Source: CanLII
CITATION: R. c. Kuate, 2026 ONCA 4511)
DATE: 20260618
DOCKET: COA-23-CR-1323
van Rensburg, Roberts et Gomery JJ.A.
BETWEEN
His Majesty the King
Respondent
and
Ariel Jordan Bobda Kuate
Appellant
Maija Martin, for the appellant
Philippe G. Cowle and Étienne F. Lacombe, for the respondent
Heard: June 12, 2026
On appeal from the convictions entered by Justice Cynthia Petersen of the Superior Court of Justice, sitting with a jury, on January 30, 2023.
REASONS
[1] The appellant appeals two convictions for sexual assault. He withdrew his appeal of the global sentence of six years of imprisonment.
[2] After a 35 day trial before judge and jury, the appellant was found guilty of two distinct sexual assaults which took place several hours apart. The two complainants, who did not know each other, were sex workers.
[3] The appellant solicited sexual services from the complainants. According to the complainants, he insisted that they provide the services stairwell of his building for a lower amount than the agreed rate. According to the complainants, once in the stairwell, the appellant drew a knife to force them into sexual relationships. The first complainant, A.W., severely injured her hand when she tried to take the knife brandished by the appellant, resulting in serious bleeding onto the handrails and the floor of the stairwell as well as some splatters onto the appellant. The assault against the second complainant, E.M., was interrupted by first a neighbour and then by the police.
[3] The appellant raises three grounds of appeal: (1) the trial judge erred by failing to instruct the jury to ignore the cross-examination by Crown counsel, who inappropriately suggested that the appellant gave false testimony; (2) the trial judge erred by admitting into evidence a “[TRANSLATED] judicial identity photo” of the appellant and failing to instruct the jury to ignore the photo; and (3) the trial judge erred by failing to instruct the jury to disregard any suggestion or speculation that the appellant cleaned the blood from the stairwell where the assaults took place.
[5] After having heard the appellant's submissions, we dismissed the appeal with reasons to follow. These are our reasons.
[6] The appellant's criticism of Crown counsel's cross-examination concerns two issues: first, the appellant takes issue with the Crown counsel asking him several times whether he heard the testimony of other witnesses; second, this same prosecutor suggested to him once that he altered his testimony to adapt it to other testimony. The appellant argues that in the absence of an appropriate instruction, these questions gave the jury the impression that the appellant invented his testimony.
[7] We are not convinced by this argument.
[8] First, we accept that it would be inappropriate for Crown counsel to suggest that the appellant invented his testimony in response to what he heard during trial because such a suggestion would infringe his constitutional rights, including the right to be present at his trial and to have knowledge of the evidence presented against him: R. v. White (1999), 1999 CanLII 3695 (ON CA), 42 O.R. (3d) 760 (C.A.), at para. 20; R. v. G.V., 2020 ONCA 291, 392 C.C.C. (3d) 14, at paras. 24-26. However, we do not interpret the cross-examination of the appellant in this manner.
[9] The Crown prosecutor's references to other witnesses sought to elicit specific responses regarding the other testimony in the context of a cross-examination where the appellant's responses were imprecise and evasive. When defence counsel raised an objection, the trial judge immediately rejected any sense of impropriety. She explained: “[TRANSLATED] No one is criticizing him for being here. This is to ensure that it isn't necessary to repeat the evidence that was present since he was here”. The next question from the Crown prosecutor must be interpreted through the lens of the trial judge's instructions. The absence of any objection to the next question from defence counsel suggested that there was no appearance of injustice at trial.
[10] We also reject the second ground of appeal. The trial judge did not commit any error by admitting the photo into evidence and not instructing the jury to disregard this exhibit, a directive which was not requested by defence counsel. The photo was a part of an article regarding the accusations against the appellant in this case. The article was relevant to the defence's argument that A.W.'s testimony was affected by her reading of the article.
[11] However, we are of the view that the photo does not resemble a “[TRANSLATED] judicial identity photo” and that the caption of the photo, indicating that the appellant was accused of at least two offences, suggests taht the appellant was charged with offences involving complainants other than A.W. and E.M. In fact, the appellant was charged with at least two offences involving the complainants in this case. Additionally, when the photo and its caption are considered together with the article that they accompany, the jury could not have had the imrpession that the appellant was charged with other offences. In fact, the article in question only dealt with the accusations brought in the present case.
[12] In any case, the trial judge's instructions to the jury cleared all confusion in this regard, since they contained a jury instruction to only consider the evidence presented at trial and restating that the appellant did not have a criminal history. As a result, it was appropriate to admit the photo into evidence and this decision did not prejudice the appellant.
[13] Last, the trial judge did not invite the jury to draw speculative or inappropriate inferences in regards to the blood splatters of A.W. The appellant confirmed A.W.'s testimony that she was severely cut in her hand by a knife which resulted in severe bleeding. A.W.'s injury was corroborated by uncontested medical evidence presented at trial. However, there was little blood visible in the photos of the stairwell taken several hours after the assault on A.W. and after the assault on E.M. In light of the testimony and the medical evidence, the only reasonable inference that could be drawn from this evidence was that someone cleaned A.W.'s blood, even though some of it remained on the handrails and the floor. The Crown prosecutor's suggestion to the jury that the appellant could have cleaned the blood was appropriate and did not lead to unfairness.
[14] The evidence presented against the appellant was overwhelming. The appellant admitted to having sexual relationships with the complainants, even though he testified that these relationships were consensual. He eventually agreed to accept the Crown's request to treat the evidence of the two accusations as similar fact evidence. The evidence was nearly identical in regards to the two offences. In her instructions, the trial judge raised certain questions on the credibility and the reliability of the complainants. However, these questions did not affect the central testimony of the witnesses regarding the assaults. In the end, their testimony was corroborated by similar evidence and observations from other witnesses, including the neighbour who heard the calls for help from A.W., the location of the blood splatters where A.W. and E.M. testified that the assaults took place, as well as the forensic medical evidence.
[15] For these reasons, we dismissed the appeal.
“K. van Rensburg J.A.”
“L.B. Roberts J.A.”
“S. Gomery J.A.”