



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: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    the victim shall not be published in any document or broadcast or transmitted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. Kelkas, 2021 ONCA 664

DATE: 20210927

DOCKET: C68616

Watt, Benotto and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Hussein Kelkas

Appellant

Brandon Crawford, for the appellant

Jessica Smith Joy, for the respondent

Heard: September 23, 2021 by
    video conference

On appeal
    from the conviction entered on March 4, 2020 by Justice M. OBonsawin of the Superior
    Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of three unrelated
    counts of sexual assault with respect to two complainants: A and G. Consent was
    the issue at trial.

[2]

Complainant A alleged that she was sexually
    assaulted by the appellant on two occasions. On the first, anal penetration
    occurred and on the second, vaginal penetration occurred. Complainant G alleged
    that, on one occasion, she was sexually assaulted by the appellant when vaginal
    penetration occurred without her consent.

[3]

The appellants version of events largely did
    not contradict As evidence except with regards to the issue of consent. With
    regards to the first incident, the appellant testified that the complainant was
    the one who grabbed his penis and attempted to insert it in her anus to no
    avail. With regards to the second incident, the appellant testified that the
    kissing, oral sex and intercourse were consensual and that A said, be gentle,
    please.

[4]

Likewise, the appellants version of events
    largely mirrored that of G. The appellant, however, testified that on the day
    of the incident he brought her to a grocery store and gave her $20 to
    purchase condoms. When they got home, they went straight to her bedroom
    and began making out on the bed. The appellant testified that G took his
    clothes off and refused to turn the lights on. She proceeded to put a condom on
    him, and they had sex for 5-10 minutes. According to the appellant, he was
    very turned off by the situation and pretended to ejaculate because he was not
    into it. He got dressed, left and never saw her again.

[5]

The trial judge found that both complainants
    were forthright and did not overstate the violence or exaggerate the sexual
    assault and were credible. On the other hand, she found the appellants
    evidence was largely incongruent and incredible.

[6]

The appellant appeals on the basis that the
    trial judge:

(i)

misapprehended the evidence of complainant A;

(ii)

impermissibly used judicial notice to determine
    credibility;

(iii)

used the complainants absence of exaggeration
    to enhance credibility; and

(iv)

made a finding of fact without evidence.

Misapprehension of evidence

[7]

The appellant submits that the trial judge erred
    by misapprehending As evidence with respect to the second incident, which A
    said occurred in the back seat of a car. The appellant alleges that the trial
    judge failed to consider As reasons for getting into the back seat. During her
    examination-in-chief A said that she got into the back seat because the
    appellant told her to, she was intimidated and told him she would not have sex
    with him. During cross-examination she was referred to her police statement and
    acknowledged that she was agreeable to some level of intimacy and that oral sex
    began but she said, thats enough. These clarifications did not change the
    core of her testimony that she repeatedly said she would not have intercourse.
    The trial judge did not misapprehend this evidence. It was open to her to
    accept As evidence on this point.

Judicial notice

[8]

The appellant submits that the trial judge
    engaged in impermissible use of judicial notice resulting in stereotyping to
    determine credibility. He refers to the trial judges rejection of his evidence
    that he was turned off by G. The trial judge found this evidence
    incredible.

[9]

Impermissible use of judicial notice amounting
    to stereotyping occurs when a trial judge draws inferences untethered to the
    evidence, see
R. v. Steele
, 2021 ONCA 186, 154 OR (3d) 721. That did
    not occur here. The trial judge based her conclusion on the evidence that the
    appellant said he was attracted to G and that he had taken her to the store to
    buy condoms. There were also several factors relied on by the trial judge which
    informed her determination as to credibility including the appellants history
    of lying.

Reference to complainants lack of
    exaggeration

[10]

The trial judge noted the lack of embellishment
    in the evidence of each complainant. The appellant submits that the trial judge
    purported to enhance the credibility of the complainants because they did not
    exaggerate the events giving rise to the assault.

[11]

Unlike the trial judge in
R. v. Alisaleh
,

2020 ONCA 597
, the trial judge
    did not use this finding to bolster the credibility of each victim. She gave
    detailed reasons as to why she found each complainant to be credible. The comment
    about the lack of embellishment was made in passing and was not used
    as a makeweight for credibility.

Finding of fact in the absence of evidence

[12]

The trial judge made a statement that there was
    no collusion between the complainants because they did not know each other. The
    appellant submits that the trial judge made a finding that the two complainants
    did not know each other when the evidence did not support this fact.

[13]

The trial judges statement that there was an
    absence of evidence of collusion accurately reflected the record: no evidence
    was adduced to this regard. The appellant does not challenge the similar fact
    ruling and we see no merit in this submission.

[14]

For these reasons the appeal is dismissed.

David
    Watt J.A.

M.L.
    Benotto J.A.

Gary
    Trotter J.A.


