



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: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    the victim shall not be published in any document or broadcast or transmitted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. E.M.M., 2021 ONCA 436

DATE:  20210621

DOCKET: C68249

Rouleau, Hoy and van Rensburg
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

E.M.M.

Appellant

Riaz Sayani, for the appellant

Nicholas Hay, for the respondent

Heard: June 2, 2021 by video
    conference

On appeal from the conviction entered on
    December 4, 2018 and the sentence imposed on September 12, 2019 by Justice Jane
    E. Kelly of the Superior Court of Justice.

Hoy
    J.A.:

[1]

The appellant appeals his conviction for sexual assault. He also applies
    to adduce fresh evidence in relation to sentence and, based on that evidence,
    seeks leave to appeal his sentence.

The background

[2]

The trial unfolded over two days. The issue at trial was whether the
    sexual activity that occurred was consensual.

[3]

The complainant and two female friends, S. and V., were invited to the
    appellants apartment. There, they hung out with the appellant and two of his
    male friends. The complainant was 16 years of age; the appellant was 18 years
    of age. The complainant and her friends were offered, and took, pills which
    they believed were Xanax. The three males did not take any of the pills. After
    a while, the complainant and V. went into one of the bedrooms and laid down. At
    some point, the appellant joined them. At a certain point, V. left the room.

[4]

The complainant testified that after V. left the room, the appellant
    began touching her and that she felt heavy, unable to move from the drugs, and
    was in and out of consciousness. The complainant testified that the appellant
    got on top of her and tried to penetrate her. She called out for V. and told
    the appellant to stop. (V. did not testify at the trial.)

[5]

S. testified that she heard the complainant calling for V. and yelling
    stop, while she was in another room with one of the males. She testified that
    the complainant sounded scared.

[6]

The appellant testified that V. communicated to him that the complainant
    wanted to lose her virginity, that the sexual activity began before V. left the
    room, and that the sexual activity that occurred, including intercourse, was
    consensual.

[7]

A few days after they had attended at the appellants apartment, the
    complainant and S. reported the incident to the police.

The trial judges reasons

[8]

The trial judge considered the principles in
R. v. W.(D.)
, [1991]
    1 S.C.R. 742. She did not believe the evidence of the appellant and explained
    why. Not only did she not believe his evidence, but, she stated, when
    considered in the context of the entire evidence, it did not raise a reasonable
    doubt. Finally, she considered whether, based on the evidence that she did accept,
    the Crown had proven the offence beyond a reasonable doubt.

[9]

The trial judge noted that the reliability of the evidence was a
    significant issue that required careful consideration. The complainant and S.
    had consumed drugs before the sexual activity occurred. The trial judge listed
    several details about the incident that the complainant had difficulty
    remembering. The trial judge found that while the complainant remembered some
    parts of the incident and not others, there was no doubt in her mind about whether
    she consented. Moreover, her evidence was somewhat corroborated by S., who was
    no longer friends with the complainant and testified at trial under subpoena.

[10]

The
    trial judge accepted that there were inconsistencies in the evidence of S., and
    listed some of them, but she accepted that at some point S. heard the
    complainant calling for V. and yelling stop.

[11]

The
    trial judge accepted that the complainant and S. discussed the incident before
    going to the police. However, she rejected appellants trial counsels
    suggestion that they colluded to fabricate the allegations against the
    appellant.

[12]

Based
    on the evidence that she accepted, the trial judge was satisfied beyond a
    reasonable doubt of the appellants guilt.

[13]

She
    sentenced the appellant to a period of imprisonment of two years less a day.

The issues on appeal against conviction

[14]

The
    appellant advances two arguments on his appeal against conviction.

[15]

First,
    he argues that the trial judge failed to consider whether innocent collusion
    undermined the reliability of the complainants and S.s testimony.

[16]

Second,
    he argues that the trial judge failed to apply the second step of
W.
(
D.)
in a meaningful way. Instead, the
    appellant says, the trial judge impermissibly engaged in a credibility contest.

(1)

Innocent collusion

[17]

I
    reject the appellants argument that this court should order a new trial
    because the trial judge failed to consider whether innocent collusion
    undermined the reliability of the complainants and S.s testimony.

[18]

The
    appellant conflates the fact that the trial judge did not expressly address
    innocent collusion in her reasons with the issue of whether she considered the
    possibility of it in assessing the reliability of the complainant and S.s
    evidence.

[19]

Innocent
    collusion occurs when, through mere conversation, false memories are implanted
    and overwhelm independent recollection. However, courts must be wary of jumping
    to the conclusion that that a witnesss evidence is no longer independent, and
    has been tainted by innocent collusion, simply because of a conversation.
    Witnesses may know each other. It is human nature to discuss what happened
    immediately after offending behaviour takes place: Peter Sankoff,
The Law
    of Witnesses and Evidence in Canada
, loose-leaf (Toronto: Thomson Reuters,
    2019), at §7.4(c), adopted in
R. v. L.(R.G.)
(2004), 185 C.C.C. (3d) 55 (Ont. C.A.), at para. 37,
per
Weiler J.A. (dissenting, but not on this point), appeal quashed, 2005 SCC 18,
    [2005] 1 S.C.R. 288.

[20]

Defence
    counsels primary argument at trial was that the complainant and S.
    intentionally colluded. She adverted to the risk of innocent collusion in her
    reply submissions but had laid no foundation during the trial to this
    submission. The complainant testified that she had an independent recollection
    of events and S.s testimony that she heard the complainant call out for V. and
    yell stop withstood cross-examination. Defence counsel did not cross-examine
    the complainant nor S. as to the risk that their recollection of events had
    been tainted by their discussions before going to the police.

[21]

The
    trial judge explicitly accepted that the complainant and S. discussed the
    incident before going to the police and rejected intentional collusion in her
    reasons.  She also specifically noted that the reliability of the evidence was
    a significant issue that required careful consideration, and she carefully
    considered the reliability of the evidence.

[22]

This
    case is different from
R. v. Burnie
, 2013 ONCA 112, 303 O.A.C. 76,
R. v.
    Burke
, [1996] 1 S.C.R. 47, and
R. v. F.(J.)
(2003), 177 C.C.C. (3d) 1 (Ont. C.A.), on which the appellant relies.

[23]

Unlike
    this case,
Burnie
involved similar fact evidence of two alleged
    instances of sexual assault.
Burnie
applied

R. v. Handy
, 2002 SCC 56, [2002] 2 S.C.R.
    908
, which held that if there is an air of reality to an allegation
    of collusion, before admitting similar fact evidence, a trial judge is required
    to consider whether the Crown has proven on a balance of probabilities that the
    evidence was not tainted by collusion.

[24]

Burke
and
F.(J.)
did not involve similar fact evidence. But they too are
    very different from this case.

[25]

In
Burke
, Sopinka J., writing for the Court, found that the convictions
    of a former Christian Brother at the Mount Cashel Orphanage for indecent
    assault were unreasonable in light of the evidence at trial. The trial judges
    assessment of the credibility of the two complainants, E. and C., could not be
    supported on any reasonable view of the evidence: at para. 7. Their evidence
    contained many inconsistencies and falsehoods, and C. had a history of chronic
    dishonesty. However, Sopinka J. wrote, the strong possibility of collusion
    should also have prevented the trial judge from using C.s evidence to
    corroborate that of E.: at para. 33.

[26]

When
    contacted by police investigating abuse at the orphanage, C. claimed he had
    nothing to say. It was only after C. had been contacted by the lawyer who was
    pursuing a highly publicized civil action on behalf of E. against the accused
    that C. came forward with his claim. There was a risk that C.s claims against
    the accused arose from his knowledge of the statements made by E., gleaned
    through his discussions with what became their common lawyer. Nothing in the
    trial judges reasons indicated that she was alive to that possibility.

[27]

The
    appellant does not argue that the verdict in this matter was unreasonable. Here,
    unlike in
Burke
, the trial judge explicitly
    accepted that the complainant and S. discussed the incident before going to the
    police. And, unlike in
Burke
, where C.s position in relation to the
    alleged criminal conduct changed after discussions with E.s lawyer, in this
    case there was no evidence that either the complainant or S. changed her
    version of events after they discussed the incident.

[28]

In
F.(J.)
, at the behest of someone who had a
    personal animus against the accused, the complainants, over the course of many
    conversations and meetings, discussed a karate stretch that the accused had
    performed on them. The complainants heard about sexual accusations made by
    other boys in a context in which the accused was portrayed as a sexual pervert
    and predator. This court concluded that there was serious potential for
    inadvertent tainting particularly tainting about [the complainants]
    perception of the appellants intent in performing the stretch:
at para. 79
.

[29]

This
    case is not about the risk of a slight reinterpretation of an event, such as in
F.(J.).
In that case, the core event  the stretch  was the same
    across complainants. The potential for innocent collusion related to the
    allegations of sexual purpose, not the touching itself. Here, the appellant
    relies on the possibility of innocent collusion to say that the complainants
    vivid recollection of core events  being immobilized and drifting in and out
    of consciousness, being assaulted, crying out for V. and yelling stop
    repeatedly  were innocently  implanted  through her conversations with S.
    before going to police. It is difficult to understand how such a vivid
    recollection of core events could have been the product of innocent tainting.

[30]

Trial
    judges are presumed to know the law. As Moldaver J.A., as he then was, did in
R.
    v. C.(U.)
, 2009 ONCA 367, 248 O.A.C. 341, at para. 26, in the
    circumstances of this case, I start from the premise that, in assessing the
    reliability of the Crowns evidence, the trial judge considered the possibility
    of innocent collusion and was satisfied that it either lacked an air of reality
    or was satisfied that the key elements of the complainants and S.s evidence
    were not tainted by collusion. The appellant has presented nothing to the
    contrary.

(2)

The second step of
W.(D.)


[31]

Turning
    to the appellants argument that the trial judge failed to apply the second
    step of
W.(D.)
in a meaningful way, the appellant says the trial
    judges analysis of the second step of
W.(D.)
was perfunctory and she
    did not explain why the appellants evidence did not raise a reasonable doubt.
    In particular, he submits that she failed to consider that two pieces of
    evidence (evidence of saliva on the complainants underwear and the evidence
    about who was in the room) were equally or more consistent with his version of
    events, and failed to consider S.s evidence that V. and the complainant
    engaged in sexual activity with each other on another occasion. He says the
    evidence of V. and the complainants prior sexual activity with each other
    makes it more likely that, on the complainants behalf, V. would have asked him
    to take the complainants virginity, as he testified was the case. Effectively,
    he submits that if the trial judge had considered all this evidence at the
    second step, she would have found that his evidence raised a reasonable doubt.
    Instead, as I have said, the appellant argues that the trial judge
    impermissibly engaged in a credibility contest.

[32]

I
    reject this argument.

[33]

The
    appellant asks us to parse the trial judges reasons. The trial judge expressly
    considered the evidence of the saliva on the complainants underwear and of who
    was in the room in her analysis of the third step of
W.(D.).
She
    essentially treated the saliva evidence as neutral and found that both the
    appellant and S.s evidence as to who was in the room corroborated the
    complainants evidence. A trial judge need not address every piece of evidence
    in her reasons. It is not surprising that the trial judge did not advert to the
    evidence that V. and the complainant engaged in sexual activity with each other
    on a prior occasion; it is not probative of whether V. brokered a deal for the
    appellant to take the complainants virginity.

[34]

The
    judges careful reasons clearly demonstrate that she understood her verdict
    should not be based on a choice between the appellants and the complainants
    evidence, but on whether, based on the
whole
of
    the evidence, she was left with a reasonable doubt.

Fresh evidence and leave to appeal against sentence

[35]

The
    proposed fresh evidence is that the appellant suffered hardship while in
    custody, both as the result of being assaulted and COVID-19 restrictions, and
    that he has made efforts towards rehabilitation since being released on bail
    pending appeal.

[36]

The
    appellant does not argue that the trial judge erred in law or principle in
    imposing the sentence that she did, or that the sentence imposed was
    demonstrably unfit. Rather, he argues that if his appeal against conviction
    fails, this court should reduce his sentence to time served (i.e. less than
    seven months) based upon the proposed fresh evidence as to circumstances
    arising after his sentence was imposed and thereby avoid his reincarceration.

[37]

The
    court cannot act as a
de facto
parole board.
    It will vary a sentence based on changes in circumstances relevant to sentence
    that occurred between the imposition of sentence and the hearing of the appeal
    only exceptionally:
R. v. Ghadban
, 2015 ONCA 760, 342 O.A.C. 177, at
    para. 25;
R. v. L.S.
,
2017 ONCA 685, 354 C.C.C. (3d) 71, at paras. 112, 117. The exceptional
    circumstances in
Ghadban
related to the progress that the offender had
    made while awaiting the hearing of his appeal. The appellants efforts toward
    rehabilitation since on bail described in the proposed fresh evidence are far
    from the very unusual significant strides taken by the appellant in
Ghadban
, at para. 23
. Indeed, the trial judge
    had before her essentially the same qualitative information about the
    appellants rehabilitative prospects and efforts as contained in the proposed
    fresh evidence.

[38]

Moreover,
    in this case, which involves the abuse of a person under the age of eighteen
    years, s. 718.01 of the
Criminal Code
,
    R.S.C., 1985, c. C-46,
requires that the court give primary
    consideration to the objectives of denunciation and deterrence of such conduct.
    Reducing the appellants sentence to time-served would not reflect the gravity
    of the offence. As the trial judge noted, the complainant was 16, drugged, and
    virtually helpless when the assault occurred.

[39]

Accordingly,
    the fresh evidence does not fit the
Palmer
criteria:
Palmer v. The Queen
, [1980] 1 S.C.R.
    759, at p. 775.

[40]

The
    appellant is eligible for parole shortly. No doubt the parole board will pay
    careful attention to positive steps taken by the appellant since he was
    sentenced and his experience in custody.

Disposition

[41]

Accordingly, I would dismiss the appeal against conviction. I would
    grant leave to appeal the sentence, but I would dismiss the fresh evidence
    application and the sentence appeal.

Released: June 21, 2021 P. R.

Alexandra
    Hoy J.A.

I
    agree. Paul Rouleau J.A.

I
    agree. K. van Rensburg J.A.


