COURT OF APPEAL FOR ONTARIO
Lauwers, George and Gomery JJ.A.
BETWEEN
His Majesty the King
Respondent
and
J.O.P.
Appellant
Counsel: Mark C. Halfyard and Lindsay Board, for the appellant James Clark, for the respondent
Heard: February 4, 2025
On appeal from the conviction entered by Justice Riun Shandler of the Ontario Court of Justice on June 19, 2023.
1The appellant was convicted of sexually assaulting the complainant, M.S., just past midnight on March 1st, 2021.
2The appellant was 21 and the complainant 18 years old at the time. They had just begun dating. According to the complainant, she got dressed and called an Uber at the end of their second date at the appellant’s home, but the appellant physically prevented her from leaving and ignored her requests to leave. She testified that he then forced her down to the ground, pulled down her pants, and penetrated her vaginally from behind. The trial judge accepted the complainant’s evidence. He did not believe the appellant’s evidence that he sought and received express consent for “spontaneous floor sex” nor was he left with reasonable doubt. He concluded that the appellant never asked the complainant if she wanted to have sex but simply forced himself upon her.
3The appellant contends that the trial judge made four reversible errors. First, he refused the appellant’s pre-trial application, brought under ss. 276(2) and 278.93 of the Criminal Code, R.S.C. 1985, c. C-46, to adduce evidence of prior sexual activity between the appellant and complainant. Second, he made mistakes in assessing the appellant’s credibility. Third, he applied an objective test to determine whether the appellant had the required mens rea for sexual assault. Fourth, he erred in declining to rule on whether the appellant had waived solicitor-client privilege in the context of a post-trial application to reopen evidence.
4I do not agree that the trial judge made any reversible error and, for the reasons that follow, I would dismiss the appeal.
(1) The Crown’s application for an in camera hearing
5Crown counsel asked this court to hear submissions with respect to the trial judge’s dismissal of the appellant’s s. 276(2) application in camera. The Crown took the position that the complainant’s privacy and dignity interests outweighed the interest in a public hearing. The appellant did not formally contest the request but expressed reservations about it. After hearing argument on the issue, the court declined to order an in camera hearing.
6Sections 278.94 and 278.95 of the Criminal Code establish exceptions to the open court principle applicable to hearings at first instance on the admissibility of evidence under s. 276(2) and s. 278.92(2). The purpose of these exceptions is the protection of the dignity and privacy of complainants in sexual offence prosecutions and the exclusion of irrelevant evidence advanced for an improper purpose. These exceptions do not govern appeal hearings: R. v. T.W.W., 2024 SCC 19, 437 C.C.C. (3d) 1, at paras. 64-67. However, an appellate court’s implied jurisdiction to control its own processes includes the discretionary ability to make orders for in camera hearings, sealing orders and publication bans: T.W.W., at para. 68. This discretion “should be exercised in a way that maintains court openness as far as practicable while protecting the complainant’s personal dignity and privacy and the accused’s fair trial rights”: T.W.W., at para. 4.
7Orders by appellate courts compromising the open court principle remain exceptional and the discretion to limit public access to court hearings should not be exercised lightly: T.W.W., at paras. 69 and 71-73. The criteria set out in Sherman Estate v. Donovan, 2021 SCC 25, [2021] 2 S.C.R. 75, at para. 38, apply:
In order to succeed, the person asking a court to exercise discretion in a way that limits the open court presumption must establish that:
(1) court openness poses a serious risk to an important public interest;
(2) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and,
(3) as a matter of proportionality, the benefits of the order outweigh its negative effects.
Only where all three of these prerequisites have been met can a discretionary limit on openness … properly be ordered.
8The onus of persuading the court that it should limit the open court presumption accordingly rests with the moving party: T.W.W., at paras. 71-72. Applying these principles in R. v. Reimer, 2024 ONCA 588, leave to appeal requested, [2024] S.C.C.A. No. 397, this court denied a request by the Crown for an order banning any publication of its decision on the merits of the appeal.2
9In camera hearings “are greater incursions on court openness compared to publication bans, because they more absolutely limit public discourse on the subject information by preventing access to the protected material entirely”: T.W.W., at para. 75. The same interests animating the limitations on the open court principle prescribed by the Criminal Code will nonetheless justify an appeal hearing that excludes the public in some instances. In R. v. D.V., 2025 ONCA 67, for example, this court ordered an in camera hearing of a motion to adduce fresh evidence of a complainant’s prior sexual activity. In that case, the argument for excluding the public was cogent because the admissibility of the proposed evidence had not been considered at first instance and the parties agreed that the order was needed to safeguard against any inadvertent public disclosure of the complainant’s sexual history.
10D.V. does not, however, establish an invariable or blanket rule. Requests for in camera hearings before this court are adjudicated on a case-by-case basis, weighing competing considerations in the context of the issues and facts in the case on appeal.
11Preserving a complainant’s privacy and dignity is a critical interest in every sexual assault proceeding. This interest could be at risk here as the result of the open court presumption. The first leg of the Sherman Estate test is accordingly met. Applying the second part of the test, however, the Crown did not persuade the court that an in camera hearing was necessary to prevent this risk from materializing. There are alternative means to address it. Submissions could be made on the appeal of the s. 276(2) application decision without referring in detail to the complainant’s prior sexual history. As well, the publication ban already in effect prohibits the identification of the complainant by name or personal information.
12In these circumstances, the need for an exceptional order excluding the public from the appeal hearing was not made out.
(2) The trial judge did not commit a reversible error in dismissing the s. 276(2) application
13In the s. 276(2) application, the appellant sought an order to admit evidence that he and the complainant had consensual sex at the end of their first date in the early hours of February 28, 2021, about 24 hours before the alleged sexual assault. The appellant argued that events on the two evenings paralleled each other and that the proposed evidence was relevant to assessing whether the complainant consented to the sexual activity giving rise to the assault charge.
14The trial judge dismissed the appellant’s application on the basis that the proposed evidence was not relevant or admissible for a proper purpose. The appellant contends that this was a reversible error, as the proposed evidence was “probative to rebut the inference that the circumstances surrounding the alleged assault—the rushed and spontaneous nature of the intercourse—supported [the complainant’s] claim of non-consent”.
15The appellant did not claim that he had an honest but mistaken belief in the complainant’s consent on March 1st based on her consent in similar circumstances the night before. He testified that the complainant explicitly agreed to have sex with him on March 1st. She denied this. The appellant’s proposed basis for relevance was that the evidence of sexual activity at the end of their first date could raise a doubt about the complainant’s denial that she consented to sex at the end of their second date. Like the trial judge, I find that the appellant’s argument comes “perilously close” to suggesting that the complainant was more likely to have consented to have sex with him because she was sexually active and had agreed to have sex with him before, an argument specifically prohibited under s. 276 of the Criminal Code.
16The exclusion of the proposed evidence did not result in an unfair trial. The Crown did not argue that it was inherently unlikely that the complainant would have agreed to have sex with the appellant on March 1st based on circumstances that were also present when they saw each other on the night of February 27 to 28. The Crown instead relied on the complainant’s evidence about circumstances that were unique to March 1st: that she was anxious to leave because she wanted to buy emergency contraception before the drugstore closed and that she repeatedly asked to leave but the appellant physically prevented her from doing so. The trial judge found this evidence credible and reliable.
17I would reject this ground of appeal.
(3) The trial judge did not make any palpable and overriding error in assessing the appellant’s credibility
18The appellant argues that the trial judge made three reversible errors in assessing his credibility.
19First, the appellant contends that the trial judge mistakenly treated a “slip of the tongue” during his testimony as an admission that he sexually assaulted the complainant.
20I do not agree that the trial judge approached the evidence as the appellant suggests. After being asked about his understanding of the concept of prior consent, the appellant gave inconsistent answers about whether he had ever had non-consensual sexual contact with the complainant. He initially said “yes”, he had but, when asked again, said “no”. In his reasons, the trial judge referred to this testimony as follows:
[The appellant’s] admission to having non-consensual sex with M.S. cannot be explained away on the basis that he was nervous and gave a wrong answer. He was clearly having difficulty processing the phrase “non-consensual”, in my view, reflecting his own lack of understanding of that term. As I already noted, and as M.S. testified to, [the appellant] in his own mind may not have appreciated at the time that the sex was non-consensual but that was a result of his own wilful blindness.
21Although the trial judge described the appellant’s initial response to the question about non-consensual sex as an “admission”, he did not rely on it for this purpose. Had he done so, he would not have needed to review the rest of the appellant’s evidence at length and explain why he did not find it credible. The trial judge referred to this part of the appellant’s testimony to explain why he concluded that the appellant did not really understand that he needed to obtain the complainant’s consent to engage in sexual activity. This supported a finding that the appellant believed “that ‘spontaneous’ sex after convincing someone to give up resistance amounts to consensual sex”, which was consistent with the complainant’s evidence that the appellant ignored her protestations and that she never consented, but eventually “simply resigned herself” to the appellant having his way.
22Second, the appellant contends that the trial judge erred in finding that the appellant’s characterization of what occurred was inconsistent with his assertion that the complainant consented.
23I again disagree with the appellant’s characterization of the trial judge’s approach to the evidence. The appellant testified that he and the complainant had “spontaneous floor sex”, but later attempted to qualify this statement by saying that “spontaneous” was “probably the wrong word to use.” The trial judge did not accept the appellant’s attempt to qualify his initial description of what occurred. He found that the appellant “aptly characterized the sexual act he had just had with M.S. as ‘spontaneous’ because it was unplanned and he neither asked for nor received consent.” This finding was open to the trial judge based on his assessment of the appellant’s overall credibility and on the other evidence before him.
24Third, the appellant argues that the trial judge made a legal error by relying on evidence of the appellant’s unflattering comments about the complainant to another girlfriend, and his cheating and his lying to both of them, as propensity evidence.
25The trial judge did not use this evidence as propensity evidence. He considered it only in assessing the credibility of the appellant’s assertion that he “love[s] women” and “would never” treat them disrespectfully. The trial judge explicitly stated that he did “not rely on this evidence for the proposition that because [the appellant] treated [the complainant and his other girlfriend] badly, he is the type of person who would commit a sexual assault.”
26The trial judge’s reasons for rejecting the appellant’s testimony are not tainted by any reversible error. I would therefore reject this ground of appeal.
The trial judge did not err by applying an objective test to find that the appellant had the requisite mens rea for sexual assault
27To prove the mens rea required for sexual assault, the Crown had to show that the appellant intended to touch the complainant, and that he knew that she did not consent, or was reckless or wilfully blind to her lack of consent: R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at paras. 87-90. Like knowledge, recklessness and wilful blindness are subjective standards that require examining “what the accused subjectively knew or understood at the time of the sexual activity”: R. v. A.B., 2024 ONCA 446, 173 O.R. (3d) 104, at para. 35. The appellant contends that the trial judge erred by considering not what the appellant understood about the complainant’s state of mind but what a reasonable person would have known in the circumstances, effectively applying an objective standard.
28I disagree. The trial judge’s treatment of the evidence squarely focused on determining what the appellant knew at the time of the incident, which, as the trial judge concluded, was that the complainant did not consent. The trial judge found that the appellant’s account of having sought and obtained the complainant’s verbal agreement to sex on March 1st was “simply manufactured”. Given this finding, the trial judge did not have to consider whether the appellant was reckless or wilfully blind. His reference to the appellant having been “wilfully blind” was in the context of his discussion of the appellant’s disregard for having to seek and obtain consent. It did not refer to the legal standard for finding intent in the absence of actual knowledge.
29I would accordingly dismiss this ground of appeal.
(4) The trial judge did not err in his decision on the appellant’s application to re-open the trial
30After the appellant was convicted, he filed an application to re-open the trial on the basis that he was impaired on the first day he testified. He filed an affidavit stating that he had ingested drugs and alcohol the night before he took the stand on April 19, 2021, as well as Lorazepam, an anti-anxiety medication, throughout that day. He said that he disclosed having taken Lorazepam to his lead trial lawyer, but only after the Crown finished cross-examining him two days later.3 Trial counsel swore an affidavit confirming that the appellant seemed “off” the first day he testified and that he disclosed taking Lorazepam to her. She explained the strategic reasons why she did not raise the issue with the judge immediately.
31Prior to the hearing of the application, the Crown sought disclosure of trial counsel’s file. The appellant refused. He took the position that he had not waived solicitor-client privilege “at large” or over the entire file, but only for the limited purpose of allowing his lawyer to answer questions about specific statements in their affidavits. The parties were unable to resolve their disagreement on this issue and asked the trial judge for directions. The trial judge declined to order production of trial counsel’s file but held that, if it was not produced, it was open to the Crown to argue about the weight that should be given to the affidavits filed by the appellant and to ask the court to draw an adverse inference based on the refusal to produce.
32The appellant contends that the trial judge’s decision “effectively deprived [him] of a meaningful opportunity to apply to the court to re-open and request a mistrial”. This argument is without merit.
33The appellant abandoned the application to re-open the trial after receiving the trial judge’s decision. His inability to raise the issue of his alleged impairment was not the result of the trial judge’s failure to accept his claim of a partial waiver of privilege but rather this strategic decision. The trial judge’s decision did not pre-determine the outcome of the application. The appellant’s affidavit attached a medical opinion that the quantity of drugs he ingested prior to and during his testimony would have impaired him. Had the appellant proceeded with the application to re-open, he could have relied on this evidence.
34Having elected not to proceed with his application, the appellant cannot complain based on speculation that it might have been unfairly dismissed. I would accordingly not grant the appeal on this ground.
Disposition
35For these reasons, I would dismiss the appeal.
Released: February 21, 2025 “P.D.L.”
“S. Gomery J.A.”
“I agree. P. Lauwers J.A.”
“I agree. J. George J.A.”
Footnotes
- This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.
- The court’s order is subject to a partial stay pending the Crown’s application for leave to appeal: R. v. Reimer, 2024 ONCA 641, 173 O.R. (3d) 401. The stay order allows the court’s substantive decision to be published only with a redaction of two paragraphs setting out the prior sexual activity to which s. 276 would apply; seals the Crown’s original motion; and requires it to file a redacted motion record.
- The appellant’s direct examination took place on April 19, 2021, and on that day the Crown started but did not complete his cross-examination. The Crown resumed and completed its cross-examination of the appellant two days later, on April 21.