding that there was no air of reality to any suggestion of honest but
    mistaken belief in consent.

Undue emphasis on the complainants demeanor

[9]

Trial counsel spent considerable time cross-examining
    the complainant on her history of mental illness. She suffered from bi-polar
    disorder, p
ost-traumatic stress disorder and dissociative disorder
. The purpose of this examination was to suggest that her evidence
    might be unreliable.

[10]

The trial judge addressed these suggestions in
    his reasons:

Dealing next with the complainants
    admitted mental health issues. First, I observe nothing in the complainants
    demeanor while she was testifying to give me concern that her mental illness
    diminishes, or negatively affects her ability to give credible, and reliable
    evidence. The complainant was certainly assertive by times in answering certain
    questions. That said, there was no manifestation of dissociative behavior
    during her evidence. The complainant listened to the question, and gave
    thoughtful, articulate and honest answers in my view.

[11]

This was appropriately responsive to the
    approach taken by defence counsel and does not reflect an overemphasis on demeanor
    evidence. The trial judge did not agree that because the complainant suffered
    from the mental illnesses described, she was not a reliable or credible
    witness. There is no basis to interfere with that conclusion, to which
    deference is owed:
R. v. Dinardo,
2008 SCC 24, [2008] 1 S.C.R. 788, at
    para. 26.

Unreasonable verdict

[12]

There was

uncontradicted evidence
    before the trial judge, that he found credible, that the appellant had sexual
    intercourse with the complainant without her consent. A trier of fact could
    reasonably have reached the conclusion that the appellant was guilty of sexual
    assault. The trial judge dealt with defence arguments said to raise doubt about
    the complainants credibility. For example, that the complainant withdrew an
    unrelated complaint of domestic violence against a partner, and that the
    complainant sat in close proximity to the appellant at a public tenants
    meeting after the alleged assault. The trial judge did not find these to be factors
    undermining her credibility. The trial judge also dealt with the complainants
    refusal to undergo a sexual assault examination at the hospital and her
    statements at the hospital, as recorded on the hospital records, as follows:

If anything, the medical record
    corroborates the complainants subjective view at the time of the sexual
    activity in question, and her evidence at trial.

There is no basis to conclude that the
    trial judges findings of credibility were unreasonable.

Prior consistent statement

[13]

The appellant submits that the trial judge used
    the complainants prior consistent statements improperly, as
    self-corroboration. The hospital records containing notes about statements made
    by the complainant were admitted on consent, however, there was no agreement
    expressed on the record as to the purpose for which those records were
    admitted, except perhaps, to avoid calling the doctor.

[14]

The handwritten records seem to record the
    following:

Had intercourse last night, consensual?

-

She didnt want to but didnt say no. She didnt
    want him to think she was leading him on.

-

She said it was painful.

-

Shes not sure if he heard or ignored her say
    that.

[15]

At trial, defence counsel contrasted her evidence
    at trial that she said no with the indication in the records that she didnt
    say no.

[16]

The trial judge dealt with this in his reasons:

Further,
    notwithstanding what is recorded in Exhibit One, the complainant maintained at
    trial that she told the accused that it hurts and stop. Admittedly, Exhibit
    One is less clear. There is a question mark beside the word consensual.
    Moreover, the complainant reportedly didnt say no. However there was also a
    record of the complainant reporting that she didnt want to, which I find
    goes to her actual, subjective consent, and is consistent with her evidence at
    trial. The complainant also reportedly said that it, the intercourse, was
    painful, that she is not sure if he heard, or ignored her say that. Thus,
    these aspects of the contemporaneous note are consistent with the complainants
    evidence at trial that the accused was hurting her as he was penetrating her
    with his penis, and that she said so, whether he heard it, or simply ignored
    her.

[17]

A prior inconsistent statement may undermine a
    witnesss credibility. Prior consistent statements are not admissible to
    enhance a witnesss testimony. The fact that a narrative may have been repeated
    before trial does not make it more credible.

[18]

Here, the trial judges observations about the
    consistency of the hospital records with the complainants evidence were
    directed to address the defence argument that the statements were inconsistent
    and should undermine her credibility. He was entitled to make that observation:
R. v. J. (M.A.)
,
2015 ONCA 725, 25 C.R. (7th) 187, at para. 46. See also:
R. v. Warren,

2016 ONCA 104, 26
    C.R. (7th) 390, at para. 12
. We do not read his reasons as
    impermissible oath helping.

Sentence appeal

[19]

The appellant submits that the trial judge did not
    consider mitigating factors. He expressly did so. The sentence was fit, and
    there was no error in principle. There is no basis for this court to
    intervene.

Disposition

[20]

Accordingly, for these reasons, the appeal from
    conviction is dismissed.  Leave to appeal sentence is granted, but the appeal
    from sentence is dismissed.

P.
    Lauwers J.A.

G. Pardu
    J.A.

Grant
    Huscroft J.A. 


