



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. Williams, 2018 ONCA 138

DATE: 20180214

DOCKET: C62082

Hoy A.C.J.O., MacPherson and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Stanley Ross Williams

Appellant

Howard L. Krongold, for the appellant

Rebecca De Filippis, for the respondent

Heard: January 23, 2018

On appeal from the convictions entered on December 2,
    2015 and the sentence imposed on May 2, 2016 by Justice B.W. Abrams of the Superior
    Court of Justice

MacPherson J.A.:

A.

introduction

[1]

The
    appellant, Stanley Ross Williams, known as Ross Williams, was convicted of
    several counts of sexual assault, assault, and break and enter to commit an
    indictable offence. The convictions were based on the testimony of two of the
    appellants former domestic partners who said that he had subjected them to
    repeated physical violence, including sexual violence.

[2]

The
    principal issue at the trial was consent. Both complainants said that they had
    many consensual encounters with the appellant, but that they did not consent to
    some of the acts described in their testimony.

[3]

The appellant
    did not testify. He did not dispute that the sexual acts took place. However,
    he advanced a theory that the complainants, ashamed or regretful of their time
    with the appellant, unconsciously or unintentionally convinced themselves of
    their non-consent when in reality they had been willing participants.

[4]

The trial
    judge convicted the appellant on seven of the ten counts in the indictment. He
    imposed a global sentence of nine years imprisonment.

[5]

The
    conviction appeal raises issues of the trial judges treatment of
    inconsistencies in one complainants testimony and similar fact evidence across
    counts in the indictments. The sentence appeal raises the issue of totality.

B.

facts

(1)

The parties and events

[6]

The
    complainant K.Q. met the appellant in late 2005 or early 2006. They were
    working together for the same company. They started living together in a home in
    February or March 2006.

[7]

According
    to K.Q., her relationship with the appellant went well initially. However, the
    appellant became stressed with his job and his mood affected how he treated
    her. They began arguing. The appellant became violent. He hit her, pushed her
    against the wall, and pushed her down the stairs.

[8]

K.Q. also
    testified that on multiple occasions the appellant sexually assaulted her. He
    tied her up, penetrated her with objects like a chair leg and sex toys, and
    inserted his fist into her vagina.

[9]

K.Q.
    testified that she lived with the appellant for about 18 months to two years.
    Eventually, she moved out and rented an apartment with her daughter. She
    testified that the appellant changed the locks on her apartment for her when
    she moved in. On two or three occasions, she woke up in her new apartment to
    the appellant having sex with her. She told him to stop and get off her, but he
    would just laugh.

[10]

K.Q.
    met the second complainant, B.C., at a local Tim Hortons. They became very
    good friends. After K.Q. and the appellant split up, B.C. moved in with the
    appellant. A few months later they separated. Then they resumed their
    relationship and began living together again.

[11]

According
    to B.C., on many occasions the appellant put his fist into her vagina and would
    not stop when she told him it hurt, forced her to perform oral sex until she
    vomited, and used a dildo on her vaginally and anally to the point of bleeding.

[12]

The relationship between B.C. and the appellant ended in mid-2011.

[13]

Eventually,
    both complainants went to the police and the appellant was charged with nine
    counts relating to his conduct towards them. A tenth charge was laid with
    respect to a third complainant.

(2)

The trial judges decision

[14]

During
    the trial, the trial judge dismissed a charge of assault causing bodily harm on
    K.Q. and a charge of assault with a weapon (a firearm) on K.Q. At the
    conclusion of the trial, the trial judge acquitted the appellant of a single
    charge of sexual assault on a third complainant.

[15]

On
    the other seven charges, assault, assault with a weapon (a wooden dowel),
    sexual assault, sexual assault with a weapon (a wooden dowel),
[1]
break and enter and commission of the indictable offence of sexual assault (all
    against the complainant K.Q.), and assault and sexual assault (both against the
    complainant B.C.), the trial judge convicted the appellant.

[16]

The
    trial judge found that both complainants were credible and reliable witnesses.
    He concluded that neither complainant consented to some of the sexual activity
    with the appellant, including the penetration of their vaginas with his fist.
    He also concluded that the appellant assaulted both complainants. He rejected
    the appellants assertion that there was collusion between the complainants
    with respect to their testimony. Finally, the trial judge found that there was
    evidence from each witness, including their assertion that the appellant penetrated
    their vaginas with his fist, that confirmed the testimony of the other.

[17]

The
    trial judge imposed a global sentence of nine years imprisonment. With respect
    to the five convictions relating to the complainant K.Q., he imposed a five
    year sentence. With respect to the two convictions relating to the complainant
    B.C., he imposed a four year sentence. He then concluded:

In the aggregate, Mr. Williams is sentenced to nine years in
    the penitentiary. Considering the principle of totality, in my view, the
    aggregate sentence is just and appropriate in all of the circumstances.

C.

issues

[18]

I
    would frame the issues in this fashion:

(1)

Did the trial judge fail to resolve material inconsistencies in the
    complainant K.Q.s evidence?

(2)

Did the trial judge err by finding that the evidence of each complainant
    was admissible as cross-count similar fact evidence?

(3)     Did
    the trial judge impose a manifestly unfit sentence by giving no weight to the
    totality principle?

D.

analysis

(1)

Inconsistencies in one complainants evidence

[19]

The appellants principal submission on the appeal is that the trial
    judge ignored the many and serious inconsistencies in the complainant K.Q.s
    evidence. The appellant provides many examples. The following are some of them.

[20]

First, K.Q. testified that the appellant kept a silver gun in the
    basement. She claimed that he would bring up the gun on numerous occasions
    just I guess to let me know it was there. K.Q. claimed in-chief that she had
    seen the gun on two occasions, once in the basement in a clear box with a lock
    on it, and on another occasion when she was forced to perform oral sex on the
    barrel of the gun.

[21]

On cross-examination, K.Q. admitted that she had been specifically asked
    by police about the appellant having weapons, and told police that the appellant
    had talked about a gun in the basement but that it has never been seen and
    that she did not believe that there was a gun. K.Q. said that her police
    statement was truthful. She conceded that a gun being put in her mouth would be
    a life or death situation and its not something you would forget. She
    suggested that she might have buried the memory.

[22]

At the close of the Crowns case, the Crown requested that the count in
    relation to the forced oral sex of the firearm be dismissed, saying [t]hat
    count  based on the evidence before you, is not sustainable. The trial judge
    dismissed the charge.

[23]

Second, in her testimony K.Q. was initially quite clear in saying that
    her wrist was broken when the appellant forcibly removed her from the house:

Q.      And
    what was the reason that you had to attend at a hospital?

A.      My wrist had been broken.

Q.      Your wrist had been broken. How did that happen?

A.      I was being forcibly removed from the house.

Q.      Who did that?

A.      Ross.

[24]

In cross-examination, K.Q. admitted that at the preliminary inquiry she
    had testified that she had been pounding on the appellants locked front door
    with her hand and kicking the door (I forced my way in  banging on the door,
    hitting it, kicking it).

[25]

At the close of the Crowns case, the Crown requested that the count of
    assault causing bodily harm in relation to K.Q.s wrist injury be dismissed.
    The trial judge dismissed the charge.

[26]

Third, at the trial K.Q. testified that after she and the appellant
    separated, the appellant helped her move into a new apartment with her
    daughter. According to K.Q., the appellant changed the lock on the apartment
    for her, kept a key for himself, and used it to enter the apartment and
    initiate sex with her while she was asleep. She testified that she had asked
    the landlord to change the locks after this happened, but nothing was done
    because she couldnt afford to pay for a lock change. However, at the
    preliminary inquiry the appellant testified that she had not contacted the
    landlord about a lock change.

[27]

Fourth, at the trial K.Q. testified that she complied with the
    appellants demands about unwanted and painful sexual activity because he
    threatened her in various ways, including telling her he would say things to
    the Childrens Aid Society (CAS) that would cause her to lose custody of her
    young daughter:

Q.      And
    what did he threaten you with or what did he say?

A.      About
    beating me or me losing my daughter. Everything was either he was going to beat
    me or I was going to lose my daughter.

K.Q. also testified that she had never spoken to CAS
    about the appellants threats to speak to CAS about her.

[28]

However,
    at the preliminary inquiry K.Q. said the opposite: she had contacted CAS
    numerous times, including about the appellants threats.

[29]

Fifth,
    at trial K.Q. testified that she would sometimes cry and tell the appellant to
    stop, but agreed that at the preliminary inquiry she said the only time I
    remember saying no is to performing the oral sex with the gun.

[30]

It
    is fair to say that a major part of the defence cross-examination of K.Q. at
    the trial related to alleged inconsistencies in her evidence, both inside the
    trial itself and the juxtaposition of her trial and preliminary inquiry
    testimony.

[31]

Moreover,
    in a relatively succinct closing submission at the trial, defence counsel
    immediately framed the central issue as inconsistencies in the complainants
    evidence:

There were many frailties and differences in their evidence
    between the initial police reports, evidence heard at the preliminary hearing
    and evidence heard at trial.

[32]

Defence
    counsel then specifically addressed the alleged inconsistencies in K.Qs
    evidence relating to the gun, wrist and change of lock examples set out above.

[33]

Against
    this factual backdrop relating to the evidence of the complainant K.Q., I turn
    to the legal issue. In my view, a good summary of the relevant principles
    relating to the assessment of a witness credibility is contained in
R. v.
    A.M.
, 2014 ONCA 769 at paras. 12-14:

[O]ne of the most valuable means of assessing witness
    credibility is to examine the consistency between what the witness said in the
    witness box and what she said on other occasions, whether or not under oath:
R.
    v. G.(M.)
(1994), 93 C.C.C. (3d) (Ont. C.A.), at p. 354, leave to appeal
    to S.C.C. refused, [1994] S.C.C.A. No. 390. Inconsistencies may emerge in a
    witness testimony at trial, or between their trial testimony and statements
    previously given. Inconsistencies may also emerge from things said differently
    at different times, or from omitting to refer to certain events at one time
    while referring to them on other occasions.

Inconsistencies vary in their nature and importance. Some are
    minor, others are not. Some concern material issues, others peripheral
    subjects. Where an inconsistency involves something material about which an
    honest witness is unlikely to be mistaken, the inconsistency may demonstrate a
    carelessness with the truth about which the trier of fact should be concerned:
G.
    (M.)
, at p. 354.

A trial judge giving reasons for judgment is neither under the
    obligation to review and resolve every inconsistency in a witness' evidence,
    nor respond to every argument advanced by counsel:
R. v
.
M. (R.E.)
,
    2008 SCC 51, [2008] 3 S.C.R. 3, at para. 64.
That said, a trial judge
    should address and explain how she or he has resolved major inconsistencies in
    the evidence of material witnesses: G. (M.), at p. 356; R. v. Dinardo
,
    2008 SCC 24, [2008] 1 S.C.R. 788, at para. 31. [Emphasis added.]

[34]

The
    trial judge in this case said nothing about the inconsistencies in K.Q.s evidence.
    Specifically, he did not respond to the examples of inconsistencies discussed
    by defence counsel in her closing submission. The only reference he made to
    K.Q.s inconsistencies was in this passage of his reasons:

I find as a fact that Ms. [K.Q.] was a credible and reliable
    witness. When it was reasonable for her to concede where she was wrong in her
    evidence, she did so without hesitation.
I do not find that any
    inconsistencies in Ms. [K.Q.s] evidence make the main points of her testimony
    less believable or reliable.
[Emphasis added.]

[35]

Although
    the defence approach to the complainant B.C.s evidence was markedly different,
    in tone and content, to its approach to the complainant K.Q.s evidence, the
    trial judge treated them in identical fashion. In his separate discussion of
    the offences relating to B.C., he said:

I find as a fact that Ms. [B.C.] was a credible and reliable
    witness. When it was reasonable for her to concede where she was wrong in her
    evidence, she did so without hesitation.
I do not find that any
    inconsistencies in Ms. [B.Cs] evidence make the main points of her testimony
    less believable or reliable.
[Emphasis added.]

[36]

The
    appellant submits that these identical single sentence comments about the two
    complainants evidence are so terse, and inappropriately identical given their
    evidence and defence counsels very different challenges to it, as to amount to
    nothing more than boilerplate reasoning. I am inclined to agree.

[37]

In
    any event, in light of the prolonged attention to K.Qs inconsistencies by
    defence counsel in her cross-examination and the emphasis and specificity of
    her treatment of this issue in her closing submission, the trial judges
    treatment of this crucial issue falls well short of the standard set out by
    this court in
A.M.
The number and nature of K.Q.s inconsistencies
    required the trial judge to grapple with them in some way.

[38]

The
    Crown concedes that there were some inconsistencies in K.Q.s evidence but
    labels them peripheral and says that [a]t most, they went to Ms. [K.Q.s]
    general credibility.

[39]

I
    do not accept this submission. For starters, general credibility is the
    umbrella under which a witness credibility on specific issues is considered.
    Moreover, the evidence about inconsistencies was material in the sense that it
    related to specific offences with which the appellant was charged. The
    inconsistencies about K.Q.s knowledge of the appellants gun, broken wrist and
    lock change were all directly linked to specific counts in the indictment.

[40]

For
    these reasons, I conclude that the trial judge did not, in the language of
A.M.
,
    address and explain how ... he has resolved major inconsistencies in the
    evidence of material witnesses, in this case the complainant K.Q.

[41]

This
    conclusion means that the convictions on the offences relating to the
    complainant K.Q. cannot stand. The remaining question is whether this
    conclusion affects the validity of the two convictions relating to the complainant
    B.C. The appellant contends that it does.

[42]

I
    disagree. The appellant concedes that there were no major inconsistencies in
    B.C.s evidence and that this was not the focus of defence counsels challenge
    to her testimony. Accordingly, the core of the trial judges reasons supporting
    the two convictions relating to her evidence remains largely unchallenged and,
    in my view, legally sound.

(2)

Cross-count similar fact evidence

[43]

The
    trial judge allowed an application by the Crown to permit the evidence of K.Q.
    and B.C. to be used as cross-count similar fact evidence. The appellant submits
    that the trial judge erred in acceding to the Crowns application.

[44]

In
    my view, in light of the structure and content of the trial judges reasons,
    this issue does not have any real import. In his reasons, the trial judge
    considered the counts in the indictment against each complainant separately. He
    did this in the first 78 pages of his reasons. In the final two pages of his
    reasons, he turned to the issue of similar fact evidence and concluded:

In my view, in addition to being independent, there was
    evidence from each witness that did however confirm the testimony of the other.

[45]

Even
    if I were prepared to say that this conclusion was an error, the reality is
    that, overwhelmingly, the trial judge convicted the appellant on the two sets
    of charges based on a completely separate analysis of the evidence relating to
    each complainant.

(3)

Sentence

[46]

In
    light of my proposed disposition of the conviction appeal, the sentence appeal
    must be allowed in part.

[47]

If
    the appellants appeal of the convictions relating to K.Q. is allowed, the five
    year sentence for those offences must be set aside. The appellant, although
    asserting that the four year sentence for the two convictions relating to the
    complainant B.C. is at the high end of the range (the trial judge acknowledged
    this in his reasons), does not contend that it is unfit.

[48]

The
    appellants sole issue on the sentence appeal is totality relating to the
    global nine year sentence. In light of my proposed disposition, that issue
    disappears.

E.

disposition

[49]

I
    would allow the conviction appeal on the offences relating to the complainant
    K.Q. and order a new trial in relation to those offences. I would dismiss the
    conviction appeal on the convictions relating to the complainant B.C. I would
    allow the sentence appeal and reduce the custodial portion of the sentence to
    four years imprisonment.

Released: AH Feb 14 2018

J.C. MacPherson J.A.
I agree. Alexandra Hoy A.C.J.O.
I agree. Paul Rouleau J.A.





[1]

At the appeal hearing, both parties conceded that the
    conviction on this charge could not stand. Although K.Q. testified that the
    appellant had assaulted her with a wooden dowel, she did not testify that he
    had sexually assaulted her with it.


