Publication Ban 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 complainant’s 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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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
DATE: 20211210 DOCKET: C67093
Strathy C.J.O., Hourigan and Paciocco JJ.A.
BETWEEN
Her Majesty the Queen Respondent
and
E.B. Appellant
Counsel: David Midanik, for the appellant Rebecca Schwartz, for the respondent
Heard: November 24, 2021
On appeal from the conviction entered on February 26, 2019 by Justice John McInnes of the Ontario Court of Justice.
1The appellant appeals his conviction for sexual assault under s. 271 of the Criminal Code, R.S.C., 1985, c. C-46. There were two issues in the judge-alone trial: whether the complainant consented to the act of fellatio – the trial judge found she did not; and whether the alleged act of intercourse, which the appellant denied, had actually occurred – the trial judge found it had.
2For the reasons that follow, we do not accept the grounds of appeal raised by the appellant and we dismiss the appeal.
Background
3The following brief summary will provide context for the analysis of the issues and the submissions.
4The appellant, a 36-year-old general contractor and occasional drug dealer, sold the complainant small quantities of cocaine from time to time. The complainant was an 18-year-old university student. The appellant was charged with sexually assaulting her in the early hours of September 23, 2016.
5According to both the appellant and complainant, the appellant had texted the complainant on the previous evening and asked whether she wanted to meet for a drink. She replied affirmatively and asked him to bring some of his “product”. Prior to that occasion, they had met a few times, solely for brief drug transactions.
6The appellant picked her up at her house and they drove to a local bar where they had a beer and a “shot”. After about 20 or 30 minutes, they left the bar and the appellant drove to the parking lot of a school near the complainant’s house. She did a “line” of cocaine in the car. They got out of the car and smoked and chatted for a while. At this point, their stories diverged dramatically.
7According to the complainant, after they got back into the car, the appellant grabbed her face and chin and began to kiss her aggressively. She tried to pull away and told him to stop. He told her not to worry, that they were just having fun. She continued to tell him to stop and tried to pull away. He started to undo his pants and she again asked him to stop. He placed his hand on the back of her head and pulled her down towards his penis and told her to suck it, or words to that effect. She resisted, but ultimately did what he asked. During the act, the appellant repeatedly said, “I don’t know what you’re doing but it feels good.”
8At some point, she said, the appellant put his hand into her pants and touched her vagina. She said “no, I don’t want to” and that she was on her period. He replied that it would feel “amazing”. She continued to protest, and he told her he would be gentle. He reclined the passenger seat, put the full weight of his body on top of her and forced his penis into her vagina. She attempted to close her legs, but he continued. He stopped, without ejaculating, after several minutes. He smoked a cigarette while she put on her pants and he told her that he would take her home.
9On the appellant’s evidence, the fellatio was consensual and there was no intercourse. After they got back into the car, they talked for a while and then began to “make out”. They stopped and discussed “where this was going and what [they] were expecting.” They agreed that they were not looking for a relationship and would just see what happened. They continued to kiss and fondle one another. She rubbed his penis and he fondled her breasts. He took his penis out and she began to stroke it while he rubbed her vagina outside her jeans. She told him that she was on her period and did not usually “give it up” on the first date. He said that she should not worry, he was not trying to have sex with her and was not trying to force anything on her. The fondling resumed and he asked her to kiss his penis. She began to fellate him, while he began to grab her breasts “harder and firmer”. After about 10 minutes, the complainant indicated she did not want to continue and stopped. He expressed his disappointment and pulled up his pants while she sat back in her seat. There was an awkward silence, and the complainant said that the second or third date would be a little different, but for now she did not want to go further. He lit a cigarette and said “okay, let’s just call it a night.”
10Both parties agreed that the appellant then drove her home and kissed her when she got out of his car.
11The complainant said that when she got home, she threw up in the bathroom. She did not awaken her parents because she was ashamed and did not want them to know about her drug use. She called a friend, K.M., who she knew worked night shifts, and told him she had been “raped by [her] drug dealer”. He offered to leave work and come to see her, but she told him she would call someone else. She called another friend, S.F., who she knew from university and he came to see her. They went to the school near her house and talked until early morning, consuming some cocaine and alcohol. After returning home, the complainant went to her room, removed her clothing, put it in the laundry bin, showered, slept briefly, and went to work at her morning lifeguard shift.
12S.F. and K.M. confirmed the complainant’s disclosure of the sexual assault to them.
13The following day, the appellant sent the complainant a text message. It stated: “Hey, how’s it going? I hope I wasn’t too rough with you last night. I apologize, but it’s just you’re too cutie.” The complainant did not reply. There was no further communication from the appellant, and he threw away his cell phone after he found out the police were investigating him.
14Within a day or two, the complainant’s mother observed that she had been behaving oddly and spoke to her. The complainant told her mother that she had been sexually assaulted by her drug dealer but asked her not to tell anyone about it. A few days later, the complainant disclosed to her father what had happened. He urged her to report it to the police and she did so later that day.
15There were some significant omissions, inconsistencies, and falsehoods in the complainant’s description of the material events in her reports to the police and in her testimony at the preliminary hearing. In her initial report to the police, she was asked whether the appellant had put his penis in her mouth. She responded “no”. She also failed to mention it in her second police interview the next day. It was not until the preliminary hearing that she testified that the appellant had forced her to engage in fellatio. When asked at trial why she had not disclosed it earlier, she identified several reasons: she was ashamed about it and did not want to think about it; her memory was “foggy”; and she thought she could have prevented it because she could have kept her mouth closed, but she was “just scared to.”
16The complainant also lied to her parents, to the police and at the preliminary hearing concerning her use of cocaine. When she reported the events to the police, she did not tell them that she was using cocaine that evening and instead told them that she was buying marijuana from the appellant. It was only at trial that she admitted she had used cocaine in the appellant’s car. She also lied at the preliminary hearing when she said that she did not use drugs with her friend S.F. when they went to the school near her home in the early morning hours following the incident.
Trial Judge’s Reasons
17At the conclusion of the trial, the trial judge ordered a transcript of the evidence. In lengthy oral reasons delivered approximately four months later, he found the appellant guilty of sexual assault beyond a reasonable doubt.
18He found the complainant to be a “very credible witness” and believed her evidence concerning the incidents she described. Her account “was internally consistent, clearly articulated, filled with small details that lacked the air of contrivance, inherently plausible, and quite simply it rang true.” He found her reasons for not informing the police about the fellatio to be “palpably authentic”. The complainant’s lies about her cocaine use did not “significantly impact” his assessment of her credibility. Her omission had to be understood in context: she was clearly ashamed to reveal to her parents or the police that she used cocaine.
19In contrast, the trial judge neither believed the appellant’s testimony that the complainant consented to sexual activity nor accepted his denial that the sexual activity included intercourse. The appellant’s evidence did not raise a reasonable doubt and the evidence that he did accept served to prove him guilty beyond a reasonable doubt.
20We will address other aspects of the evidence and of the trial judge’s reasons in the course of our analysis of the grounds of appeal.
Grounds of Appeal
21The appellant raises some ten individual grounds of appeal. Most of these grounds take issue with the trial judge’s acceptance of the essential features of the complainant’s evidence and with his conclusion that the appellant’s evidence did not raise a reasonable doubt.
22For ease of reference, we group the appellant’s submissions under the following headings:
a. the trial judge erred in the assessment of the evidence of the complainant and the appellant;
b. the trial judge erred by failing to give himself a Vetrovec warning;
c. the trial judge erred by failing to address the defence of honest but mistaken belief in consent;
d. the trial judge erred in his application of the principles of R. v. W.D., 2019 ONCA 120, 372 C.C.C. (3d) 293;
e. there was a reasonable apprehension of bias; and
f. as a result of the foregoing, the verdict was unreasonable.
Analysis
Alleged errors in the assessment of the evidence
23The appellant’s submissions under this heading essentially urge us to re-try him in this court, assess the credibility of the witnesses and make findings of fact based on our assessment of the evidence, draw our own inferences from the evidence, re-weigh the evidence, ignore the facts found by the trial judge and come to our own conclusions, all without the appellant having identified a palpable and overriding error in the trial judge’s assessment of the evidence.
24As has been said many times, that is not our function.
25Moreover, as Karakatsanis J., writing for the majority, recently observed in R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at para. 81, a trial judge’s findings of credibility deserve particular deference. She added, at para. 82, that credibility findings must be assessed in light of the presumption of the correct application of the law, particularly regarding the relationship between reliability and credibility. What matters is not whether the judge used the words “credibility” and “reliability”, but whether the judge turned their mind to the relevant factors that go to the believability of the evidence. We are satisfied that the trial judge did so.
26We turn to the errors asserted under this heading to explain our reasoning.
Misapprehension of the evidence
27Under this ground, the appellant asks us to reject inferences the trial judge drew from the evidence or to draw our own inferences from the evidence in order to set aside the trial judge’s acceptance of the complainant’s evidence and his finding that the complainant did not consent to the act of fellatio.
28The appellant refers, for example, to the alleged failure of the complainant to “scream or try to escape when she believed that there was a person in the car [in the school parking lot] 50 metres away while she said she was being ‘raped’.” He also cites her failure to preserve any physical evidence of the assault.
29He also submits that the trial judge should have inferred that she was not sexually assaulted because she did not wash when she got home, did not change out of the clothes she had been wearing and, instead, returned to the place of the assault and “partied” with S.F. The inference counsel wishes us to make, it seems, is that a sexual assault victim would immediately wash and change her clothes and would not voluntarily return to the place where she was assaulted.
30These assertions invite the court to engage in stereotypical reasoning about how sexual assault complainants act or should act and ignore the complainant’s evidence of why she acted the way she did and the trial judge’s acceptance of her evidence.
31As regards her conduct during the assault, the trial judge noted the complainant’s evidence that she was afraid: “[M]y initial reaction was just to freeze. My initial reaction wasn’t to run, it was just to stay where I was. I was frozen and I was scared of what to do next. I wasn’t thinking straight.” The trial judge accepted this evidence, finding that it was “consistent with [his] understanding of the experience of many persons who have been sexually assaulted, experience which has come into common understanding in our legal system through acquired judicial experience.”
32As regards the complainant’s conduct after the assault, the trial judge accepted the complainant’s evidence that she did not want to report the incident to the police. She did not want her parents to know that she had been using cocaine and associating with a drug dealer, and she was afraid of the potential criminal consequences of her own cocaine use.
33The trial judge was entitled to accept the complainant’s evidence on these matters. Having accepted that evidence, he was not bound to draw the inferences advanced by the appellant, some of which rely on stereotypical and discredited assumptions about the behaviour of victims of sexual assault. We would dismiss this ground of appeal.
Uneven scrutiny of the evidence
34The appellant raises a number of complaints under the ground of “differential treatment” of the evidence of the appellant and the complainant. Some of these are addressed under other grounds as well. The alleged errors in the trial judge’s reasoning include: a failure to address the reliability of the complainant’s evidence; rejecting the appellant’s explanations as implausible and illogical; and using stereotypes, common sense and demeanour evidence to accept the complainant’s evidence and reject the appellant’s.
35Our response is brief. What matters in the trial judge’s assessment of the evidence is not whether the trial judge used the word “reliability” in their reasons, but “whether the trial judge turned their mind to the relevant factors that go to the believability of the evidence in the factual context of the case, including truthfulness and accuracy concerns”: G.F., at para. 82. Here, the trial judge plainly did so.
36Trial judges are entitled to draw inferences about the credibility of a witness’s account based on the witness’s demeanour, but must not place undue reliance on demeanour or use demeanour as a substitute for a reasoned consideration of the evidence. Here, the trial judge specifically stated that he was “conscious of the potential pitfalls of over-reliance on demeanour evidence” and, while he commented that the complainant’s testimony was “palpably authentic”, he gave numerous other reasons for his acceptance of her evidence.
37We would dismiss this ground of appeal.
Omissions and falsehoods in the complainant’s evolving disclosure
38As noted earlier, the appellant asserts that the trial judge erred in his assessment of the complainant’s evidence by failing to consider that she lied to the police by not disclosing the fellatio and by lying about her cocaine use in her statement to the police and at the preliminary hearing.
39As to the former, the trial judge identified the reasons the complainant gave for her delayed disclosure of the fellatio as opposed to the forced intercourse: she was embarrassed and felt she could have avoided it. As to the latter, the trial judge also identified the complainant’s explanation that she did not initially disclose her purchase and use of cocaine because she was ashamed about it, did not want her parents to find out about it and was afraid about the criminal law consequences. The trial judge addressed this issue at length in his reasons, noting that the complainant had lied at the preliminary hearing. He accepted the complainant’s evidence about why she did not disclose her drug use. While the trial judge was obviously aware of the significance of lying under oath, and might have found that the falsehoods impacted her credibility and reliability, he did not do so. Instead, he found that these falsehoods were explained persuasively by the complainant and therefore did not impact the complainant’s credibility or reliability on the central issues. He was entitled to accept her evidence and her explanation.
40We would dismiss this ground of appeal.
Motive to fabricate
41The appellant submits that the complainant had a motive to fabricate her allegations. This theory was not advanced at trial and when the trial judge raised the issue during closing submissions, defence counsel said he was not asserting a motive to fabricate.
42The trial judge found that there was nothing in the evidence to suggest any reason why the complainant would have falsely alleged sexual assault. He considered the evidence of her disclosure of the sexual assault to her two friends on the day of the events to refute a suggestion of recent fabrication, but he did not make a finding that the complainant had no motive to lie.
43In this context, the appellant suggests that the complainant had two motives to fabricate: first, because she was concerned that the appellant would tell her friend, S.N. (who was not called as a witness), and she did not want “word to get around” that she had engaged in sexual activity with the appellant; and second, because she was afraid that her parents would find out that she was associating with the appellant, buying drugs from him and engaging in sexual activity with him.
44In our view, these motives are speculative and illogical. The first was not raised at trial, was not put to the complainant in cross-examination and has no evidentiary foundation. The second is inconsistent with the evidence of the complainant, which the trial judge accepted. Moreover, it is illogical that the complainant would fabricate a complaint that her drug dealer sexually assaulted her if she did not want her parents to know about her drug use. The evidence of her gradual, reluctant disclosure – first to her friends, then to her mother, then to her father and finally to the police – is consistent with judicial experience. It is inconsistent with the motive advanced by the appellant.
45We do not accept this ground of appeal.
Failure to give a Vetrovec caution
46The appellant submits that the complainant lied to police, lied at the preliminary hearing, and lied at the trial itself. She was the key Crown witness and the trial judge should have instructed himself in accordance with R. v. Vetrovec, [1982] 1 S.C.R. 811 that her evidence should be approached with extreme caution.
47We do not accept this submission. Judges are not required to import a Vetrovec caution into their reasons for judgment – to do so would be “pure formalism”: R. v. Snyder, 2011 ONCA 445, 273 C.C.C. (3d) 211, at para. 24. Here, the trial judge was plainly aware of the omissions, inconsistencies and falsehoods in the complainant’s prior statements and testimony. As detailed above, he gave cogent reasons for accepting her evidence in spite of these shortcomings. We would dismiss this ground of appeal.
Failure to consider honest but mistaken belief in consent
48The appellant submits that there was an air of reality to the defence of honest but mistaken belief in consent in relation to the sexual activities other than intercourse. He acknowledges that the defence was not raised at trial. In closing submissions, the trial judge asked defence counsel to confirm that there was “no suggestion here of reasonable steps or mistaken belief or anything like that, it’s just the defence is that she consented.” Defence counsel replied, “Yes”. The trial judge adverted to this in his reasons and noted that, in any event, the defence would not have had any air of reality on the evidence before him.
49Although this defence would not apply to the act of intercourse, which the appellant denied having occurred, he submits that the acceptance of the defence could have impacted the credibility and reliability of the complainant’s evidence concerning the intercourse.
50In advancing this ground, the appellant relies, among other things, on: the appreciative comments made by the appellant to the complainant during the act of fellatio; the complainant’s failure to “resist, scream, try to leave the car, during or after the incident […] even though her residence was nearby”; and the finding that the appellant kissed the complainant when he dropped her off at her home.
51We begin with the observations in R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579 that "a belief that silence, passivity or ambiguous conduct constitutes consent is a mistake of law, and provides no defence” and that “it is an error of law — not fact — to assume that unless and until a woman says "no", she has implicitly given her consent to any and all sexual activity”: at para. 98, citing R. v. Ewanchuk, 1999 SCC 711, [1999] 1 S.C.R. 330, at para. 51.
52Again, some of the appellant’s submissions rely on discredited myths about how a sexual assault victim should behave. As we have noted earlier, the complainant explained that she did not try to escape the sexual assault because she was afraid, and she froze in the moment. The trial judge accepted this evidence, noting that it was consistent with acquired judicial experience concerning the reactions of persons who have been sexually assaulted.
53Also referred to in Barton is s. 273.2 of the Code, which places important limits on the defence of honest but mistaken belief in consent by providing that the accused’s belief that the complainant consented to the activity is not a defence where the accused did not take reasonable steps, in the circumstances known to him at the time, to ascertain that the complainant was consenting. The appellant gave no evidence that addressed this issue. Nor were questions put to the complainant on the issue.
54Finally, there was no independent evidence to support an air of reality to honest but mistaken belief in consent. In the face of the conflicting accounts of the appellant and the complainant, this is not a case where the trial judge could “cobble together” some of the complainant’s evidence and some of the accused’s evidence to provide a sufficient basis for the defence: see R. v. Park, [1995] 2 S.C.R. 836, at para. 25. Trial counsel did not suggest this could be done and we heard no submissions from counsel for the appellant to suggest how it might be done. We see no basis for it and would dismiss this ground of appeal.
Error in W.D. Analysis
55The appellant submits that the trial judge erred in failing to effectively apply the “third part” of W.D. and improperly using R. v. D. (J.J.R.) (2006), 215 C.C.C. (3d) 252 (Ont. C.A.), a sufficiency of reasons case, to bolster his conclusion.
56We do not accept this submission. In his reasons, the trial judge accurately set out the applicable principles, including the presumption of innocence, the concept of reasonable doubt and the burden of proof. He accurately set out the “test” in W.D. In applying those principles, he stated that: (a) he did not believe the appellant’s evidence; (b) the appellant’s evidence did not leave him with a reasonable doubt; and (c) on all the evidence which he did accept, the Crown had proven the appellant’s guilt beyond a reasonable doubt.
57We would dismiss this ground of appeal.
Reasonable apprehension of bias
58The appellant submits that the trial judge displayed bias towards him by quoting directly from his evidence and by placing quotation marks around the crude descriptions of the sexual activity that the appellant provided in his testimony. He also complains that the trial judge demonstrated bias when he said that “the defendant’s evolving explanation for sending [the text message the next day] lurched from one implausible explanation to another.” Counsel for the appellant suggested that the use of the word “lurched” may have been a disparaging comment on the appellant’s stature or physique.
59We do not accept these submissions. Quoting directly from the language of the witness is sometimes the best way of describing their evidence and the meaning conveyed by their words, instead of substituting less vulgar language. The trial judge’s use of the appellant’s own language, in this case, does not demonstrate bias.
60We see no basis at all to the submission that the use of the word “lurched” demonstrates bias or some personal insult to the appellant. The trial judge used this expression, after quoting directly from the appellant’s evidence in chief and in cross-examination, to describe the appellant’s “evolving explanation” for saying “I hope I wasn’t too rough with you last night” in his text to the complainant the following day. In his evidence in chief, the appellant said he sent the text because he felt badly for having “used her a little bit”: “Like, she gave me a blow job and then I just kind of brushed her off and I sent her home. So I messaged her and I told her, ‘I’m sorry, I hope I wasn’t too rough with you.’”
61In cross-examination, the appellant was asked why he felt badly for “using” the complainant when he had testified in chief that he and the complainant had discussed what they were expecting out of the encounter, agreed that they were not looking for a relationship and decided to see what happened. The appellant acknowledged that had been the discussion and that they were going to have some fun and see where it went. The following questioning ensued:
Q. So in the morning you felt bad because she essentially gave you a blow job, you didn’t do anything, and you didn’t want to see her again? That’s why you felt bad?
A. Well, that and grabbing her breasts really firmly and hard. I kind of felt a little bit bad about that.
Q. But why? You were having fun, she was giggling. Why would you feel bad?
A. Maybe I was rough with her, I don’t know.
As the cross-examination continued, the appellant acknowledged that the complainant never objected that he was touching her too hard, she never complained about it afterwards and everything seemed fine. His evidence shifted from sending the text because he was sorry that he had “used” her, to being concerned that he had squeezed her breasts too hard.
62“Lurched” refers to an awkward or unsteady movement, a stagger, or a stumble. That was an apt description of the appellant’s attempts to explain his text message. After making this observation, the trial judge said:
I find that the text was sent because the defendant was aware of what he had done and was feeling out [the complainant] to gauge his jeopardy. In my view, the fact that he sent the message and the way in which it is worded is evidence that tends to confirm [the complainant’s] account and also undermines the defendant’s evidence denying that he sexually assaulted the complainant.
63These were inferences the trial judge could reasonably have drawn from the evidence and in no way does his use of the word “lurched” demonstrate bias.
64We do not give effect to this ground of appeal.
Unreasonable verdict
65As we conclude that all the above grounds of appeal fail, the assertion that the verdict was unreasonable, which is predicated on these grounds, necessarily fails as well.
Disposition
66For these reasons, the appeal is dismissed.
Released: December 10, 2021 “G.R.S.” “G.R. Strathy C.J.O.” “C.W. Hourigan J.A.” “David M. Paciocco J.A.”
