



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), (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    that could identify the complainant or a witness shall not be published in any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, 172, 172.1, 173, 210, 211, 212,
    213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii)      an offence under section 144 (rape), 145
    (attempt to commit rape), 149 (indecent assault on female), 156 (indecent
    assault on male) or 245 (common assault) or subsection 246(1) (assault with
    intent) of the
Criminal Code
, chapter C-34 of the Revised Statutes of
    Canada, 1970, as it read immediately before January 4, 1983, or

(iii)     an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

(b)      two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in any of subparagraphs (a)(i) to (iii).

(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 complainant of the
    right to make an application for the order; and

(b)      on application made by the complainant,
    the prosecutor or any such witness, 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).

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. L.M., 2017 ONCA 33

DATE: 20170117

DOCKET: C60362

Sharpe, van Rensburg and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

L.M.

Appellant

Jonathan A. Shime and Wayne A. Cunningham, for the
    appellant

Lisa Joyal, for the respondent

Heard: November 24, 2016

On appeal from the convictions entered on October 31,
    2014 by Justice Lois B. Roberts of the Superior Court of Justice, sitting with
    a jury.

By the Court:

[1]

The appellant, L.M., submits that his conviction after a jury trial of sexual
    assault of his sister-in-law, N.M., was unreasonable and asks this court to set
    aside the conviction.
[1]


[2]

Important aspects of the complainants evidence, inextricably
    intertwined with her allegations, were proven to be false, she had a motive to
    lie, and there were other features of her evidence that would have signalled to
    experienced jurists that it would be dangerous to convict the appellant on her
    evidence alone. The appellant submits that the risk of wrongful conviction is
    too high to allow this verdict to stand.

A.

The trial evidence

[3]

N.M. is the younger sister of the appellants wife, K.M. The appellant
    married K.M. in 1987 and they had two daughters together.

[4]

N.M. was born on August 27, 1981 and came to Canada in October 1996, at
    the age of 15. The complainant moved in with her older sister, the appellant,
    their two infant daughters and R.M., the appellants son by a prior
    relationship. Her sister was 32 years old and the appellant was 38 years old at
    the time.

[5]

N.M. lived with the appellant and K.M. until September 2011, when she
    was 30 years old. The complainant had developed a relationship with a
    boyfriend. The appellant and K.M. disapproved of this relationship because they
    believed N.M.s boyfriend was using her to get status as a permanent resident
    in Canada. Friction over this issue led the complainant to move out of their
    home. That same month the appellant reported N.M.s boyfriend to immigration
    authorities and advised the complainant that he had done so. Soon after, in
    October 2011, the complainant went to police, alleging the appellant had had
    intercourse with her approximately 10-50 times between August 27, 1997 and
    August 26, 1999, when she was 16 and 17 years old.

[6]

The Crown called two witnesses at trial  N.M. and F.V., a friend of the
    complainants sister.

[7]

N.M. testified that K.M. and the appellant treated her as a slave and controlled
    her from the time she moved in with them. She said that she was not allowed to
    go to school for her first year in Canada and was required to look after their
    children. She said she was not allowed to go out with friends, although she was
    allowed to go to work and school after the first year. She claimed that she was
    only allowed to visit people in the company of family.

[8]

At trial, it was established that the complainant did attend an
    educational facility, the Alpha Centre, from the time she arrived in Toronto
    for approximately a year. N.M. was then registered as a full-time student and
    started high school in Canada in October 1997. Her older sister stayed at home
    and looked after the children throughout this time.

[9]

F.V. testified that she socialized with N.M. outside the home, without
    the appellant or other family members. F.V. and N.M. went shopping together and
    visited beauty salons.

[10]

A defence witness, F.M., a high school friend of the complainant,
    testified that she and the complainant hung out together after school. The
    complainant often went to F.M.s house on her own and slept over at her home.
    It did not seem to F.M. that the complainant had a curfew.

[11]

The complainant was employed at Home Sense, Winners and a call centre
    while living with the appellant and his family. She had her own cell phone and
    a boyfriend. She travelled freely. For example, she went to Europe in 2008. She
    maintained control over her own earnings, and bought gifts, paid for her cell
    phone and saved money for her education.

[12]

The appellant and his family lived at three different locations during
    the period the assaults were alleged to have occurred.

[13]

The first two were apartments in the same building on Lawrence Avenue
    East. The first apartment was a small two bedroom apartment. The appellant and
    his wife shared one bedroom. N.M. shared the second bedroom with the
    appellants two young daughters. R.M. slept in the living room.

[14]

From 1997 to 1998, the appellant left the home around 6:00 a.m. to
    attend school from 8:00 a.m. to 2:00 p.m. He returned home around 2:30-2:45
    p.m. to eat or to pick up food at home, which he would bring to his night shift
    at the Royal Bank of Canada, located in downtown Toronto. His shift started at 4:00
    p.m. and ended at midnight. He would arrive home as late as 1:00 a.m. The
    complainant was also attending school from 1997 to 1998.

[15]

N.M. testified that she was assaulted three or four times by the
    appellant when the family lived in the two bedroom apartment on Lawrence Avenue.
    She said the first incident happened when she was 16 years old. She was having
    an afternoon nap with the appellants daughter, in the same bed. The younger
    daughter was taking a nap in a crib in the room. N.M. testified that the
    appellant woke her to ask where K.M. was. N.M. testified that she answered him
    but that she fell back to sleep. Although she had been wearing jeans, underwear,
    a t-shirt and a bra when she fell asleep, she woke to find that her clothes had
    been removed. The appellant was on top of her and she felt the appellants
    penis inside her. She said that she did not wake up when the appellant undressed
    her.

[16]

N.M. testified that the second incident occurred when K.M. was out of
    the house overnight for a church function. L.M. denied that his wife ever went away
    overnight for any such event. N.M. said the appellant had intercourse with her
    while his older daughter was asleep in the same bed, the younger daughter was
    in the crib and R.M. was sleeping in the living room.

[17]

N.M. said that third and fourth incidents occurred when K.M. was home
    and asleep. She said the appellant came into the room she shared with his
    daughters, woke her, and had intercourse with her on each of those occasions.

[18]

The family moved into a small one bedroom apartment in the same building
    on Lawrence Avenue East for a few months in 1998. K.M. went to Europe with her
    daughters for around one month during this time. The complainant alleged that
    L.M. assaulted her while K.M. and her daughters were away.

[19]

In the second apartment, both the complainant and R.M. slept on
    mattresses in the living room. The appellant slept in the bedroom. N.M.
    testified that the first time she was sexually assaulted by the appellant in
    that apartment, L.M. came into the living room while his son was asleep, took
    her to his bedroom and had sexual intercourse with her. Subsequently, she would
    wait until R.M. was asleep and would then go into L.M.s bedroom. She said they
    habitually had intercourse at that time.

[20]

In March 1999, the family moved into a two-storey four bedroom home in
    which N.M. had her own bedroom. The complainant testified that there were at
    least 10 sexual assaults in that home. She said that the appellant would come
    to her room to have sexual intercourse with her when K.M. was sleeping across
    the hall. N.M. only described the first incident that occurred in that home in
    detail. In describing that assault, the complainant testified that the
    appellant came into her room after midnight and woke her up. He told her to
    remove her nightgown and they had intercourse.

[21]

The complainant said the sexual acts stopped after she turned 18 years
    old on August 27, 1999, when she told the appellant to stop abusing her. She
    testified that he never tried to have intercourse with her again after she
    asked him to stop.

[22]

She said she did not seek help from her other family members nor did she
    ask to move in with them because she was entirely under the appellants
    control. She continued to reside with her sister and the appellant until the
    dispute arose about her boyfriend when she was 30.

[23]

The appellant argued that the complainant falsely accused him of sexual
    assaults to avenge his having reported her boyfriend to immigration
    authorities. To rebut the claim of recent fabrication, the Crown called F.V. who
    surfaced to say that N.M. complained that she had been sexually assaulted by
    the appellant in 2007. F.V. provided a statement to police on October 20, 2014,
    just days before testifying. It appeared that N.M. had taken part in a small
    claims court proceeding that F.V. commenced against the appellant and his wife
    over the use of a credit card. The appellant argued at trial that F.V. returned
    the favour by testifying at the criminal trial and falsely supporting the
    complainants evidence.

[24]

The appellant testified at trial and denied that he had ever had sexual
    contact with the complainant. His evidence was unshaken on cross examination.

B.

Analysis

[25]

Appellate courts rarely intervene in credibility assessments by a judge
    or jury, as such determinations attract a high degree of deference:
R. v. Vuradin
, 2013 SCC 38, [2013] 2 S.C.R.
    639, at para. 11;
R. v. Dinardo
, 2008 SCC 24, [2008] 1 S.C.R. 788, at
    para. 26;
R. v. W.H.
, 2013 SCC 22, [2013] 2 S.C.R. 180. Triers of fact
    have the inestimable advantage of seeing the witnesses testify and hearing all
    of the evidence over the course of the trial, which in this case lasted 11
    days.

[26]

This court, however, is obligated to review the reasonableness of criminal
    convictions:
Criminal Code
, s. 686(1)(a)(i). In exercising this authority,
    the court must review the trier of facts credibility assessments and factual
    findings, bearing in mind the trier of facts advantaged position and the
    appellate courts limited scope of review:
R. v. M.(N.)
, 2012 ONCA
    296, [2012] O.J. No. 2043, at para. 32.

[27]

There are some cases where judicial experience teaches that the risk of
    wrongful conviction is simply too high to allow a jury verdict to stand. Where
    a witness has a motive to fabricate an accusation and falsely describes
    significant factual matters that are closely connected to or intertwined with
    the criminal conduct alleged, this sends danger signals to experienced jurists that
    a jury might not appreciate. The role of the appellate court is not to
    substitute its own judgment for that of the jury, but to determine whether a
    properly instructed jury could reasonably have rendered a guilty verdict:
R.
    v. Biniaris
, 2000 SCC 15, [2000] 1 S.C.R. 381, at paras. 36-42.

[28]

As pointed out by Doherty J.A. in
R. v. M. (N.)
, at paras. 33-34:

The reasonableness review provides an important safeguard
    against miscarriages of justice. In
Biniaris
, at para. 42, the court
    described the nature of that review in these terms:

To the extent that it [appellate review] has a subjective
    component, it is the subjective assessment of an assessor with judicial
    training and experience that must be brought to bear on the exercise of
    reviewing the evidence upon which an allegedly unreasonable conviction rests.
    That in turn requires the reviewing judge to import his or her knowledge of the
    law and the expertise of the courts, gained through the judicial process over
    the years, not simply his or her personal experience and insight.

I understand
Biniaris
to instruct that the knowledge
    gained through the reviewing courts broad exposure to the criminal process
    provides insights into credibility assessments and fact-finding not available
    to jurors whose experience is generally limited to a single case. Those
    insights must inform the reasonableness assessment.

[29]

In this case, it is clear that the trial judge had significant
    misgivings about the credibility and reliability of the complainants evidence.
    The trial judge was compelled to sentence the appellant as a result of the jury
    verdict, and the trial judge made her own findings of fact as required to
    decide the appropriate and proper sentence to impose. She found that the Crown
    did not prove beyond a reasonable doubt that any of the sexual assaults
    occurred, save one in 1999  the minimum consistent with the jury verdict.

[30]

The complainants evidence that she was enslaved by the appellant and
    his family was demonstrably false. At paras. 76-78 of the sentencing judgment,
    the trial judge rejected entirely the complainants evidence that she was
    enslaved by the appellant and his family:

N.M. also testified that she was a virtual slave of L.M. and
    his wife, her sister K.M. In particular, N.M. said that she was brought over
    from the Congo to look after their young daughters. Later, she alleged that she
    was forced to work in the family restaurant without pay. She also complained
    that she was never allowed to go anywhere. She maintained that after she told
    L.M. to stop abusing her just after her eighteenth birthday, L.M. started to
    mistreat her by becoming even more controlling over her so that she felt like a
    virtual prisoner in her home.

N.M. testified that L.M. and K.M. confiscated her personal
    papers in order to control her and that when she fled the family home to move
    into a shelter on September 4, 2011, she left her important identification and
    other documents behind at the family home.

I am not satisfied that the Crown has proven these aggravating
    facts beyond a reasonable doubt for the following reasons:

·

N.M.s allegations that she was brought over to look after her
    young nieces is contradicted by the evidence (which she ultimately accepted)
    that she started school very soon after she arrived in Canada in October 1996
    and that she entered full-time high school in Grade 9 in September 1997. She
    therefore could not have looked after her nieces on a full-time basis. I accept
    L.M.s testimony that N.M. was a full-time student and that his wife looked
    after their children because it is corroborated and makes sense.

·

N.M.s evidence that she could never go anywhere or do anything
    was contradicted by L.M. and N.M.s close friends at school, [F.M.]. She
    testified that N.M. was permitted to go out with her friends and stay overnight
    at [F.M.s] house on weekends. [F.M.] testified that she envied N.M., who did
    not appear to have a curfew. As already noted, [F.M.s] father confirmed [F.M.s]
    evidence as did other writers of the letters of support who closely interacted
    with N.M. and her family. Further, the fact that N.M. came and went to her
    part-time employment at HomeSense and her subsequent full-time employment following
    her graduation, and could visit F.V. at nail salons, negates N.M.s assertions
    that she was a virtual prisoner in L.M.s house.

·

N.M. alleged that her identification and citizenship documents
    were removed from her room and that she left the house without them on
    September 4, 2011. She did not see who took her papers or where they were
    placed. L.M. denied touching N.M.s papers and stated that he saw her
    citizenship card in her drawer when he and his family returned to their home
    after N.M. had left home. As L.M. pointed out during his testimony at trial, he
    and his family were out when N.M. left home and so N.M. could have retrieved
    her papers and taken them with her. This which makes sense. In consequence, I
    do not accept N.M.s evidence that her papers were taken away from her or that
    she could not retrieve them when she left home.

[31]

The trial judge had the advantage of seeing the witnesses testify. Her
    assessment attenuates concerns that might otherwise deter an appellate court
    from intervening in a case like this. She rejected the complainants evidence
    that the appellant had intercourse with her while his two year old child lay on
    the bed beside her as improbable and rejected the evidence that intercourse
    could have occurred, undetected in such small quarters occupied by four others
    in addition to the complainant and the appellant.

[32]

As in
R. v. M.(N.)
, had the jury been instructed on the
    potential significance of N.M.s lies  that a deliberate lie on an important
    matter would be very significant in their assessment of whether guilt beyond a
    reasonable doubt had been proven on the basis of a complainants evidence  an
    appellate court might have greater confidence in the verdict.

[33]

Further, the allegations described by the complainant were improbable in
    a number of respects. The appellants work and school hours, and the
    complainants school hours make it difficult to see how the assaults could have
    occurred as described. The appellants evidence about his absences from the
    home was unchallenged, however the solidity of this evidence was urged upon the
    jury by the trial Crown as a factor supportive of guilt: His daily routine
    around the time of the offences, had him out of the house most of the day. Is
    this true, or is this a convenient thing, so, so as to afford him little
    opportunity to commit the offences?

[34]

In this case, the risk of a wrongful conviction is too high; a jury
    acting reasonably could not be satisfied beyond a reasonable doubt that the
    accused was guilty. The verdict of guilt is set aside and an acquittal entered.

Released: R.J.S. January 17, 2017

Robert J. Sharpe
    J.A.

K. van Rensburg
    J.A.

G. Pardu J.A.





[1]
In addition to the sexual assault conviction, the jury found the appellant
    guilty of the lesser offence of sexual touching. The conviction of sexual
    touching was stayed pursuant to
R. v. Kienapple
, [1974] S.C.J. No. 76,
    because it arose out of the same factual circumstances and depend on the same
    evidence given by N.M. as the sexual assault conviction.


