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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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
Rouleau, Watt and Epstein JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
K. A.
Appellant
Robin K. McKechney, for the appellant
Christine Tier, for the respondent
Heard and released orally: June 12, 2013
On appeal from the judgment of Justice P.U. Rivard of the Superior Court of Justice, sitting as a Summary Conviction Appeal Court, on September 17, 2012.
ENDORSEMENT
Endorsement
1K. A. appeals from the decision of a judge of the Superior Court of Justice that dismissed his summary conviction appeal from a conviction of a single count of sexual assault.
Background
2The sexual assault alleged was that the appellant had sexual intercourse with the complainant without her consent while she and her [then] common law husband were in bed together after several hours of drinking in a hot tub with the appellant and another man.
3The appellant acknowledged that he had sexual intercourse with the complainant, but he insisted that it was with her consent. The complainant denied consent.
4A critical piece of evidence relied upon by the appellant at trial in support of his submission that the complainant consented was the evidence of her former common law spouse, J. M. He testified that he was awakened by the movement of the bed in which he and the complainant were sleeping and by the complainant's grabbing his hand and moving it between her legs. The appellant relied on this evidence to support the inference that the complainant knew she was having sexual intercourse with the appellant and was inviting her then common law spouse to join them in a threesome.
5The evidence in this case was heard on two days about one year apart. After hearing closing submissions, the trial judge reserved judgment. Four months later he released his reasons for convicting the appellant.
Decisions Below
6In his reasons for judgment, which consist of 21 paragraphs, the trial judge characterized the only issue as whether the appellant "honestly and reasonably believed the complainant was consenting to the sexual activity that took place." This issue, the trial judge reasoned, reduced to a question of whether the appellant took reasonable steps in the circumstances known to him at the time to ascertain whether the complainant was consenting to the sexual activity within s. 273.2(1) of the Criminal Code.
7The trial judge concluded that the appellant took no reasonable steps to ascertain whether the complainant was consenting to the sexual activity in which the appellant was engaged. Of the appellant's evidence, the trial judge said:
Needless to say, I do not believe the accused nor am I left with a reasonable doubt on his evidence.
8The trial judge expressly found the witnesses for the Crown to be reliable and trustworthy. The complainant's former common law spouse, whose evidence was central to the consent defence, was a Crown witness.
9The trial judge said nothing about this critical piece of evidence in his reasons for judgment. Nor, for that matter, did he deal, in terms, with the defence advanced, which was consent, not mistaken belief in consent as the trial judge characterized it. Further, the reasons are barren of any analysis of why the judge concluded the evidence was sufficient to satisfy the high standard of proof required in criminal cases.
10The appeal judge acknowledged that the trial judge had failed to address many of the inconsistencies in the evidence of the Crown witnesses. The appeal judge considered that it was not necessary for the trial judge to have done so to permit meaningful appellate review. Like the trial judge, the appeal judge concluded that the only live issue was whether the appellant took reasonable steps to ascertain whether the complainant was consenting to the sexual activity in which the appellant was engaged.
Analysis and Disposition
11In our view, the appellant's conviction cannot stand. The reasons for judgment in both courts below reflect a fundamental misunderstanding of the defence advanced at trial and fail to consider, thus come to grips with, evidence that bore directly on the defence advanced at trial, consent, thus the issue of the appellant's guilt or innocence. This deficiency and the overall conclusory nature of the trial judge's findings, as well as those of the appeal judge, preclude meaningful appellate review.
12This was not a complex case. No controverted principles of law required resolution. But the issue of consent required reasoned analysis, a consideration it did not receive.
13For these reasons, we allow the appeal, set aside the conviction and order a new trial.
"Paul Rouleau J.A."
"David Watt J.A."
"Gloria Epstein J.A."
