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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 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, c. 43, s. 8; 2010, c. 3, s. 5; 2012, c. 1, s. 29.

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. Perkins, 2015 ONCA 521

DATE: 20150710

DOCKET: C57985

Strathy C.J.O., MacPherson and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tyler Perkins

Appellant

Counsel: Dirk Derstine and Ariel Herscovitch, for the appellant Christine Bartlett-Hughes, for the respondent

Heard: July 8, 2015

On appeal from the conviction entered on May 8, 2013 and the sentence imposed on July 26, 2013 by Justice David Salmers of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant appeals his conviction by Salmers J. of the Superior Court of Justice for sexual assault, voyeurism, and two counts of breach of probation. He also appeals his global sentence of six years for these offences.

[2] The charges against the appellant arose from an incident involving the appellant and his then sexual partner. On the day in question, they had sexual intercourse three times. It is common ground that the first and third times were consensual. However, criminal charges were laid with respect to the second episode of sexual intercourse. The Crown contended that the appellant choked the complainant and had sexual intercourse with her while she was unconscious and videotaped the sexual activity without her knowledge. The trial judge decided that these offences were made out and convicted the appellant.

Conviction

[3] The appellant contends that the trial judge misapprehended the evidence in several respects, including his failure to recognize that the complainant’s testimony at the preliminary inquiry was inconsistent with her testimony at trial.

[4] We do not accept this submission. The test for determining when a misapprehension of evidence by a trial judge should result in a new trial is a “stringent standard”: see R. v. Bains, 2012 ONCA 305, at paras. 11-15.

[5] It is true that in some respects the complainant’s testimony at the trial differed from her testimony at the preliminary inquiry. For example, at the preliminary inquiry the complainant testified that she engaged in no discussion with the appellant immediately after the choking incident. At trial, she testified that they did talk about it, with her asking “why did you do that?” and him replying “I don’t know”.

[6] However, we do not think that this isolated example is sufficient to overturn the trial judge’s findings. There were only three witnesses at this trial – the complainant, the appellant, and the appellant’s ex-girlfriend, Alexandra Mutton (who was a strong Crown witness). The trial judge discussed the credibility of all three witnesses in considerable detail. He stated that “[t]here are reasons that cause concern with the credibility of each witness in this case, and the reliability of their testimony.” After reviewing their testimony and the problems with it, the trial judge concluded that “I found [the complainant’s] testimony about the choking/filming incident to be very credible and reliable.” In similar fashion, he concluded that “I found Ms. Mutton to be very credible and reliable in her testimony about what Mr. Perkins told her about the choking/filming incident.”

[7] In the end, the trial judge was entitled to accept the testimony of the complainant and Ms. Mutton, confirmed in important respects by the appellant’s own testimony. We do not see any material misapprehension of evidence in his reasons.

[8] The appellant submits that the trial judge violated the rule against oath helping by saying: “With respect to the choking/filing incident, [the complainant’s] credibility is also enhanced by the consistency of her testimony about what occurred that night.”

[9] We disagree. The core of the defence at trial was a vigorous attack on the complainant’s credibility based on inconsistencies between her testimony at trial and her prior statements. In this context, points of consistency on essential aspects of the allegations are relevant to the credibility and reliability assessment of a complainant’s evidence: see R. v. L.O., 2015 ONCA 394, at paras. 34-36.

[10] The appellant asserts that the trial judge erred by failing to address mistaken belief in consent in his reasons.

[11] We do not accept this submission. Both the complainant’s account of the sexual incident and Ms. Mutton’s testimony about what the appellant told her about the incident (“He had continued to have sex with her while she was unconscious”) precluded an alternate defence of honest but mistaken belief.

Sentence

[12] The appellant contends that the trial judge erred by finding that there were “no mitigating factors” that applied to the appellant and by imposing a harsh and excessive sentence.

[13] We disagree. The trial judge reviewed the appellant’s character and serious criminal record relating to previous sexual assaults on other women. He said:

Mr. Perkins does not demonstrate any empathy for the victim or his previous victims. He has no remorse and no acceptance of responsibility for the current or previous offences. Neither Mr. Perkins, nor any of the people who may support him after his release from custody, demonstrate any insight into his offences. Mostly, they blame his victims.

[14] The Crown concedes that, in light of the recent decision in R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, the appellant should have received 1.5:1 credit for pre-sentence custody. The trial judge granted 24 months credit for 17 months pre-sentence custody. Summers mandates 25.5 months credit.

Disposition

[15] The conviction appeal is dismissed. The sentence appeal is allowed, but only to the extent of increasing the credit for pre-sentence custody from 24 months to 25.5 months.

“G.R. Strathy C.J.O.”

“J.C. MacPherson J.A.”

“M.L. Benotto J.A.”