



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. Mirzadegan, 2019 ONCA 864

DATE: 20191101

DOCKET: C65936

MacPherson, Pepall and Lauwers
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Maikel Ali Mirzadegan

Appellant

Matthew R. Gourlay, for the appellant

Roger A. Pinnock, for the respondent

Heard: October 22, 2019

On appeal from the conviction entered on
    June 7, 2018 by Justice K.L. Campbell of the Superior Court of Justice, with
    reasons reported at 2018 ONSC 3449.

REASONS FOR DECISION


[1]

The appellant was convicted of one count of
    sexual assault following a six-day trial before Justice K.L. Campbell of the
    Superior Court of Justice. He received a custodial sentence of two years less a
    day. He appeals the conviction on two grounds: (1) the trial judge improperly
    relied on the complainants supposed absence of motive to lie in support of her
    credibility; and (2) the trial judge impermissibly allowed a theory highly
    speculative and prejudicial to the appellant  that the complainant had been
    drugged with a date-rape drug, possibly by the appellant  into the trial.

Facts

[2]

On the night of October 28-29, 2016, the
    complainant and her friend, C.M., both university students, dressed up in
    costumes to attend a Halloween-themed party at a fraternity house on campus.
    They had a couple of drinks in C.M.s residence room before heading out to the
    fraternity house.

[3]

The appellant, also a university student, was
    the doorman at the fraternity house that night. He and the complainant had
    never met. The appellant did not permit the complainant and C.M. to enter the
    house. Instead, they stayed outside, talking to the appellant. The complainant
    and C.M. offered him drinks from one of the bottles they had prepared before
    they went to the party and the appellant took a few sips. Eventually, the
    appellants friend, another male student, joined the group. The complainant and
    C.M. drank a substantial amount from the two bottles they had brought with
    them. The drinking and conversation outside the fraternity house lasted about
    two hours.

[4]

Both the complainant and C.M. became very
    intoxicated. The complainant testified that she experienced worsening symptoms
    of nausea, vomiting, light-headedness and dizziness as the night progressed.

[5]

The four students decided to go back to C.M.s
    residence. After a few minutes there, the complainants symptoms worsened and she
    decided to return to her own residence. The appellant accompanied her. They
    arrived at approximately 3:11 a.m.

[6]

The complainant testified that by the time she
    arrived at her residence she was feeling quite sick. On the walk back, she was
    nauseous, unsteady on her feet, and her vision was a little blurry. She felt
    like she was blacking out. Upon arrival, she went immediately to the washroom
    and vomited. When she came back to her room, she lay face down on her bed,
    still wearing her Halloween costume. The complainants symptoms continued to
    worsen and, at some point, she lost consciousness.

[7]

The complainant testified that as she regained
    consciousness, she became aware of a tearing sound and felt cold air on her
    buttocks. The appellant had ripped open both her body suit and her tights and
    had penetrated her from behind. She did not consent to this act of intercourse,
    but was not able to prevent it.

[8]

The appellants account of what happened in the
    complainants residence room was very different. He testified that on arrival
    they started making out almost right away. After a few minutes, the
    complainant asked him to unzip her outfit, which he did, and then she went to
    the washroom. He testified that he perceived no reason to be concerned about
    her wellbeing. When the complainant returned after a few minutes, she went to
    lie down on the bed. He asked if he should turn out the lights and get in bed
    with her and she said yes. They spent a few minutes making out and fondling
    each other and then she signalled for him to take off her outfit. The appellant
    explained that the outfit was really tight to her body. In the heat of the
    moment, he decided to rip it open and he had intercourse with the complainant
    from behind. Throughout the time he was in the complainants room (about 39
    minutes, according to the residence surveillance camera), the appellant said
    that he perceived the complainant to be a little bit intoxicated, but not to
    the point where she was not able to talk, walk and make decisions. There was
    nothing out of the ordinary about her level of intoxication, as he perceived
    it.

Analysis

(1)

The complainants absence of motive to lie issue

[9]

The appellants first, and principal, ground of
    appeal is that the trial judge improperly relied on the complainants supposed
    absence of motive to lie to support her credibility. The appellant challenges
    the following portion of the trial judges reasons:

[102] Another factor that, in my view,
    supports the credibility of the complainant is that the complainant has no
    apparent motive to invent a false allegation of sexual assault against the
    accused.  I appreciate that the accused has no onus to prove that the complainant
    has a motive to lie. I also appreciate that the absence of any apparent motive
    to fabricate does not necessarily mean that a complainant does not, in fact,
    have some hidden motive to fabricate her allegations and, therefore, must be
    telling the truth. See
R. v. L.L.
, 2009 ONCA 413, 244 C.C.C. (3d) 149,
    at paras. 32-54;
R. v. B.(R.W.)
(1993), 24 B.C.A.C. 1, [1993] B.C.J.
    No. 758 (C.A.), at para. 28.

[
103
] In the present case,
    however, there is not the slightest suggestion of any potential motive to lie
    on the part of the complainant.  Prior to the night in question, the
    complainant and the accused were total strangers to each other. They had no
    prior relationship or history together that might potentially have created some
animus
on the part of the complainant against the accused. Further,
    there is no other evidence from which it might reasonably be suggested, or
    concluded, that there might be some other potential motive for the complainant
    to invent a false allegation of sexual assault against the accused.

[
104
] Defence counsel
    argued that there were a plethora of reasons why the complainant might have
    fabricated her evidence, and he speculated that, perhaps, she felt used and
    cheap after the fact. I disagree. I must say that, having carefully watched
    the complainant as she testified in this case, I did not perceive her evidence
    to be at all motivated by any malice against the accused, or by any regret over
    a hasty and less than romantic sexual misadventure. Rather, she struck me as a
    young woman who was in court to truthfully explain how she had been raped by an
    opportunistic near-stranger who had taken advantage of her while she was in a
    near-unconscious state.

[
105
] In any event, the
    absence of any apparent motive to lie is simply one factor that may
    appropriately be considered in assessing the credibility of any witness. See
R.
    v. M.(O.)
, 2014 ONCA 503, 313 C.C.C. (3d) 5, at paras. 104-110;
R. v.
    LeBrocq
, 2011 ONCA 405, 87 C.R. (6th) 85, at paras. 18-21;
R. v. D.C.
,
    2017 ONCA 483, [2017] O.J. No. 3138, at para. 8;
R. v. John
, 2017 ONCA
    622, 350 C.C.C. (3d) 397, at paras. 89-98. As Doherty J.A. stated, in
    delivering the judgment of the Court of Appeal for Ontario in
R. v. Batte
(2000), 49 O.R. (3d) 321, 145 C.C.C. (3d) 449, at para. 121:

What must be avoided  is any suggestion
    that the accused has an onus to demonstrate that a complainant has a motive to
    fabricate evidence, that the absence of a demonstrated motive to fabricate
    necessarily means that there was no motive, or finally, that the absence of a
    motive to fabricate conclusively establishes that a witness is telling the
    truth.
The presence or absence of a motive to fabricate evidence is only
    one factor to be considered in assessing credibility
. [emphasis added]

[
106
] In summary, I believe
    and accept the testimony of the complainant. She was an honest, forthright and
    truthful witness. She candidly explained the important details of the events of
    the night of October 28-29, 2016, to the best of her ability given her level of
    intoxication that night, and the other physical symptoms she experienced that
    night from the combination of alcohol and drugs.  Her degree of
    intoxication, as well as her other physical symptoms, were confirmed by the
    testimony of other witnesses in the case. Her ripped Halloween costume also
    confirms the truthfulness of her evidence as to how the act of sexual
    intercourse took place. Further, the complainant has no apparent motive to
    falsely implicate the accused in an offence of sexual assault. In short, I
    found her testimony compelling.

[10]

The appellant submits that this analysis is
    prohibited by this courts recent decision in
R. v. Bartholomew
, 2019
    ONCA 377, which was released 11 months after the trial judges decision in this
    case.

[11]

For several reasons, we do not accept this
    submission.

[12]

First, counsel for both the appellant and the
    respondent agree that
Bartholomew
does not change the law from the
    leading absence of motive to lie cases, namely,
R. v. Batte
(2000),
    49 O.R. (3d) 321 (C.A.) and
R. v. L.(L.)
, 2009 ONCA 413. This
    concession is important because, although the trial judge did not have the
    benefit of
Bartholomew
, in his analysis (set out above) he assiduously
    cited and purported to apply
Batte
and
L.(L.)
.

[13]

Second, there are factual differences between
Bartholomew
and this appeal. In
Bartholomew
, the complainant and the accused knew
    each other and testified about the nature of their relationship. In the present
    appeal, the parties were strangers until the night in question. As the trial
    judge found, they had no prior relationship, nor was there any evidence to
    reasonably suggest that the complainant might have had a potential motive to
    fabricate the allegations.

[14]

Third, and crucially, there is an important
    distinction between the respective trial judges treatment of the absence of
    motive to lie in
Bartholomew
and in this case. In
Bartholomew
,
    the trial judge erred by transforming the absence of evidence of a motive to
    fabricate into a proven lack of motive and then using this finding to enhance
    the credibility of the complainant; at paras. 19 and 28. In the present
    appeal, the trial judge stated at the outset that there was no
apparent
motive to fabricate. His finding was more tentative than that of the trial
    judge in
Bartholomew
. Moreover, his reasons make it clear that he did
    not make the impermissible leap between finding an absence of apparent motive
    and concluding the complainant must be telling the truth. Unlike the trial
    judge in
Bartholomew
, he did not use this finding to enhance his
    assessment of the complainants credibility. Although it supported his finding,
    the trial judge reasonably could have concluded that the complainant was
    credible on the first two factors alone  the corroborating testimony regarding
    her degree of intoxication and the ripped Halloween costume. This is
    particularly so given the trial judges strong rejection of the appellants
    testimony on these two issues:

[108] I find that the accused was simply
    being untruthful. The complainant was not okay or fine. Rather, she was
    severely intoxicated, repeatedly vomiting, and virtually incapable of
    consenting to sexual activity  and the accused knew it.



[110] I also find the key testimony of the
    accused, as to how the complainants costume came to be torn just prior to the
    act of sexual intercourse, to be untruthful and manufactured.

[15]

For these reasons, we do not give effect to this
    ground of appeal.

(2)

The GHB drug issue

[16]

The GHB (date-rape drug) issue arose at trial
    due to a misstep by defence counsel (not appellate counsel) which he later
    attempted, unsuccessfully, to correct. Defence counsel mistakenly thought that
    the reference to GHB in the toxicologists opinion letter related to
    citalopram, an anti-depressant the complainant was taking at the time. He was
    not aware that GHB referred to the date-rape drug. Traces of citalopram were
    found in the complainants urine sample when she underwent toxicological
    testing at a hospital the day after her encounter with the appellant. However,
    GHB testing was not performed because more than 12 hours had elapsed between
    the incident and the sample collection. The toxicologists opinion letter was
    filed on consent as an exhibit. It noted that some symptoms associated with GHB
    consumption can include sedation, loss of consciousness, amnesia, and nausea
    and vomiting. Under his mistaken belief that GHB referred to citalopram,
    defence counsel had seemingly wanted to establish that the complainants
    symptoms stemmed from the effects of taking that medication (citalopram) and
    mixing it with alcohol and marijuana.

[17]

Following the accuseds cross-examination, on
    re-examination of the complainant the Crown explored the theory that the
    complainant could have ingested GHB. Subsequently, defence counsel attempted to
    remedy his error by suggesting that he could either ask the trial judge to
    disregard the toxicologists opinion letter or call evidence in reply.
    Following an exchange with the trial judge, defence counsel suggested it remain
    as an exhibit and was perhaps a matter for submissions. The trial judge agreed
    with this course of action. The Crown then cross-examined the accused on the
    GHB theory. Defence counsel ultimately did not address the GHB issue in his
    closing submissions.

[18]

The appellant submits that the trial judge erred
    by permitting the GHB issue to distract attention from the crucial issue at
    trial  what happened in the complainants residence room when she and the
    appellant returned there together.

[19]

We are not persuaded by this submission. In his
    reasons for judgment, the trial judge said: I need not draw any final
    conclusion as to whether the accused (or anyone else), in fact, surreptitiously
    drugged the complainants bottle with GHB. In our view, this conclusion was
    apt. The mechanics of how the complainant became incapacitated and unable to
    consent to sexual activity were not central to the disposition of the case.
    Whether she became incapacitated by alcohol, marijuana, a prescription drug, or
    some other drug, like GHB, was not central to the finding of guilt. That
    finding was squarely based on the trial judges acceptance, beyond a reasonable
    doubt, that the complainant had been sexually assaulted by an opportunistic
    near-stranger who took advantage of her while she was in a near-unconscious
    state.

[20]

Moreover, as mentioned, defence counsel chose
    not to address the GHB issue in closing submissions. This undermines the
    argument on appeal that trial fairness had been compromised.

Disposition

[21]

The appeal is dismissed.

J.C. MacPherson J.A.

S.E. Pepall J.A.

P. Lauwers J.A.


