



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. K.B., 2022 ONCA 253

DATE: 20220328

DOCKET: C68147

Strathy C.J.O., Coroza and
    George JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

K.B.

Appellant

Myles Anevich, for the appellant

Stephanie A. Lewis, for the respondent

Heard: March 15, 2022 by video
    conference

On appeal from the conviction entered on
    September 12, 2019, with reasons reported at 2019 ONSC 5287, and from the
    sentence imposed on December 2, 2019, with reasons reported at 2019 ONSC 6953,
    by Justice Patrick J. Monahan of the Superior Court of Justice.

REASONS FOR DECISION

Introduction

[1]

The appellant appeals his conviction on four
    counts of sexual assault of S.F., a 24-year-old woman who lives with an
    intellectual disability (also referred to in these reasons as the
    complainant). He was acquitted of unlawful confinement. He was sentenced to
    imprisonment of five years concurrent on each count, together with several
    ancillary orders.

[2]

The appellant raises four grounds of appeal,
    discussed below. He acknowledges that his request for leave to appeal sentence
    is moot, as the sentence has been served. For the reasons below, we dismiss the
    conviction appeal and dismiss the motion for leave to appeal sentence.

Factual Background

[3]

The following summary provides a backdrop for
    the consideration of the issues. Further detail will be added as we consider each
    issue.

[4]

S.F. was described by her mother, A.F., as
    having the intellectual capacity of a young child. She reads at a grade one or
    two level. She has limited fine motor skills and has difficulty performing some
    of the tasks of daily living, such as bathing herself and preparing her own
    meals. In spite of these challenges, she was able to complete high school at age
    21 and has participated in an adult training program at a community college.

[5]

On December 18, 2017, A.F. took S.F. grocery
    shopping. After an argument over S.F.s cell phone use, A.F. took her phone
    away. Angered by this, S.F. slipped out of the store and managed to get onto a
    bus, intending to visit her aunt. Unfortunately, she got lost along the way.
    Her desperate family did not see her again for four days. S.F. claimed that
    throughout those four days K.B. kept her in his residence, where he abused her,
    sexually, physically, and verbally.

[6]

S.F. said she met K.B. on the bus. After
    inquiring about her personal details and being told that her parents were in
    Africa (which was untrue), he got off the bus with her, and walked with her to
    his home. According to S.F., he gave her a hamburger to eat after they arrived
    at his home. He then told her to take off her clothes and to get into the
    shower, where he forced her to have sexual intercourse.

[7]

S.F. testified that sexual assaults in the
    shower and other forms of sexual assault and physical abuse continued over the
    next three days. Each day at around 7:00 a.m., when he went to work, the
    appellant would leave her in the bedroom, with the door shut. She said she was
    unable to open the door and remained in the bedroom the entire day. The
    appellant returned from work each day, late at night and drunk. In addition to
    repeatedly sexually assaulting her, including sucking and biting her breasts,
    the appellant bit her arm and face, pushed her down onto the ground, and
    threatened her with a knife. He verbally abused her, calling her a fucking
    bitch and retarded, and told her she was ugly and no one liked her. He fed
    her fish-shaped poison candy which had the effect of sedating her.
    Throughout, the complainant told him to stop, and said that these actions were
    contrary to her Muslim faith.

[8]

S.F. testified that on the fourth day, December
    21, 2017, the appellant saw a television broadcast reporting that she was
    missing. He became angry, threw his cell phone at her, and left the apartment.
    She called her uncle, who contacted the police. Some time later, the police
    called the appellants cell phone and he told them where he lived. The police
    went to his apartment, retrieved S.F., and returned her to her family. Police
    told S.F.s family that the guy looked after her, or words to that effect.

[9]

After S.F. was returned to her family, her
    cousin, I.F., who was A.F.s niece, became suspicious that something had happened
    to S.F. while she was away from home. In response to I.F.s questions about
    whether K.B. had done specific things to her, S.F. replied affirmatively. S.F.
    was taken to hospital, where a sexual assault examination revealed no bruises
    or marks. Forensic examination of S.F.s underwear revealed a single male DNA
    profile, which was 1,080 times more likely to belong to the appellant than any
    unknown, unrelated male.

Trial Judges Reasons

[10]

The only witnesses at trial were S.F. and her mother, A.F. The appellant
    did not testify.

[11]

The defence did not suggest that the accused had a reasonable but
    mistaken belief that the complainant consented to sexual activity. Rather, the defence
    position at trial was that none of S.F.s allegations ever happened during the
    four days she was at his residence. The appellant acknowledged through counsel
    that the DNA on S.F.s underwear belonged to him.

[12]

The only issue at trial was whether the Crown had established,
    beyond a reasonable doubt, that the events described by the complainant had
    actually occurred.

[13]

The Crown and defence agreed that S.F.s evidence should be assessed
    in the same way as the evidence of a child. The trial judge found that S.F.s
    testimony was direct and straightforward, notwithstanding its challenges.

[14]

One such challenge was the complainants tendency to agree with a
    suggestion by counsel, particularly on cross-examination, but then disagree
    with it and clarify her evidence once the point was pursued or discussed
    further. The trial judge found that this did not undermine her evidence, in
    view of her intellectual challenges. Nor was her evidence undermined because
    she was unable to recall certain events and parts of her recollection had to be
    refreshed by her police statement and her preliminary inquiry evidence. Again,
    because of her challenges and because she was testifying about events that had occurred
    18 months earlier, her memory failings did not detract from her evidence. Where
    there were apparent inconsistencies between her trial testimony and prior
    statements, the prior statements were sufficiently vague or open to
    interpretation that the purported inconsistencies did not undermine her
    credibility.

[15]

The defence suggested that S.F.s evidence was tainted by leading
    questions asked by I.F. after she returned home. The trial judge found this
    assertion was speculative. We address this issue in more detail below.

[16]

Finally, the defence suggested that the complainants account of the
    assaults was oddly repetitive, which the trial judge found was not unreasonable
    given her intellectual challenges and the time that had passed since the events
    had occurred. S.F. had remained consistent on the core allegations of the
    sexual assaults.

[17]

The trial judge accepted S.F.s evidence concerning the sexual assaults
    and the absence of consent. He found that on the totality of the evidence, the
    Crown had proven the sexual assaults beyond a reasonable doubt. Despite minor
    inconsistencies in her evidence, the complainant never wavered in her evidence about
    the sexual assaults, which was generally consistent and credible. The trial
    judge convicted the appellant on four counts of sexual assault, observing that
    there was no innocent explanation for him having kept a vulnerable adult at his
    residence for four days without telling anyone and that the presence of his DNA
    on S.F.s underwear supported a finding of sexual assault. As discussed below,
    the trial judge acquitted the appellant on the unlawful confinement count.

Grounds of Appeal

[18]

The appellant raises four grounds of appeal of the conviction:

(a)

the trial judge erroneously discounted material
    inconsistencies and deliberate falsehoods in the complainants evidence due to
    her mental age;

(b)

the trial judge misapprehended the evidence of
    potential tainting of the complainants evidence by I.F.;

(c)

the trial judge made findings that were not
    supported by the evidence; and

(d)

the trial judge failed to turn his mind to
    inferences inconsistent with guilt, with the result that the verdict was
    unreasonable.

[19]

Only the first two grounds were advanced in oral submissions. We
    will nevertheless consider all grounds.

Analysis

(a)

Erroneously discounting inconsistencies and
    falsehoods in the complainants evidence

[20]

The appellant acknowledges that the trial judges approach to the assessment
    of S.F.s evidence was likely correct, but asserts that he failed to
    critically assess her evidence and excused blatant inconsistencies,
    improbabilities and deliberate falsehoods in her evidence, which could not be dismissed
    because of her mental age. For example, she repeatedly claimed the appellant
    had intercourse with her in the bedroom, yet also claimed she was fully clothed
    when it occurred. Her evidence was oddly repetitive, and she claimed that the
    same events were repeated day after day. Although she claimed that the
    appellant repeatedly bit and stabbed her, there was no evidence of marks,
    bruising or wounds on her body.

[21]

We do not accept these submissions. The trial judge observed that
    S.F. testified in a direct and straightforward manner. The record supports his
    observation to counsel during submissions that she spoke in a direct and
    spontaneous way and her evidence was detailed. We agree with the respondent
    that this is a case in which the trial judges opportunity to see and hear the
    complainants evidence as it unfolded, both in chief and in cross-examination,
    gave him an inestimable advantage in the assessment of her evidence. In reading
    the record of her evidence, which was admittedly confusing at times, we cannot
    hope to have the same appreciation of her evidence or be in a position to
    assess the credibility and reliability of that evidence. It was open to the
    trial judge to assign inconsistencies in the evidence the weight that he did,
    and his approach was in line with the well-established approach to the evidence
    of child witnesses. His credibility findings are entitled to significant
    deference:
R. v. G.F.
, 2021 SCC 20, 71 C.R. (7th) 1, at para. 81;
R.
    v. K.C.
, 2021 ONCA 401, 157 O.R. (3d) 161, at para. 75,
per
Jamal
    J.A. (dissenting, but not on this point).

[22]

The appellant points to several features of S.F.s evidence that he
    describes as inconsistent and improbable and which he claims the trial judge
    failed to reconcile: the absence of any bruises or bite marks described in the
    complainants evidence; the absence of stab wounds, in spite of the
    complainants evidence that the appellant repeatedly stabbed her with a knife;
    and S.F.s description of sexual intercourse having taken place in the bedroom,
    when she repeatedly claimed that she was fully clothed at the time. He also
    submits that the trial judge failed to consider how his rejection of the
    complainants evidence in relation to the unlawful confinement count might have
    affected his assessment of her evidence on the sexual assault counts.

[23]

Several of these issues were raised by defence counsel during
    submissions and were addressed by the trial judge in his reasons. He found that
    while S.F.s recollection was clearly mistaken concerning the presence of
    bruises, it did not negate the possibility that the appellant bit her. In any
    case, the absence of bruising was a secondary matter that did not occur during
    or relate directly to the sexual assaults.

[24]

The issue of the absence of stab wounds, which was a focus of submissions
    before us, was not raised in argument at trial. On a fair reading of the
    evidence, S.F. was describing the appellant threatening to stab her with a
    knife. Reading the submissions of counsel at trial, the evidence was understood
    in this way by counsel and by the trial judge.

[25]

S.F.s evidence that the appellant forced intercourse on her when
    she was fully clothed was an obvious impossibility. However, she described the
    appellant lying on top of her on the bed, fully naked, while she was lying on
    her back with her head on the pillow. His face was close to her face and their
    stomachs were stuck to each other and he put his penis in her private part.
    She also described the appellant making her lie on her stomach and lying on her
    back and doing nasty stuff to her, putting his penis in her private part.
    Neither counsel asked the complainant how the mechanics of intercourse could
    have taken place when she was fully clothed.

[26]

Having regard to the complainants evidence of the daily sexual
    assaults in the shower, which the trial judge accepted, it was unnecessary to
    the convictions for the trial judge to accept her evidence of other such
    assaults. Having regard to the challenges associated with the complainants
    evidence and her communications skills, the trial judge was not required to
    treat any of the foregoing matters as undermining her evidence.

[27]

Finally, on this issue, we do not agree that the trial judges
    rejection of S.F.s evidence on the unlawful confinement count should have
    affected his assessment of her evidence on the sexual assault counts. The trial
    judge simply rejected the complainants evidence that she was unable to open
    the bedroom door, and thereby rejected the Crowns argument that the appellant had
    confined her to the bedroom all day. There was no evidence of a lock on the
    bedroom door, and no evidence that S.F. was unable to open the door. It was
    reasonable to assume that she left the bedroom during the day to use the
    bathroom. There was no evidence that S.F. had attempted to leave the apartment
    while the appellant was at work, or even that she wanted to leave the
    apartment. As the trial judge noted, the fact that S.F. may not have attempted
    to leave did not foreclose the possibility of sexual assault. Moreover, it does
    not follow that because the trial judge was left with a reasonable doubt on the
    unlawful confinement charge, he was required to discount S.F.s credibility
    overall.

(b)

Misapprehension of evidence concerning tainting
    of complainants evidence

[28]

The appellant argued at trial that S.F.s disclosure of her
    allegations may have been tainted by her conversations with her cousin, I.F.

[29]

In cross-examination, S.F. was asked about her conversation with
    I.F. after she had returned home. She said that I.F. did not believe her
    statement to her family that nothing happened while she was at the
    appellants home. She testified that I.F. asked her a lot of questions,
    including:

·

whether she had a shower with the appellant;

·

whether he had put his privates in her mouth;

·

whether he put his privates in her privates;
    and

·

whether he had pulled her hair.

[30]

S.F. replied yes, he had done those things. I.F. told her that they
    would have to go to the hospital and the police station. S.F. testified that
    they went to the hospital that day and to the police station the following day.
    She said that I.F. sat with her during the police interview. She also testified
    that she had spoken to I.F. before she came to court and that I.F. had reminded
    her of the things S.F. had told her.

[31]

The trial judge rejected the assertion that S.F.s evidence had been
    tainted. He stated, at para. 61 of his reasons:

I find this argument to be speculative and
    without foundation in the record. There is no evidence that SFs account of the
    sexual assaults was based on a suggestion made by the niece. Nor did the
    defence call the niece as a witness to substantiate any such claim. Moreover,
    although the niece attended the initial police interview with SF on December
    23, 2017, the niece took no part in the discussion and did not prompt SF or
    suggest to her that any assaults occurred. SFs account of the assaults, which
    is detailed and spontaneous, is made entirely independently and without any
    support or encouragement from the niece.

[32]

The trial judge found it was understandable that S.F. might not have
    wanted to disclose the sexual assaults to her mother and plausible that she
    told her cousin, with whom she was close and whom she trusted, at the first
    available opportunity.

[33]

The appellant submits that because the complainant initially said
    that nothing had happened, but later responded to I.F.s leading questions,
    there was a risk of confabulation, the unconscious creation of false memories. He
    submits the trial judge failed to consider evidence relevant to tainting,
    failed to consider S.F.s suggestibility and erred in finding that the
    complainants accounts were made independently. Additionally, the trial judge
    erred in referring to the transcript of the complainants videotaped police
    interview, which was not in evidence.

[34]

The respondent acknowledges that although the transcript of the
    complainants police interview had been provided to the trial judge, and was
    referred to in evidence and in submissions, it had not been placed in evidence
    and should not have been relied upon.

[35]

We agree with the trial judges conclusion that this argument is
    speculative and unsupported by the evidence. While A.F. testified that S.F. was
    easily influenced and trusting, she also said that she was very open and never
    lied to her. Both the trial judge and defence counsel observed that there were
    limits to S.F.s suggestibility, and she did not hesitate to disagree with
    suggestions made during examination.

[36]

In our view, this is another instance in which the trial judges
    assessment of the evidence was uniquely informed by his opportunity to observe
    S.F.s evidence as it unfolded at trial. In a colloquy with counsel for the
    appellant during closing submissions, the trial judge observed that while S.F.
    was suggestible, she testified in a very direct and spontaneous way when she
    seems to be remembering what happened. This observation is supported by S.F.s
    evidence, which was rich with detail, well beyond the generality of I.F.s
    questions.

[37]

We do not give effect to this ground of appeal.

(c)

Findings not supported by the evidence

[38]

Although not addressed in oral submissions, the appellants written
    argument asserts that the trial judge made three findings that were speculative
    and unsupported by the evidence. We can describe and address these briefly.

[39]

First, S.F. testified that when they were on the bus, the appellant
    asked her personal questions about her family, including where her parents
    were. The trial judge inferred that the appellant asked these questions to
    determine whether members of her family would come looking for S.F. if he took
    her to his apartment.

[40]

Second, the trial judge observed that the appellant became upset
    when he found out that S.F. had been reported missing and that her family was
    looking for her. He inferred that the appellant was upset because he thought he
    would be able to keep her in his apartment indefinitely.

[41]

Finally, the trial judge found that keeping the complainant in the
    apartment for four days was inconsistent with the possibility that the
    appellant was attempting to assist her.

[42]

We do not accept the appellants submission that these inferences
    were speculative. In our view, they were available to the trial judge. They
    were not made in isolation from each other, or from the trial judges findings
    of fact and his assessment of all the evidence, including the complainants
    evidence of the appellants abuse. The uncontested fact is that the appellant happened
    upon a lost young woman with obvious intellectual and physical challenges and
    kept her in his home for four days  alone and neglected most of the time  without
    contacting
anyone
. As the trial judge observed,
    had the appellant brought S.F. to his residence because he wanted to assist
    her, he would have made some effort to contact her family or others who could
    have helped her. In the absence of any evidence that he did so, the inferences
    drawn by the trial judge were open to him.

(d)

Failure to consider inferences inconsistent with
    guilt

[43]

Finally, the appellant submitted in his factum that the verdict was
    unreasonable because the trial judge failed to turn his mind to an inference
    inconsistent with guilt when assessing the circumstantial evidence. He impugns the
    trial judges conclusion that the presence of the appellants DNA on the
    complainants underwear tended to support a finding that she had been sexually
    assaulted. She wore the same clothing every day and obviously used the toilet
    at least once. There was no evidence of the nature and source of the DNA, and
    the trial judge failed to consider a reasonable likelihood that the appellants
    DNA was transferred to S.F.s underwear by innocent means.

[44]

As the respondent notes, the trial judges finding was simply that
    the DNA evidence tends to support a finding that SF was sexually assaulted by
    KB. The DNA evidence was but one piece of circumstantial evidence in a case
    based primarily on the direct evidence of the complainant  evidence the trial
    judge accepted. The fact that the trial judge gave the DNA evidence some weight
    in his assessment of all the evidence does not make the verdict unreasonable.

Sentence Appeal

[45]

With credit of
    1.5:1 for the 694 days the appellant had served in pre-sentence custody, there
    remained 2 years and 54 days to be served in his 5-year sentence. He has since
    served that remainder of his sentence. The appellant concedes the sentence
    appeal is therefore moot. We agree.

Disposition

[46]

For these reasons, the conviction appeal and the motion for leave to
    appeal sentence are dismissed.

G.R.
    Strathy C.J.O.

S.
    Coroza J.A.

J.
    George J.A.


