



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. J.J., 2021 ONCA 351

DATE: 20210526

DOCKET: C67525

Rouleau, Pepall and Roberts
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.J.

Appellant

Colleen McKeown, for the appellant

Katie Doherty, for the respondent

Heard: March 15, 2021 by video
    conference

On appeal from the conviction entered
    on April 18, 2019 by Justice Antonio Skarica of the Superior Court of Justice.

REASONS
    FOR DECISION

Overview

[1]

The appellant appeals from his conviction for sexual
    assault. He abandoned his appeal from sentence on December 9, 2020.

[2]

The events leading up to the incidents in issue are
    not seriously in dispute. The complainant, then 15 years old, met the appellant
    through the complainants friend; the complainant and her female friend would
    spend time with the appellant and his friends, drinking alcohol and accompanying
    the appellant while he engaged in drug trafficking. In the evening of May 31

into June 1, 2017, the complainant was picked up in a taxi sent by the appellant
    to his house. The appellant and the complainant then called in the taxi for the
    appellants friend, Jordan. Along the way in the taxi to another friends house,
    Jordan gave the complainant some vodka to drink and she got drunk. The
    appellant said they would pick up the complainants female friend but that
    never happened. The appellant promised to pay for the complainants cab ride
    home at the end of the night. In the basement of the friends house, the complainant
    continued to drink alcohol straight from a bottle with the appellant and his three
    male friends. Marijuana was also being consumed.

[3]

At one point, the complainant and the appellant
    went alone into a side room that had no doors or privacy and that contained a
    foul odour. Oral sex and sexual intercourse took place between them. The
    appellant abruptly left the complainant. He did not provide her the fare for
    the cab ride home. The complainant ended up spending the night in one of the friends
    garage before returning home the next morning.

[4]

That morning, the complainant attended a previously
    scheduled doctors appointment and blurted out that she had been raped. A
    sexual assault evidence kit with a vaginal swab was completed. According to the
    unchallenged expert evidence at trial, the swab captured DNA that was 110 trillion
    times more likely to originate from the appellant than any other male. The
    complainant testified that she felt a vaginal tear and that she thought that the
    nurse even said that; however, the medical records disclosed no such tear and
    the nurse in question did not testify.

[5]

The appellant was arrested for sexual assault.
    The police did not tell the appellant the victims name. After his arrest and on
    his way to the police station in the back of the police cruiser, the appellant angrily
    burst out that The bitch is angry because I wouldnt pay her the $30 cab fare,
    and made disparaging remarks about the complainants race and physical
    appearance without naming her. When subsequently interviewed by the police
    about the complainants allegations, the appellant denied knowing the
    complainant or anyone with her name living in the area. He also denied that the
    alleged sexual activities took place. Following the disclosure of the DNA results,
    the appellant admitted at trial knowing and having sexual relations with the complainant
    but maintained that they were instigated by the complainant and entirely
    consensual.

[6]

The accounts by the complainant and the
    appellant as to how the incident unfolded are dramatically different. The complainant
    testified that the appellant led her into the basement side room and forced her
    to have oral sex and sexual intercourse with him against her repeated and loud protests.
    The appellant testified that the complainant invited him into the side room and
    initiated sexual contact, at first oral sex at his request, followed by vaginal
    intercourse at her request.

[7]

The trial judge rejected the appellants version
    of events, stating it was replete with contradictions, lies and improbable scenarios.
    He did not believe the appellants evidence that he had sex with the complainant
    at her request and with her consent. Moreover, he was not left with a reasonable
    doubt. On the basis of the evidence that he did accept, including the core of
    the complainants evidence concerning the sexual assault, he found the appellant
    guilty beyond a reasonable doubt.

[8]

The appellants appeal centres on the trial
    judges treatment and analysis of the trial evidence and his credibility assessments
    in the context of the requisite analysis under
R. v. W. (D.)
, [1991] 1
    S.C.R. 742. He says the trial judge made several reversible errors that warrant
    a new trial.

[9]

For the reasons that follow, we do not agree that
    the trial judge made the alleged errors and we would dismiss the appeal. We shall
    deal with each of the appellants issues in turn.

Analysis

(i)

Assessment of the complainants evidence

[10]

First, the appellant says the trial judge failed
    to reconcile material inconsistencies and deliberate falsehoods in the complainants
    evidence and incorrectly discounted them because of her age. He argues that the
    trial judge erred in giving the complainant the same testimonial latitude afforded
    to young children when considering her credibility, and that he failed to resolve
    the important credibility and reliability concerns with her evidence.

[11]

We disagree.

[12]

The trial judge was aware of and specifically addressed
    the major inconsistencies and contradictions in the complainants evidence. He
    noted that it was an unusual case where there are a number of concerns with
    both the evidence of the complainant and the [appellant] and rhetorically
    asked himself what am I to do with the inconsistencies and contradictions
    regarding the testimony of the complainant, A.Y.?

[13]

While listing the various discrepancies, the
    trial judge concentrated on the following: the complainants statement that she
    suffered a vaginal tear from the assault when the medical evidence revealed no
    physical injuries; the complainants evidence that she was screaming throughout
    the assault in a house full of people but no one came to her assistance; and her
    initial false denials about having oral sex with the appellant and previously
    having sexual contact with a friend of the appellant. The trial judge was not
    required to address every inconsistency in the complainants evidence but was
    entitled, as he did, to focus on the ones that he expressly noted were the most
    significant. Importantly, although he observed that a deliberate falsehood
    would be very telling against a complainants testimony, he explained why, in
    the light of all the evidence, he accepted the complainants explanations for the
    identified problems with her evidence, and why those issues did not cause him
    to reject her account of the sexual assault.

[14]

The trial judge noted the inconsistency in the
    evidence about being injured during the sexual assault. However, by the time of
    the trial, it was no longer in dispute that the appellant had had sexual
    intercourse with the complainant. After the appellants DNA was discovered in
    the complainants vagina, the appellant admitted having sexual relations with
    her but maintained they were consensual. While the presence of a physical
    injury might indicate a lack of consent, the absence of an injury would not
    have indicated consent. Placed in context, it is not surprising that the trial
    judge was not troubled by the discrepancy relating to whether the nurse had
    told the complainant she had a vaginal tear.

[15]

The trial judge also expressly considered the complainants
    evidence that she screamed for help and no one came to her assistance. He was not
    satisfied that the people present would come to her aid, and he was not
    prepared to assume without evidence that others in the home would have heard
    her. We would also note that one of the appellants friends did come to the
    room. We see no reversible error in the trial judges treatment of the
    inconsistencies in the complainants evidence.

[16]

Moreover, in addressing the frailties in the complainants
    testimony, the trial judge properly took into account that the complainant was
    only 15 at the time of the sexual assault and 17 when she testified at trial. He
    considered the Supreme Courts guidance for dealing with young witnesses in
R.
    v. B. (G.),
[1990] 2 S.C.R. 30,
R. v. W. (R.)
, [1992] 2 S.C.R.
    122,

and
R. v. François
, [1994] 2 S.C.R. 827. While age played
    a role in his credibility and reliability analysis, the trial judge found that
    the difficulties with the complainants evidence were a function of her
    shyness, immaturity, lack of education, strict religious upbringing in an
    unsupportive family, and feelings of embarrassment, rather than her age alone. He
    concluded that these issues did not fatally undermine the complainants
    evidence.

[17]

We do not accept the appellants arguments that the
    trial judge extended too much testimonial latitude to the complainant on account
    of her immaturity, and that immaturity is not analogous to a childs inability
    to remember details and communicate with specificity. We see no error in the
    trial judges approach to the complainants immaturity, which focused on when and
    how she revealed material information rather than how she perceived the events
    in question. For instance, while the complainant initially denied having oral
    sex with the appellant, the trial judge found that her later admission of oral
    sex was corroborated by the forensic evidence and by the appellants own testimony.
    The trial judge attributed her earlier falsehood to her immaturity and embarrassment,
    leaving the core of her evidence intact.

[18]

These findings were open to the trial judge to
    make on the record before him and reveal no reversible error. They were part
    and parcel of his overall consideration and weighing of the evidence. It is worth
    repeating the proposition, also mentioned by the trial judge, that a trier of fact
    may accept some, all or none of a witness evidence. Here, the trial judge accepted
    the core of the complainants evidence about the sexual assault. We see no
    basis to interfere.

(ii)

Reliance on stereotypes

[19]

The appellant argues that the trial judge incorrectly
    relied on stereotypes and assumptions about young womens behaviour in
    assessing the complainants evidence.

[20]

We do not read the trial judges reasons in this
    way.

[21]

The trial judges reasons explain why he found
    that the appellants version of events was implausible in the particular
    context of this case. Specifically, he found that the complainant was a young,
    shy, immature girl. The basement side room reeked of urine, had no door, and
    was immediately adjacent to the room where the appellants friends were
    drinking. It was in the context of these particular circumstances and his
    assessment of the evidence as a whole that the trial judge found it implausible
    that the events would occur as described by the appellant.

[22]

The trial judge did not reject the appellants
    account based on the sexual stereotype that no woman would initiate sexual contact
    in the circumstances described, but because the appellants account made no
    sense in the specific context of the case. Having observed the witnesses, and
    the complainant in particular, it did not ring true to the trial judge that this
    particular complainant would demand sex in the manner described by the
    appellant. He was not relying on pre-conceived views about how sexual assault victims
    would behave but on how the complainant behaved.

[23]

The trial judge was entitled to make these
    findings on the record before him. We see no basis for appellate intervention.

(iii)

Treatment of the appellants post offence conduct

[24]

The appellant submits that the trial judge
    erroneously analyzed his post‑offence conduct through the prohibited lens
    of propensity reasoning. This conduct included the post-offence text he sent to
    a friend saying: Fuck all. I ditched that black girl and I almost knocked
    her out. The appellant argues that the trial judge impermissibly used his callous
    behaviour following the incident, including abruptly leaving the house, stranding
    the complainant without a cell phone and a ride home, and texting friends that
    he had ditched the complainant, as evidence that the incident was non-consensual.

[25]

Again, we do not read the trial judges reasons in
    this way. The trial judge was entitled to consider the appellants behaviour following
    the incident as part of his credibility analysis of the evidence given by the
    appellant and the complainant. He did not use the appellants admitted behaviour
    following the incident to conclude that the appellant was more likely to have sexually
    assaulted the complainant because of his callous character. Rather, the trial
    judge found that the appellants poor treatment of the complainant following the
    incident was more consistent with the complainants evidence concerning the appellants
    treatment of her before and during the incident, and inconsistent with the
    appellants version of a spontaneous sexual encounter initiated by the complainant.

[26]

We see no error in the trial judges treatment of
    this evidence.

Disposition

[27]

Accordingly, the appeal is dismissed.

Paul
    Rouleau J.A.

S.E.
    Pepall J.A.

L.B.
    Roberts J.A.


