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 or 486.6 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(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) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order;

(b) on application made by the victim, the prosecutor or any such witness, make the order; and

(c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.

(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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;

(b) on application of the victim or the prosecutor, make the order; and

(c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.

(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.

(3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall

(a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order;

(b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and

(c) in any event, advise the prosecutor of their duty under subsection (3.2).

(3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have

(a) informed the witnesses and the victim who are the subject of the order of its existence;

(b) determined whether they wish to be the subject of the order; and

(4) An order made under this section does not apply in either of the following circumstances:

(a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or

(b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person.

(5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness.

486.6 (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor,

(a) the person knowingly failed to comply with the order;

(b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and

(c) a warning to the individual is not appropriate.

(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.

WARNING

This appeal is subject to a mandatory publication ban under s. 278.95. This section of the Criminal Code provides:

278 .95 (1) A person shall not publish in any document, or broadcast or transmit in any way, any of the following:

(a) the contents of an application made under subsection 278.93;

(b) any evidence taken, the information given and the representations made at an application under section 278.93 or at a hearing under section 278.94;

(c) the decision of a judge or justice under subsection 278.93(4), unless the judge or justice, after taking into account the complainant’s right of privacy and the interests of justice, orders that the decision may be published, broadcast or transmitted; and

(d) the determination made and the reasons provided under subsection 278.94(4), unless

(i) that determination is that evidence is admissible, or

(ii) the judge or justice, after taking into account the complainant’s right of privacy and the interests of justice, orders that the determination and reasons may be published, broadcast or transmitted.

(2) Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction.

COURT OF APPEAL FOR ONTARIO

DATE: 20240215 DOCKET: C67940 & C67975

Benotto, Roberts and Favreau JJ.A.

DOCKET: C67940

BETWEEN

His Majesty the King Respondent

and

Gavin MacMillan Appellant

DOCKET: C67975

AND BETWEEN

His Majesty the King Respondent

and

Enzo De Jesus Carrasco Appellant

Counsel: Breana Vandebeek and Nathan Gorham, for the appellants Jamie Klukach and Molly Flanagan, for the respondent

Heard: October 3, 2023

On appeal from the convictions entered by Justice Michael R. Dambrot of the Superior Court of Justice, sitting with a jury, on November 30, 2019, and the sentence imposed on February 12, 2020, with reasons reported at 2020 ONSC 3299 [1].

Benotto J.A.:

1For several hours, from around 1:20 a.m. to 6:30 a.m., [2] two adult males engaged in violent sexual activity with a young woman. Sometimes one at a time, sometimes together, they vaginally and orally penetrated her, slapped her in the face, sometimes with a penis, forcibly restrained her, prevented her from putting on her clothes, held her by the hair, and moved her limp body for the purposes of oral sex. They gave her alcohol and drugs. Often, she appeared unconscious and unable to move on her own. The events were recorded on eight security cameras.

2The two men, the appellants, contend that the sexual activity was part of the play-acting of a consensual BDSM [3] arrangement. Alternatively, they say they held an honest but mistaken belief in consent.

3The appellants were convicted of sexual assault and administering a stupefying substance and sentenced to nine years less time served. They appeal their convictions and sentences. They submit that the trial judge erred in admitting certain expert evidence, erred in failing to admit evidence regarding the complainant’s prior sexual activity and communications, erred in his jury charge with respect to consent, and created a reasonable apprehension of bias. They also submit that the trial judge made various errors in principle in respect of the sentences imposed.

4For the following reasons, I would dismiss the appeal.

A. FACTS

5In 2016, the appellant, Gavin MacMillan, owned the College Street Bar. He was 41 years old at the time. The appellant Enzo De Jesus Carrasco, then in his late 20s, was the manager. MacMillan ran a regular bartender training programme on Wednesday nights at the bar.

6The complainant was a 24-year-old woman from a small Ontario town. On Wednesday, December 14, 2016, she was in Toronto for a work engagement. That evening, she went to the College Street Bar to meet a friend who was there for bartender training. When the training event was over, the complainant remained in the bar, eventually alone with the appellants. She had been consuming alcohol and continued to do so. By shortly after 11 p.m., she had been served seven alcoholic beverages over a two-and-a-half-hour period.

7Shortly after the training event, De Jesus and the complainant were flirting. At around 11:50 p.m., they left the bar to go to another bar across the street. At 12:02 a.m., De Jesus texted MacMillan and said, “this bitch is out of control.” At 12:34 a.m., De Jesus and the complainant returned to the College Street Bar. [4]

8The complainant recalls little of what occurred that night. But MacMillan had installed a multi-camera surveillance system in his bar which recorded the events. The recordings show that when De Jesus and the complainant returned to the bar, she was exhibiting a significant loss of motor coordination and was highly intoxicated. She appeared to lose consciousness. De Jesus sent a text to MacMillan, who had gone to another bar, saying, “Shes dead dead dead, im dealing with it.”

9De Jesus then did two things to wake her. He slapped her, and he contacted his drug dealer for cocaine. The evidence was that cocaine could offset the sedative effects of alcohol. The complainant was given the cocaine at 12:46 a.m., then she got up and stumbled. At 12:49 a.m., he gave her more. [5]

10When MacMillan returned a few minutes later, the complainant had her head on the bar. MacMillan and De Jesus told her to lift her head. De Jesus lifted her head and told her she had to get up. He said, “I’m talking to you” and she said Okay.” He then told her that her response to him should be “yes, sir.”

11At 1:05 a.m., MacMillan cut up more lines of cocaine and gave more cocaine to the complainant. De Jesus then rubbed some remaining cocaine on her gums.

12For the following hours, there was continuous sexual activity involving the complainant and both appellants. The complainant seemed to float in and out of consciousness and awareness as the appellants penetrated her mouth and vagina with their penises and hands. When the complainant attempted to resist, she was overpowered and/or given more cocaine.

13Key portions of the security video show the following:

• Around 1:20 a.m.: MacMillan holds the complainant while De Jesus penetrates her vagina forcefully with his hand.
• Around 1:33 a.m.: The complainant stumbles over a stool. Her torso is place on a stool facing MacMillan, while De Jesus again penetrates her digitally from behind. She is being held up by both appellants and being repositioned by them. She appears significantly intoxicated and unable to stand.
• Around 1:42 a.m.: MacMillan holds the complainant up by the hair while De Jesus penetrates her with his fingers from behind.
• Around 2:01 a.m.: The complainant is lying prostrate on the floor with her pants lowered. She tries to pull up her clothes. MacMillan holds her up and slaps her.
• Around 3:53 a.m.: MacMillan slaps the complainant repeatedly in the face with his penis. She pushes back, slapping at his arm.
• Around 4:12 a.m.: The complainant is held by the arms by De Jesus with her mouth over MacMillan’s penis. Then she is placed on a table and restrained by MacMillan while being forcefully digitally penetrated by De Jesus. Her arms and legs are moving.
• Around 6:04 a.m.: The complainant is put down on a blanket in the basement office. De Jesus pries her legs open and starts to digitally penetrate her. She struggles and pulls his arm away, which causes MacMillan to come over and take her hands, pinning them to her chest.

14The appellants claimed that this activity was consensual. They rely on comments the complainant made to them before the sexual activity began, which they say disclosed that she wanted to engage in BDSM. In any event, because they thought she wanted to engage in BDSM, they assert that they honestly believed she was consenting.

B. The Trial Proceedings

(1) Expert Evidence

15The Crown called three expert witnesses:

1. Rachelle Wallage, a forensic toxicologist from the Centre of Forensic Sciences. She was qualified as an expert on the pharmacological and toxicological effects of drugs and alcohol on the human body and the absorption, distribution, and elimination of drugs and alcohol in the human body.
2. Judy Waldman, a nurse practitioner who examined the complainant on December 15, 2016.
3. Dr. Kari Sampsel, an expert on the effects and processing of various drugs and emergency medicine.

16Dr. Sampsel’s evidence, described below, is at issue in the appeal.

(2) Mistrial Application

17Trial counsel for MacMillan brought a mistrial application as a result of the trial judge’s alleged comportment during the course of the proceedings. Counsel for MacMillan specifically pointed to interventions and comments made by the trial judge during MacMillan’s cross-examination and during Dr. Sampsel’s voir dire. The trial judge dismissed the mistrial application on November 5, 2019. The trial judge’s comportment, described below, is the subject of the reasonable apprehension of bias ground of appeal.

(3) Jury Verdict

18The jury convicted both appellants of one count of sexual assault to which the other was a party and one count of administering a stupefying or overpowering drug with intent to assist themselves to commit the indictable offence of sexual assault. De Jesus was found not guilty of another count of sexual assault, which allegedly occurred earlier that evening, and the jury was hung on a further charge of sexual assault, which was alleged to have taken place after the complainant left the bar. The jury was also hung on the charge of unlawful confinement against both men.

C. ISSUES ON APPEAL

19The appellants submit that:

1. The trial judge erred in admitting the evidence of Dr. Sampsel because her testimony was not necessary, and she was not impartial. She also testified beyond the limits of her expertise and the admission of her testimony compromised trial fairness.
2. The trial judge erred in failing to permit the introduction of evidence regarding the complainant’s earlier communication about sexual activity.
3. The trial judge erroneously instructed the jury regarding the complainant’s orgasms during the sexual activity by telling the jury that it held no probative value on the issue of consent.
4. The trial judge’s comportment and rulings created a reasonable apprehension of bias.
5. The trial judge erred in principle by imposing sentences that were patently excessive.

D. ANALYSIS

(1) Expert evidence of Dr. Sampsel

20Dr. Sampsel is a staff physician in the Department of Emergency Medicine at the Ottawa Hospital and the Medical Director of the Sexual Assault and Partner Abuse Care Program at the Ottawa Hospital. Previously, she was an investigating coroner in the Office of the Chief Coroner, East Region. She was qualified to provide expert evidence in the following areas:

1. The clinical effects on humans of the consumption of alcohol and drugs, including but not limited to clobazam, carbamazepine, topiramate, cocaine, and ketamine, individually and in combination with one another.
2. The ability of the human body to process alcohol and drugs, individually and in combination.
3. The physical and psychological effects of the consumption of the above substances, individually or in combination, including on memory, consciousness, and cognitive ability.
4. The effects of consumption of the substances listed in item 1 on the complainant, including on memory, consciousness, and cognitive ability, based on a review of the surveillance videos and other material in this case.
5. Emergency medicine, including the diagnosis and treatment of injuries and illnesses and the interpretation of injuries relating to alleged sexual assaults, including genital and perigenital injuries.

21Dr. Sampsel testified as to the complainant’s condition at various points in the video.

22For example, Dr. Sampsel testified that early in the evening, the complainant was walking and gesturing normally. Then, as the evening progressed, she testified that the complainant was walking with a “wide-based ataxic gait” and weaving back and forth with truncal ataxia. Dr. Sampsel observed that, as time goes on, she loses her balance “with her head slumped forward, and her…right ankle looks like it’s bracing her leg, her body, and her left leg is kind of braced on top there, and she passes out in that position slumped forward.” She concluded that “at that point, this would be somebody that we would say does not have executive functioning.” She noted that the complainant does not react when slapped in the face.

23Dr. Sampsel also spoke about the clinical effects of alcohol and drugs, including their effect on cognitive abilities.

24The appellants submit that the trial judge erred by admitting Dr. Sampsel’s evidence because the evidence was not necessary, she was not impartial, and she testified beyond the limits of her expertise. They also submit that the admission of her testimony concerning ketamine and “executive function” compromised trial fairness.

25Appellate courts owe deference to trial judges’ decisions to admit expert evidence, “unless the trial judge commits an error of principle, materially misapprehends the evidence, or reaches an unreasonable conclusion”: see R. v. Whatcott, 2023 ONCA 536. The trial judge committed no such error in deciding to admit Dr. Sampsel’s evidence.

26I begin with necessity. The appellants submit that the jury could draw their own conclusions from the video, and so it did not need Dr. Sampsel to provide an opinion with respect to whether or not the complainant was intoxicated or impaired at certain points during the sexual activity.

27The appellants made these submissions to the trial judge who addressed them as follows:

[A]fter reviewing the evidence of Dr. Sampsel, I reach a different conclusion. I considered, for example, her evidence on the voir dire about one particular video clip in which both accused are engaged in sexual acts with the complainant. In that clip, Mr. De Jesus lifted the complainant, carried her over his shoulder, and placed her in a kneeling position over a bar stool. Mr. MacMillan then stood in front of her face, which was positioned away from the camera, while Mr. De Jesus stood behind her. Mr. MacMillan held the complainant’s head up by the hair, placing her face in front of his penis. The complainant then appeared to be performing oral sex on him, while Mr. De Jesus stood behind her, moving her body forward and back while digitally penetrating her. At one point during this interlude, the complainant’s head and body flopped backwards. Mr. MacMillan pulled her back into place by the hair.

In viewing this clip, I was readily able to discern that the complainant was not fully in control of her faculties. But because of what, and to what extent, I could not say. Perhaps as a result of the ingestion of alcohol or cocaine, since both were in her blood 16 hours after the event, according to a toxicological report. I do not know if her condition was consistent with the use of those drugs or was more likely caused by something else. Nor could I determine whether or not she was unconscious, and if not, how close to unconsciousness she was. The jury will be in no better position than I am to evaluate these issues.

28Dr. Sampsel’s evidence was necessarily outside the experience and knowledge of the trier of fact. Specifically, her description of the complainant’s bodily movements, lack of reaction to pain, muscle twitching, and so on, were beyond the experience of lay persons.

29It was also necessary for her to explain the clinical effects of alcohol and drugs on cognitive ability, the connection between pain tolerance, repetitive movements, and dissociated memory and the ingestion of drugs, and the physical manifestations of unconsciousness. Lay jurors would not have the sophisticated understanding of how the various intoxicants and drugs would affect the complainant during the several hours of sexual activity.

30I turn to the allegation that Dr. Sampsel was not impartial.

31The appellants rely on Twitter posts by Dr. Sampsel, which indicated a criticism of certain acquittals in sexual assault cases. They say that this means she is an advocate, not an impartial expert.

32The trial judge was aware of the social media posts and explained:

None of this troubles me in the least. It is the right of all Canadians to express their views about issues of public importance, including perceived shortcomings in our system of justice. Indeed, if expressing critical views about the delivery of justice to sexual assault survivors raises an appearance of bias, it would disqualify a great many judges, including judges of the Supreme Court of Canada, from sitting on sexual assault cases. No one would imagine that the author of the following words in paragraph 1 of the decision in R. v. Barton, 2019 SCC 33 should be disqualified from sitting on sexual assault cases:

We live in a time where myths, stereotypes, and sexual violence against women – particularly Indigenous women and sex workers – are tragically common. Our society has yet to come to grips with just how deep-rooted these issues truly are and just how devastating their consequences can be. Without a doubt, eliminating myths, stereotypes, and sexual violence against women is one of the more pressing challenges we face as a society. While serious efforts are being made by a range of actors to address and remedy these failings both within the criminal justice system and throughout Canadian society more broadly, this case attests to the fact that more needs to be done. Put simply, we can – and must – do better.

33I not only defer to the trial judge’s comments, I agree with them.

34The appellants further submit that Dr. Sampsel’s employment as the Medical Director for Sexual Assault and Partner Abuse suggests impartiality. I would reject this submission out of hand. It is precisely this experience that grounds her qualifications as an expert in a sexual assault trial.

35The appellants also say that Dr. Sampsel’s testimony exceeded the scope of her expertise. First, with respect to the consumption of a drug called ketamine, and second, that she opined on the ultimate issue of consent.

36The complainant had been taking drugs for epilepsy. The toxicological report detected alcohol, cocaine, oxazepam, and several drugs used for seizure disorders. There was no mention of ketamine. Yet, Dr. Sampsel testified about the clinical manifestations of ketamine. She further stated that the effects of ketamine included a high pain tolerance, fragmented memory, and repetitive motions, such as the complainant’s repetitive stroking of her hair visible in the video footage. The trial judge ruled that Dr. Sampsel was not to opine on elimination rates of ketamine. The appellants say that she violated this direction when she stated:

Epilepsy drugs in general tend to change the processing of other drugs. So it makes the other drugs go away more quickly.

37The appellants asked for a mid-trial instruction. The trial judge declined to do so, but instead clarified the scope of Dr. Sampsel’s expertise in the final charge to the jury. He also told the jury that when a toxicology report does not detect a drug, it does not preclude the possibility that some of it is there, but below detectible limits. The trial judge further advised the jury not to consider the ketamine evidence:

Members of the jury, while it is up to you, in my view, in light of Dr. Sampsel’s uncertainty about ketamine and the fact that the ketamine evidence adds very little to the overall picture of [the complainant] that night, I would not take ketamine into account in deciding the issues in this case.

38In light of the trial judge’s instructions, I do not see that the jury would be in any way misled by this evidence.

39The appellants also submit that Dr. Sampsel testified as to the ultimate issue of consent when she described the complainant as lacking in executive function. This, they submit, violated the following ruling by the trial judge:

Dr. Sampsel’s evidence is admissible with the small exception that she may not testify that, in her opinion, as a result of the complainant lacking executive function, the complainant was unable to consent to sexual activity.

40Dr. Sampsel did not give an opinion that the complainant was unable to consent to sexual activity because of a loss of executive functioning. She did provide, as expected, evidence about executive function. She said:

[E]xecutive functioning is kind of the frontal lobe part of your brain, which allows you to make adult decisions, basically. So, allows you to understand what's going on around you and make choices of what you want to do, to do things based on what you would like to do, not just kind of muscle memory or protective type of things.

41The appellants say that, by giving testimony about consciousness and executive function, Dr. Sampsel was providing an opinion as to the ultimate issue of consent. Dr. Sampsel did not violate the ruling. Although her evidence was relevant to the complainant’s capacity to consent, Dr. Sampsel never expressed an opinion about the complainant’s capacity to consent to the sexual activity. There was no suggestion that lack of executive function was determinative of the capacity to consent.

42Dr. Sampsel did not testify beyond the limits of her expertise, she did not demonstrate partiality, and the trial judge did not err by admitting her evidence.

(2) Prior communications about sexual activity

(a) Basis for first round of requests by the appellants

43The appellants alleged that the complainant made sexual comments and gestures during the bartending event that indicated an interest in BDSM and that she expressed that she wanted to go to a sex club. [6] This, they say, together with her social media posting, is relevant to her credibility assessment and corroborates the appellants’ position that the sexual encounter was consensual.

44The appellants sought to cross-examine the complainant about these comments. They say that the complainant’s comments, conduct earlier in the evening, and social media posts all supported the theory that she was an active and enthusiastic participant in the sexual activity that ultimately took place. They submit that the subsequent violent sex with two partners was part of a continuum of events that started at the bartending event. The appellants argue that her prior comments lend credibility to their position that she consented and also support their alternate claim of honest but mistaken belief.

45The appellants brought applications under s. 278.93 of the Criminal Code, R.S.C. 1985, c. C-46 to have the s. 276 evidence admitted. Section 276 of the Criminal Code provides:

Evidence of complainant’s sexual activity

276 (1) In proceedings in respect of an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 170, 171, 172, 173, 271, 272 or 273, evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant

(a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or

(b) is less worthy of belief. [7]

Conditions for admissibility

(2) In proceedings in respect of an offence referred to in subsection (1), evidence shall not be adduced by or on behalf of the accused that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with the accused or with any other person, unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 278.93 and 278.94, that the evidence

(a) is not being adduced for the purpose of supporting an inference described in subsection (1);

(b) is relevant to an issue at trial; and

(c) is of specific instances of sexual activity; and

(d) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

46Sexual activity includes communications about sexual activity: Criminal Code, s. 276(4).

47The appellants followed the required two-stage procedure for a s. 276 application. The initial screening stage of the application was heard by Dunnet J. ten days before the trial was to commence. She granted the application in part and adjourned the hearing stage of the application to the trial judge. Dunnet J. dismissed the application with respect to the social media evidence at this first stage, concluding that there was no basis upon which it could be relevant to any issue at trial.

48At the second stage, the trial judge concluded that the words spoken before the sexual acts in issue “are wholly irrelevant, highly prejudicial to the administration of justice, and inadmissible.” I agree.

49The appellants’ submission reflects a misinterpretation of consent. Consent is defined in s. 273.1(1) of the Criminal Code as “the voluntary agreement of the complainant to engage in the sexual activity in question at the time the sexual activity occurred.” As McLachlin C.J., writing for the majority, stated at para. 66 of R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, “The definition of consent for sexual assault requires the complainant to provide actual active consent throughout every phase of the sexual activity” and, at para. 53, “[T]he only relevant period for ascertaining whether the complainant consented under the Criminal Code is while the touching is occurring” (italics in original).

50Thus, consent must be linked to the sexual activity in question, which encompasses the specific physical sex act, the sexual nature of the activity, and the identity of the partner: R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 88, citing R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346, at paras. 55, 57. Barton, at para. 88, makes clear that it is a mistake of law to suggest that the complainant could give broad advance consent to whatever the accused wanted to do to her. The only relevant period for ascertaining consent is while the touching is occurring.

51The complainant’s flirtatious behaviour at the bar is not an indicator of consent. As the trial judge said in his ruling:

A woman is entitled to express her sexual preferences, discuss her sexual history, wear sexually suggestive clothing, be flirtatious or express herself in a sexually suggestive way without fear that those words and acts may be used as a substitute for consent or to undermine any complaint she may make that she was sexually assaulted.

52To some extent, the appellants seek to carve out an exception for unconventional sex. They say that the complainant’s comments and prior conduct support the fact that the violence was consensual. The admission of the comments was necessary, they submit, so that the jury would know that the activity shown on the video was what she had talked about and wanted to occur.

53The fact that the sexual act was unconventional does not open the door to prohibited evidence. As the trial judge put it:

[T]he fact that the sex a complainant ultimately engaged in is unconventional does not alter the playing field. The accused suggests that the jury’s not knowing that the complainant communicated earlier that she likes and engages in BDSM will make their claim that she later invited it from them and that they honestly believed that she was consenting to it incredible. I cannot accept this argument. As the Alberta Court of Appeal stated in R. v. Goldfinch (2018), 363 C.C.C. (3d) 406, 2018 ABCA 240 at para 40, aff’d (2019), 55 C.R. (7th) 215, 2019 SCC 38 at paras. 58-60, “admitting evidence to dispel the inference of the unlikelihood of consent is no different than introducing such evidence to support the inference of an increased likelihood of consent.” If this argument were to prevail, it would mean that women who engage in unconventional sex are less worthy of the protection of the law then other women…. [The accused’s] credibility is not enhanced by saying that the complainant told him twice that she likes and engages in BDSM. But the potential prejudice occasioned by showcasing the extent of the complainant’s unconventional sexual interests is palpable.

54With respect to the defence of mistaken belief in consent, the focus shifts to the mental state of the accused. To make out this defence, the accused must have an honest but mistaken belief that the complainant actually communicated consent, whether by words or conduct. As Moldaver J., writing for the majority, articulated in Barton, at paras. 92-94:

[I]t is appropriate to refine the judicial lexicon and refer to the defence more accurately as an “honest but mistaken belief in communicated consent”. This refinement is intended to focus all justice system participants on the crucial question of communication of consent and avoid inadvertently straying into the forbidden territory of assumed or implied consent.

…[I]n seeking to rely on the complainant’s prior sexual activities in support of a defence of honest but mistaken belief in communicated consent, the accused must be able to explain how and why that evidence informed his honest but mistaken belief that she communicated consent to the sexual activity in question at the time it occurred….

However, great care must be taken not to slip into impermissible propensity reasoning. The accused cannot rest his defence on the false logic that the complainant’s prior sexual activities, by reason of their sexual nature, made her more likely to have consented to the sexual activity in question, and on this basis he believed she consented. [Citations omitted. Emphasis in original.]

55The trial judge properly excluded the evidence under s. 276.

56The day the trial judge released his reasons excluding the evidence, the appellants moved for a reconsideration. Although raised at several points during the trial, the trial judge’s decision did not change on reconsideration. The trial judge did not err by preventing cross-examination on the earlier communications.

57A suggestion that the complainant gave broad advance consent to sexual activity is not just a “dressed up” version of the twin myths, it is wrong in law.

(b) Subsequent request by the appellants

58The appellants sought to revive their motions following answers given by the complainant during cross-examination.

59Specifically, the appellants submitted that the evidence of the complainant’s communications and social media “took on additional relevance once [she] emphatically denied in cross-examination that she was ever interested in BDSM roleplay.” They point to the following exchange during the cross-examination of the complainant:

Q. And I'm going to suggest further that you expressed a desire to engage in double penetration, quote.

A. I would never want that and still would never want that.

Q. So what I'm putting to you in general is that you made it very clear through your words and gestures and what you communicated to them both during the activity and immediately prior was that you wanted to play the role of a submissive in a sub-dom situation. You agree — agree or disagree with that?

A. I very much disagree with that.

Q. Why do you say very much disagree with that?

A. Because I would never — I would never do that.

Q. Do what?

A. Never want that in any way possible.

Q. Never want a sub-dom relationship in any way possible?

A. Yes.

60The appellants rely on R. v. Crosby, [1995] 2 S.C.R. 912; R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3; and R. v. Darrach, 2000 SCC 45, [2000] 2 S.C.R. 443, to suggest that the evidence is probative and should be admitted because it contradicts an assertion made by the complainant.

61The exchange during cross-examination raised no new basis for the admission of the evidence. The trial judge fully addressed this argument. First, he found that the complainant’s statements were general in nature:

[I]t appears to me that the witness was not stating that she had a general aversion to kinky or extreme sex or any specific variety of it. She was merely stating, as emphatically as she could, that although she had no recollection of most of what she was being asked about, she knew that she would never have said to the accused the things being suggested to her.

62Second, the trial judge determined that the evidence, including the social media posts, does not “come close” to contradicting the evidence of the complainant:

The very idea that a woman who might have an interest in sexual role playing could not credibly assert, even with vigour, that she would never want to participate in submissive-dominant sex, far less the particular sort of submissive-dominant sex with two men at once that [defence counsel] was suggesting she invited, is nothing more than myth-based thinking.

63Finally, the trial judge determined, in the alternative, that even if some of the evidence could be viewed as potentially relevant to the complainant’s credibility, it does not have sufficient probative value to outweigh the prejudicial effect:

Here the evidence clearly does not have significant probative value, and whatever probative value it does have is substantially outweighed by the danger of prejudice to the proper administration of justice. Specifically, admitting evidence of the complainant's interest in “submissive” sex would create the risk that some jurors might have sentiments of prejudice or hostility towards the complainant unduly aroused, and then might engage in myth-based thinking and assume that a person who is interested in submissive sex is more likely to have consented to submissive-dominant sex with the two accused. This is one of the considerations that I must take into account in determining whether evidence is admissible under subsection (2) by virtue of s. 276(3)(e).

64I agree with the trial judge. He made no error in excluding the s. 276 evidence. The trial judge’s determination that the statements of the complainant during cross-examination were specific and not general in nature is owed deference by this court. Accepting this characterization, there are no contradiction or credibility concerns that would militate in favour of admitting the s. 276 evidence.

65Nevertheless, the trial judge conducted a robust balancing analysis of the probative value versus prejudicial effect of this evidence, in the event that there was some relevance to the complainant’s credibility. The trial judge is in the best position to conduct this balancing analysis: R. v. Zachariou, 2015 ONCA 527, at para. 9. The trial judge determined that the prejudicial effect outweighed the probative value of the evidence in this case. I see no error in his determination.

(3) The trial judge’s instructions regarding the complainant’s orgasms during the sexual activity

66The appellants submit that the trial judge’s instructions as to consent were deficient because he should have instructed the jury to consider the complainant’s orgasms as an indication of consent.

67The trial judge’s instructions about consent included the following:

To summarize my instructions about the issue of consent and reduce it to its simplest terms, you are concerned with whether or not [the complainant] wanted what happened to happen. The question you must ask yourself is, did [she] consent in her mind to the sexual activity at the time it was occurring? Bear in mind that a woman does not give up her right to choose not to consent to sexual activity because of the clothing she wears, or because she is flirtatious, or because she speaks about her sexual preferences openly, or because she is sexually suggestive, or even vulgar or lewd, or drinks with men she does not really know, or even because she expressed an interest to go to a sex club for whatever reason. As a result, [the complainant’s] consent cannot be assumed because of any of these things, if you find they exist in this case.

There is one more thing I would like you to be aware of. We have heard a great deal in this case from [the appellants] about [the complainant] experiencing many orgasms and “squirting” repeatedly. If you accept this evidence, you cannot infer from it that [the complainant] was consenting to sexual activity.

I cautioned you earlier in my charge not to indulge in conjecture or speculation about matters that have no evidentiary foundation. Speculation has no part in the judicial function. And that applies to this issue. You have heard no evidence that these physiological responses can arise from consensual sex but cannot arise from unwanted sex. Without evidence, such an inference would be entirely speculative, and you must not speculate.

Moving on, you have heard [the complainant’s] evidence that she did not consent to any of the sexual activity in question in any of these counts. You have watched the video. You have heard evidence about her consumption of alcohol and drugs and the evidence of the toxicologist and the emergency doctor. I will discuss this evidence with you later in the charge. But you must consider it along with all the other circumstances leading up to and surrounding the sexual activity in question. Take into account the nature of the contact and any words or gestures that you find may have accompanied it, along with any other indication of [the complainant’s] attitude or state of mind at the time. It is for you to decide whether the evidence satisfies you beyond a reasonable doubt that she did not consent.

68After asking a broad question about consent, the jury returned with a more specific question:

Your Honour, if you can appreciate our confusion, we would like some clarification as follows; (1) page 84 to 85 of your charges, when you refer to consent being “in the mind of the complainant”, how do we do that without speculating? And (2) your charges have listed many examples of what consent does not look like. However, is there, is there clarification of what consent does look like?

69After discussions with counsel, the trial judge provided an extensive answer to this question, referring in detail to and repeating the charge. The trial judge said that “to talk about signs of pleasure and so on as what consent looks like is just simply in my, to me not correct. Consent doesn’t look like anything.”

70The jury did not return with further questions on this point.

71The appellants submit that the trial judge should have instructed the jury that the complainant’s orgasms and purported signs of pleasure were capable of supporting their position that the sexual activity was consensual or that they believed it to be. Relying on R. v. Ewanchuk, [1999] 1 S.C.R. 330, at para. 29, they submitted that a claim of non-consent should be evaluated in light of all the evidence “before and during the incident.” Consequently, they say the evidence concerning her orgasms, behaviour, and body language was relevant, and the jury should have been instructed that it is a body of evidence that they should consider when evaluating the issue of consent.

72There are two reasons why this submission must fail. First, the appellants have not identified an actual error in the charge on consent. Second, there was no evidence at trial that an orgasm is in anyway indicative of consent. The only use the jury could have made of the orgasm evidence would be to speculate and import impermissible reasoning into the assessment of evidence.

73The trial judge did not err in his instructions regarding consent.

(4) The trial judge’s comportment and reasonable apprehension of bias

74The appellants submit that the trial judge created an apprehension of bias by his words and actions throughout the trial. They rely on these specific incidents:

1. During a voir dire with respect to the qualifications of Dr. Sampsel, defence counsel referred to her tweets about sexual assault trials. The trial judge commented that this line of questioning was not related to her expertise and asked how long the “excursion” through social media was going to take. He expressed concerns about the usefulness of challenging qualifications in this way and commented that counsel had grossly underestimated the length of the cross-examination. At one point, the trial judge is alleged to have “slammed” his mouse down on the dais and left the courtroom.
2. During the cross-examination of MacMillan by Crown counsel, the trial judge interjected four times to request that he be responsive to the questions.
3. During the complainant’s examination in chief, the Crown was about to show her a sexually explicit video clip of herself and said: “I know it may be difficult” to watch. In the presence of the jury, defence counsel objected as follows: “I’m objecting to my friend’s statements providing opinions about her not, that it is difficult for her to watch. Our position, obviously, is very different and if true, then it shouldn’t be difficult to watch.” The trial judge responded, “Wonderful.” Several days later, defence counsel requested a corrective instruction from the trial judge, arguing that the “wonderful” comment was sarcastic, demeaning, and had a chilling effect on counsel’s comfort with raising objections.
4. The fact that the trial judge revoked the bail of De Jesus after the verdict and imposed an unfit sentence.

75I begin with the test for determining whether the trial judge’s conduct evinced a reasonable apprehension of bias. The test was articulated by de Grandpré J. (dissenting) in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, at pp. 394-95, and has been consistently applied since. The test is:

What would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.

76The reasons of Cory J. (concurring) in R. v. S. (R.D.), [1997] 3 S.C.R. 484 expand on what is required under the test:

[This test] contains a two-fold objective element: the person considering the alleged bias must be reasonable, and the apprehension of bias itself must also be reasonable in the circumstances of the case. Further the reasonable person must be an informed person, with knowledge of all the relevant circumstances, including “the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties the judges swear to uphold”…. [T]he reasonable person should also be taken to be aware of the social reality that forms the background to a particular case, such as societal awareness and acknowledgement of the prevalence of racism and gender bias in a particular community. [Citations omitted. Emphasis in original.]

77The jurisprudence indicates that a real likelihood or probability of bias must be demonstrated and that a mere suspicion is not enough. The existence of a reasonable apprehension of bias depends entirely on the facts. The threshold for such a finding is high and the onus of demonstrating bias lies with the person who is alleging its existence. As this court articulated in R. v. Gager, 2020 ONCA 274, at para. 153, leave to appeal refused, [2020] S.C.C.A. No. 443, [2020] S.C.C.A. No. 444:

There is no question that trial judges must endeavour to carry out their obligation to manage a trial in a courteous manner. However, we do not expect trial judges or counsel to be perfect. That is why context is so important. The test is whether the objective observer would conclude in the circumstances that the trial judge would likely not decide fairly or otherwise undermine trial fairness. The fact that the trial judge and counsel occasionally and admittedly showed some signs of impatience and frustration in the course of a very difficult four-month proceeding was entirely understandable in this case. I am satisfied in the circumstances that the trial judge’s interventions, viewed in context, come nowhere close to being discourteous, let alone establishing a reasonable apprehension of bias. [Citations omitted.]

78The jurisprudence establishes that the application of this test is framed by: (i) a strong presumption of judicial impartiality, which accords judicial decision makers considerable deference on appeal; (ii) a high burden on the part of the party alleging bias; (iii) a contextual assessment of the alleged bias, i.e., the instances of alleged bias (e.g., inappropriate, unjustified, or improper comments) are not to be considered in isolation, rather, the question should be whether the alleged bias influenced the decision-making process; (iv) the broad discretion afforded to trial judges in exercising trial management powers to ensure a trial remains “effective, efficient and fair to all parties” (this includes the power to intervene to focus the evidence on material issues, clarify evidence, avoid irrelevant or repetitive evidence, dispense with proof of obvious or uncontested matters, ensure that the way a witness answers questions does not unduly hamper the progress of the trial, or prevent a trial from being unnecessarily protracted); and (v) the presence of the jury during the impugned conduct: see e.g., Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282, at paras. 25-26; R. v. John, 2017 ONCA 622, 350 C.C.C. (3d) 397, at para. 47-51; Gager, at paras. 144, 152-53.

79With these principles in mind, I conclude that, whether viewed individually, or cumulatively, the matters raised come no where close to raising, let alone establishing, an apprehension of bias.

80The trial judge dealt with the appellants’ concerns of a reasonable apprehension of bias in the mistrial application. It is very clear that this was a long jury trial with emotionally charged aspects. The trial judge did a masterful job of managing the trial time and issuing several lengthy and complex rulings during the trial. His brief and minor demonstrations of frustration were understandable and in no way gave rise to an appearance of bias. Indeed, he instructed the jury to disregard any frustration in these words:

[F]rom time to time you may have detected a tone of frustration when one counsel raised an objection, or another responded to the objection, or when I dealt with an objection. None of us should exhibit a tone of frustration, but we are all human and criminal litigation places a great pressure on us all. Please take nothing from any of this. It is irrelevant to your duty.

81No reasonable observer would conclude that the trial judge would not decide matters fairly. Nonetheless, I consider the instances raised by the appellants.

(a) The voir dire

82The cross-examination of Dr. Sampsel about her social media comments did not directly relate to her qualifications, which was the point of the voir dire. The trial judge was understandably concerned about the timing of the voir dire and, ultimately, the trial. This is a key component in the judge’s trial management role. As this court has recently stated in R. v. G.M.C., 2022 ONCA 2, 159 O.R. (3d) 561, at para. 109:

[A] trial judge has a public responsibility to ensure appropriate use of valuable public resources (courtroom and court staff time) and to ensure that other participants in the justice system (including witnesses and jurors) are not unnecessarily burdened.

83When counsel provided a time estimate, the trial judge said, “okay. That’s helpful.”

84Reliance on the allegation that the trial judge slammed down his mouse (which did not occur before the jury) as evidence of bias borders on absurd. It is impossible to accept that a reasonable observer would take seriously defence counsel’s claims to have felt “physically threatened” by this.

(b) MacMillan’s cross-examination

85MacMillan’s cross-examination spanned approximately 300 transcript pages. The trial judge briefly interjected on four occasions. The trial judge only spoke when MacMillan was unresponsive to the Crown’s question, advancing arguments during questioning, or answering a question with a question. The trial judge had the responsibility to direct a witness to be responsive to the question. Nothing said by the trial judge limited the witness’s ability to respond.

(c) The “wonderful” comment

86There was nothing inappropriate about the Crown commenting that it might be “difficult” for the complainant to watch sexually explicit footage of herself in a public courtroom. Defence counsel knew she had not seen the video before. To suggest that the video would not be difficult to watch, based on defence counsel’s position that the sexual activity was consensual, disregards the privacy interests of the complainant. As the trial judge identified, irrespective of whether the recorded sexual activity was consensual, the complainant did not consent to having a surveillance video played in a courtroom filled with strangers. Observing such a video in this context would be difficult for any witness.

87In my view, it was the objection by the defence in front of the jury and the witness that was inappropriate. The trial judge’s response to the inappropriate objection in front of the jury caused no unfairness.

(d) Revocation of bail for De Jesus

88The trial judge’s reasons for revoking De Jesus’s bail were neither arbitrary nor unfair. De Jesus was not a Canadian citizen, and he was facing outstanding charges. The trial judge had “serious concerns on both the primary and tertiary ground,” which warranted revocation of bail. Still, the trial judge fairly offered to hold a show cause hearing “at an early opportunity” to allow his counsel to adduce any relevant evidence “that might persuade [him] otherwise.” A date for the show cause hearing was set for December 12, less than two weeks later.

(5) The sentence appeal

89The appellants were each sentenced to nine years, less pre-sentence custody for MacMillan, and less pre-trial custody and an additional five days for lock-down for De Jesus. This sentence was composed of seven years for the sexual assault charge and two years consecutive for the administration of a stupefying substance. They submit that the trial judge erred in principle in several ways.

90For the reasons that follow, the sentence appeals are dismissed. It is well-established that sentencing decisions are entitled to deference on appeal: see e.g., R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at paras. 25-26. Appeal courts are only to interfere if a sentence is demonstrably unfit or if the sentencing judge made an error in principle that had an impact on the sentence. I see no error in principle with respect to the trial judge’s decision on sentence, and the sentences imposed are not demonstrably unfit.

91The appellants submit that the finding that the entire encounter was non-consensual and that the complainant was forcibly confined throughout the encounter is inconsistent with the video surveillance evidence. They also submit that the finding with respect to forcible confinement is inconsistent with the fact that the jury was hung on the forcible confinement charge. The trial judge addressed this as follows:

But I do disagree with them about the implications of the jury being unable to reach a verdict on the count of unlawful confinement. It cannot be the case that the jury being hung on that count constrains my fact finding in any way whatsoever. A jury being hung on a count in an indictment results in in a mistrial on that count. It is not a verdict. The accused can be tried again on the count. It is not tantamount to an acquittal, as counsel for the offenders effectively would have it. I must not and do not speculate on why the jury might have been hung, but I am in no way precluded from making findings of fact that are consistent with the verdicts actually reached by the jury.

In all of the circumstances, I find as a fact, beyond a reasonable doubt, that the complainant’s cognitive ability was never fully restored, that she never consented to any of the sexual activity at the College Street Bar that was the subject matter of counts 1 and 2, and that that was exactly what the two predators who kept her that way intended. They had no mistaken belief that she was not consenting.

92Contrary to the appellants’ submissions that not all of the activity was non-consensual, the trial judge found as a matter of fact that none of the activity that took place between 1:20 a.m. and 6:30 a.m. was consensual and that the appellants did not believe that any of it was. These findings of fact are owed deference on appeal.

93The appellants also submit that the trial judge double counted the administration of cocaine to the complainant by referring to it both as an aggravating factor on the sexual assault charge and as the basis for the offence of administering a stupefying substance. The trial judge did not double count. The administration of the cocaine was relevant to the degree of responsibility of the appellants in the sexual assault. As described by the trial judge, the sexual assault was “chillingly deliberate” because, among other things, it involved the repeated administration of cocaine to keep the victim from losing consciousness.

94The appellants submit that the trial judge did not explain why there was no credit for time spent on judicial interim release. The trial judge considered but did not provide credit. The trial judge was not obliged to provide the credit, and his decision is entitled to deference.

95They say the trial judge unfairly minimized the mitigating factors, namely the appellants’ good characters and status as first-time offenders. I do not agree. The trial judge said:

[I]n respect of mitigation, I note that both offenders are first offenders and have the support of close friends and family, who think highly of them. Mr. Carrasco has made his way in life with some obstacles, and Mr. MacMillan has run a successful business and has been a supportive father. He also suffered a serious injury while in custody.

96The trial judge considered all mitigating factors. He explained the dissonance between the evidence of the appellants’ good characters and the offences committed and he provided thorough reasons about why this evidence mitigates the sentence “with a grain of salt.”

97They submit that the trial judge erred in finding that the appellants were in a position of trust vis-à-vis the complainant. The trial judge never made this finding, instead the trial judge said:

This was, as I have said, a prolonged, violent, degrading and humiliating offence by two mature men who were larger and stronger than the victim, and who took advantage of her severe intoxication to the point of unconsciousness to commit this offence, kept her awake enough to continue the offence for many hours by administering cocaine to her and made a recording of their sexual assault for their future use. While they were not, strictly speaking, in positions of trust in relation to the victim, the offences took place in licenced premises of which they had full control and had responsibility for the well-being of their customers. [Emphasis added.]

98The appellants say that the trial judge did not consider parity. Again, I disagree. The sentences are demonstrably fit for the offence of gang sexual assault and administering a stupefying substance. The appellants further submit that the two-year consecutive sentence for administering a stupefying substance is in violation of the principles of totality and restraint as it results from the same ongoing interaction.

99The trial judge considered the gravity of the offence, degree of responsibility of the appellants, relevant aggravating and mitigating factors, and referenced the principles of sentencing. He was alive to the fact that the sentences imposed must not be unduly harsh or disproportionate. The trial judge expressly referenced that, in imposing the sentences, he attempted to “give effect to the pertinent objectives of sentencing and to balance the considerations…outlined.”

100The principle of totality demands that a sentence does not exceed the overall culpability of the offender: Friesen, at para. 157. The sentences in this case were not demonstrably unfit and aligned with sentences imposed for similar offenders committing similar offences.

101The sentences imposed in this case are not a marked departure from sentences imposed for similar offenders who committed similar offences. Prolonged, violent, and degrading sexual assaults involving multiple offenders demand significant and exemplary custodial sentences up to a maximum of fourteen years, pursuant to s. 272(2)(b) of the Criminal Code. The circumstances of this case justify imposing the nine-year global sentences: see e.g., R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 92; R. v. Downey and Thompson, 2010 ONSC 1531; R. v. Bohorquez, 2019 ONSC 1643; R. v. Katsnelson, 2010 ONSC 2246; R. v. Assing; and R. v. Mullins, 2015 ONSC 1724.

102The circumstances in this case demanded significant custodial sentences. The offences were, in a word, horrifying. The appellants’ actions demonstrated a sense of entitlement and disrespect for the personal integrity of the complainant.

103The trial judge correctly determined that the sentencing principles of denunciation, deterrence, and separation of the offenders from society were paramount. The nine-year global sentences imposed gave effect to these principles while also accounting for each appellant’s potential for rehabilitation. The sentence appeals are therefore dismissed.

E. FRESH EVIDENCE

104Three weeks before the appeal was to be heard, the appellants filed an application for leave to introduce fresh evidence. The evidence was in the form of an affidavit from an articling student in the office of appellants’ counsel. The affidavit attaches a 2005 medical journal article about ketamine, social media posts by Dr. Sampsel, and a social media post of the complainant that discusses her alcohol consumption in 2016.

105I would not admit the fresh evidence for several reasons.

106The medical journal is both hearsay and could have been adduced at trial. Some of the social media posts pre-date the trial, and they could have been adduced at trial subject to relevance. The others do not bear upon a potentially decisive issue at trial and could not reasonably be expected to have affected the result. The requirements of the R. v. Palmer, [1980] 1 S.C.R. 759 test for the admission of fresh evidence have not been met.

F. CONCLUSION

107I would not admit the fresh evidence. I would dismiss the appeal. I would grant leave to appeal sentence but dismiss the sentence appeal.

Released: February 15, 2024 “M.L.B.” “M.L. Benotto J.A.” “I agree. L.B. Roberts J.A.” “I agree. L. Favreau J.A.”

1The reasons for decision on the admissibility of Dr. Sampsel’s evidence are reported at 2019 ONSC 5769, and on the s. 276 applications at 2019 ONSC 6018 and 2019 ONSC 7153.

2References to the time in these reasons refer to the timestamps on the surveillance footage, not the real time. The time in the surveillance footage was off from the real time by approximately one hour.

3Bondage, domination, sadism, masochism (“BDSM”).

4These time references are taken from the trial judge’s reasons for sentence.

5These time references are taken from the trial judge’s reasons for sentence.

6We recognize that the contents of an application under s. 276 of the Criminal Code, and any evidence, information, and representations made relating to said application, are covered by a publication ban pursuant to s. 278.95. However, we consider it appropriate, in this case, to exercise our discretion to publish these reasons: R. v. N.H., 2021 ONCA 636, 158 O.R. (3d) 294.

7Section 276(1) of the Criminal Code has been amended since the application was brought. It was assented to on June 21, 2019, and the first application was heard in October 2019. This change removed the reference to an offence under s. 159, which has since been repealed. The change is not relevant to this case. The current version of s. 276(1) reads:

276 (1) In proceedings in respect of an offence under section 151, 152, 153, 153.1 or 155, subsection 160(2) or (3) or section 170, 171, 172, 173, 271, 272 or 273, evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant

(a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or

(b) is less worthy of belief.