Court of Appeal for Ontario
Date: 2025-03-21
Docket: COA-23-CR-0279
Coram: Tulloch C.J.O., MacPherson and Monahan JJ.A.
Between:
His Majesty the King (Respondent)
and
Samer Al-Akhali (Appellant)
Appearances:
Michelle Psutka, for the appellant
Joanne Stuart, for the respondent
Heard: October 4, 2024
On appeal from the conviction entered on July 25, 2022, and the sentence imposed on December 20, 2022, by Justice Jacqueline Loignon of the Ontario Court of Justice.
A. Overview
1The appellant appeals his conviction and sentence for sexually assaulting the complainant. At trial, she testified that, less than 15 minutes after meeting her for the first time in the diner where she was having breakfast, he followed her to her nearby hotel room, grabbed her, disregarded her screams and attempts to fight him off, forcibly had sexual intercourse with her without the use of a condom, and ejaculated. She said that she never would have agreed to unprotected sex with a stranger without discussing condom use. The appellant also testified in his defence, but claimed that they went from kissing to unprotected sex without any discussion, and that he believed she consented. The trial judge rejected his defence of honest but mistaken belief in communicated consent (“mistaken belief in consent”), disbelieved his evidence, believed the complainant, convicted him, and sentenced him to five years in the penitentiary.
2I would dismiss the conviction appeal. Parliament requires those invoking the mistaken belief in consent defence to take due care to prevent non-consensual sexual contact. Due care means the steps that a reasonable person, guided by the need to respect others’ dignity, would take to ensure that the complainant communicated agreement. The trial judge correctly determined that the appellant missed that mark. Even on his own account, he did nothing other than rely on her conduct. But the kissing and touching that he alleged could not have clearly communicated her consent to unprotected sex. A reasonable person in those circumstances would have taken a further simple step—ask for consent.
3The appellant’s other challenges to his conviction also fail. The Crown provided fair notice of its theory that the appellant’s evidence contradicted the other evidence and was internally inconsistent, giving the appellant a meaningful opportunity to respond to the apparent contradictions and inconsistencies that the trial judge ultimately found. Any mistake about whether he paid for the complainant’s meal at the diner where they met was immaterial. As well, the trial judge reasonably believed the complainant’s testimony that she would have insisted on the use of a condom. Finally, the trial judge appropriately found that the complainant’s state of shock after the appellant fled and the written statement she gave after speaking with police on the night of the assault supported her testimony.
4As for the sentence appeal, I agree with the trial judge that a penitentiary sentence was necessary to punish and denounce the appellant’s violent actions and the devastating harm he inflicted on the complainant. I also agree with the trial judge’s conclusion that the conditional sentence the appellant originally sought was not proportionate to the gravity of his offence or his substantial degree of moral blameworthiness.
5However, I would allow the sentence appeal because, in setting the length of the penitentiary sentence imposed, the trial judge overlooked the principles that govern sentencing youthful adult first-time offenders such as the appellant, who had recently turned twenty at the time of the offence. When sentencing a youthful first-time offender to the penitentiary, the principles of rehabilitation and restraint are given greater weight than denunciation and general deterrence, though the latter remain relevant. The balance between these principles is shaped by youthfulness, prospects for rehabilitation, and the overarching goal of achieving a just and proportionate sentence. This was a factor that was overlooked in this case, and as such, it was an error in principle. The principle of rehabilitation is central when dealing with youthful first-time offenders, as sentencing should encourage the individual’s reintegration into society, through access to rehabilitative programs.
6The principle of restraint was also a relevant principle in this case that should have been factored into the sentencing process as originally submitted by the Crown, but was overlooked in the sentencing decision. Subsections 718.2 (d) and (e) of the Criminal Code, R.S.C. 1985, c. C-46, codify the principle of restraint, and direct courts to consider the least restrictive sentence necessary to achieve the objectives of sentencing, especially in cases where a federal penitentiary is being considered as a measure of last resort, and particularly for youthful first-time offenders. In cases such as this, where the crime is a serious and violent one, denunciation and general deterrence increase in importance, but cannot displace the primacy of rehabilitation, which remains a paramount objective.
7Accordingly, I would substitute a three-year sentence, consistent with the Crown’s position at sentencing. This sentence punishes and denounces the appellant’s violent and wrongful actions and the devastating consequences he inflicted while also accounting, as we must, for the principles that the trial judge overlooked.
B. Background
8The police charged the appellant with sexual assault after the complainant alleged that he forcibly had unprotected, non-consensual sex with her, less than 15 minutes after meeting her for the first time. The appellant conceded the intercourse, so the trial focused on the issues of consent and the appellant’s knowledge of lack of consent.
9The underlying facts are as follows. The appellant and the complainant were strangers to each other. On the night in question, the complainant was having breakfast at a diner in the early hours of the morning after visiting friends before starting a new job in another city. The appellant, who was twenty years old at the time, was at the diner with a friend. He approached the complainant and engaged her in a conversation shortly after 2:00 a.m. As she was ready to pay her bill and leave the diner, she was unable to locate her wallet. According to her, she decided to walk back to her hotel room to retrieve it with the intention of returning to the diner to pay her bill. According to the appellant, he paid her bill. When she left several minutes later, he left his friend and followed her to her nearby hotel, and she allowed him into her room. The appellant claimed that they were flirting as they walked. However, the complainant disputed this, and said that she was just trying to locate her wallet to pay for her food. They both agreed that once she arrived in her room, she commenced looking for her wallet.
10The complainant testified that the appellant grabbed her and sexually assaulted her after they entered the room. Despite her screams and attempts to fight him off, he penetrated her vagina with his penis without a condom and ejaculated. After he fled the room, the complainant called security to report that she had been sexually assaulted. She described being in a state of shock, and the security guard testified that her voice sounded “shaky.” She suffered bruises to both her arms, the tops of her feet, and her right shin and thumb, as well as a welt on her thigh and scratches to her left side. She gave a written statement to police that night describing the sexual assault. The trial judge admitted the statement into evidence as a past recollection recorded because, by the time of trial, the complainant could no longer remember the events after the assault began.
11At trial, the appellant testified that he approached the complainant while she was putting on perfume in front of the dresser mirror in the hotel room. According to him, they began kissing and touching and took off their clothes before he commenced unprotected sex with her, all without any discussion. After he ejaculated, she became enraged and began to kick, punch, and throw objects at him. He grabbed her wrists, pushed her onto the bed, and fled. He claimed that he honestly, but mistakenly, believed that the complainant had communicated her consent.
12The Crown argued that the appellant’s evidence was “nonsensical” and “at odds with the other evidence.” The Crown pointed to some specific examples, including that the surveillance videos entered at trial did not show the appellant paying the complainant’s bill or support his claim that he and the complainant were flirting as they entered the hotel.
13The trial judge rejected the appellant’s mistaken belief in consent defence and his testimony. She ruled that his defence had no air of reality because, on his own account, he never verbally asked the complainant if she consented. She next found that his testimony did not raise a reasonable doubt because it was internally inconsistent, and the other evidence contradicted it. She agreed with the Crown’s two examples of contradictions. She also offered others, including that the appellant’s testimony did not explain the complainant’s injuries, and that the hotel room photos did not show a dresser or mirror near the bed as the appellant testified.
14The trial judge proceeded to convict the appellant because she believed the complainant. After approaching the complainant’s testimony with caution due to her memory challenges, she accepted it because it was forthright, internally coherent, and consistent with the video and photo evidence. As well, she found that the complainant’s state of shock when she reported the assault to security and her testimony that she would have discussed condom use before having sexual intercourse with a stranger supported her evidence. For all these reasons, the trial judge concluded that the complainant did not consent and that the appellant, who heard her say “no” and persisted despite her evident resistance, knew that.
15The sentencing hearing was contested. The appellant, who was by then in his early twenties, sought a conditional sentence of house arrest. He pointed to his youth, good employment, the emotional and financial support he provided to his sister, and the consequences of separating him from his partner and the child they were then expecting. The Crown sought a three-year penitentiary sentence. It filed a victim impact statement in which the complainant described the grave physical, emotional, psychological, relational, financial, and professional damage that the appellant’s sexual assault inflicted on her.
16At the sentencing hearing, the trial judge asked why the Crown was not seeking a five-year sentence. The Crown responded that it was emphasizing restraint and rehabilitation because the appellant was a youthful first-time offender with an otherwise prosocial lifestyle.
17The trial judge imposed a five-year sentence, at the high end of the three-to-five-year range for penetrative sexual assault from R. v. A.J.K., 2022 ONCA 487. She emphasized the long-lasting physical injuries and the emotional, psychological, and financial devastation that the appellant inflicted on the complainant. As well, she found that his degree of moral responsibility was very high and that he intentionally exploited the complainant’s trust. She concluded that the appellant’s youth and lack of a criminal record were only “modest” considerations. While she referenced the principles of restraint and rehabilitation, she reasoned that deterrence and denunciation eclipsed them, and did not mention either principle later in her reasons when she set the sentence.
C. Analysis
(1) The Conviction Appeal Fails
18The appellant seeks a new trial, arguing that the trial judge incorrectly rejected his mistaken belief in consent defence, made procedurally unfair findings, misapprehended the evidence, and made errors when assessing the complainant’s credibility and reliability. I disagree. The trial judge correctly rejected the mistaken belief in consent defence and fairly and reasonably assessed the evidence. I would thus dismiss the conviction appeal.
(a) The Appellant’s Mistaken Belief in Consent Defence Fails
19The trial judge ruled that the appellant’s defence of mistaken belief in consent had no air of reality. I reject the appellant’s challenge to that ruling. The complainant’s alleged non-verbal conduct could not have unambiguously communicated consent. Thus, no reasonable judge or jury could have found that the appellant took reasonable steps to ascertain consent.
(i) The Defence’s Governing Principles
20The defence of honest but mistaken belief in communicated consent has two requirements. The accused must (1) honestly believe that the complainant communicated consent and (2) take reasonable steps in the circumstances known to the accused at the time to ascertain consent. If the accused shows an air of reality to both requirements, then the defence is in play and the Crown must negate it by proving beyond a reasonable doubt that either requirement is lacking. See R. v. Barton, 2019 SCC 33, at paras. 121-123. If the Crown negates the defence, then the accused can no longer claim that he believed that the complainant communicated consent. The Crown will then usually have “little difficulty” proving that the accused knew that the complainant did not consent or was wilfully blind or reckless to this risk. See R. v. Degale, 2024 ONCA 720, at para. 18.
21The first requirement means that the accused must subjectively accept as true that the complainant said “yes” to the sexual activity through her words and/or actions. Merely suspecting, guessing, supposing, or hoping that this might be true is insufficient. See Barton, at para. 90; Ontario (Environment and Climate Change) v. Geil, 2018 ONCA 1030, at para. 55. Rather, the defence fails if the accused was either aware of a risk that the complainant did not communicate consent or suspected that such a risk might exist, but deliberately suppressed the suspicion and chose not to inquire further. Those are the blameworthy mental states of recklessness and wilful blindness, not honest belief. See R. v. Sansregret, [1985] 1 S.C.R. 570, at pp. 581-588; R. v. Ewanchuk, [1999] 1 S.C.R. 330, at para. 52; and Criminal Code, s. 273.2(a)(ii). The defence also fails if it rests on a mistake of law, such as implied consent, broad advance consent, or propensity to consent. See Barton, at paras. 96-100.
22In 1992, Parliament added the second requirement, that the accused must “take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.” See Criminal Code, s. 273.2(b). Parliament intervened to correct the old law, which allowed the accused’s subjective belief that the complainant consented to exculpate, no matter how unreasonable and even if the accused did nothing to ascertain consent. In Parliament’s view, requiring everyone to take proper care to ensure that their intended sexual partner communicated consent would better protect against and prevent non-consensual sexual activity. Parliament determined that breaching this straightforward minimum ethical standard is not morally innocent. Instead, it is wrongful, grossly irresponsible, and an affront to the basic rights, dignity, and equality of others. See Barton, at paras. 105-109; R. v. Malcolm, 2000 MBCA 77, at paras. 13-14, leave to appeal refused, [2000] S.C.C.A. No. 473; and R. v. Darrach, 2000 SCC 46.
23Under the two-part reasonable steps test, judges and juries first determine the circumstances that the accused subjectively knew. Next, they decide if a reasonable person knowing those circumstances would have taken more steps than the accused took to ascertain communicated consent to the sexual activity. The defence fails if the answer to this second question is yes and succeeds if the answer is no or there is reasonable doubt. See R. v. Alboukhari, 2013 ONCA 581, at para. 41, citing Malcolm, at para. 24; Barton, at para. 104.
24Six key principles govern the application of this test.
25First, Parliament’s purpose of protecting people from and preventing non-consensual sexual activity drives the reasonable steps assessment. This principle favours greater care and requiring more, not fewer, steps. It ensures that the reasonable person is “guided by the need to protect and preserve every person’s bodily integrity, sexual autonomy, and human dignity.” See Barton, at para. 109. The reasonable person also recognizes that taking further steps to ascertain consent is an easy and straightforward way to respect others and avoid gravely wronging and harming them. See R. v. T.S., [1999] O.J. No. 268 (Gen. Div.), at para. 153.
26Second, the reasonable person would take more steps if they did not believe that the complainant had communicated consent or if they were aware of a risk of non-consent. See R. v. Cornejo, at para. 34, leave to appeal refused, [2004] S.C.C.A. No. 32. This is so because reasonable steps invariably “constitute reasonable grounds” to believe in communicated consent. See Barton, at para. 113. Conversely, “a step … that does not in fact reasonably support a belief … cannot constitute a reasonable step.” See R. v. Morrison, 2019 SCC 15, para. 107. This principle guards against making reasonable steps a “lip service” or box-checking exercise divorced from its goal of ascertaining communicated consent. See Barton, at para. 109; see also Morrison, at paras. 106-108.
27We must reconcile Darrach’s statement, at pp. 24-25, that a “mistaken belief [need not] be reasonable” with Barton and Morrison. Darrach could not have meant that steps that do not support a reasonable belief in communicated consent in the known circumstances could be reasonable. As Michael Plaxton writes in “Sexual Assault’s Strangely Intractable Fault Problem” (2022) 70 Crim. L.Q. 33, at p. 69, fn. 147, it is not obvious that such a hypothetical scenario is even possible. Even if it were, that reading of Darrach would contradict Barton and Morrison. Instead, following the Supreme Court’s guidance on the interpretation of intersecting precedents in R. v. Kirkpatrick, 2022 SCC 33, para. 94, we must read Darrach harmoniously with Barton and Morrison. Taking that approach, Darrach must have been referring to unreasonable mistakes about the known circumstances. As Darrach emphasized, s. 273.2(b) personalizes the objective test to the circumstances that the accused “actually knew” even if the accused “ought to have known” other circumstances. See at p. 24. Thus, accused people who made an unreasonable mistake by failing to perceive certain circumstances could be acquitted if they honestly believed that the complainant communicated consent, and took the steps that a reasonable person, knowing only the circumstances they knew, would take to ascertain consent.
28Third, the reasonable person would take greater care if the accused knows circumstances that call out for caution. See Cornejo, at paras. 23-30. For instance, greater care is needed if:
- The accused intends to engage in an invasive and/or risky sexual activity, like unprotected sexual intercourse (Barton, at para. 108; R. v. Sanclemente, 2021 ONCA 906, para. 100);
- The accused does not know, is unfamiliar with, and/or has no sexual experience with the complainant (Barton, at para. 108; T.S., at para. 158);
- The accused knows that the complainant rejected the accused’s advances before and/or during the encounter (Cornejo, at paras. 23-34);
- The accused knows that the complainant is or appears to be intoxicated and/or vulnerable – greater care is needed the more intoxicated and/or vulnerable the complainant appears (T.S., at para. 159; Manning & Sankoff, Manning, Mewett & Sankoff: Criminal Law, 5th ed., at para. 21.106);
- The accused knows that the complainant is or appears to be unconscious, asleep, or passed out – an unconscious person cannot provide consent (R. v. G.F., 2021 SCC 20, paras. 44, 56; R. v. Achuil, 2019 ABCA 299, para. 14).
29Fourth, while people can communicate consent through actions as well as words, non-verbal conduct often lacks the clarity of a simple, verbal “yes” or “no.” It can be easy to misunderstand or make unfounded assumptions about what another person is trying to communicate through actions unaccompanied by words, especially if people are unfamiliar with each other. Thus, unless those actions unambiguously communicate consent, the reasonable person would take more steps. See Barton, at para. 107; Cornejo, at para. 21; and T.S., at paras. 154, 158.
30Fifth, the reasonable person would take steps to ascertain consent to each sexual act, a requirement which may, depending on the circumstances, require taking additional steps where there are multiple acts. See Sanclemente, at paras. 97, 99. This precludes a blanket approach that equates consent to one sexual act with consent to any and all. See G.F., at para. 63. Accordingly, confirming that another person has communicated consent to kissing and undressing is not, without more, reasonable steps to ascertain consent to sexual intercourse. See R. v. Gagnon, 2018 CMAC 1, paras. 51-54, aff’d 2018 SCC 41.
31Sixth, reasonable steps cannot be based on a mistake of law. Thus, steps to ascertain communicated consent that are met with silence, passivity, or ambiguous conduct are not reasonable. Neither is “test[ing] the waters” by engaging in non-consensual sexual touching. See Barton, at para. 107.
(ii) The Defence Had No Air of Reality
32At the air of reality stage, the trial judge had to determine whether, assuming the appellant’s evidence was true and after considering all the evidence, a reasonable trier of fact could find that the appellant took reasonable steps to ascertain that the complainant communicated consent to each sexual act. This decision is reviewed for correctness. See Sanclemente, at paras. 84, 97; R. v. Appleton, 2024 ONCA 329, para. 121.
33The trial judge correctly ruled that the defence failed this test. As she reasoned, the circumstances the appellant knew “called out for inquiry” and heightened care. He initiated an invasive and risky sexual activity, unprotected sexual intercourse, less than 15 minutes after meeting the complainant for the first time. He could not rely on any verbal expressions of consent because, on his own account, there were none. Because they had just met, no prior discussions could have led him to believe that she communicated consent to unprotected sexual intercourse by kissing, touching, and removing clothes, as he claimed she did. See Barton, at para. 93. That conduct did not unambiguously communicate consent to this act, and neither did the complainant’s purported non-resistance, silence, or passivity. See Barton, at para. 107; Gagnon, at paras. 51-54; and R. v. I.A.D., 2021 ONCA 110, para. 19. The appellant’s observation of this conduct was not a reasonable step because it did not support a reasonable belief in consent to unprotected sexual intercourse. See Morrison, at para. 109.
34For all these reasons, a reasonable person knowing what the appellant knew would have recognized the risk of non-consent and taken more steps to confirm communicated consent. Guided by the importance of respecting the complainant’s human dignity, the reasonable person could have taken a further easy and simple step: ask for consent. Doing so could have ensured clarity, dispelled unfounded assumptions, and prevented the risk of non-consensual sexual activity—the very risk that Parliament required the appellant to take reasonable steps to prevent.
(b) The Trial Judge Properly Disbelieved the Appellant
35After rejecting the appellant’s mistaken belief in consent defence, the trial judge disbelieved him because his testimony contradicted the other evidence and was internally inconsistent. He argues that she made procedurally unfair findings and misapprehended the video evidence. I disagree. The trial judge fairly disbelieved his evidence, and her lone misapprehension of the video evidence has no impact because she gave many other, more important reasons for rejecting his evidence.
(i) The Trial Judge Respected Procedural Fairness
36The appellant first argues that the trial judge unfairly surprised him by finding contradictions between his testimony and other evidence, and internal inconsistencies, of which he had no notice. I disagree.
37As the appellant submits, trial judges must respect the accused’s right to procedural fairness when assessing defence evidence. This right entitles accused persons to notice of and an opportunity to respond to the case against them. The Crown can give notice in submissions, through cross-examination, or by calling evidence. See R. v. Tran, 2023 ONCA 11, paras. 31-32. Trial judges, of course, are not bound by the Crown’s theory. See R. v. Jacobs, 2015 BCCA 83, para. 46. Thus, they may sometimes give notice of potential inconsistencies that the Crown did not raise. See R. v. N.C., 2024 ONCA 239, para. 9.
38Notice is sufficient if it enables accused persons to meaningfully respond to the case against them. This test guards against unfair surprise, ensuring that trial judges cannot reject defence evidence on unexpected, unraised grounds. See Tran, at paras. 31-32, 39; Quebec (Attorney General) v. Canada (National Energy Board), [1994] 1 S.C.R. 159. Thus, providing more detailed notice is prudent. See Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System), [1997] 3 S.C.R. 440, para. 56. It helps increase confidence in the justice system and minimizes the risk that insufficient notice will require reversing convictions and ordering new trials.
39But the need for fair notice is not a straitjacket. Trial judges do not have to give notice that they will “assess the [accused’s] credibility in light of all the evidence, including internal inconsistencies” in the accused’s testimony. See R. v. B.R., 2024 ONCA 424, para. 15. Rather, accused persons reasonably “expect to be judged … on the substance of their evidence.” See R. v. Clarkson, 2023 ABCA 212, para. 15. Further, because offering enough information to meaningfully respond is sufficient, providing every detail is not always needed. See R. v. Nahanee, 2022 SCC 37, para. 45; Syndicat des Employés de Production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879.
40Applying these principles, the appellant received enough notice to meaningfully respond to the apparent contradictions and internal inconsistencies.
41First, the Crown gave sufficient notice of the apparent contradictions with the other evidence. The Crown adduced videos showing the appellant’s interactions with the complainant and his friend, as well as photos of the hotel room and the complainant’s injuries. After the appellant described those interactions, the hotel room, and how the complainant was injured, the Crown argued in closing submissions that his testimony was “at odds with the other evidence.” This put him on notice that the trial judge would be looking for contradictions between his testimony and the other evidence. He could have, but did not, address any apparent contradictions in submissions. See R. v. Griffin, 2023 ONCA 559, para. 55.
42The appellant did not need more details of the apparent contradictions between his testimony and the other evidence to avoid unfair surprise. He knew that the Crown had adduced video and photo evidence concerning the same topics that he testified about. He also should have known that the trial judge was required to evaluate his testimony against that evidence and that she was not bound to the specific examples of contradictions that the Crown raised. He cannot claim to be unfairly surprised that the trial judge faulted him for describing a hotel room dresser and mirror that the hotel room photos did not show, testifying to an altercation with the complainant that could not explain many of the injuries she suffered, or claiming that he made back-and-forth movements between the complainant and his friend that the video evidence did not show. These were all apparent contradictions that the appellant, who should have expected to be judged on the substance of his evidence, should have addressed.
43Because the appellant was not unfairly surprised, Tran does not help him. This court ordered a new trial in Tran to remedy unfair surprise after the trial judge denied the defence the opportunity to address her theory that the accused concocted his evidence by raising it for the first time in her reasons for judgment. The Crown never pursued this theory and there was no evidence of concoction. See at paras. 22-27. Unlike in Tran, the Crown here gave notice of its theory by calling contrary video and photo evidence and arguing in closing submissions that the appellant’s testimony contradicted that evidence. Further, unlike the unexpected concoction theory in Tran, the specific contradictions the trial judge relied on all arose from the Crown’s evidence.
44Second, the appellant also received enough notice to meaningfully respond to the apparent inconsistencies in his evidence. The Crown argued in closing submissions that the complainant’s desire to retrieve her wallet – which the appellant testified she did immediately upon returning to her room – was inconsistent with his testimony that she wanted intimacy with him. The Crown also raised the appellant’s shifting reasons for being out downtown late at night in cross-examination. The Crown did not need to re-address this topic in closing submissions. See Griffin, at para. 55. Finally, the appellant himself put in issue his interactions with his friend and the complainant right before leaving the diner by describing them in different ways in his evidence-in-chief. Neither the Crown nor the trial judge needed to provide additional notice of such apparent “internal inconsistencies contained in the appellant’s [own] narrative.” See B.R., at para. 15.
(ii) The Misapprehension Has No Impact
45The appellant next challenges the trial judge’s finding that he did not pay for the complainant’s juice and meal. He submits that the trial judge misapprehended the video evidence on this point, causing a miscarriage of justice that requires a new trial. I disagree because this minor misapprehension has no impact.
46I accept that the trial judge misapprehended the video evidence. She stated that “[t]hough the [appellant] said that he paid for [the complainant’s] meal and juice, nothing of the sort can be seen.” But the video showed the appellant leaving what appears to be a bill on the counter before exiting the diner. [2] Even if he might have been paying for his own meal as the Crown argues, this evidence could also support a finding that he paid for the complainant’s meal.
47But misapprehensions that are not essential to the trial judge’s credibility assessment do not require a new trial because they could not have affected the outcome. See Alboukhari, at paras. 30, 39. Thus, a misapprehension that only impacts a sole credibility-related finding, especially a less central one, may be insufficient if the trial judge also made more important credibility-related findings that are untainted by error. This is especially true if the tainted finding still has a valid evidentiary basis. See R. v. Choudhary, 2023 ONCA 467, paras. 57-59; R. v. Iamkhong, 2009 ONCA 478, paras. 53-54.
48This misapprehension does not require a new trial because it was not essential to the trial judge’s credibility assessment. Whether the appellant paid for the complainant’s juice and meal is only one of many reasons the trial judge gave for rejecting his evidence. Further, this issue is peripheral, not central. It does not bear directly on whether he sexually assaulted her in her hotel room after they left the diner. Many of the trial judge’s other findings more directly concerned this central issue, including her findings that the complainant was not flirting with the appellant as they walked to her room and that he could not explain her injuries. Finally, other untainted findings support the trial judge’s conclusion that the appellant did not pay for the juice and meal, including that the complainant had already purchased the juice before entering the diner, and that she reached for her wallet immediately after returning to her hotel room. For all these reasons, this misapprehension was minor and could not have affected the outcome.
(c) The Trial Judge Properly Believed the Complainant
49The appellant next argues that the trial judge should not have believed the complainant. In his view, the trial judge improperly relied on evidence of the complainant’s attitudes about sex, misused the complainant’s call to security as a prior consistent statement, and failed to properly assess her written statement.
50I disagree. The appellant fails to challenge the trial judge’s primary conclusion that the complainant’s testimony was forthright, internally coherent, and consistent with the video and photo evidence. He also has not shown that the trial judge’s secondary findings concerning the complainant’s attitudes about sex, the security call, and the written statement were erroneous.
(i) The Sexual Attitude Evidence Was Probative
51The complainant testified that she would not consent to sex with a stranger without first discussing the use of a condom. The trial judge reasonably found that this testimony supported her evidence that she did not consent.
52Complainants sometimes testify that they did not or would not have consented because doing so would be inconsistent with their beliefs, attitudes, practices, and preferences concerning sexual activity. I refer to this as sexual attitude evidence. It is sometimes the “best evidence” of lack of consent because it offers a window into complainants’ subjective state of mind at the time of the sexual activity. See R. v. Diakite, 2023 MBCA 42, para. 21. Even if complainants cannot recall that activity, it is circumstantial evidence that can support inferences that they did not consent or were incapable of consenting. See R. v. Garciacruz, 2015 ONCA 27, para. 69.
53I agree with Professor Lisa Dufraimont that courts must approach this evidence with care while also avoiding myths and stereotypes. See Comment on R. v. Owston (2023), 90 C.R. (7th) 375, at p. 376.
54Care is needed because people do not always do what they say they would have done. For instance, “intoxication can lead people to do things and make choices they would not have made if they were sober.” See R. v. Demong, 2023 SKCA 109, para. 24.
55But courts must also guard against “dangerous speculation, based on stereotypical notions of how drunken, forgetful women are likely to behave.” See R. v. Esau, [1997] 2 S.C.R. 777, para. 95, per McLachlin J. (dissenting, but not on this point). Courts neither presume that intoxicated people consented nor assume that they are promiscuous, willing to have sex anywhere with anyone, to blame for harm they suffer, or more likely to lie about being sexually assaulted. See R. v. Seaboyer, [1991] 2 S.C.R. 577, at pp. 652-653, per L’Heureux-Dubé J. (dissenting, but not on this point); R. v. Capewell, 2020 BCCA 82, para. 50, leave to appeal refused, [2020] S.C.C.A. No. 125; and R. v. McKnight, 2022 ABCA 251, paras. 141-142, leave to appeal refused, [2022] S.C.C.A. No. 341.
56Courts can achieve both goals by considering all the evidence and applying credibility and reliability assessment principles. See R. v. Al-Rawi, 2018 NSCA 10, para. 71. Sexual attitude evidence thus gains force if other evidence confirms it and loses force if other evidence contradicts it. See R. v. Le Goff, 2022 ONSC 609, para. 175. Courts can also rely on reason and logic to assess this evidence. See R. v. Kruk, 2024 SCC 7, para. 72; R. v. J.R., paras. 38-39, aff’d 2008 ONCA 200.
57The trial judge properly applied these principles to the sexual attitude evidence. She found that the complainant was articulate, forthright, and coherent, and that it was logical for her to discuss preventing the risks of pregnancy and sexually transmitted infections before sex. She further found that the appellant’s testimony that he and the complainant never discussed condom use supported the complainant’s testimony that she did not consent. This accords with J.R.’s reasoning that, where a complainant would have insisted on the use of a condom, unprotected intercourse is “powerful” evidence of non-consent. See at para. 38. Also, as the appellant acknowledges, his evidence that the complainant became angry when he ejaculated supports her testimony that she would not have consented without discussing the use of a condom. See R. v. Olotu, 2016 SKCA 84, para. 61, aff’d 2017 SCC 11.
58Despite this, the appellant argues that the law barred the trial judge from relying on the complainant’s testimony that she would have discussed condom use to protect her health. He cites Le Goff’s comment that this reason is “not so specific … or so compelling, as to attract a lot of weight.” See at para. 180.
59I disagree. Condom use prevents pregnancy and sexually transmitted infections, risks which are compelling reasons for many people to avoid unprotected sex. Thus, triers of fact may accept a complainant’s testimony that she would reject unprotected sex and insist on condom use for health reasons because doing so is often logical. See Kruk, at para. 72; J.R., at paras. 36, 38-39. Courts should not discount such testimony because it is a common reason to avoid unprotected sex. It is common precisely because it is logical and compelling, factors which may bolster rather than diminish its credibility and reliability. Le Goff’s concern that some people might lie or give unreliable evidence about condom use practices does not justify discounting this testimony either. See at para. 180. This concern, while valid, is not unique to testimony about condom use practices because witnesses can lie or give unreliable evidence about anything. Courts thus address it by applying the principles governing credibility and reliability assessment and the uses and limits of circumstantial evidence, not by presuming testimony to be untrue or unreliable.
60I also disagree with Le Goff’s reasoning that “specific” reasons for declining consent are inherently more weighty than more common or “general” ones. See at paras. 175, 180. While Le Goff was attempting to summarize prior jurisprudence, the case it cites does not support this proposition because it relied heavily on a common reason the complainant offered for declining consent, namely that she would insist on condom use to protect her health. See J.R., at paras. 36, 39. Further, there are compelling reasons not to adopt this view. Complainants can choose not to consent to sex for no reason, or any reason, including common ones. They should not have to offer unique, person-specific reasons or go into exacting detail about their sexual preferences to be believed. That would risk perpetuating the myth that women are presumptively available for sex unless they demonstrate otherwise to others’ satisfaction. See Ewanchuk, at para. 97, per L’Heureux-Dubé J. (concurring).
(ii) The Trial Judge Used the Security Call Appropriately
61The appellant also submits that the trial judge improperly used the complainant’s security call as a prior consistent statement. I disagree. The trial judge did not do so. Instead, she used it as evidence of the complainant’s demeanour after the appellant left the hotel room that supported her testimony that he assaulted her.
62Prior consistent statements and demeanour are different types of evidence. “Prior consistent statements are declarations made by witnesses before they take the stand that are consistent with the testimony they give while on the stand.” See R. v. D.B., 2013 ONCA 578, para. 30. They are inadmissible unless an exception applies because a statement’s mere repetition does not make it more trustworthy. See R. v. D.K., 2020 ONCA 79, paras. 34, 36, leave to appeal refused, [2020] S.C.C.A. No. 87. In contrast, demeanour is the “observable, physical appearance and presentation [of a person], thought to reveal their attitude and emotional state.” See David M. Paciocco, “Simply Complex: Applying the Law of ‘Post-Offence Conduct’ Evidence” (2016) 63 Crim. L.Q. 275, at p. 297. Demeanour includes tone of voice, manner of speaking, body language, facial expressions, eye movements, and other actions and forms of non-verbal communication that reveal attitudes or emotions. See R. v. N.S., 2010 ONCA 670, paras. 55, 57, aff’d 2012 SCC 72.
63Complainants’ demeanour shortly after an alleged sexual assault is circumstantial evidence that can support their testimony. Their visible distress, panic, fear, or emotional devastation can support an inference that they appear and act this way because someone just assaulted them. This evidence gains force if it is more consistent with non-consent than consent. See R. v. Rose, 2021 ONCA 408, paras. 22-26; A.J.K., at para. 43.
64Sometimes prior consistent statements and demeanour evidence come bundled together. For instance, in R. v. Mugabo, 2017 ONCA 323, para. 25, the complainant, shortly after the alleged sexual assault and while visibly upset and crying, shouted that the accused assaulted her. Her declaration concerning the alleged assault was a prior consistent statement whose mere repetition did not make it more trustworthy. See D.K., at para. 35. But her emotional state and loud tone of voice was demeanour evidence that was admissible to show that she was emotionally devastated because the accused had just sexually assaulted her. See Mugabo, at para. 25. In these cases, judges should explain whether they are using evidence as demeanour or a prior consistent statement, and, if the latter, why one or more exceptions to the rule against prior consistent statements apply.
65The trial judge complied with this guidance. The security call contained a prior consistent statement that the appellant sexually assaulted the complainant. But it was also demeanour evidence because, as the security guard testified, the complainant sounded “shaky” and different from previous interactions. Citing cases on demeanour, the trial judge explained that she used the call for this purpose, to support an inference that the complainant was in shock because the appellant had just assaulted her. The trial judge’s subsequent description of the security call reporting the assault as “conduct consistent with [the complainant’s] claim of non-consent” confirms that she used the call as demeanour evidence rather than as a prior consistent statement. After all, demeanour focuses on outward conduct rather than the declaration itself.
(iii) The Trial Judge Properly Assessed the Written Statement
66The trial judge also properly assessed the complainant’s written statement describing the assault. The appellant does not challenge its admission as a past recollection recorded. Instead, he argues that the trial judge did not apply the “extra scrutiny” that the statement required due to the lack of contemporaneous cross-examination on the complainant’s present recollections. See R. v. Louangrath, 2016 ONCA 550, para. 45. But the trial judge did carefully scrutinize the statement. After instructing herself to approach it cautiously, she determined that it was reliable. As she found, the complainant had the ability to recall and perceive when she made it, it unambiguously described the appellant sexually assaulting the complainant, and other evidence, especially the video and photo evidence, confirmed it. The appellant’s argument that other evidence did not adequately confirm the statement fails because it rehashes the same attacks on the trial judge’s findings that I have already rejected.
(2) Determining the Appropriate Sentence
67This brings me to the sentence appeal. The appellant argues that the trial judge should have followed the Crown position and imposed a three-year sentence. In his view, she overlooked the importance of restraint and rehabilitation, principles which the Crown emphasized at sentencing because he was a youthful first-time offender who had recently turned twenty at the time of the offence and who was supporting his family. I agree, and would allow the sentence appeal, vacate the sentence imposed, and substitute a three-year custodial sentence.
(a) The Governing Sentencing Principles
68Below I explain the governing sentencing principles for sexual assault and for youthful first-time offenders, and how to apply all these principles when sentencing a youthful first-time offender for sexual assault.
(i) Sentencing Principles for Sexual Assault
69As the trial judge recognized, judicial understanding of the harmfulness and wrongfulness of sexual assault is deepening. Sentences must reflect the “profound emotional and physical harm” sexual violence inflicts on victims, consequences which are often life-altering. See A.J.K., at para. 74. As well, they must account for the moral blameworthiness of defendants who wrongfully exploit victims by treating them as objects, invading their personal autonomy and sexual integrity, and disregarding their dignity, all despite knowing or being reckless or wilfully blind to the devastating harm their actions inflict. See R. v. Friesen, 2020 SCC 9, paras. 88-89; A.J.K., at paras. 72-74. The courts accordingly prioritize denouncing and deterring sexual assault, especially when it involves penetration, a serious aggravating factor which attracts a three-to-five-year sentencing range. See A.J.K., at paras. 77, 83.
(ii) Sentencing Principles for Youthful First-Time Offenders
70Sentencing judges must also give “serious and sufficient consideration” to all the settled principles that govern sentencing youthful first-time offenders. See R. v. Habib, 2024 ONCA 830, para. 32; see also at paras. 30-31, 33-39. These principles respect Parliament’s directions to impose individualized proportionate sentences, practice restraint, foster rehabilitation, and protect society. In sentencing a youthful first-time offender to the penitentiary, the sentencing judge must justify why a non-custodial or less severe custodial option is insufficient while still structuring the sentence to promote rehabilitation. The decision must reflect proportionality, individualized sentencing, and the offender's potential for reform.
71First, the principle of proportionality dictates that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. See Criminal Code, s. 718.1. Proportionality eschews a one-size-fits-all approach that lumps young adults and older, more mature adults together despite their differences. See Criminal Code, ss. 718.2(a)-(b); Friesen, at para. 32. Thus, sentencing judges must account for young adults’ immaturity and consequent reduced degree of responsibility, as well as the harsher impact incarceration has on them. See R. v. Hills, 2023 SCC 2, paras. 161, 165; R. v. Bertrand Marchand, 2023 SCC 26, paras. 132, 152.
72Second, the principle of restraint emphasizes that a custodial sentence should only be imposed when necessary and that alternatives to incarceration should be considered, particularly for first-time offenders. See Criminal Code, ss. 718.2(d)-(e). This principle requires sentencing judges to avoid imprisoning youthful first-time offenders when possible and to impose the shortest proportionate sentence available. See R. v. Priest, pp. 544-546; R. v. Brown, 2015 ONCA 361, para. 7. When a judge imposes a penitentiary sentence despite this principle, they must justify why lesser sanctions, such as a conditional sentence, probation, or a provincial jail term (under two years), would be insufficient. This is particularly important for first-time offenders, who are generally more likely to be rehabilitated than repeat offenders and have a greater chance of successful reintegration.
73Third, the sentence must foster the defendant’s rehabilitation and protect society. See Criminal Code, ss. 718, 718(d). These two fundamental principles are closely linked because, “where rehabilitation is possible, the long term interests of society are better protected by [e]nsuring that an offender’s underlying problems, which prompted his deviant behaviour, are corrected.” See R. v. Wesslen, 2015 ABCA 74, para. 41. In other words, as Manning and Sankoff write, “the best way of protecting the public is by reforming offenders so that they do not offend again because they do not wish to offend again.” See at para. 1.155.
74Both principles are especially relevant for youthful first-time offenders because they have “high rehabilitative prospects.” See Bertrand Marchand, at para. 152. Thus, sentencing judges must prioritize rehabilitation as the paramount objective, which helps protect society by preventing reoffending. As well, it guards against crushing sentences that propel young adults in an anti-social direction by placing them in a prison environment full of bad influences that is ill-suited for rehabilitation. See Brown, at paras. 5, 7, 10; R. v. Dunkley, [1976] O.J. No. 1663 (C.A.), para. 4; Hills, at para. 165. A judge imposing a penitentiary sentence on such an offender is required to consider whether imprisonment will serve a rehabilitative purpose or whether alternative measures could achieve that goal more effectively.
(iii) Sentencing Judges Must Apply All These Principles
75Sentencing judges must apply both sets of principles when sentencing youthful first-time offenders for sexual assault. Thus, they must impose sentences that are proportionate to the gravity of sexual assault and the moral blameworthiness of offenders, that prioritize specific deterrence as a paramount objective where necessary, and that respect the importance of denunciation and, to a lesser extent, general deterrence. But they must also make room for rehabilitation as a primary and paramount sentencing objective, and practice restraint by imposing the lowest proportionate sentence available.
76To respect the need for accountability, deterrence and denunciation remain important when sentencing youthful first-time offenders for serious crimes like sexual assault that involve significant personal violence. Sentencing judges must prioritize specific deterrence as a paramount objective where necessary and impose proportionate sentences that account for the gravity of the offence and the moral blameworthiness of offenders. As well, denunciation gains more importance. See Brown, at paras. 4-5, quoting R. v. Thurairajah, 2008 ONCA 91, paras. 41-42. General deterrence does too, although to a “lesser extent” (Thurairajah, at para. 42), because, due to their immaturity, youthful adults are unfortunately less likely to be deterred by sentences imposed on other people than more mature adults would be. See Habib, at para. 30, n. 2, citing R. v. D.E.S.M. (1993), p. 377. Accordingly, “it is not always possible to avoid incarceration, [or] impose only a very short prison term.” See Habib, at para. 30.
77But sentencing judges must continue to apply the principles governing youthful first-time offenders even for violent offences like sexual assault. Thus, sentencing judges must still prioritize rehabilitation as a paramount objective. This requires them to remain “focused on crafting a sentence that would promote rehabilitation” (R. v. Nassri, 2015 ONCA 316, para. 30), although this objective cannot be “unduly prioritized” to such an extreme degree that sentencing judges “los[e] sight of” the proportionality principle, the importance of denunciation, and, to a lesser extent, general deterrence. See R. v. Burke-Whittaker, 2025 ONCA 142, paras. 41, 44, 48, 52. As well, they must account for the impact of youthfulness on proportionality and impose the shortest and most measured sentence that is proportionate. See Habib, at paras. 38-39. These principles can sometimes justify sentences at the lower end of or below the A.J.K. range, as in R. v. Morgan, 2024 ONCA 937, para. 6, R. v. D.S., 2024 ONCA 831, para. 48, and R. v. N.D., 2024 ONCA 777, para. 44.
78This court’s decisions in Thurairajah, Brown, and Nassri exemplify this approach. Thurairajah ruled that rehabilitation “remain[ed] important” and made a reformatory sentence possible when sentencing a youthful first-time offender for sexual assault, even though the assault was “very serious,” “highly life-threatening,” “stunningly callous,” inflicted “significant emotional harm,” and triggered a “need for … strong denunciat[ion]” and deterrence. See at paras. 38, 41-42, 48. Similarly, the defendant in Brown “committed a home invasion marked by horrific violence,” including forcible confinement and the use of a restricted firearm to subdue and beat a vulnerable victim, that called for strongly emphasizing denunciation and deterrence. See at paras. 1, 6-7. But this court nonetheless emphasized restraint. Brown ruled, following Thurairajah, that rehabilitation and specific deterrence “remained” the primary and paramount objectives, and that the sentencing judge erred by elevating general deterrence and denunciation above them. See at paras. 7, 10. Likewise, Nassri affirmed that rehabilitation took priority over general deterrence and denunciation even though the youthful first-time offender was party to a violent bank robbery in which a robber held a knife to the teller’s neck. See at paras. 1, 3-4, 30-31.
79Thus, “the usual primary sentencing principles ha[ve] to be adjusted owing to … youthful first offender status.” See R. v. Mohenu, 2019 ONCA 291, para. 12. While Mohenu addressed a serious non-violent offence, Thurairajah, Brown, and Nassri establish that this guidance also applies to violent offences. After all, denunciation and general deterrence are generally the primary sentencing objectives for the sexual assault, violent home invasion, armed robbery, and significant fraud with a breach of trust offences that the defendants in Thurairajah, Brown, Nassri, and Mohenu respectively committed. See A.J.K., at para. 83; R. v. Wright, paras. 12, 24; R. v. Hilbach, 2023 SCC 3, para. 73; and R. v. Wilson, 2016 ONCA 888, para. 8. But because each of these defendants was a youthful first-time offender, this court adjusted those principles by emphasizing restraint, prioritizing rehabilitation as a paramount objective, and assigning an important but less dominant role to general deterrence and denunciation, notwithstanding the severity of the violence in Thurairajah, Brown, and Nassri, and the gravity of the fraud in Mohenu.
80Courts take this approach to protect society. Rehabilitation of first-time youthful violent offenders and the consequent need for restraint are critical precisely because violent offences like sexual assault are so destructive and harmful; these principles help ensure that young adults will never repeat their criminal behaviour and violently victimize others again. See Dunkley, at para. 4, cited in Habib, at paras. 33-34.
(b) The Trial Judge Erred in Principle
81The trial judge had a challenging task. She was required to emphasize denunciation and, to a lesser extent, general deterrence, because, as she noted, the appellant’s crime was “every woman’s nightmare.” By wrongfully exploiting the complainant’s trust and attacking her in a place where she had every right to feel safe, he caused devastating harm that, as she told the trial judge, has been a “growing tumour” that spread across all areas of her life. His assault inflicted numerous physical injuries, wounded her emotional wellbeing and mental health, caused her family relationships to crumble, and jeopardized her career and financial security. The sentence had to be proportionate to the wrongs and harms he inflicted and his degree of responsibility for inflicting them, which the trial judge found was “very high.” For all these reasons, the trial judge rightly ruled that a conditional sentence of house arrest was unfit and inadequate, a conclusion which the appellant does not challenge on appeal.
82But because the appellant was a youthful first-time offender, the trial judge was required to prioritize rehabilitation as a paramount objective, exercise restraint, account for the mitigating effect of his immaturity, and consider the harsher impact that incarceration causes him due to his youth. These principles gained force because incarceration would separate the appellant from his family, including his sister for whom he is the sole supportive family member, as well as his partner and the child they were expecting. [3] Even though incarceration is a foreseeable result of the appellant’s crime, the trial judge still had to consider these family separation consequences because they affect his innocent family members, who do not deserve to suffer for his crime, and whose suffering the courts must prevent and mitigate to the extent possible. See Habib, at paras. 46-47, 49.
83As well, the trial judge owed “considerable respect” to the trial Crown’s decision to emphasize rehabilitation and restraint in proposing a three-year sentence. [4] See R. v. Adamson, 2013 ONSC 2365, para. 21, aff’d 2018 ONCA 678. While the trial Crown’s position did not bind her, she had to “adequately explain a principled rationale for the departure” from it and decision to surmount it. [5] See R. v. Kravchenko, 2020 MBCA 30, para. 32, leave to appeal refused, [2020] S.C.C.A. No. 135; see also Nahanee, at paras. 40-41, 59(ii). The Crown is, after all, not an ordinary litigant but a representative of the state and a minister of justice with a responsibility to “take a more balanced approach” to sentencing that ensures fairness and advances the public interest in just outcomes. See Adamson, at para. 21; see also R. v. Kahsai, 2023 SCC 20, para. 55. In this case, the trial Crown’s emphasis on the public interest in preventing reoffending by fostering the appellant’s rehabilitation merited respectful consideration.
84In my respectful view, as in Habib, the trial judge erred in her approach to this challenging task. While she rightly emphasized denunciation, specific deterrence, and, to a lesser extent, general deterrence, she appears to have gone further and incorrectly assumed that these goals eclipsed rehabilitation and restraint. They do not. Denunciation and deterrence are of course usually primary sentencing principles for sexual assault. See A.J.K., at para. 83. But because the appellant is a youthful first-time offender, the trial judge had to adjust those principles to emphasize restraint and make space for rehabilitation as a primary and paramount objective, as in Thurairajah, Brown, Nassri, and Mohenu. She did not do so because, although she referenced restraint and rehabilitation earlier in her reasons, she did not grapple with them when she determined the appropriate sentence. Instead, she focused exclusively on denunciation and deterrence. Finally, the trial judge did not adequately explain why she rejected the Crown’s emphasis on the appellant’s youth and lack of a criminal record and instead characterized this important mitigating factor as “modest.” These errors impact the sentence and require us to sentence the appellant afresh.
(iv) A Three-Year Sentence Is Fit
85We must accordingly resentence the appellant without deference to the original sentence. See Friesen, at para. 27, citing R. v. Lacasse, 2015 SCC 64, para. 43. In my view, and after paying respectful consideration to the trial Crown’s position, the appropriate sentence is three years, within but at the lower end of the A.J.K. range.
86This sentence accounts for all the governing sentencing principles. It sufficiently punishes and denounces the appellant’s violent and destructive conduct by imposing significant consequences which the appellant will feel keenly and which, to the extent possible, helps deter others from following suit. Indeed, this penitentiary sentence is markedly higher than the below-the-range reformatory sentences this court affirmed in D.S. and N.D. for other youthful first-time offenders, a difference which reflects the many serious aggravating features of the appellant’s crime. But it also accounts for the need to exercise restraint and prioritize rehabilitation as a paramount objective due to the appellant’s youth, lack of a prior criminal record, and the consequences of separating him from his family members whom he supports, all factors that the trial Crown relied on in advocating for a sentence at the low end of the A.J.K. range.
87As well, a three-year sentence is necessary to achieve proportionality and parity. The trial judge referenced several cases that imposed approximately four-year sentences for similarly serious penetrative sexual assaults, namely R. v. Mitrovic, 2017 ONSC 1829, R. v. V.L., 2020 ONCA 87, and R. v. Mohamed, 2021 ONSC 1263. But the defendants in those cases were significantly older than the appellant, they did not face similar family consequences, and all of them but one had prior criminal records. Accounting for these significant differences requires us to impose a lower sentence on the appellant.
D. Conclusion
88I would dismiss the appellant’s appeal from conviction, grant him leave to appeal sentence, allow the sentence appeal, vacate the sentence imposed by the trial judge, and substitute an overall sentence of three years’ custody.
Released: March 21, 2025
“M.T.”
“M. Tulloch C.J.O.”
“I agree. J.C. MacPherson J.A.”
“I agree. P.J. Monahan J.A.”
Notes:
1This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code.
2In fairness to the trial judge, the appellant was not able to identify these video stills at trial.
3The appellant sought to admit fresh evidence describing his employment and the financial and parenting support he provides to their daughter following sentencing. The Crown, while not opposing this motion, asked us to also consider evidence of fresh charges, of which the appellant has not been convicted and is presumed innocent. I would not admit the fresh evidence because it could not be expected to have affected the result. See R. v. Lévesque, 2000 SCC 47, paras. 35, 37. Unlike in Habib, it is not new but merely confirms the evidence already before the trial judge. It is thus unnecessary to consider the evidence of the fresh charges, as the Crown only sought its admission to provide a balanced picture of the appellant’s post-sentence activities if his fresh evidence were admitted.
4I reject the respondent’s argument that the trial Crown resiled from this position. It did not. While the trial Crown acknowledged that a four or five-year sentence might also be proportionate, it maintained its position that the trial judge should impose a three-year sentence because, in Brown’s words, it is “the shortest term of imprisonment that [is] proportionate.” See Brown, at para. 7.
5This guidance only applies to upward departures from the Crown position, not to downward departures in contested sentencing hearings. See, e.g., R. v. Kowtak, 2019 NUCJ 3, paras. 35-36.
