



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: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    shall not be published in any document or broadcast or transmitted in any way.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. Ukumu, 2021 ONCA 91

DATE:  20210212

DOCKET: C68179

MacPherson, Huscroft and Jamal JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Wopatshu Ukumu

Appellant

Wopatshu Ukumu, acting in person

Lindsay Daviau, appearing as duty counsel

Jeffrey Wyngaarden, for the respondent

Heard: February 8, 2021 by video conference

On appeal from the conviction entered on September 30,
    2019 and the sentence imposed on February 12, 2020 by Justice Ian F. Leach of
    the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant appeals from his conviction for sexual assault on
    September 30, 2019 and his sentence of 12 months incarceration less credit for
    144 days of pre-trial custody on February 12, 2020, both imposed by Leach J. of
    the Superior Court of Justice.

[2]

On the evening of October 31, 2016, the complainant and a friend went on
    a date in downtown London. They went to a bar and a restaurant. After leaving
    the restaurant, they were walking in the downtown area.

[3]

The appellant was driving a car, saw the pair, and pulled up beside
    them. He offered them a ride, falsely representing to them that he was an Uber
    driver. During the drive, the appellant told his passengers that they would be
    his last fare of the night.

[4]

After paying for the ride, the complainant and her friend entered the
    complainants residence. After about five minutes, the complainant noticed the
    appellant's car idling outside. Soon after, the appellant knocked on the residence
    door. The appellant told the complainant that she had left something in his
    car. They walked together to the car. The appellant opened the rear passenger
    door and pointed to two cards on the floor. The complainant leaned into the car
    to see if the cards belonged to her friend.

[5]

The appellant then shoved the complainant into the car. He climbed on
    top of her, kissed her and rubbed her genitalia over her clothing. Eventually,
    the complainant managed to open the rear passenger door. She fell out of the
    car and rolled backwards onto the street. At that point, the assault had lasted
    about two to five minutes. Although she was distraught, she managed to make a
    mental note of the license plate number.

[6]

The appellant was arrested and proceeded to trial on a single count of
    sexual assault. Both the complainant and the appellant testified.

[7]

The trial judge found the complainant to be both a reliable and credible
    witness. In his view, she was clearly attempting to be honest, accurate and
    fair in her testimony. Moreover, her evidence was corroborated by her
    demonstrated injuries.

[8]

The trial judge found the appellant to be reliable, but not credible. He
    labelled the appellants exculpatory version of the events (mutual sexual
    contact in the car) incredible.

[9]

The appellant, through duty counsel, raises two issues on the conviction
    appeal.

[10]

First,
    the appellant contends that the trial judge provided uneven scrutiny of the
    testimony of the appellant and the complainant.

[11]

We
    do not accept this submission. In
R. v. Kiss
, 2018 ONCA 184, this
    court said about the different levels of scrutiny issue, at para. 83:

This is a notoriously difficult ground of appeal to succeed
    upon because a trial judges credibility determinations are entitled to a high
    degree of deference, and courts are justifiably skeptical of what may be veiled
    attempts to have an appellate court re-evaluate credibility. An uneven
    scrutiny ground of appeal is made out only if it is clear that the trial judge
    has applied different standards in assessing the competing evidence. [Citations
    omitted.]

[12]

The
    appellant cannot clear this high bar in this appeal. The trial judge engaged in
    a comprehensive assessment of the complainants testimony, including her
    credibility. He was alive to the potential issues respecting her credibility - for
    example, her lack of memory about some aspects of the evenings events and her
    willingness to disclose things about herself (her consumption of drugs on the
    night in question) that might give rise to a negative assessment of her testimony.
    Moreover, the trial judge dealt with every issue raised by defence counsel at
    the trial. This is the opposite of uneven scrutiny.

[13]

Second,
    the appellant asserts that the trial judge erred in his treatment of the
    complainants alleged motive to fabricate evidence against him.

[14]

We
    are not persuaded by this submission. The trial judge said:

Finally, while there most certainly is no onus on Mr. Ukumu to
    establish a reason for [the complainant] to fabricate a false claim of sexual
    assault, I think the absence of any realistic motive on the part of [the
    complainant] to do so is a relevant consideration in assessing her credibility.



In my view, the real reason why there is no sensible
    explanation for [the complainant] making a sudden and abrupt transformation
    from willing participant in sexual activity, to a vindictive complainant intent
    on fabricating false allegation of sexual assault, is that she was never a
    willing participant in such activity.

[15]

We
    see no basis for criticizing this analysis and conclusion.

[16]

On
    the sentence appeal, the appellant submits that his sentence should be reduced
    from 12 months to 6 months, essentially for potential immigration reasons. He
    has lived in Canada for nine years.

[17]

Although
    we are sympathetic to some of the appellants personal circumstances, including
    a potentially precarious immigration situation, we cannot say that a 12-month
    sentence for a random and violent sexual assault on a complete stranger is
    unfit in any way.

[18]

The
    appeal is dismissed.

J.C. MacPherson J.A.

Grant Huscroft J.A.

M. Jamal J.A.


