



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: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    the victim shall not be published in any document or broadcast or transmitted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. S.A., 2021 ONCA 434

DATE:  20210621

DOCKET: C64900

Miller, Jamal and Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

S.A.

Appellant

Riaz Sayani, for the appellant

Katie Doherty, for the respondent

Heard: October 27, 2020 by video conference

On appeal from the conviction entered on
    May 24, 2017 by Justice Beth A. Allen of the Superior Court of Justice.

By the Court:


Overview

[1]

The appellant was convicted of multiple offences arising from a
    lengthy history of sexual and physical abuse against his step-daughter.

[2]

On appeal from conviction, he argues that the language
    interpretation services he received at trial were substandard, infringing his
    right under s. 14 of the
Canadian Charter of Rights and
    Freedoms
. He seeks to introduce fresh evidence in support of this
    argument, comprised of an affidavit sworn by an interpreter providing an
    alternative translation of parts of his testimony provided in Tamil. He also
    argues that the trial judge: (i) misapprehended evidence; (ii) erred in assessing
    his credibility, in part due to the allegedly inadequate interpretation of his trial
    evidence; (iii) erred in assessing the complainants credibility; (iv) erred in
    assessing the credibility of a witness to the final sexual assault; and (v)
    erred by convicting the appellant of an invitation to sexual touching, where
    there was no finding and no evidence of any invitation to touch. The appellant
    abandoned his appeal of sentence.

[3]

For the reasons that follow, leave to admit the fresh evidence in
    support of the s. 14
Charter
argument is
    granted and the appeal against conviction is allowed with respect to the
    conviction for invitation to sexual touching. In every other respect, the
    appeal against conviction is dismissed.

Background

[4]

The complainant immigrated to Canada when she was
    in the first grade. Her mother obtained employment with the appellant. The
    appellant also rented out rooms in his house and the complainant and her mother
    became the appellants tenants.

[5]

The appellants relationship with the
    complainants mother was multifaceted. He was the mothers employer and
    landlord, and later became her husband, although the marriage was said to be for
    immigration purposes and the complainant was unaware of it for many years.

[6]

Eventually, the complainant and her mother moved
    to their own apartment, but the appellant remained involved in their lives.

[7]

The complainant testified to many years of
    sexual and physical abuse by the appellant. The abuse started with a sexual
    assault on the complainants eighth birthday. In addition to frequent sexual
    assaults, the complainant also testified to an instance of physical abuse in
    which the appellant struck the complainant with a television cable wire. The
    period of abuse ended in early 2014 with a sexual assault that was witnessed, in
    part, by a woman who had been renting a room from the complainants mother. The
    2014 sexual assault was interrupted by the arrival of the complainants mother,
    to whom the complainant then confided the on-going history of abuse.

[8]

According to the complainant, her mother was
    fearful of what might happen if the complainant reported the assaults. She told
    the complainant not to go to the police. The complainant followed her mothers instructions.

[9]

Subsequently, however, one of the complainants
    teachers noticed a change in the complainants demeanour and told a school
    guidance counsellor. The guidance counsellor approached the complainant, who told
    the guidance counsellor of the abuse. The guidance counsellor told the school social
    worker, who contacted the police without advising the complainant. The complainant
    was therefore surprised when the police approached her. She told the police of
    the history of abuse.

[10]

The appellant was found guilty of: (i) sexual
    assault; (ii) sexual touching; (iii) invitation to sexual touching; (iv)
    threatening bodily harm; (v) assault; and (vi) assault with a weapon. The conviction
    for sexual touching was stayed under the principle established in
Kienapple
    v. R.
, [1975] 1 S.C.R. 729. The appellant was sentenced to eight years in
    custody.

Issues on Appeal

[11]

At the oral hearing of the appeal, the appellant
    advanced four grounds of appeal: (i) the poor quality of the interpretation services
    provided to the appellant at trial resulted in an infringement of his right under
    s. 14 of the
Charter
; (ii) the trial judge erred in weighing the
    interpreted evidence; (iii) the trial judge erred in analyzing the appellants
    demeanour; and (iv) the trial judge erred in her credibility assessment of the tenant
    who witnessed the 2014 assault.

[12]

Although counsel for the appellant expressly stated
    that he was relying on the many other grounds of appeal advanced in his factum,
    for the most part these are either a repackaging of the grounds advanced orally
    or are entirely without merit. They were not seriously pursued and there is no
    need to address them in these reasons.

[13]

The exception is the ground of appeal concerning
    the conviction for invitation to sexual touching, which was advanced in the
    appellants factum. There was no evidence at trial of an invitation to touch
    the appellant and no mention of an invitation to touch in the reasons for
    judgment. We therefore agree that the appeal should be allowed in that respect.

(1)

Interpretation Deficiencies and s. 14 of the
Charter

[14]

The appellant argues that the precision of the interpretation
    services he received fell below the minimum standard guaranteed by s. 14 of the
Charter
.

He argues he was in part unable either to understand
    the proceedings or to be understood. He seeks a new trial.

[15]

The appellant specifically contests the adequacy
    of the interpretations of answers he gave to three questions. Through an
    application to adduce fresh evidence, the appellant provided the court with a
    set of alternative interpretations made by an interpreter working from the
    trial transcripts. In response, the respondent filed an agreed statement of
    facts concerning a review of the complaints contained in the appellants fresh
    evidence materials by an independent evaluator retained by the Interpretation
    Unit, Court Services Division, Ministry of the Attorney General.

[16]

As explained below, in the three discrete exchanges
    where the appellant contests the precision of the interpretation, the
    interpretation provided at trial neither impaired the appellant in his ability to
    understand the proceedings nor significantly impeded him in conveying his
    testimony. The s. 14 guarantee was therefore not infringed.

(a)

The Impugned Trial Interpretation

[17]

Two of the three contested interpretations are
    part of the appellants narrative of what transpired between him and the
    complainant at the Ellesmere Road apartment in 2014, at the time of the final
    assault. The third relates to the appellants explanation of what transpired during
    a separate event, when he hit the complainant with a cable wire.

(i)

Ellesmere Road - The Keys

[18]

The final sexual assault took place when the
    complainant was in grade ten, when she lived with her mother at an apartment on
    Ellesmere Road. One day, when the complainant came home from school, the
    appellant was there with the complainants mother. Her mother asked the
    complainant to go with her downstairs to take a parking permit to the
    appellants van. When they arrived downstairs, her mother realized she did not
    have the keys to the van and asked the complainant to return to the apartment
    to get them from the appellant.

[19]

On the complainants evidence, she returned to
    the apartment and asked the appellant for his keys, who held them away from her
    and touched her body in various places when she reached out for them. Eventually,
    she got the keys, started to run from the appellant, and made it outside the
    door of the apartment, but the appellant pulled her back inside and held his
    hand over her mouth. She said he pushed her onto the floor, tried to remove her
    clothes, and attempted to stop her from moving and screaming. He stopped when
    her mother came and knocked on the door, which someone  presumably the
    appellant  had locked.

[20]

On the appellants account, the complainant
    returned to the apartment for the keys and he tossed them to her at her request.
    The appellants evidence thereafter is in some respects ambiguous, but in any
    event is markedly different from that of the complainant and the tenant.

[21]

In outline, the appellants evidence was that
    the complainant had a pre-existing knee injury that was aggravated when he
    threw the keys to her. This is what caused her to call out and him to immediately
    go to her to console her and massage her knee.

[22]

The ambiguity attributed to the imprecision of
    the interpretation concerns whether the appellant stated that the keys that he
    threw to the complainant struck her knee, causing her to yell out in pain and fall
    to the floor, or that the complainant somehow injured her knee trying to catch
    the keys, and then yelled out in pain and fell to the floor.

(ii)

Ellesmere Road - The Doorway

[23]

There was also some question as to whether there
    was a misinterpretation of the appellants evidence about
where
the
    complainant fell when she tried to catch the keys  whether she was outside the
    door to the apartment, or just outside an internal door in the apartment (in
    the internal hallway).

(iii)

The Cable Wire

[24]

Finally, with respect to the cable wire incident,
    the appellant raises concerns over whether the best interpretation of his description
    of the event was that he had slapped the complainant with the cable wire hard
    or tapped her lightly, as well as whether he had done so only once or a number
    of times.

(iv)

The Appellants Argument

[25]

The appellant argues that the imprecise interpretation
    of his testimony in these three instances violated his
Charter
right
    under s. 14. He argues both that his evidence was not understood, and that he
    failed to understand that the follow-up questions put to him by opposing counsel
    were premised on misinterpretations of his earlier answers. These
    misinterpretations, he argues, resulted in the appearance of him having given inconsistent
    answers, which examining counsel exploited to undermine his credibility. This
    caused the trial judge to find that he was unable to keep his story straight
    with respect to these three details. In reality, he says, his answers were consistent
    in the original, and the sometimes combative exchanges between him and
    examining counsel were the result of his incredulity at counsel telling him he
    had just said something he knew he had not said.

(v)

Analysis

[26]

The burden is on the appellant to establish
    a breach of s. 14:
R. v. Tran
, [1994] 2 S.C.R. 951, at pp. 979-80. The
    analysis does not proceed from an assumption that an uninterpreted answer is itself
    coherent or free of ambiguity. Furthermore, as the court noted in
Tran
,
    [e]ven the best interpretation is not perfect, in that the interpreter can
    never convey the evidence with a sense and nuance identical to the original
    speech:
Tran
, at p. 987, citing Graham J. Steele, Court Interpreters
    in Canadian Criminal Law (1992) 34 Crim. L.Q. 218, at p. 242.

[27]

Section 14 provides that any party in a
    proceeding who does not understand or speak the language in which the
    proceedings are conducted  has the right to the assistance of an interpreter.
    The Supreme Courts construction of this right guarantees that the
    interpretation provided will be sufficient to enable an accused to understand
    the proceedings and to be understood. The quality of an interpretation is to be
    assessed according to its continuity, precision, impartiality, competency, and
    contemporaneity:
Tran
, at pp. 978-80, 985-92, and 994-95.

[28]

The standard is not perfection, which is
    unattainable given the real time demands of the court room, the inherent
    difficulty of rendering words and phrases from or into a language without an
    exact corresponding expression, and the possibility of ambiguity and other
    imprecision inherent in the original testimony:
Tran
, at pp. 987-88. To
    establish a breach, the appellant must demonstrate that there is a real
    possibility that the appellant either did not understand or was misunderstood.
    This must be assessed in the overall context of the trial and not on a
    piecemeal basis.

[29]

Accordingly, an appellant cannot establish
    a constitutional violation by simply showing that another, perhaps better,
    interpretation was open to a subsequent interpreter working in an environment some
    distance from the real-time pressure of simultaneous interpretation.
Tran
allows that the standard for interpretation will tend to be lower than it
    might be for translation, where the source is a written text, where reaction
    time is usually greater and where conceptual differences which sometimes exist
    between languages can be more fully accommodated and accounted for:
Tran
,
    at pp. 987-88.

[30]

After comparing the different
    interpretations in the passages reproduced by the parties, we conclude that the
    interpretation provided at trial did not fall below the standard guaranteed by
    s. 14. The differences were comparatively minor. There is no question that the
    appellant understood what was alleged against him, that his answers were
    responsive to the Crowns evidence, and that the substance of his evidence was
    conveyed with sufficient accuracy to allow the trial judge to understand the
    nature of the appellants account.

[31]

The appellants position is not materially
    improved, for example, depending on which doorway the complainant was understood
    to be near, or whether the appellant was understood to have stated that the
    complainant ended up on the floor because she was hit on the knee by the keys,
    or fell trying to catch them. Similarly, whether there is any genuine
    controversy over whether the appellants evidence was that he tapped the
    complainant with the cable wire or was tapping the complainant does not
    assist him. Either way, the offence of assault is made out.

[32]

The three impugned interpretations were, at
    worst, minor imperfections that did not impact the ultimate standard against which
    the trial must be measured: was the appellants evidence understood? The trial
    judge clearly understood the appellants denial of the sexual assault at
    Ellesmere Road, as well as his explanation that what the tenant misperceived as
    an assault was in fact a compassionate effort to relieve the pain of her injury.
    With respect to the cable wire incident, the trial judge understood that the
    appellant was angry with the complainant for bringing a friend over and punished
    her by hitting her with the cable wire. These were the salient aspects of the
    evidence.

[33]

Accordingly, the appellant has failed to
    demonstrate that his right under s. 14 was violated.

(2)

Error in Weighing the Evidence

[34]

The appellant argues that the trial judge further
    erred in her overall approach to his evidence. He claims that the trial judge
    ignored the admonition from
Tran
that because real time interpretation
    is inherently less precise than translation, a trial judge must not examine
    interpreted evidence microscopically for inconsistencies:
Tran
, at p.
    987, citing
Steele
, at p. 242.

(i)

Ellesmere Road

[35]

The trial judge found internal inconsistencies in
    certain details of the appellants account of the Ellesmere Road incident. Again,
    these inconsistencies were on comparatively minor matters. There was an
    enormous gulf between the complainant and tenants accounts, and the account
    provided by the appellant. That aspects of the appellants account appeared
    unstable certainly did not help the appellants defence. But there were many
    reasons why the trial judge disbelieved the appellants evidence

[36]

She found the entirety of his story
    unbelievable, in no small measure because it was contradicted by the evidence
    of the tenant who heard the altercation, saw the appellant straddling the
    complainant on the floor, and became so profoundly fearful for her own safety that
    she hid in her room before fleeing to the bathroom to lock the door. When the
    mother returned, the tenant told her what happened and that, consequently, she
    did not want to live in that apartment anymore. The trial judge was impressed
    by this evidence, which was flatly inconsistent with the appellants account of
    compassionately attending to the complainant and nursing her injured knee. The apparent
    inconsistencies identified by the appellant  whether these were amplified by misinterpretation
    or not  were not central to her reasoning.

(ii)

The Cable Wire

[37]

With respect to the discrepancy in the
    appellants evidence as to whether or how many times he hit the complainant
    with a cable wire, it was open to the trial judge to conclude that the
    appellants answers were contradictory. He appeared to state that the
    complainants mother prevented him from hitting her; that he hit her once before
    the complainants mother stopped him; and that he hit her multiple times before
    the complainants mother stopped him.

[38]

Again, however, the inconsistency in the
    evidence is of little moment. The trial judge found that the appellant admitted
    to hitting the complainant with the cable wire, and the appellant testified
    that he was angry when he hit her. This was sufficient to establish the offence
    of assault with a weapon, and it was immaterial that the appellant may have
    been inconsistent about the number of times he hit her, how hard he hit her,
    and whether the complainants mother prevented him from hitting her more than once.

[39]

The trial judge therefore had ample reason to
    disbelieve the appellants account of the incidents at the core of the
    allegations against him, separate from how his narrative appeared unstable in
    comparatively minor detail.

(3)

Error Concerning the Appellants Demeanour

[40]

The appellant argues that the inaccuracy in
    interpretation, even if it did not fall below the constitutional standard,
    nevertheless unfairly contributed to the trial judges negative assessment of
    the appellants demeanour and resulted in an unfair trial. As explained below, we
    do not agree.

[41]

The appellant first argues that because of the faulty
    interpretation, his evidence appeared to be internally inconsistent when it was
    not, compromising his credibility. Further, the inaccuracy of the interpretation
    resulted in cross-talk between the appellant and examining counsel, making him
    frustrated and combative with counsel. Thus, the misinterpretation, even if it
    was with respect to fairly minor details that may not have been important in
    themselves, impacted his demeanor and contributed to the trial judges negative
    impression of his evidence.

[42]

The appellant also argues that the trial judge
    erred in criticizing the appellants demeanour when he denied sexually
    assaulting the complainant on her eighth birthday. When asked if he had
    committed sexual acts against the complainant on her eighth birthday, his
    answers appeared either non-responsive or tangentially related to the question,
    such as listing things he remembered doing that day. The trial judge also
    observed that the appellant did not respond with the expected disgust that
    should accompany a denial of allegations of this nature, and that his late and
    tepid denial was not capable of persuading her that he did not commit the
    assault. In any event, the appellant argues, the trial judge placed too much
    reliance on demeanour.

[43]

Counsel on appeal suggests that the answers were
    responsive to the questions. They were intended to illustrate how devoted he
    was to the complainant and therefore how preposterous it was to suggest that he
    could have sexually assaulted her. We note that the trial judge did not
    understand the appellants answers in that way, nor were they presented that
    way by trial counsel. Accordingly, we do not accept this argument.

[44]

We acknowledge that the trial judges comment
    that she expected that the appellant would fervently repudiate the allegation
    or express disgust at it was misplaced. However, she was entitled to reject the
    appellants evidence and the appellant has no basis to complain that his
    statement was not found to be compelling. The trial judge clearly misspoke when
    she stated that the late and tepid denial was not capable of persuading me
    that he did not commit the assault. Her reasons read as a whole convey clearly
    that she understood that the burden of proof was on the Crown, and that she
    found the appellants testimony did not raise a reasonable doubt.

[45]

Although a witnesss demeanour when testifying
    is of limited probative value, a trial judge is entitled to make use of it in
    assessing the witnesss credibility:
R. v. Boyce
, 2005 CanLII 36440
    (Ont. C.A.), at para. 3. We agree with the Crown, however, that although the
    trial judge was clearly unimpressed with the appellants demeanour, and added
    it to the reasons she had for not believing his evidence, it did not play a
    central role in her reasoning.

[46]

The trial judges credibility assessment was
    multilayered, summarized by the conclusion that his evidence was too difficult
    to be believed. She accepted the tenants evidence concerning the Ellesmere Road
    allegation and was particularly impressed by the level of fear she experienced
    when hearing the complainant scream and seeing the struggle between her and the
    appellant. The trial judge was also impressed by the testimony of the
    complainant and the tenant more generally, which stood essentially
    unchallenged in any meaningful way. She also disbelieved the appellants
    evidence that, although he treated the complainant as though she was his own
    daughter, he was never alone with her in the eight years they resided together
    and would never even hug her unless her mother was present. The trial judges
    reference to the appellants demeanour, while arguably misplaced, had little
    impact on her overall conclusion that the appellant lacked credibility.

(4)

Error in Assessing the Ellesmere Tenants Credibility

[47]

At the hearing of the appeal, we permitted the appellant
    to raise a new ground of appeal not contained in his factum: that the trial
    judge erred in her assessment of the tenants credibility, by speculating as to
    an absence of motive to fabricate.

[48]

The trial judge stated in her reasons that she
    was impressed with the fact that the tenant did not know the complainant or her
    mother well, had not lived with them for long, and had not kept in close
    contact with them. She had, the trial judge noted, nothing to gain from
    testifying as she did and concluded that this lends credibility to her
    evidence.

[49]

The appellant argues that the trial judge erred
    by speculating that the tenant had no motive to fabricate when there was no
    evidence one way or the other. The appellant further argues that it was an
    error to use an absence of motive to fabricate as a positive reason to believe
    the tenant.

[50]

We do not agree. In context, the trial judge was
    doing nothing more than noting that the tenant was a disinterested witness and that
    her account was not seriously challenged. The trial judge made no error in her
    credibility assessment.

(5)

Error Concerning the Conviction for Invitation to Sexual Touching

[51]

As stated above, we accept the appellants
    submission that the conviction for invitation to sexual touching was an error. Although
    the appellant was charged with this offence, the trial judge mistakenly stated in
    her reasons that the appellant was charged with the offence of sexual
    exploitation and was guilty of this offence beyond a reasonable doubt. The trial
    judge then went on to enter a conviction on the indictment for the offence of
    invitation to sexual touching.

[52]

We do not agree with the Crowns submission that,
    because invitation to sexual touching is a mode of committing the broader
    offence of sexual exploitation, no substantial wrong or miscarriage of justice has
    occurred. In our view, the trial judge did not specifically consider the
    elements of the offence of invitation to sexual touching and there was no
    evidence of any invitation. Each incident of sexual abuse involved the
    appellant forcing himself upon the complainant, without there being an
    invitation. The conviction is therefore without factual foundation. Accordingly,
    we quash the conviction for invitation to sexual touching and enter an
    acquittal on that count.

(6)

The Remaining Grounds of Appeal

[53]

The appellant advanced several other grounds of
    appeal in his factum, which were neither argued nor abandoned at the oral
    hearing. These were primarily disagreements with the trial judges findings of
    fact. It suffices to say that none of the findings of fact challenged on appeal
    amount to an overriding error. The appellant has not identified a factual error
    warranting appellate interference.

Disposition

[54]

The motion for fresh evidence is allowed. The
    appeal is granted with respect to count three, invitation to sexual touching, that
    conviction is quashed, and an acquittal is entered. The appeal is dismissed in
    all other respects.

Released: June 21, 2021 B.W.M.

B.W. Miller J.A.

M. Jamal J.A.

S. Coroza J.A.


