



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. Diabas, 2020 ONCA 283

DATE: 20200505

DOCKET: C66414

Doherty, Simmons and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mahir Diabas

Appellant

Stephen Whitzman, for the appellant

Molly Flanagan, for the respondent

Heard: In Writing

On appeal
    from the convictions entered by Justice Jennifer Woollcombe of the Superior
    Court of Justice on September 12, 2018, with reasons reported at 2018 ONSC
    5305, and from the sentence imposed on December 14, 2018, with reasons reported
    at 2018 ONSC 7500

REASONS FOR DECISION

A.

Introduction

[1]

This appeal was heard
    in writing on consent of the parties pursuant to the March 17, 2020 COVID-19:
    Notice to the Profession and the Public.

[2]

Following a judge alone
    trial, the appellant was convicted of two counts of sexual assault, two counts
    of assault and one count of criminal harassment. He was sentenced to a total of
    seven years imprisonment, less 240 days credit for pre-sentence custody. He
    appeals against the convictions for sexual assault and assault and seeks leave
    to appeal the sentences imposed for those offences. The main issue raised on
    the conviction appeal is whether the trial judge erred by applying different
    standards of scrutiny to the Crown and defence evidence. Although not framed as
    a ground of appeal, the appellant also submits that the trial judge repeatedly
    interrupted defence counsel at trial's cross-examination of the complainant,
    causing defence counsel to retreat from lines of questioning. Concerning
    sentence, apart from asserting that the sentence imposed was harsh and
    excessive in all the circumstances, the appellant makes no submissions.

B.

Background

[3]

The charges arose out
    of the relationship between the appellant and the complainant, S.S. According
    to the complainant, the two met about nine years prior to the 2018 trial when
    her aunt brought the appellant to the complainant's house because he was
    looking for a prostitute. The appellant was 14 years older than the
    complainant. The complainant was a crack addict. She said the appellant
    supplied her with drugs and money in exchange for sex. Over the years, their
    relationship became something of a friendship, albeit a toxic one.

[4]

The complainant alleged
    that the appellant forced her to have anal intercourse on two occasions, once
    at a crack house around Halloween 2015, and once at a motel in late February or
    early March 2016. According to the complainant, after the first incident, she
    tried to attack the appellant. He struck her in the face and tried to flip her
    over a fence. The complainant also alleged that, sometime before the second
    incident, the appellant pushed her onto her knees and demanded that she perform
    oral sex on him after giving her some crack. When she refused to do so, the
    appellant urinated on her.

[5]

The complainant
    testified that she avoided the appellant after the motel incident. In April
    2016, the complainant and her boyfriend had moved into the complainant's
    mother's house and the complainant was attending school. The appellant called
    the complainant's mother's house several times while parked outside the house
    and later followed the complainant and her boyfriend while they were riding on
    a bus. When the appellant attempted to follow the complainant into a
    convenience store, the store clerk locked the door and called the police. On being
    interviewed by the police, the complainant disclosed her allegations about the
    sexual assaults and assaults.

[6]

However, the
    complainant wrote letters recanting her allegations on two occasions prior to
    trial. The first occasion was in November 2016. According to the complainant,
    despite a no contact order, she and the appellant were in constant contact
    following his arrest and prior to the preliminary inquiry in July 2017. The
    appellant offered the complainant $40,000 as a down payment on a house in
    exchange for writing a recantation letter. The complainant wrote the letter
    while on drugs in accordance with the appellant's instructions. She testified
    that she and the appellant looked at houses together but he did not give her
    the money. He asked her not to attend the preliminary inquiry but she was off
    drugs at that point and went in any event.

[7]

The complainant wrote a
    second recantation letter in April 2018. She said the appellant gave her a
    couple of hundred dollars and his credit card to use. He also paid some rent on
    a storage space she was renting. The complainant was living in shelters at the
    time and had relapsed into drug use. She explained that the appellant took her
    to a resource centre and stood over her as she typed the letter and then drove
    her to drop it off.

[8]

On June 25, 2018, the
    complainant attended a meeting with the Crown and the officer-in-charge. She
    said she had been doing drugs with the appellant the night before, that he paid
    her money, and that she went to the meeting to have the charges dropped. She
    admitted lying to the police during this interview. However, she said she realized
    it was wrong within one or two days and called back and asked for another
    meeting.

[9]

The appellant testified
    at trial and denied the complainant's allegations of sexual assault and
    assault. He also maintained that his actions in April 2016 did not amount to
    criminal harassment.

[10]

The appellant came to
    Canada in January 2008. He testified he was introduced to the complainant in
    late 2009 through a woman he met at a grocery store. For several months, he
    paid her to teach him English. After about 10 months, their relationship became
    sexual. The appellant claimed to have fallen in love with the complainant
    around 2013. He denied giving her money or drugs in exchange for sex. He also
    denied having committed the offences. Although he acknowledged being aware that
    the complainant was writing the recantation letters, he denied giving her money
    to write them.

C.

The trial judges
    reasons

[11]

At the outset of her
    analysis, the trial judge acknowledged "genuine difficulties with the
    evidence of the complainant", given the two recantation letters and
    inconsistencies between the complainant's trial evidence and her preliminary
    inquiry evidence and statements to the police. However, she concluded the
    complainant was a reliable and trustworthy witness whose account of the allegations
    she accepted for reasons she summarized in the following observations about the
    complainant's evidence:

·

she was candid and forthright about her
    background as a crack addict;

·

she admitted many things that did not reflect
    well about her;

·

she acknowledged that she had recanted the
    allegations twice and deliberately lied and offered a "very credible
    explanation" for her recantations;

·

she acknowledged many of the inconsistencies
    that were put to her and explained in a plausible way why she said the various things
    that were or appeared inconsistent.

[12]

As for the appellant, the trial judge wholly
    rejected his evidence for reasons she summarized as follows:

I have also considered the evidence of the
    accused, who has emphatically denied ever having committed any of the offences.
    I found him to be an evasive and unresponsive witness. Frequently, rather than
    answering questions, he chose to make disparaging comments about the
    complainant. When confronted about what he had said previously to the police,
    he often resorted to claims about communication difficulties flowing from his
    lack of understanding of the English language. While I need not, and cannot
    accurately comment on his English proficiency, it appeared to me that he used
    this as an excuse for any prior statement from which he wanted to distance
    himself. Repeatedly, while the complainant testified, I observed the accused to
    openly scoff at her evidence in a demeaning manner, showing indifference to her
    and undermining the credibility of his claims of loving her. I find he was not
    only smug, arrogant and condescending about the complainant, but also that his
    evidence often made little sense, was internally inconsistent and was not
    credible.

[13]

After providing these summaries of her
    conclusions, the trial judge reviewed the evidence concerning the offences and
    other matters affecting both the complainant's and the appellants credibility
    and made specific findings concerning that evidence.

D.

The appellants
    position on appeal

[14]

The appellant
    acknowledges that it is difficult to succeed on appeal based on a claim of
    uneven scrutiny of the evidence. However, he points to three factors concerning
    the trial judge's assessment of his evidence and two factors concerning the
    trial judge's assessment of the complainant's evidence that he asserts
    demonstrate uneven scrutiny.

[15]

First, the appellant
    submits the trial judge erred in finding that he (the appellant) frequently
    chose to make disparaging comments about the complainant rather than answering
    questions and in using this as a factor undermining his credibility. The
    appellant says he made comments that could be described as disparaging on only
    four occasions during a lengthy cross-examination and that none of these
    comments were unresponsive to the question asked or formed the whole of his
    answer. In contrast, the complainant made many more comments that were
    disparaging of him or his counsel. Yet the trial judge did not find the
    complainant less credible as a result.

[16]

Second, the appellant
    submits it was internally inconsistent and illogical for the trial judge to
    negatively assess his credibility on the basis that he explained
    inconsistencies between his trial evidence and his statement to the police as
    being the result of his poor English while at the same time acknowledging that
    she could not assess his proficiency in English.

[17]

Third, the appellant
    says it was an error in law for the trial judge to rely, in part, on his
    demeanour outside the witness box to negatively assess his credibility. The
    trial judge drew a negative inference from the appellant's conduct in
    "scoffing" at the complainant while she testified. The appellant
    submits that reaction could equally be the result of the complainant not
    telling the truth.

[18]

Concerning the
    complainant, the appellant asserts the trial judge applied an overly generous
    level of scrutiny to her evidence in concluding that her recantations were not
    truthful while finding her evidence concerning the allegations was true. In the
    face of her evidence that she was prepared to recant for a pay-off, it was
    surely an equally reasonable inference that she fabricated the allegations to
    extort a pay-off.

[19]

Further, the appellant
    submits that when assessing the recantations, the trial judge erred in finding
    the complainant's credibility was enhanced by her candour and the fact
    "that she did not downplay her complicity in what she now acknowledges was
    a plot of deception". As this court recently observed in
R. v. Kiss
,
    2018 ONCA 184, at para. 107, "admitting a difficult fact does not
    eliminate the difficult fact".

[20]

Finally, the appellant
    points to the complainant's post-offence messages to the appellant, in at least
    one of which she professed her love for him. The appellant says these messages
    undermined the credibility of the allegations and that the trial judge erred in
    holding that drawing such an inference would depend on impermissible
    stereotypes about how victims of sexual assault behave.

E.

Discussion  Conviction
    Appeal

[21]

We will address the
    appellant's submissions in turn.

(1)

Disparaging Comments

[22]

We reject the
    appellant's argument that the trial judge's finding that the appellant
    frequently made disparaging comments about the complainant rather than
    answering questions and her failure to comment on the complainant's disparaging
    remarks about the appellant and his counsel reflects uneven scrutiny.

[23]

As a starting point,
    even if the comments occurred on only four occasions, that does not make the
    trial judge's use of the word "frequently" inaccurate. Further, the
    context for the complainant's disparaging remarks was very different from the
    context of the appellant's remarks.

[24]

The complainant gave
    evidence of a toxic, manipulative and exploitive relationship with the
    appellant. Given that evidence, it was open to the trial judge to consider her
    disparaging remarks about the appellant and her combativeness with counsel as
    being consistent with her evidence and as not undermining her credibility. Moreover,
    some of the language used by defence counsel during cross-examination invited
    an angry response.

[25]

On the other hand, the
    appellant presented himself as someone who had fallen in love with the
    complainant and who would never hurt her. His disparaging remarks were
    inconsistent with that presentation. Moreover, they were made during
    cross-examination when he was confronted with various inconsistencies between
    his evidence at trial and his statement to the police and potential
    implausibilities in his evidence. Considered in the context in which they were
    made, it was open to the trial judge to view his disparaging remarks as an
    effort to evade a truthful answer.

[26]

As an example, the
    appellant was asked if it was his understanding that he and the complainant
    were boyfriend and girlfriend. He testified that he rejected a request from the
    complainant that they live together. Instead he told her that she should stop
    taking drugs and that if she really loved him they would get married. The
    appellant testified that he had never offered to become boyfriend and
    girlfriend with the complainant and that she had rejected the concept of
    marriage. After being confronted with a portion of his videotaped statement to
    the police in which he had said he asked her to become boyfriend and
    girlfriend, the appellant first explained his request had been prior to her
    involvement in an accident. When asked what had changed, the appellant
    responded he was a refugee in this country and had no documents. When asked why
    he went from wanting to be in a relationship with the complainant to not
    wanting to be in a relationship with her he said he did not understand the
    question. When the question was repeated, the appellant responded, "in
    those years, [the complainant] had almost seven different boyfriends. Five of
    them she called the police on them and she created stories against them."

[27]

On another occasion, in
    the context of being asked about his post-charge contact with the complainant
    the appellant denied being furious at her for making the allegations. When
    pressed on the issue, the appellant gave the following answer:

[The complainant] has made a lot of lies. Even
    about her family. She told me that her mother used to sell her for the dealer
    in return for track, crack, sorry. She also told me that her mother's husband
    tried to have sex with her. I just need to tell the court one point. When [the
    complainant] uses different types of drugs, she cannot remember anything.
    Therefore, when we go to healing centres, we have go [sic] first to the 
    hospital in Brampton  to have a medical record issued for her stating that she
    is mentally capable to allow her enter [sic] the centre. This happened honestly
    four to five times.

(2)

Use of the Appellants Lack of Proficiency in
    English

[28]

We do not accept the
    appellant's argument that the trial judge's finding that it appeared that the
    appellant used his lack of proficiency in English as an excuse for prior
    inconsistent statements internally inconsistent and illogical given that she
    acknowledged she could not assess his proficiency in English.

[29]

The trial judge made
    findings about specific instances where she considered the appellant was
    relying on his lack of proficiency in English as an excuse. Her reasons reflect
    that these findings were premised on the specific circumstances and were not a
    reflection of an overall assessment of the appellant's proficiency in English.
    There is nothing inconsistent or illogical about the trial judge's conclusion
    that the appellant understood what was being said in a particular instance while
    at the same time acknowledging that she was not in a position to assess the
    appellant's overall proficiency in English.

(3)

Use of Demeanour Outside the Witness Box

[30]

We acknowledge that it
    would have been preferable had the trial judge not referred to the appellant's
    demeanour outside the witness box as part of the basis for rejecting his
    evidence. As this court explained in
R. v. M. (T.)
, 2014 ONCA 854, 318
    C.C.C. (3d) 421, at paras. 50-69, there are several reasons why such a practice
    should be avoided. Among other things, an accused person likely has no
    expectation of being judged while seated in the courtroom and no opportunity to
    explain whatever observations are made by the trial judge. In addition, the
    trial judge has no baseline for comparing the accused's reaction to whatever
    circumstances presented in court.

[31]

That said, we are not
    persuaded that the trial judge's reference to the appellant's demeanour outside
    the witness box gave rise to a miscarriage of justice in this case. The trial
    judge gave lengthy reasons analyzing the evidence presented and made detailed
    findings of credibility based on the evidence. Although the reference was made
    as part of the trial judge's opening summary of her conclusions, no further
    reference was made to this factor as part of the trial judge's subsequent
    detailed assessment of the appellant's credibility. In the circumstances, we
    conclude this isolated reference was of no significance to the trial judge's
    conclusions.

(4)

Recantations

[32]

The trial judge devoted
    several paragraphs of her reasons to discussing the complainant's two letters
    of recantation and what the complainant described as her lies to the
    officer-in-charge on June 25, 2018. Ultimately, she accepted the complainant's
    explanations of drug use and the appellant's manipulation and offer of payment
    of $40,000 as the down payment for a house to conclude that the recantations
    and statements to the officer-in-charge were lies and the complainant's
    in-court testimony was the truth. The trial judge explained her reasoning, in
    part, as follows:

The recantation letters and lies to [the
    officer in charge] have certainly caused me to reflect on whether the
    complainant is a person who lies to advance her interests as is alleged

She has provided what I find to be a
    plausible, credible explanation for why she lied and recanted her allegations
    in the manner that she did. I accept her explanation. It makes sense and is
    logical in the context of her relationship with [the appellant] and where she
    was at in her life when she was using crack and had very low self-esteem. It
    fits with the rest of her evidence and the evidence as a whole. She exhibited
    candour and what I find to be genuine embarrassment when she explained how she
    felt manipulated to recant for the promise of a sum of money that would have
    changed her life. I find that she did not downplay her complicity in what she
    now acknowledges was a plot of deception. She acknowledged her personal
    weakness and her role fully, a fact that I find further enhances her
    credibility.

[33]

In our view, the trial
    judge carefully and thoroughly considered the evidence and arguments relating
    to the complainants recantations and statements to the officer-in-charge. The
    trial judge accepted the complainants evidence for reasons that she explained.
    Concerning her reliance on the complainants candour and the fact that the
    complainant did not downplay her complicity in the events, this is not a case
    like
Kiss
, on which the appellant relies. In
Kiss
, the
    complainant gave evidence that either made no sense or was curious in the
    context of her narrative of the events and that tended to support, at least to
    some extent, the appellants version of events. The trial judge credited the
    complainant for her candour without considering the difficulties it presented
    to the complainants narrative. It was in this context that Paciocco J.A. said:
"admitting a difficult
    fact does not eliminate the difficult fact"
.

[34]

However, in this case,
    the complainant not only admitted the recantations and alleged lies, she
    provided an explanation for them. The trial judge fully recognized the
    difficulties the complainants recantations and lies presented. After careful
    consideration, she accepted the complainants explanations for them and the
    complainants in-court evidence as truthful. These were findings the trial
    judge was entitled to make. Absent demonstrated error, they are entitled to
    deference.

(5)

Post-Offence Messages

[35]

At trial, the appellant
    argued that a series of messages sent to him by the complainant following the alleged
    incidents were inconsistent with the complainant having been sexually
    assaulted. The messages were dated February 27, 2017; September 23, 2017;
    October 1, 2017 and March 31, 2018. The first message included the statement
    love you. Later messages included photos of the complainants children and grandchildren.
    The last message included the statements: And what I did to you, I dont know
    how to fix And I cant live without you.

[36]

The trial judge reviewed
    the messages and the complainants explanation for them. The complainant
    explained that the first message came after the appellants father died and the
    appellant apologized for some of his conduct. The explanation for the last
    message was that the complainant had slit the tires on a car in the appellants
    driveway, that she almost felt she should let the appellant get away with what
    he did because of all the good he had done for her and that her head had been
    messed up about whether she deserved what the appellant had done to her.

[37]

After setting out the
    gist of the messages and the complainants explanations, the trial judge
    concluded this section of her reasons by saying:

I have considered the suggestion made by the
    defence that the complainants credibility [is] undermined by the fact that she
    is said to have behaved in a manner inconsistent with having been sexually
    assault[ed] in the years after the alleged offences, particularly as
    demonstrated by what appear to be loving Facebook messages.

The law is very clear that the credibility of
    a sexual assault complainant is not to be assessed by comparing how that
    complainant behaved with stereotypical assumptions about how such a complainant
    usually behaves or should behave. There is no rule to be applied as to how
    sexual assault victims should or will behave. More specifically, with respect
    to this case, it is legally impermissible to infer from the fact that the
    complainant maintained contact with the accused after the alleged offences,
    even though that contact included kind and loving sentiments, that she is less
    credible in her allegations:
R. v. A.R.J.D.
, [2017] ABCA 237 at paras.
    39-48; affd 2018 SCC 6.

[38]

The appellant argues
    that
A.R.J.D.
, as affirmed by the Supreme Court of Canada, stands for
    the more limited proposition that it is an impermissible stereotype to expect
    that a victim of sexual abuse would demonstrate behaviours consistent with that
    abuse or at least some change in behaviour such as avoiding the perpetrator.
    In other words, a failure to avoid the perpetrator cannot be the subject of a
    presumptive adverse inference. However, relying on
R. v. D.M.
, 2019 ONSC
    4001, the appellant argues that evidence of continued communication between a
    complainant and an accused following an alleged sexual assault is not
    automatically irrelevant. He asserts that the complainants post-offence
    messages to the appellant in this case provided an evidentiary basis for a
    negative assessment of her credibility.

[39]

We do not accept the
    appellants submissions. On the appellants own evidence, he and the
    complainant had been involved in a lengthy sexual relationship while she was a
    crack addict and during which he gave her money from time to time, even after
    the allegations were made. Having regard to the nature of the relationship and
    the complainants explanations for the communications, which were accepted by
    the trial judge, the complainants contact and communications with the
    appellant following the alleged events could not adversely affect her
    credibility.

(6)

Interruptions of Defence Counsels Cross-Examination

[40]

Based on our review of
    the record, the appellants complaints about the trial judge interrupting defence
    counsels cross-examination are not borne out.

F.

Discussion  Sentence
    appeal

[41]

At trial, the defence
    requested a global sentence of three to four years imprisonment while the
    Crown sought a sentence of eight years imprisonment. In her reasons for sentence,
    the trial judge thoroughly reviewed the circumstances of the offences and the
    offender, the applicable sentencing principles, and the aggravating and
    mitigating factors present (which in the latter case included the appellants
    status as a first offender and holding longstanding gainful employment). We see
    no error in principle in the trial judges reasons, nor is the sentence imposed
    demonstrably unfit.

G.

disposition

[42]

Based on the foregoing
    reasons, the conviction appeal is dismissed. Leave to appeal sentence is
    granted but the sentence appeal is dismissed.

Doherty
    J.A.

Janet
    Simmons J.A.

G.
    Pardu J.A.


