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(1), (1.1), (2), or (3) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486(1) Any proceedings against an accused shall be held in open court, but the presiding judge or justice may, on application of the prosecutor or a witness or on his or her own motion, order the exclusion of all or any members of the public from the court room for all or part of the proceedings, or order that the witness testify behind a screen or other device that would allow the witness not to be seen by members of the public, if the judge or justice is of the opinion that such an order is in the interest of public morals, the maintenance of order or the proper administration of justice or is necessary to prevent injury to international relations or national defence or national security.

(1.1) The application may be made, during the proceedings, to the presiding judge or justice or, before the proceedings begin, to the judge or the justice who will preside at the proceedings or, if that judge or justice has not yet been determined, to any judge or justice having jurisdiction in the judicial district where the proceedings will take place.

(2) In determining whether the order is in the interest of the proper administration of justice, the judge or justice shall consider:

(a) society's interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process;

(b) the safeguarding of the interests of witnesses under the age of 18 years in all proceedings;

(c) the ability of the witness to give a full and candid account of the acts complained of if the order were not made;

(d) whether the witness needs the order for their security or to protect them from intimidation or retaliation;

(e) the protection of justice system participants who are involved in the proceedings;

(f) whether effective alternatives to the making of the proposed order are available in the circumstances;

(g) the salutary and deleterious effects of the proposed order; and

(h) any other factor that the judge or justice considers relevant.

(3) If an accused is charged with an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 163.1, 171, 171.1, 172, 172.1, 172.2, 173, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3 and the prosecutor or the accused applies for an order under subsection (1), the judge or justice shall, if no such order is made, state, by reference to the circumstances of the case, the reason for not making an order.

(4) No adverse inference may be drawn from the fact that an order is, or is not, made under this section.

R.S., 1985, c. C-46, s. 486; R.S., 1985, c. 27(1st Supp.), s. 203, c. 19 (3rd Supp.), s. 14, c. 23 (4th Supp.) s. 1; 1992, c. 1, s. 60(F), c. 21, s. 9; 1993, c. 45, s.7; 1997, c. 16, s. 6; 1999, c. 25, s. 2(Preamble); 2001, c. 32, s. 29, c. 41, ss. 16, 34, 133; 2002, c. 13, s. 20; 2005, c. 32, c.43, ss. 4,8,; 2010, c.3, s. 4; 2012, c. 1, s. 28; 2014, c. 25, s. 21; 2015, c. 13, s. 13, c. 20, s. 21.

Court Information

Court of Appeal for Ontario

Date: 2018-06-21

Docket: C62859

Judges: Watt, van Rensburg and Fairburn JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

Francis Yaw Tweneboah-Koduah Applicant / Appellant

Counsel

For the Appellant: Catriona Verner

For the Respondent: Candice Suter

Hearing and Appeal

Heard: June 14, 2018

On appeal from: The conviction entered on September 30, 2016 and the sentence imposed January 31, 2017 by Justice Paul Howard of the Superior Court of Justice, sitting without a jury.

REASONS FOR DECISION

I. Overview

[1] The appellant and complainant were first year university students staying in the same residence. After consuming a large amount of alcohol, the complainant went with the appellant to his room. The complainant testified that: (a) the appellant pulled up her shirt and bra, aggressively kissed her and fondled her breasts; (b) she awoke to find the appellant's penis in her mouth; and (c) the appellant vaginally penetrated her from behind.

[2] The appellant was tried on a single count of sexual assault. He was convicted and sentenced to 26 months imprisonment. He appeals from both conviction and sentence. On the conviction appeal he claims that the trial judge erred by:

a) failing to understand that a person can consent while "blacked out";

b) failing to consider what happened while the complainant was "blacked out";

c) inappropriately equating pain with lack of consent;

d) arriving upon an unreasonable verdict;

e) misunderstanding the complainant's evidence about bruising; and

f) taking "judicial notice" of the fact that the complainant would have smelled of alcohol.

[3] The appellant also contends that he was the subject of an unfair and prejudicial cross-examination.

[4] Following the hearing, we dismissed the conviction and sentence appeals with reasons to follow. These are the reasons.

II. Conviction Appeal

(a) Alleged failure to understand that a person can consent while "blacked out"

[5] Among other things, the complainant was able to recall that at one point she realized that the appellant's penis was in her mouth and she was choking on it. She could not recall how the fellatio began.

[6] The trial judge correctly stated the law, that consent to sexual activity must be contemporaneous with that activity and that, in order to consent, a person must be conscious, with an "operating mind, capable of granting, revoking or withholding consent to each and every sexual act": R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440 at para. 44. The trial judge concluded that, as it related to the act of fellatio, the complainant could not have consented because she had "blacked out".

[7] The appellant claims that the trial judge erred by failing to appreciate the difference between "blacking out" and a state of unconsciousness. He defines the term "black out" as a period of time for which a person – who was conscious – has no memory. The appellant emphasizes that the Crown also seemed to approach the term in this way. The appellant says that the distinction between a state of unconsciousness and a black out are important because a person who has simply lost their memory may have consented to sexual activity: R. v. Esau (1997), 116 C.C.C. (3d) 289 (S.C.C.). Accordingly, he contends that the trial judge erred by concluding that because the complainant "blacked out" she did not consent. We disagree.

[8] The appellant's entire submission is predicated on the singular definition he offers to the term "blacked out". We do not agree that this is a legal term of art that admits of only one definition. What is important is how the term is used.

[9] The trial judge in this case demonstrated his keen understanding of the difference between being unconscious and simply losing one's memory. He specifically adverted to this difference: "I accept that because of her level of intoxication, there were periods where she 'blacked out' and there were periods where she could not remember what was said or done".

[10] Although the trial judge used the term "blacked out" to describe the complainant's condition when the appellant's penis was originally placed in her mouth, he was clearly conveying his conclusion that the complainant was unconscious when the fellatio began, rendering her incapable of consent. The following passages from the reasons for judgment make this clear:

The accused also alleges that the complainant performed oral sex on him. For the reasons already expressed, I have rejected the accused's evidence on point and have accepted the complainant's evidence that, after having blacked out, she woke up with the accused's penis in her mouth.

The complainant simply cannot be held to have consented to the act. It follows from my acceptance of the complainant's evidence that she woke up with the accused's penis in her mouth, that the sex act began when she was blacked out. As such, it cannot be said that at the time the accused initiated the activity, the complainant possessed the requisite "conscious, operating mind, capable of granting, revoking or withholding consent", as required by the Supreme Court's decision in R. v. J.A.

[Emphasis added.]

[11] These passages reveal the trial judge's factual conclusion that the complainant was in a state of unconsciousness when the fellatio started and only came to a state of consciousness part way through.

(b) Alleged failure to consider what happened while the complainant was "blacked out"

[12] The appellant acknowledges that if he fails on the previous ground of appeal, then he cannot succeed in showing that the trial judge erred by failing to consider whether the complainant might have consented to the fellatio. Given our finding that the trial judge concluded that the complainant was unconscious when the appellant's penis originally went into her mouth, she could not have consented and this ground of appeal also fails.

(c) Alleged misunderstanding of what constitutes a lack of consent

[13] The complainant testified about the pain she experienced during the vaginal penetration from behind. As a result of this act, she suffered a one-centimetre tear to her vagina and bled extensively from the wound.

[14] The trial judge is said to have erred by assuming that the complainant would not have consented to vaginal intercourse because of the pain it caused. According to the appellant, it was pure speculation to find that the complainant, who acknowledged that she had done things she would not usually do that night, would not have consented to intercourse from behind. We disagree.

[15] Although the trial judge made specific reference to the complainant's level of pain, he based his finding that there was no consent on the "totality of the evidence", including the evidence of pain and injury. There was ample evidence to support this finding and those findings are entitled to deference.

[16] The complainant's evidence demonstrates that she did not want to engage in the sexual acts. When it was suggested to her in cross-examination that she consented to sexual intercourse from behind, she responded "[t]hat's not true". She also described being:

• pushed onto the appellant's bed;
• feeling like a "lead weight";
• being unable to get up and leave;
• having her bra pulled up and attempting to pull it down;
• being in a state of shock;
• feeling like she was in a "nightmare";
• feeling like she could not do anything because she was so drunk; and
• being scared.

[17] The trial judge carefully and extensively reviewed all of the evidence surrounding what occurred in the appellant's room. The totality of that evidence easily supported his finding that the complainant did not consent.

(d) Alleged Unreasonable Verdict

[18] The appellant maintains that the verdict was unreasonable. We disagree. There was ample evidence upon which a properly instructed jury acting judicially could reasonably find the appellant guilty: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381 at para. 36.

(e) Alleged Misunderstanding of the Bruising Evidence

[19] The complainant testified that she had visible bruises the day following the sexual assault. She sent a text message to her friend, reflecting the fact that she was "covered in bruises". She also told others that she had bruising. However, the nurse practitioner who examined the complainant after the sexual assault did not make any note of bruising.

[20] The trial judge reviewed the evidence in detail and found that the complainant was simply wrong about when the visible bruises emerged. He further held that in the absence of medical evidence about when the bruising would have become visible, he was unable to make an adverse finding of credibility.

[21] The appellant argues that the trial judge erred in his approach to this evidence. He maintains that the lack of bruising was a "pivotal issue at trial" because it showed that the complainant was not being truthful. Combined with the fact that the complainant sent a text message to her friend shortly after the events in the appellant's room, referencing her belief that she had "made a mistake", the appellant argues that the complainant's suggestion of bruising is a fabrication to attempt to justify her actions. We disagree that the trial judge erred.

[22] The trial judge was alive to the importance of the complainant's evidence regarding the timing of her bruising. As he said in his reasons: "[t]he critical issue surrounding the complainant's credibility and reliability is, of course, the issue of the bruising."

[23] The complainant was tender following the assault. This was confirmed in the medical examination. Although visible bruises were not seen during the nurse's examination, the complainant's mother saw bruising three days after the assault. The trial judge found that, although the complainant's evidence about the timing of the bruising undermined her reliability, it did not undermine her credibility. It was open to the trial judge to come to this conclusion, particularly in light of the fact that the complainant testified about how sore she was after the assault and the medical practitioner's confirmation of this evidence.

[24] It was within the trial judge's domain to deal with the evidence as he did and we defer to his conclusions.

(f) Alleged error in taking "judicial notice" of the fact that the complainant would have smelled of alcohol

[25] The appellant argues that the trial judge erred by treating his evidence that the complainant did not smell of alcohol as "fundamentally and significantly" undermining his credibility. The appellant maintains that it was unreasonable to infer that the complainant would have smelled of alcohol simply because of the amount of alcohol she consumed. Accordingly, it was unfair to use his evidence on this point to impugn his credibility. We disagree.

[26] It was entirely reasonable to infer that the complainant would have smelled of alcohol. She was not challenged on her evidence about having consumed, in addition to other alcohol, six shots of vodka and a quarter bottle of Sour Puss. Other witnesses at trial testified about her inebriation. Her text messaging immediately following the sexual assault further demonstrates a high level of intoxication.

[27] It was open to the trial judge to conclude that the appellant's credibility was shaken by denying the obvious: the complainant was highly intoxicated and would have smelled of alcohol. Indeed, in light of all of the evidence, it was open to the trial judge to, "reject the accused's evidence that he could not see, smell, or sense any indication that the complainant had been drinking." We do not consider this a matter of "judicial notice". It reflects nothing more than a common sense inference that was open to the trial judge to draw from all of the evidence.

(g) Alleged impropriety of the trial Crown's cross-examination

[28] The appellant maintains that the trial Crown's cross-examination of him exceeded the permissible bounds of advocacy, being "calculated to demean and humiliate" him: R. v. R.(A.J.) (1994), 94 C.C.C. (3d) 168 (Ont. C.A.), at p. 177. Although we agree that on two occasions the cross-examination went too far, we would not give effect to this ground of appeal.

[29] First, the Crown asked the appellant if he had a sister. This was a question designed to elicit wholly irrelevant evidence. Even so, it was answered and the matter was not further pursued.

[30] Second, the Crown commented that the appellant did not feel badly about what had happened, and left the complainant like a "discarded tissue". This comment should not have been made. Even so, the comment was properly objected to and ruled argumentative. The trial Crown moved on.

[31] This was a judge alone trial and the questions asked and comments made did not result in prejudice to the appellant, deprive him of a fair trial or harm the administration of justice.

III. Sentence Appeal

[32] The appellant seeks leave to appeal his sentence of 26 months' custody. He emphasizes that the trial judge found that the mens rea for sexual assault had been made out on the basis of recklessness. Accordingly, he argues that he had a lesser form of mens rea than full knowledge and the sentencing judge failed to discount his sentence accordingly. In addition, he says that the fact that the appellant asked during the assault whether the complainant was enjoying herself (to which he received no answer), should have factored into the sentence imposed.

[33] We see no basis upon which to interfere with the sentence imposed. Whether he had knowledge of the lack of consent or was reckless about whether there was consent, he is equally morally blameworthy.

[34] Even bearing in mind the appellant's young age, the sentence was entirely within the range of sentences imposed in similar circumstances. The aggravating factors were many, including:

• it was the complainant's first week of university and it was meant to be her "fresh start";
• she was 17 years of age;
• she suffered a vaginal injury;
• the sexual assault consisted of multiple acts;
• part of the assault occurred while she was completely unconscious and caused her to choke;
• the victim impact, including on the complainant's parents, was grave.

[35] We would not interfere with the sentence imposed.

IV. Conclusion

[36] The conviction appeal is dismissed.

[37] Leave to appeal sentence is granted, but the sentence appeal is dismissed.

"David Watt J.A."

"K. van Rensburg J.A."

"Fairburn J.A."