



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: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    the victim shall not be published in any document or broadcast or transmitted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. B.W.S., 2021 ONCA 471

DATE: 20210629

DOCKET: C68501

Rouleau, van Rensburg and Miller
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

B.W.S.

Appellant

B.W.S., acting in person

Matthew Gourlay, appearing as duty
    counsel with respect to the appeal against conviction

Michael Fawcett, for the respondent

Heard: January 12 and 13, 2021 by video
    conference

On appeal from the convictions entered
    on March 12, 2020 and the sentence imposed on June 23, 2020 by Justice Calum U.
    C. MacLeod of the Superior Court of Justice.

B.W. Miller J.A.:

Overview

[1]

The complainant and the appellant were in an
    unstable and tempestuous intimate relationship. During an argument on May 13, 2019,
    the complainant refused the appellants demand for sexual intercourse, and the
    appellant responded with violence towards her and threats of greater violence
    against both her and her young daughter. The police became involved. The next
    day the two reconciled and the complainant told police she did not want to
    press charges. The reconciliation did not last, and there were further incidents
    of violence and threats on the part of the appellant.

[2]

Ultimately, the appellant was convicted of
    multiple offences including assault, sexual assault, and uttering threats. He
    received a custodial sentence of 26 months, less a credit of 13.9 months,
    leaving a total sentence of 12 months and three days incarceration. The
    appellant appeals against conviction and sentence. For the reasons that follow,
    I would dismiss the appeals.

Background

(1)

The First Incident

[3]

The appellant had been recently released from
    jail and was living itinerantly, sometimes at the complainants residence.

[4]

On May 12, 2019, following an argument, the
    appellant left to spend the night somewhere else.

[5]

Early the next morning, the appellant texted the
    complainant to ask if he could come back to patch things up. She agreed. The
    appellant arrived at about 6:40 a.m. He had something to eat and then showered.
    What happened afterwards is contested.

[6]

On the complainants evidence, the appellant
    came upstairs to the bedroom and told the complainant they were going to have
    sex. She said no. The appellant told her she was alone and there was nothing
    she could do about it, pinned her to the bed, began groping her, and attempted to
    reach under her clothes. She was able to push him away and they exchanged
    heated words. The complainant told him to leave and that she would report him
    to the police. The appellant pushed her against a door, reminded her that he
    knew where her daughter went to daycare, and threatened to kill them both if
    she went to the police. He left.

[7]

The complainant phoned her brother and told him
    that she had been sexually assaulted and threatened. Her brother called the
    police. The police arrived and the complainant provided a statement. After the complainant
    and the appellant reconciled the next day, the complainant contacted the police
    and told them she no longer wished to press charges. She did not, however,
    recant her allegations.

[8]

The appellant agreed with the complainants
    testimony that he and the complainant argued on May 13, but claimed that he
    then left without incident to meet his probation officer. He testified that the
    assaults and threats described by the complainant never happened and were
    concocted by her to help get rid of him. He argued that she had recanted when
    she told police she did not want to press charges.

[9]

There were two further incidents after the
    post-May 13 reconciliation that led to further criminal charges.

(2)

The Second Incident

[10]

On June 9, 2019, some friends of the complainant
    were at her home counselling her to end the relationship. The appellant was
    downstairs, listening to what was going on. The appellant was angered by what
    he overheard, armed himself with a hammer, and went to push his way into the
    bedroom. A friend of the complainant had been standing outside the bedroom, so
    that the complainant and the others could speak privately, and blocked the
    appellant. During what the trial judge described as a fist fight, the
    appellant punched the friend multiple times in the face and head before he was
    subdued.

(3)

The Third Incident

[11]

Two days later, the complainant was at the mall
    with friends. While there, she received threatening text messages from the
    appellant. She contacted the police.

[12]

The police asked the appellant to turn himself
    in. The appellant responded that he would never be apprehended, destroyed his
    cell phone, stole a vehicle, and fled. He was subsequently apprehended.

Issues on Appeal

[13]

The appellant raises a single issue on his appeal
    from conviction: that the trial judge erred in his analysis under
R. v. W.(D.)
, [1991] 1 S.C.R. 742,
by failing to find
    that there was an inconsistency between the complainants evidence and the
    evidence of her brother, and not finding that this inconsistency was sufficient
    to raise a reasonable doubt that the appellant had assaulted, threatened, and
    sexually assaulted the complainant on May 13, 2019.

[14]

The appellant also appeals the sentence imposed,
    on the basis that it was excessive and that he ought to have received credit
    for harsh conditions imposed due to COVID-19.

Analysis

(1)

Appeal Against Conviction

(a)

Overview

[15]

The appellant argues that the trial judge failed
    to resolve an inconsistency between the complainants evidence and the evidence
    of her brother as to the timing of events on May 13. Specifically, the
    appellant argues that the chronology of events provided by the complainant is
    inconsistent with the objective evidence of the timing of three phone calls between
    the complainant and her brother. He claims the discrepancy was not
    satisfactorily resolved by the trial judge and it ought to have raised a
    reasonable doubt.

[16]

It was undisputed at trial that the appellant
    arrived at the complainants residence at 6:40 a.m. No one testified as to
    precisely when he left. The complainant testified that the sexual assault began
    about two hours after he arrived, which would have been approximately 8:40 a.m.
    The appellant started acting disrespectfully and she told him to leave. The
    complainant testified that the appellant said no and that they were going to
    have sex. The sexual assault began, followed by the appellant pushing the
    complainant against the bathroom door and hitting her. She yelled at him to get
    him to go downstairs. Once they were downstairs, she told him she wanted to
    call the police. He told her if she did, to remember that he knew where her
    daughters daycare was and that he would hurt her. The complainant testified
    that they both went downstairs and eventually the appellant left, although
    she testified repeatedly that she could not say when that was.

[17]

The complainant testified that after the
    appellant left, she was frantic about what to do. He had said he would harm her
    daughter if she went to the police. She decided to phone her brother. She said
    it was a quick two-minute call that ended with her brother telling her he would
    phone 911, which he did.

[18]

Records showed that the complainant first called
    her brother at 9:53 a.m. Her brother testified this was a five-minute call in
    which the complainant said she had an argument with the appellant, that she was
    done with him, and that she was looking at kicking him out and removing him
    from the home. There was no discussion in this call about the complainant
    having been sexually assaulted.

[19]

Records showed the complainant called her
    brother again at 11:40 a.m. The brother testified that he was busy with his
    children and did not notice the call.

[20]

About an hour later  at 12:55 p.m.  the
    brother returned her call. He testified that, although she was not sobbing, she
    was hyperventilating and obviously upset. She told him that the appellant had
    sexually assaulted her and threatened her and her daughter. Her brother
    testified that he became upset, ended the call, and immediately called 911.

[21]

The complainant, when asked on cross-examination
    about the first call to her brother, had no memory of it. She did not deny
    making it but did not remember doing so and could not testify as to what was said.
    She only testified about the 12:55 p.m. call, in which she first disclosed the
    sexual assault and threats.

(b)

The Trial Judge Did Not Err

[22]

The question on appeal is whether there is an
    inconsistency between the evidence of the brother and the complainant, and
    whether this ought to have given rise to a reasonable doubt. For the reasons
    that follow, I do not agree that there is either a conflict in the evidence or
    a reversible error.

[23]

The trial judge accepted the complainants
    evidence as truthful and credible and concluded that the sexual assault and
    threats occurred as the complainant described. He rejected the argument that
    she had recanted: she never said the events had not occurred when she told
    police she did not want to press charges. Although there were some
    inconsistencies brought out in her cross-examination, they were explained by
    the complainant. The trial judge accepted her evidence about the assault. He
    rejected the argument that the timing of the phone calls between the
    complainant and her brother and whether she was upset cast doubt on her
    account. His treatment of this issue is the focus of the conviction appeal.

[24]

The complainant did not venture any definitive
    timing of events, other than to state that she thought the arguments leading to
    the sexual assault, assault, and threats began about two hours after the
    appellant arrived. This would be approximately 8:40 a.m.

[25]

If that was the case, then it would have made
    sense that, by the time the complainant made the first call at 9:53 a.m., the
    assaults had already taken place and the appellant had likely left. And yet the
    brothers evidence and the timing of his call to 911 suggest the complainant
    did not disclose the sexual assault and threats until the 12:55 p.m. call.

[26]

The appellant argues that this delay in
    reporting ought to have raised a reasonable doubt that he committed the acts
    alleged. How could the complainant be calm in a conversation with her brother
    at 9:53 a.m.  in the immediate aftermath of a sexual assault  and not
    disclose it, or the threats to harm her daughter, but then be hyperventilating
    at 12:55 p.m.?

[27]

The trial judge noted the argument but was
    undisturbed by it. He did not make a finding of when the appellant left, or
    whether the sexual assault took place before or after the 9:53 a.m. call. The
    appellant, for his part, did not give evidence about when he left and was
    unable to elicit evidence from his parole officer that he must have left by
    9:00 a.m. in order to make it to an appointment they had for the early
    afternoon.

[28]

On the trial judges understanding of events, it
    was entirely consistent with the evidence either that the appellant assaulted
    and threatened the complainant and left before the complainant made the first
    call, or that the incident had taken place after the first call. But, as
    explained below, even if he had accepted that the appellant had left by 9:00
    a.m.  which he found he did not have to decide - it would not have been inconsistent
    with the complainants evidence or raised a reasonable doubt.

[29]

The complainant did not testify that she
    disclosed the incident to her brother as soon as it happened  which would have
    meant that she disclosed it on the first call - only that she disclosed it
    after it happened. She was consistent on cross-examination that she did not
    remember the first call with her brother, did not know at what time the
    appellant left, and would not estimate how much time had passed between the
    incident complained of and when the appellant left. His departure was not
    immediate.

[30]

The trial judge was not prepared to draw an
    inference that someone in the circumstances of the complainant who had
    experienced a sexual assault would necessarily disclose it immediately to her
    brother, or that she would present on the phone as more upset at 9:53 a.m. than
    at 12:55 p.m., assuming the incident had taken place prior to 9:53 a.m. He did
    not find that the timing of the two phone calls, the content of those calls, or
    her demeanour on those calls was inconsistent with her evidence as to the
    sexual assault, assault, and threats. None of this evidence raised a reasonable
    doubt in his mind.

[31]

I see no reason to interfere. Contrary to the
    appellants argument, there was no material inconsistency between the evidence
    of the complainant and her brother that the trial judge had to resolve: they
    agreed that there was a phone call in which she disclosed a sexual assault. It
    was open to the trial judge to conclude that the sequence of events or the
    manner in which the complainant evidenced distress do not damage her evidence
    or raise any doubt in my mind, and to reject the argument that the complainant
    would necessarily have disclosed the sexual assault immediately to her brother.
    The factual findings the trial judge made, and the inferences he drew from them
    were all open to him, and he made no reversible error in his
W.(D.)
analysis.

(2)

Appeal Against Sentence

[32]

In
R. v.
    Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 11, a majority of the
    Supreme Court concluded that except where a sentencing judge makes an error of
    law or an error in principle that has an impact on the sentence, an appellate
    court may not vary the sentence unless it is demonstrably unfit.
The appellant has not identified any basis upon which it would be
    appropriate to interfere with the sentence imposed. The sentence is not
    demonstrably unfit and the trial judge made no legal error or error in
    principle.

[33]

The trial judge did not err in emphasizing denunciation and
    specific deterrence. As the trial judge explained, the appellant has a history
    of sexual offences and committed the offences that are the subject of this
    appeal while on probation. The trial judge was unimpressed with the appellants
    argument attempting to minimize the sexual assault as a simple touching. As the
    trial judge noted, it was sexual touching accompanied by a threat of forced
    intercourse, in circumstances where the complainant was fully aware of the
    appellants history of forcing intercourse on others.

[34]

I reject the appellants argument that he was thereby unfairly
    penalized for having been honest with the complainant by disclosing his history
    of sexual assault. Being honest with an intimate partner about his discreditable
    past was the least he could have been expected to do. He is not entitled to a
    lesser sentence because the experience would have been less terrifying for her
    if she had never known what he had done to other women.

[35]

With respect to the argument that the appellant
    ought to receive enhanced credit due to harsh conditions resulting from
    institutional efforts to combat COVID-19, the appellant has not argued any
    particular impact that COVID-19 measures have had on him. I would dismiss this
    ground of appeal.

Disposition

[36]

I would dismiss the appeals against conviction
    and sentence.

Released: June 29, 2021 P. R.

B.W.
    Miller J.A.

I
    agree. Paul Rouleau J.A.

I
    agree. K. van Rensburg J.A.


