



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. D.A., 2018 ONCA 612

DATE: 20180706

DOCKET: C63565

Sharpe, Brown and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.A.

Appellant

Peter Copeland, for the appellant

Michael Perlin, for the respondent

Heard: June 29, 2018

On appeal from the conviction entered on October 19, 2016
    by Justice W. Danial Newton of the Superior Court of Justice, sitting with a
    jury, with reasons reported at 2016 ONSC 6521.

REASONS FOR DECISION

THE FACTS AND THE ISSUES

[1]

D.A. appeals his conviction
    following a judge alone trial on one count of sexual assault, contrary to
Criminal
    Code
, R.S.C. 1985, c. C-46, s. 271.

[2]

He and the complainant were
    co-workers working on temporary contracts as nurses in a northern Ontario
    community. The events leading to D.A.s conviction occurred when the
    complainant was visiting his apartment after work for drinks and company.

[3]

The complainant testified that as
    she was leaving, D.A. overpowered her, pinned her on a bed, and touched her
    sexually, without her consent. She fought him off and left.

[4]

D.A. testified and provided a starkly
    different account. He claimed that the complainant initiated kissing and sexual
    touching with him. He put an end to it after thinking about his girlfriend. He
    said the complainant left, uneventfully.

[5]

The trial judge convicted D.A.,
    applying the principles of
R. v. W.(D.)
, [1991] 1 S.C.R. 742 and
R.
    v. J.J.R.D.
(2006), 218 O.A.C. 37, [2006] O.J. No. 4749. He found that
    based on a considered and reasoned acceptance of the complainants evidence,
    the Crown proved the offence beyond a reasonable doubt, and that D.A.s
    testimony did not leave him with a reasonable doubt.

[6]

In arriving at this conclusion,
    the trial judge found that there was evidence supporting the complainants
    version. He found that a tear to the complainants bra was some
    corroboration, and that evidence that the complainants glasses were left at
    D.A.s apartment supported her claim that there had been a struggle.

[7]

The trial judge also relied upon a
    text message exchange the day after the visit, which he characterized as
    telling. In that exchange the complainant said, what u did last night was
    not cool. I told u in Kash that one night and last night and u didnt listen
    to me at all last night. D.A. replied My bad  One night in Kash?

[8]

There was also photographic
    evidence of a small mark on the complainants neck where she testified D.A. bit
    or pinched her.

[9]

D.A. appeals his conviction,
    arguing that the trial judges acceptance of the complainants evidence was not
    considered and reasoned because it was tainted by error. Specifically, D.A.
    claims that:

A.

The trial judge found
    that the complainant had deleted text messages and therefore her evidence had
    to be given increased scrutiny, but then failed to apply that increased
    scrutiny.

B.

The trial judge failed
    to give appropriate weight, without explanation, to contradictory testimony the
    complainant gave about the duration of unwanted touching under her shirt that
    occurred shortly after she arrived at the apartment.

C.

The trial judge
    discounted an implausibility argument offered by the defence by relying on the
    complainants understandable lack of recall about the details of the physical
    struggle, when the complainant did not assert a lack of recall.

D.

The trial judge
    improperly treated the torn bra as independent corroboration, when the relevance
    of the tear depended upon the complainants testimony that the bra was torn
    during the sexual assault.

E.

The trial judge
    prevented defence counsel from pursuing an appropriate line of
    cross-examination about the complainants claimed dissatisfaction with her
    video statement, by mistakenly ruling that a question asked in
    cross-examination was repetitive.

ANALYSIS

[10]

We do not give effect to these
    grounds of appeal for the reasons that follow.

A.

The
    Deleted Text Messages

[11]

It was for the trial judge to
    determine the weight to be given to the deletion of the text messages. He
    concluded that notwithstanding that deletion, the complainants evidence could
    be accepted beyond a reasonable doubt. It is not for this court to second-guess
    a determination concerning the complainants credibility absent an error of law
    or an overriding error of fact:
R. v. Gagnon
, 2006 SCC 17, [2006] 1
    S.C.R. 621, at para. 24. We reject this ground of appeal.

B.

TEstimony
    about touching under the shirt

[12]

The trial judge was alive to the
    defence position that the complainants testimony about the duration of the
    unwanted touching under her shirt was inconsistent. The trial judge did not
    find this challenge to the evidence to be compelling. That was his decision to
    make.

[13]

The trial judge could have
    provided a more complete explanation for discounting the importance of the
    inconsistency, but it was not a legal error to have failed to do so. His
    reasoning path is apparent on the record. The inconsistency relied upon, if it
    exists at all, is slight. In this context, the trial judges reference to it as
    an apparent inconsistency reflects his finding that any contradiction that
    might exist is unimportant.

[14]

In any event, this is not the kind
    of important and central inconsistency that the trial judge was obliged to
    address in his reasons. Reasons for judgment need not be perfect. They need
    only be sufficient for the functional purpose of the case, and should be
    considered in light of the deference afforded to trial judges on credibility
    findings:
R. v. Dinardo
, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 26;
    and
R. v. Vuradin
, 2013 SCC 38, [2013] 2 S.C.R. 639, at paras. 10-13. We
    see no error here.

C.

The
    Implausibility argument

[15]

We do not accept that the trial
    judge erred by discounting the implausibility argument. In her
    examination-in-chief, the complainant testified that D.A. pinned her arms with
    his legs and put his hand under her shirt, but during cross-examination she
    said that she did not know exactly how her arms were pinned and that she was
    focused on manipulating her body. We appreciate that during cross-examination
    she was describing the later stages of the alleged struggle. Nonetheless, she
    was explaining the difficulty in describing relative body positions during a
    struggle. In these circumstances, the trial judge was entitled to rely on the
    complainants lack of perfect recall about the details of the physical struggle
    to reject an implausibility argument that depended upon a precise description
    of relative body positions.

[16]

In any event, even if the
    complainant was held to her evidence-in-chief about their body positions  with
    his knees on her arms  the theory that it would be implausible for D.A. to put
    his hand under her shirt at the same time is simply not sufficiently compelling
    to support a finding by this court that the trial judges failure to act on the
    implausibility argument undermines the considered and reasoned basis for his
    decision to accept the complainants evidence.

D.

The
    Some Corroboration and the Torn Bra

[17]

We are not persuaded that the
    trial judge erred by treating the torn bra as some corroboration of the
    complainants version of events. We do not understand the trial judge, in
    using the term some corroboration, to be suggesting that the technical legal
    standards of corroboration had been met. He was communicating no more than that
    the torn bra provides support for the allegation. We say this because sexual
    assault is not an area of the law where technical corroboration is required:
    see,
e.g.
,
F.H. v. McDougall
, 2008 SCC 53, [2008] 3 S.C.R. 41, at
    para. 81. The trial judge would have had no reason to invoke the technical
    legal concept. Moreover, where corroboration is required as a matter of law,
    evidence either satisfies the elements of corroboration or it does not:
R.
    v. Zou
, 2017 ONCA 90, 346 C.C.C. (3d) 490, at paras. 40-41 (describing the
    common law rule); and
Vetrovec v. The Queen
, [1982] 1 S.C.R. 811, at p.
    832 (describing
Criminal Code
requirements).

[18]

It is evident from the trial
    judges use of the term some corroboration that he was not claiming that the
    technical demands of the law of corroboration were met. As Doherty J.A. said in
Zou
, at para. 42, a proper contextual reading of the reasons will
    sometimes demonstrate that the trial judge used the word corroboration in a
    more limited sense as opposed to its legal sense. Here, a fair reading of the
    reasons and the record indicate that he was referring to the torn bra as
    supportive or confirming the complainants version of events. He was not
    referencing corroboration in its legal sense.

[19]

Nor do we agree that the torn bra
    lacks the independence required to provide logical support for the
    complainants testimony. The condition of a physical object or thing can be
    readily observed, without the testimony of a witness: see,
e.g.
,
R.
    v. Kiss
, 2018 ONCA 184, at paras. 61-63. An object, or a photo of the
    object, is therefore additional evidence that exists independently of the
    witness and can support the testimony of the witness.

[20]

We do agree that the weight that
    can be given to the condition of an item or thing will be diminished where the
    link between that item or thing and the event depends on the testimony of the
    witness for which the item or thing is offered to support. It is not an error,
    however, for a trial judge to find testimony to be supported by the production
    of a thing by the witness that is in a condition that is consistent with the
    testimony the witness provides: see,
e.g.
,
R. v. A.G.W.
, 2017
    ABCA 247, at para. 23, affirmed 2018 SCC 9. This is particularly so where, as
    here, no suggestion has been made that the object has been tampered with.

E.

Repetitive
    testimony

[21]

Finally, the trial judge was
    entitled to rule that the cross-examination about the complainants
    satisfaction with the police video interview was repetitive. This was not a
    central line of questioning and D.A.s point had already been made. As this
    court held in
R. v. McLaughlin
(1974), 14 C.C.C. (2d) 562 (Ont. C.A.),
    at p. 572, a trial judge has the right and the duty to restrict
    cross-examination in all cases where the evidence sought to be obtained is
    irrelevant, repetitive or in any other manner incompatible with a fair and
    proper trial. See also
R. v. Lyttle
, 2004 SCC 5, [2004] 1 S.C.R. 193,
    at para. 44. The trial judges decision to move counsel along was not an
    improper interference in the right of cross-examination.

CONCLUSION

[22]

We therefore dismiss the appeal.

Robert J. Sharpe
    J.A.

David Brown J.A.

David M. Paciocco
    J.A.


