



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C. 2014, c. 25, s.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    the victim shall not be published in any document or broadcast or transmitted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. Mugabo, 2017 ONCA 323

DATE: 20170421

DOCKET: C60800

Gillese, Brown and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Yannick Mugabo

Appellant

Howard L. Krongold, for the appellant

Jessica Smith Joy, for the respondent

Heard: April 7, 2017

On appeal from the conviction entered on February 5, 2015
    by Justice Peter D. Griffiths of the Ontario Court of Justice.

Gillese J.A.:

[1]

This is an appeal from conviction for sexual
    assault.  For the reasons that follow, I would dismiss the appeal.

BACKGROUND IN BRIEF

[2]

The complainant and the appellant, Yannick Mugabo, were acquaintances. 
    They encountered each other in the early morning hours of August 7, 2013, in
    Ottawa, after the bars had closed.  Both had been drinking.  Along with some
    other friends and acquaintances, they went to Jarett Lopezs apartment, where
    they continued to party.  After further drinking and use of marijuana, the
    complainant went to sleep in a back bedroom of the apartment while still fully
    clothed.

[3]

The complainant testified that she awoke at approximately 8:00 a.m. to
    find a man penetrating her vagina from behind.  She was lying on her stomach
    and the man was lying on her back.  The curtains of the bedroom window were
    open and it was daylight.  The complainant was able to identify the man as Mr.
    Mugabo because she looked down and saw his black legs.  No one else in the
    apartment at the time of the assault was black.  The complainant wiggled
    around, trying to get the man off of her.  He whispered in her ear while on top
    of her.  Then he got off of her and briefly sat on a little chair in front of a
    computer in the bedroom.  After pulling on his pants, he left the bedroom.

[4]

The complainant followed shortly thereafter and went into the living room. 
    Mr. Mugabo was in the living room along with two others  Mr. Lopez and Will
    Milner.  The complainant was, by her own description, hysterically crying. 
    Mr. Lopez and Mr. Milner both observed that she was visibly upset.  The
    complainant accused Mr. Mugabo of having non-consensual sex with her.  Mr.
    Mugabo denied this.  He was asked to leave the apartment and he did so.

[5]

Later that same day, the complainant went to the hospital for a sexual
    assault examination.  The sexual assault examination was performed by Christine
    Baker, a sexual assault nurse.  At her request, the complainant was
    administered drugs for the treatment of sexually transmitted diseases and to
    prevent impregnation.  To prevent her from contracting HIV, she also started on
    a course of medication that would last a month.  The anti-HIV medications
    potential side effects were serious.  The sexual assault nurse testified that
    it was her general practice to advise patients of the potential side effects
    before administering medications.

[6]

Ms. Baker conducted an exacting investigation of the condition of the
    complainants internal and external genitals.  Such examinations generally last
    between four and six hours.

[7]

On the external examination, the nurse found abrasions, tears, and three
    areas of great tenderness on the pubic bone and around the vagina.  On the
    internal examination, the nurse noted a visibly swollen right vaginal wall,
    redness and abrasions.  The swollen area was extremely tender to the touch. 
    During the internal examination the complainant was sobbing in pain.  The nurse
    also testified that the complainant complained of relatively severe pain.

[8]

The nurse observed a white liquid in the complainants vagina, which was
    swabbed and included in the sexual assault evidence kit.  The discharge was
    described as milky, white and sort of stretchy.  Ms. Baker did not see any
    signs of infection to which the discharge might have been attributable.

[9]

At trial, the Crown witnesses were the complainant, Ms. Baker, Mr. Lopez
    and Mr. Milner.  Ms. Baker had 18 years of experience as a registered nurse, 16
    of which had been spent in the hospitals sexual assault and partner abuse
    program.  She was not called as an expert witness and the Crown did not seek to
    have her qualified as an expert.

[10]

The sexual assault medical report was entered through Ms. Baker.  It
    contained information taken from the complainant during the administration of
    the sexual assault evidence kit.

[11]

Ms. Baker gave evidence about her observations of the complainant and
    her injuries.  She said that the abnormalities (swelling, bruising and redness)
    that she observed in the complainants genitals werent commonly present in
    people just walking around.   She was unable to say what had happened to the
    sexual assault evidence kit because she left her job at the hospital several
    days after she performed this examination.  She testified that the evidence kit
    was either lost or destroyed by the hospital.  None of the swabs that had been
    collected had been tested for DNA.

[12]

Mr. Mugabo testified at trial and said that he had no sexual contact
    with the complainant whatsoever and that he had not been in the bedroom alone
    with her.  The defence position at trial was that the sexual assault never
    occurred  the complainant, as a result of her intoxication, dreamt it or
    imagined that it had happened.

[13]

It was common ground among Mr. Lopez, Mr. Milner and Mr. Mugabo that
    while the complainant was asleep in the bedroom, Mr. Mugabo went out the front
    door of the apartment to have a cigarette and was gone for an extended period
    of time  between 20 and 40 minutes  during which time Messrs. Lopez and
    Milner stayed at the back of the living room playing video games.  The bedroom
    in which the complainant was sleeping was in the same direction as that which Mr.
    Mugabo had to take to leave the apartment.

[14]

Mr. Lopez and Mr. Milner testified that shortly after the appellant had returned
    to the living room, the complainant followed, distraught and crying and yelling
    that Mr. Mugabo had tried to have sex with her.

[15]

Following a judge-alone trial, Mr. Mugabo was convicted of sexual
    assault and two related counts of breach of recognizance.

[16]

The trial judge found that, apart from the evidence given by the nurse,
    there were issues of reliability with all of the witnesses evidence, primarily
    because of their levels of intoxication on the night in question.  He gave a
    detailed description of the nurses independent sober evidence about the
    history she had taken from the complainant, the examinations she had performed
    on the complainant and her findings from those examinations, and the
    medications she had administered to the complainant.

[17]

In his reasons, the trial judge then made the following comment (the
    Impugned Comment):

I would remark on two things, [the sexual assault examination]
    is not an examination that would lightly be undertaken unless the complainant
    was sexually assaulted and secondly, that the evidence of the injuries to her
    vagina and genitals externally are consistent with intercourse, painful
    intercourse.

[18]

He found, beyond a reasonable doubt, that the complainant was subjected
    to painful intercourse some hours prior to going to the hospital.

THE ISSUES

[19]

Mr. Mugabo submits that the trial judge erred:

1.

in placing determinative weight on the complainants willingness to
    undergo a sexual assault examination and to receive prophylactic medications;

2.

in finding that the complainant had been subjected to painful
    intercourse; and

3.

by reversing the burden of proof.

ANALYSIS

1. The complainants willingness to undergo a sexual assault examination

[20]

Relying on the Impugned Comment, the appellant submits that the trial
    judge erred by placing undue weight on the complainants willingness to undergo
    a sexual assault examination and to take medication to prevent HIV.  He says
    that, just as it is an error to find a complainant more credible for having
    pursued a complaint, it was an error to put excessive reliance on the supposed
    negative consequences of having undergone a sexual assault examination.  He
    further says that there was no evidence to support the Impugned Comment because
    the complainant did not testify that she was reluctant to undergo the
    examination and there was no evidence that she was informed of the potential
    side effects of taking the anti-HIV medication, or even that she completed the
    28-day prescription.

[21]

I reject this submission.

[22]

The appellant is correct when he says that the trial judge took into
    consideration the onerous process that the complainant went through on the
    sexual assault examination.  However, it is not correct to say that the trial
    judge placed undue weight on that fact or that his consideration of it was
    determinative.  In finding beyond a reasonable doubt that Mr. Mugabo
    committed the sexual assault, the trial judge relied on his findings of fact:
    the complainants physical injuries, observed approximately 12 hours after the
    incident, which were consistent with forced sexual intercourse; the
    complainants demeanour after the assault; her actions after the assault,
    including seeking treatment; the complainants positive identification of Mr.
    Mugabo as the perpetrator; and, that Mr. Mugabo had the exclusive opportunity
    to commit the sexual assault.

[23]

Furthermore, it is important to put the Impugned Comment in the context
    of the defence advanced by the appellant at trial.  The Impugned Comment was
    made in response to the defence position that the sexual assault never took
    place  that the complainants allegations arose from intoxication-induced
    dreams or hallucinations.

[24]

On a fair reading of the trial judges reasons, the Impugned Comment simply
    reflects his view that the presence of the injuries on the complainants
    genitals and the fact that she submitted to a sexual assault examination made
    it unlikely that the complainant had imagined being sexually assaulted.  He
    found that a sexual assault had taken place, in part because of the
    complainants physical injuries, as documented through the sexual assault
    examination.  It was clearly open to the trial judge to rely on the nurses
    evidence as being supportive of the complainants version of events:
R. v.
    Dunchie
, 2007 ONCA 887 (CanLII), at para. 9.

[25]

It is well-established that this court owes deference to a trial judges
    findings of fact, including credibility findings.  In the present case, the
    trial judges credibility assessment of the complainant was informed by a
    number of factors, including the complainants observed physical injuries by a
    trained sexual assault nurse which corroborated the complainants version of
    events, the complainants willingness to undergo the invasive sexual assault
    examination, and the complainants demeanour immediately after the assault
    (crying hysterically and shouting that the appellant had had sex with her
    without her consent).  It has long been held that post-event demeanour of a
    sexual assault victim can be used as circumstantial evidence to corroborate the
    complainants version of events:
R. v. J.J.A
.
, 2011 SCC 17,

[2011]
    1 S.C.R. 628, at paras. 40-41.

[26]

There was no error in the trial judges approach to his assessment of
    the complainants credibility.

[27]

Finally, the trial judge did not misapprehend the evidence.  On the
    record, the complainant voluntarily went to the hospital for the sexual assault
    examination and agreed to take the various types of medication after having
    been informed of their possible side effects.

2. The finding of
    painful intercourse

[28]

The appellant submits that the trial judge erred in two ways in finding
    that the complainant was subjected to painful intercourse some hours prior to
    going to the hospital.  First, he says that that the trial judge misapprehended
    the nurses evidence in finding that painful intercourse had occurred  the
    nurse testified that the complainant experienced pain during the sexual assault
    examination, not that the intercourse had been painful.  Second, he contends
    that, although the nurse had not been called as an expert or qualified as such,
    the trial judge relied on her opinion to find that the complainants symptoms
    during the examination were caused by a sexual assault.

[29]

I reject this submission.


The alleged
    misapprehension of the evidence

[30]

Not every misapprehension of evidence will result in a miscarriage of
    justice; the misapprehension must go to the substance of material parts of the
    evidence and the errors must play an essential part in the reasoning process
    leading to conviction:
R. v. Lohrer
, 2004 SCC 24, [2004] 1 S.C.R. 627,
    at paras. 1-2;
R. v. Sinclair
, 2011 SCC 40, [2011] 3 S.C.R. 3, at
    para. 56.

[31]

It is doubtful that the trial judges use of the phrase painful
    intercourse amounts to a misapprehension of the evidence.  While the complainant
    did not testify that the forced intercourse was painful, on a fair reading of
    the reasons as a whole, it appears that the judge meant that the sexual assault
    had caused injury to the complainant, resulting in painful after-effects,
    including those experienced during the sexual assault examination.

[32]

In any event, if the trial judge did misapprehend the evidence in saying
    that the assault was painful, that misapprehension did not render the trial
    unfair.  Striking the word painful from his reasons would not leave the trial
    judges reasons for conviction on unsteady ground:
Sinclair
, at
    para. 56.  What was essential to the trial judges reasoning was his acceptance
    of the medical evidence as corroborative of the complainants testimony that a
    sexual assault had taken place.

Reliance on the nurses testimony

[33]

It is common ground that Ms. Baker could provide evidence of her
    observations based on the sexual assault examination.  The point that divides
    the parties is her response to a question posed by the trial judge and whether
    the trial judge improperly relied on it.

[34]

The Crown called Ms. Baker to testify to her factual observations of the
    injuries to the complainants genitals.  It did not seek to qualify Ms. Baker
    as an expert witness.  It did not attempt to elicit any opinion evidence from
    her.  In fact, it expressly stated that it would not ask her to give any
    opinion or draw any conclusions about the likely cause of the injuries that she
    observed.

[35]

However, in cross-examination, defence counsel put questions to Ms.
    Baker in which he suggested that there could be multiple causes for the
    physical injuries that she had observed.  He cross-examined Ms. Baker about
    whether the swelling and abrasions could have resulted from the wearing of
    tight clothing or having been hit by something.  He also posed a series of
    questions related to whether infection could have caused, among other things,
    the tenderness that she had noted.  Ms. Baker responded that while infection can
    cause some tenderness, it would not be responsible for the tenderness that she
    had observed way up on the pubic bone, that she had seen no evidence of
    infection and that discharge due to an infectious source also has a very
    specific odour, that is easy to identify.

[36]

The trial judge then asked whether that odour was present and the nurse
    said that it was not.

[37]

The trial judge then posed the following questions and the nurse gave
    the following answers:

THE COURT:        And the final thing I had to ask is you have
    carefully taken us through your observations of  of her vagina and the
    exterior genitals and  and inside the vaginal canal and walls. And you were
    asked if there were lots of things that could cause this.

A.       Yes.

THE COURT:        What  what kinds of things would cause this?

A.       There have been argument  arguments made for vigorous
    wiping, you know, riding a bicycle, tight clothing, as was brought up. I can
    only repeat what Ive heard in conference and in studies that there have 
    there hasnt really been a correlation with vigorous wiping to the specific
    injuries seen in sexual assault. The location of the injury and the depth and
    where theyre placed. So its  its hard to describe it from any other source.

THE COURT:        Did  all right. So, wiping, tight clothing.
    What else would cause an injury like this?

A.       Well, the argument has been  like, riding a bicycle.
    Things like that. So those are the arguments that have been

THE COURT:        Bicycle. Anything else that could cause this
    other than a bicycle, wiping and tight clothing?

A.       I  not that Im aware of, no. I  in my experience, I
    know that its limited to sexual assaults  although I did many other things 
    I havent come across other patients in other areas of nursing that have these
    exact types of injuries caused from regular, every-day sources.

THE COURT:        Okay. Thank you.

[38]

In re-examination, Ms. Baker clarified that the injuries she had
    observed were consistent with vaginal penetration by a penis or object and did
    not fit with wiping, tight clothing, bicycle riding or falling down.

[39]

It is in this context that the appellant submits that the trial judge
    impermissibly relied on Ms. Bakers expert evidence.

[40]

The Crown did not seek to have Ms. Baker qualified as an expert.  It
    expressly stated that it would ask Ms. Baker only about her observations from
    the sexual assault examination.  It did in fact so limit its questions.  There
    is no error in this:
R. v. A.K.
(1999), 137 C.C.C. (3d) 225 (Ont.
    C.A.), at para. 72.

[41]

It was defence counsel, in cross-examination, who elicited opinion
    evidence from the nurse about whether there might be other causes for the
    complainants physical injuries.  And it was as a result of defence counsels
    questioning that the judge asked the witness for clarification, as he was
    entitled to do:
R. v. Brouillard
, [1985] 1 S.C.R. 39, at pp. 44-46;
R.
    v. Stucky
, 2009 ONCA 151, 240 C.C.C. (3d) 141, at paras. 63-65.

[42]

Defence counsel made a tactical decision to raise causation with the
    witness.  It does not lie in his mouth to now complain that its admission results
    in unfairness.

[43]

Furthermore, the absence of formal qualification of a witness does not necessarily
    make admission of that persons opinion an error of law:
R. v. Marquard
,
    [1993] 4 S.C.R. 223, at p. 244. Relevant factors for the determination of whether
    its admission was an error of law include whether defence counsel objected to
    the reception of the evidence at trial; the evidences role in the decision
    making process; and whether the witnesss experience would have allowed for
    formal qualification to give the opinion that ultimately was received into
    evidence:
Marquard
, at pp. 241-244;
R. v. Rybak
, 2008 ONCA
    354, 90 O.R. (3d) 381, at para. 180;
R. v. M.J.B.
, 2012 ABCA 119, 285
    C.C.C. (3d) 463, at para. 61.  For the reasons already given, these factors do
    not weigh against its admission.  Far from objecting to the admission of the
    evidence, it was defence counsel who elicited it.

[44]

In any event, the trial judge did not place undue weight on Ms. Bakers
    evidence.  He merely found that her observations of the complainants physical
    injuries were consistent with injuries due to forced intercourse.

3. The alleged reversal of the burden of proof

[45]

The appellant submits that, after finding that the complainant had
    undergone painful intercourse some hours prior to attending the hospital, the
    trial judge presumed that the appellant had sexually assaulted her because he
    had not testified that someone else had sexual intercourse with the complainant
    within the relevant time period.  The appellant says that, in so doing, the
    trial judge reversed the burden of proof.  He contends that, while he did not
    suggest that
he
had consensual sex with the complainant on the night in
    question, there was no evidence that the complainant had not engaged in sexual
    activity with someone else at a time proximate to that of the alleged assault. 
    He argues that the trial judge erroneously treated the defence position as a
    concession that
if

the complainant had sex with
anyone
at the relevant time, that person was the appellant.

[46]

I reject this submission.

[47]

In reviewing a trial judges reasons, an appellate court must read any
    impugned passage of the reasons within the context of the trial and the reasons
    as a whole:
R. v. Laboucan
, 2010 SCC 12, [2010] 1 S.C.R. 397, at
    paras. 16-18;
R. v. Villaroman
, 2016 SCC 33, [2016] 1 S.C.R. 1000, at
    para. 15. On a full and fair reading of the trial judges reasons, it is clear
    that he understood and correctly applied the burden of proof.

[48]

The trial judge referred to the required standard of proof several times
    in his reasons.  He correctly stated the applicable legal principles.  He also
    fairly reviewed the evidence and fairly stated the parties positions. Both
    counsel in their closing submissions referred to
R. v. W. (D.)
, [1991]
    1 S.C.R. 742

and the trial judge stated, in his reasons, that the
    principles from that case were operative.

[49]

At trial, the defence position was that Mr. Mugabo had never been in the
    bedroom alone with the complainant. When the trial judge stated, in his
    reasons, It is not the defence in this case that something happened but it was
    not Mr. Mugabo who did it, the trial judge was merely stating the appellants
    position, not reversing the burden of proof.

[50]

The trial judge considered Mr. Mugabos denial in light of the whole of
    the evidence, including the complainants identification of him as the
    perpetrator, the nature of the physical injuries that corroborated her
    description of the sexual assault, Mr. Mugabos exclusive opportunity to commit
    the assault, and his adverse findings in relation to Mr. Mugabos credibility. 
    He was satisfied beyond a reasonable doubt that Mr. Mugabo had the opportunity
    to commit the sexual assault and took advantage of that opportunity.

[51]

There was no reversal of the burden of proof on the part of the trial
    judge.

DISPOSITION

[52]

Accordingly, I would dismiss the appeal.

Released: April 21, 2017

E.E. Gillese J.A.

I agree. David Brown J.A.

I agree. L.B. Roberts J.A.


