DATE: 20060317

DOCKET: C41989

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) v. H., D.W. (Appellant)

BEFORE:

DOHERTY, MOLDAVER and LAFORME JJ.A.

COUNSEL:

P. Leckey

for the appellant

Daniel Guttman

for the respondent

HEARD:

RELEASED ORALLY:

March 14, 2006

March 14, 2006

On appeal from the judgment of Justice H. Keenan of the Superior Court of Justice dated May 29, 2004.

ENDORSEMENT

[1] The appellant was convicted of sexually assaulting his wife. His conviction appeal was dismissed by the Summary Conviction Appeal Court. He seeks leave to appeal from that dismissal.

[2] A helpful and accurate factual review of the case appears in the Crown’s factum at para. 2:

The Appellant was convicted of sexually assaulting his wife on March 13, 2003 for inserting a dildo into her vagina without consent while she was heavily medicated with “sleep agents”. At trial, the Appellant conceded that sexual activity took place and the sole issues was whether the complainant consented to the insertion of the dildo or whether the Appellant had an honest but mistaken belief that she had consented. The Trial Judge found that the appellant's wife did not consent to the insertion of the dildo and found further that in light of all the circumstances any mistaken belief that the Appellant had in consent could not have been a reasonable one.

[3] The trial judge found that the complainant did not consent to the sexual activity in issue. The trial judge also found that on the appellant’s own evidence, the appellant was uncertain as to whether the complainant was consenting when he proceeded with the sexual activity. The trial judge went on to consider whether the appellant could rely on an honest belief in the complainant’s consent. That defence is addressed in s. 273.2(b) of the Criminal Code which provides:

273.2 It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where

(b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.

[4] Counsel argues that the trial judge erred in law in not examining the circumstances relevant to the taking of reasonable steps from the perspective of the accused. We agree that this raises a question of law and we agree that the section requires that the circumstances be viewed from the accused’s perspective. However, we disagree that the trial judge did not take this approach. He specifically instructed himself to examine the circumstances as the appellant knew them to be at the relevant time.

[5] The appellant further contends that the trial judge erred in law when he failed to marshal and review the evidence relevant to whether the appellant had taken reasonable steps to ascertain whether the complainant was consenting. Specifically, the appellant contends that the trial judge was required to consider the nature of the prior relationship and the nature of the prior consensual activity in which the complainant and the appellant had engaged during their marriage. The appellant argues that this prior relationship and the nature of the prior sexual activity was such as to provide a basis for a reasonable belief in consent on the evening in issue.

[6] The trial judge did review the evidence at various stages in his reasons. We are not satisfied that his failure to rehearse that evidence again in the context of the reasonable belief defence constitutes an error in law. With respect to the evidence concerning the prior sexual activity between the complainant and the appellant, we note as indicated by the trial judge in his reasons, that the circumstances had changed significantly as of the date of the alleged sexual assault. The complainant had undergone serious surgery and was in considerable pain. The sexual activity between the appellant and the victim was not the same as it had been prior to those events. Consequently, evidence of the appellant’s belief in consent based on prior sexual activity was of little assistance given the significant change in the circumstances surrounding the relationship.

[7] Finally, the appellant argues that the trial judge failed to address issues going to the credibility of the complainant. In our view, the credibility of the complainant was not significant on what came to be the crucial issue in this trial, that is whether the appellant took reasonable steps to ascertain whether the complainant was consenting. Indeed, the complainant’s evidence added little to that issue.

[8] In summary, we agree with the Summary Conviction Appeal Court that the trial judge’s reasons reveal a correct appreciation of s. 273.2(b). Any shortcomings in the review of the evidence by the trial judge do not rise to the level of an error in law.

[9] Leave to appeal is granted and the appeal is dismissed.

“Doherty J.A.”

“M.J. Moldaver J.A.”

“H.S. LaForme J.A.”