



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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.L., 2022 ONCA 271

DATE: 20220404

DOCKET: C68791

Pardu, Paciocco
    and Thorburn JJ.A
.

BETWEEN

Her Majesty the Queen

Respondent

and

J.L.

Appellant

Mindy Caterina, for the appellant

Kristen Pollock, for the respondent

Heard: March 23, 2022 by video conference

On appeal from the conviction entered on
    December 13, 2019 and the sentence imposed on September 18, 2020 by Justice Marquis
    S. V. Felix of the Ontario Court of Justice.

REASONS
    FOR DECISION


OVERVIEW

[1]

J.L. was convicted of sexually assaulting the
    complainant, his estranged wife. He was also convicted of breach of probation
    arising from the same event, which is alleged to have occurred on September 17,
    2018. Both parties testified during the trial. Credibility was the only
    contested issue. The trial judge was not left with a reasonable doubt following
    J.L.s testimony primarily because J.L. had initially lied to the police by
    denying his presence at his wifes place of residence at the time of the
    alleged offences. The trial judge accepted the testimony of the complainant that
    J.L. had intercourse with her against her will, and thereby breached a
    condition requiring him to keep the peace and be of good behavior in a
    probation order he was under for prior offences he had committed against the
    complainant.

[2]

J.L. appeals his conviction, identifying alleged
    errors in the trial judges analysis of the complainants credibility. He
    argues that the trial judge relied unduly on the complainants demeanour and that
    he incorrectly used the absence of exaggeration as a makeweight bolstering her
    credibility. He also argues that the trial judge misapprehended the importance
    of material evidence. J.L. also seeks leave to appeal his global sentence of three
    years and three months.

[3]

Although J.L. raises concerns about the trial
    judges credibility evaluation that are not entirely without merit, when
    examined in the context of the reasons for judgment as a whole, those concerns
    do not overcome the significant deference that must be given to the trial
    judges credibility determinations, recently reinforced by Karakatsanis J. in
R.
    v. G.F.
, 2021 SCC 20, 459 D.L.R. (4th) 375, at paras. 81‑82. As
    explained below, we therefore deny the conviction appeal.

[4]

J.L. also seeks leave to appeal his global
    sentence of three years and three months. For the reasons below, we grant leave
    to appeal the sentence, allow the sentence appeal and substitute a global
    sentence of three years.

DEMEANOUR

[5]

J.L.s main ground of appeal asserts that the
    trial judge gave undue weight to the complainants demeanour in his assessment
    of her credibility. In his reasons for judgment, the trial judge did comment extensively
    on the complainants demeanour, including her state of emotion and the manner
    in which she testified, and he stressed repeatedly how closely he had examined
    the complainant during her testimony.

[6]

It is appropriate for trial judges to consider
    the demeanour of witnesses when evaluating their credibility:
R. v. R.D.
,
    2016 ONCA 574, 352 O.A.C. 350, at para 25;
R. v. E.A.P.
,

2022
    ONCA 134, at para. 21. However, this court has cautioned that demeanour can be
    an unreliable gauge of credibility because of the impact that culture,
    personality and pressure can have on courtroom behaviour, and the risk that stereotypes
    about credibility will distort the evaluation:
R. v. Rhayel
, 2015 ONCA
    377, 334 O.A.C. 181, at para. 85;
R. v. Santhosh
, 2016 ONCA 731, 342
    C.C.C. (3d) 41;
R. v. Hemsworth
, 2016 ONCA 85, 334 C.C.C. (3d) 534;
R.
    v. A.A.
, 2015 ONCA 558, 327 C.C.C. (3d) 377, at paras. 131-32;
R. v. T.M.
,
    2014 ONCA 854, 318 C.C.C. (3d) 421. Therefore, it is an error to give undue weight
    to demeanour in making credibility determinations. Although the trial judge
    arguably gave more attention to demeanour in his reasons for judgment than is
    optimal, we are left unpersuaded that the trial judge erred by giving undue
    weight to demeanour.

[7]

First, the trial judge was aware that he should
    not rely unduly on demeanour when coming to his decision. The parties cautioned
    him in this regard, and he expressly adopted the principles of credibility
    evaluation described in
R. v. G.A.
, 2017 ONSC 7493, which include, at para.
    142, a caution against overreliance on demeanour. He also demonstrated an
    understanding that cases should not be decided based primarily on demeanour. He
    did so by rejecting J.L.s testimony despite being impressed by J.L.s
    demeanour, and by stressing in his reasons that his decision to accept the
    complainants testimony was based on a number of factors.

[8]

Second, the lengthy demeanour section in the reasons
    for judgment was dedicated primarily to explaining why the complainants
    demeanour in pausing before answering and not responding directly to questions
    did
not
undermine her credibility. Although the trial judge made this
    decision based on other aspects of the complainants demeanour, including her
    state of emotion and her straightforward blunt personality, the net result is
    that on this occasion the trial judge used aspects of the complainants demeanour
    not as a positive indication of her credibility, but as a basis for declining
    to rely on other aspects of her demeanour in his credibility evaluation. In our
    view, a decision not to rely on demeanour, even if based on other aspects of
    demeanour, cannot contribute to a finding that demeanour has been used unduly.

[9]

Third, it was not inappropriate for the trial
    judge to rely on demeanour to discount the weight of the complainants refusal
    to acknowledge in her testimony her interest in reconciling with the appellant
    in the year prior to the assault. To be clear, there may have been room for
    criticism if the trial judge relied on the complainants demeanour to find that
    she was being truthful when denying her interest in reconciliation, but this is
    not what occurred. The trial judge was fully aware that the complainant had not
    been entirely forthcoming in this area. Instead, he relied on her animated
    response in putting a text message document she had been confronted with face
    down on the witness box in order to understand why she was not forthcoming. The
    trial judge concluded that this discrete act demonstrated the complainants
    discomfort in acknowledging, as borne out by the text messages, that there was
    a time when she wished to reconcile with the appellant. In the trial judges
    view, this explanation for her reluctance to admit her interest in
    reconciliation blunted the impact of this incident on the credibility of her
    sexual assault allegation. Although not every judge may have drawn this
    inference, it was open to the trial judge to do so.

[10]

There is no question that the trial judges evaluation
    of the demeanour of the complainant also influenced his overall credibility assessment.
    But as the trial judge made clear, he relied as well on other factors,
    including testimony from the appellant that confirmed much of the complainants
    narrative, and the complainants emotional condition after the alleged assault.
    On this record, it cannot be said that the trial judge relied unduly on
    demeanour.

THE ABSENCE OF EXAGGERATION

[11]

The complainant told the police that the
    appellant reinserted his penis in her vagina after ejaculating on her stomach.
    She did not include this detail in her testimony until she was confronted in
    cross-examination with her police statement. The trial judge explained why, in
    his view, this was not a significant contradiction. He then noted that the
    reinsertion of the penis is an aggravating factor and commented, If the
    complainant was singularly focused on animus, she would have [] taken great
    care to explain each aggravating circumstance, including a re‑introduction
    of the [appellants] penis.

[12]

The appellant contends that the trial judge
    erred in drawing this inference since it is an error for a trial judge to treat
    the absence of embellishment as a makeweight in favour of credibility:
R.
    v. Alisaleh
, 2020 ONCA 597, at para. 16. We do not agree that the trial
    judge erred in drawing the inference that he did. We agree that it is improper
    for a trial judge to infer that a more modest sexual assault allegation is more
    likely to be true because a false allegation is likely to be serious. But this
    is not the reasoning the trial judge engaged in. Instead, he reasoned that if
    the complainant had really concocted the sexual assault allegation out of
    animus as the appellant alleged, she would not have failed to mention this
    aggravating feature of her allegation when offering her testimony in chief. This
    inference was not being used as a makeweight  an affirmative indication of
    truthfulness  but rather was directed at rebutting or knocking off of the
    scales a defence challenge to the complainants credibility.

THE MISAPPREHENSION OF EVIDENCE

[13]

The appellant argues that the trial judge
    misapprehended evidence relevant to credibility by failing to give it proper
    effect.

[14]

First, he contends that the trial judge
    misapprehended the relevance of evidence about text messages from the prior
    year in which the complainant demonstrated a desire to reconcile with the
    appellant. The evidence about the text messages was relevant to the
    complainants credibility in two ways: (1) the text messages provided evidence
    that arguably supported the jealousy and animus motive the appellant alleged,
    and (2) the text messages arguably showed that the complainant was lying when she
    claimed that she was not, at the time, interested in reconciling with the
    appellant. The appellant argues that the trial judge misapprehended the
    relevance of the text message evidence by addressing only the first issue and
    not the second. We do not agree. The trial judge appreciated and addressed the
    second issue. As indicated above, he attributed the complainants refusal to
    acknowledge her interest in reconciliation to the complainants reluctance to
    admit her desire to reconcile. Regardless of what may be said about how
    persuasive that inference is, it demonstrates that the trial judge did not
    misapprehend the relevance of the text message evidence.

[15]

Second, the complainant argues that the trial
    judge failed to appreciate the relevance of the testimony of the appellants probation
    officer that the complainant told her that the sexual assault had occurred sometime
    over the past week or over the weekend. In contrast, the complainant testified
    that the sexual assault occurred 30-40 minutes before she phoned the
    appellants probation officer. When the trial judge analyzed this contradiction,
    he said that it is addressed by the fact that the appellant confirmed that he
    attended the complainants residence prior to the phone call.

[16]

The appellant argues that this analysis missed
    the real point. The significance of the contradiction was not that it created
    doubt about when the alleged event occurred. Its significance was that if the
    complainant did tell the probation officer that the sexual assault had occurred
    sometime over the past week or on the weekend, this casts serious doubt on the
    credibility of her entire sexual assault allegation. Specifically, if a sexual
    assault had in fact occurred 30-40 minutes before the phone call as testified
    by the complainant, it is inconceivable that the complainant would have told
    the probation officer almost immediately after the sexual assault that the
    sexual assault had happened days before. Moreover, the trial judge relied on
    the upset state of the complainant as after-the-fact conduct consistent with
    the complainant having just been sexually assaulted. If the complainant had
    told the probation officer that the sexual assault had in fact occurred days before,
    her state of upset would not have been reliable evidence of the sexual assault.

[17]

We accept that the organization of the trial
    judges reasons does create the appearance that he misapprehended the
    significance of this contradiction. As indicated, when he raised and addressed this
    issue directly, he appears to have treated the contradiction as if it was
    relevant only to the timing of the assault. However, a trial judges reasons
    must be read as a whole. When the whole of his reasons is considered, it is
    apparent that the trial judge had significant reservations about accepting that
    the probation officer accurately recorded the conversation. He noted earlier in
    his reasons that when the complainant spoke to the probation officer, she was upset
    and had to be calmed down before she could be understood; that the interaction
    between the probation officer and the complainant was not recorded; that the
    probation officers report was not filed as an exhibit; that she was not engaging
    in an investigative interview; and that while she did her best to make notes,
    she is not an investigator. Moreover, the trial judge noted that the
    complainant testified that she in fact told the appellants probation officer
    that the sexual assault had occurred only moments before. Although the trial
    judge could have been more explicit, it seems clear that he was not persuaded
    that the complainant had told the probation officer that the sexual assault
    occurred the week before or on the weekend. Although the appellant takes issue
    with that finding given that the probation officer had notes, this finding was
    open to the trial judge. The instant point is that an examination of the whole
    of the record precludes a finding that the trial judge misapprehended the significance
    of this evidence.

CONCLUSION ON CONVICTION APPEAL

[18]

We recognize that the appellant made incidental
    arguments before us taking issue with the trial judges treatment of other
    contradictions and arguing that inadequate attention was given to the appellants
    animus theory. It is not for us to retry the case. We will therefore say no
    more on those issues and would dismiss the conviction appeal.

THE SENTENCE APPEAL

[19]

The Crown concedes that the trial judge erred in
    principle by imposing a sentence of three years and three months on the sexual
    assault conviction after the trial Crown requested a global sentence of three
    years. In order to exceed the sentence recommended by the trial Crown, the
    trial judge was obliged to first alert the parties of his intention to do so
    and then give them an opportunity to make submissions:
R. v. Blake-Samuels
,
    2021 ONCA 77, at paras. 30-34, 36. But he did not do so.

[20]

We are persuaded that this error affected the
    sentence. We have had the benefit of relevant submissions on whether the
    sentence requested by the trial Crown should be exceeded. The appeal Crown
    conceded before us that the three‑year sentence the trial Crown had requested
    is fit and could offer no basis upon which the additional three months of
    incarceration would be required. We are therefore satisfied that, had the trial
    judge conducted the inquiry he should have conducted, it is probable that he
    would have acceded to the sentence the trial Crown requested.

[21]

In the face of this error, it falls to us to
    impose a fit sentence. We reject the sentencing range suggested by the
    appellant. The aggravated factors in this case make a sentence at the low end
    of the range inappropriate. We set aside the sentence on the sexual assault conviction
    and substitute the sentence the trial Crown requested of three years of incarceration.

CONCLUSION ON THE SENTENCE APPEAL

[22]

Leave to appeal is granted, the sentence imposed
    for the sexual assault conviction is set aside, and a sentence of three years
    is substituted.

G. Pardu J.A.

David M. Paciocco J.A.

J.A. Thorburn J.A.


