WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

486.4(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

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

486.4(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

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

486.4(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

486.4(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

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

486.6(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

Court Information

Court of Appeal for Ontario

Date: 2019-06-27

Docket: C65440

Panel: Benotto, Roberts and Miller JJ.A.

Parties

Between

Her Majesty the Queen

Respondent

and

Damir Cepic

Appellant

Counsel

Colleen McKeown, for the appellant

Kevin Rawluk, for the respondent

Hearing

Heard: June 19, 2019

On appeal from: the conviction entered on March 29, 2018 by Justice Anne E. London-Weinstein of the Superior Court of Justice, sitting without a jury.

Decision

Benotto J.A.:

Introduction

[1] The appellant worked as a male dancer at a strip club. He was convicted of the sexual assault of a female customer. He appeals on the basis that the trial judge relied on behavioural assumptions and stereotypes to determine that the complainant did not consent to the sexual activity.

[2] For the reasons that follow, I would allow the appeal.

Facts

[3] On March 12, 2016, the complainant and seven girlfriends went to the Foxxes Den male strip club to celebrate a birthday. The club has an open room, a stage and a more private "VIP" room. Men dance on the stage and circulate around the open room offering lap dances to the customers.

[4] As the name implies, during a lap dance, a dancer sits on the customer's lap. His legs are on hers and his knees are on the sofa she is sitting on. A lap dance in the open room generally costs $10 per dance. In the VIP it costs $20. A dance lasts the length of a song.

[5] The complainant's group sat at a booth and ordered bottle service. Some of her friends arranged for dances by the appellant. After the dances, the complainant went to the side of the stage and paid the appellant $10 for her own lap dance. She sat down and he performed for her. The appellant described it as his typical dance. He was facing her; his legs were on the couch and "my bum is on her knees". While some dancers expose their penis, he did not, although the complainant's friend testified that you could see the base of his penis. The appellant testified that he was aroused and the complainant "did reach in there to touch it". He said he told her "if you want to see it, there is a VIP". The complainant denied touching his penis.

[6] After this dance, the complainant returned to her table and asked the appellant to perform for one of her friends. She paid him $5 for the friend's dance and asked for another dance for herself. She used her debit card to get cash from the bar. She paid the appellant $40 for a dance that occurred in the VIP room.

[7] Together the appellant and complainant went to the VIP room and he danced for her. This dance involved fellatio and vaginal intercourse. Very few words were exchanged until the appellant told her he was about to ejaculate. He testified she said "No, I have a boyfriend". She testified that she did not say this. The appellant ejaculated on the floor. He then gave the complainant his business card and went for a shower.

[8] The complainant returned to her table and, after about 10 minutes, called her boyfriend to come pick her up. She also texted a friend expressing concern about what to say to her boyfriend, and concern that her father, a police officer, "would hate me". When the boyfriend arrived, the complainant told him that she had been sexually assaulted, and then reported the assault to police that night. The appellant was charged with one count of sexual assault.

Decision Below

[9] The sole issue at trial was consent. The complainant said she was forced into fellatio and intercourse. The appellant said she was a willing participant.

[10] The trial judge rejected the appellant's evidence as self-serving and found that it did not raise a reasonable doubt. She found his account of the first lap dance implausible, reasoning that the complainant, who had never had a lap dance before, would not have touched his penis. The trial judge also rejected as "completely implausible and nonsensical" the appellant's evidence that the complainant told her she had a boyfriend as he was about to climax. By contrast, the trial judge found the complainant both reliable and credible. She convicted the appellant of sexual assault and sentenced him to two years less a day in jail.

Position of the Parties

[11] The appellant submits that the trial judge's credibility analysis was tainted by: (i) an impermissible reliance on stereotypes and assumptions; and (ii) uneven scrutiny of the evidence of the appellant as opposed to the complainant.

[12] The respondent submits that the trial judge was entitled to rely on common sense assumptions about basic human conduct.

Analysis

[13] The use of a common-sense approach to credibility assessment is fraught with danger for it can "mask reliance on stereotypical assumptions": R. v. A.B.A., 2019 ONCA 124, 372 C.C.C. (3d) 301, at para. 7.

[14] It is an error of law to rely on pre-conceived views about how sexual assault victims would behave: R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275 at para. 65; R. v. A.R.J.D., 2018 SCC 6, [2018] 1 S.C.R. 218, at para. 2. These are the "myths" of appropriate behaviour that the law seeks to eradicate. Historically, these myths have operated to undermine a complainant's testimony. But they may also operate in the reverse, to artificially bolster a complainant's credibility on the basis that "no young woman would consensually engage in the alleged behaviour": R. v. J.L., 2018 ONCA 756, 367 C.C.C. (3d) 249, at paras. 46-47.

[15] Here the trial judge used assumptions about female behaviour as the basis for accepting the complainant's testimony. The corollary is that the assumptions about what a woman would or would not do were also used to undermine the appellant's credibility.

[16] The trial judge started from the assumption about what a young woman would do in a strip club and carried that theme throughout her analysis. She began with a reference to the conflicting evidence about the first dance and concluded that the complainant did not touch the appellant's penis. She said at p. 26:

I do not believe that [the complainant], having never had a lap dance before in her life would have reached into [the appellant's] pants and touched his penis in the manner he described.

And at p. 27:

I find it implausible that she, not knowing what to expect, and having never been in a strip club before, would have just reached into his pants to touch his penis in the manner he described.

[17] At pp. 29, 31 and 39, the trial judge applied this same reasoning to reject the appellant's evidence that, after he told the complainant he was going to ejaculate, she said "no, I have a boyfriend":

That evidence is completely implausible and nonsensical. In my view, it would make no sense for the complainant to say this just before [the appellant] said he was going to climax.

His comment…struck me as contrived and as I said it made no sense. I don't believe that happened.

I did not believe [the appellant] when he said that the complainant told him she had a boyfriend and that is why he ejaculated on the floor. As I said, that was a completely implausible piece of evidence.

[18] With respect to the parties' physical positions during vaginal intercourse, the complainant testified that she used her left arm to try to push the appellant off from behind her. He testified that she had her hand resting on her buttocks but did not push him away. The trial judge addressed this discrepancy at p. 35:

I did not accept [the appellant's] explanation for why [the complainant] would have had her hand on her buttock…That explanation made no sense to me. It would have been a highly awkward position to maintain and [the complainant's] explanation for why she had her hand behind her back is far more logical.

[19] The trial judge's determinations about what "made no sense" or was "implausible" were blatant assumptions, unsupported by the evidence.

[20] The Crown submits that the assumptions were simply common-sense views as to human behaviour. The Crown relies on several cases to demonstrate that credibility assessments can be based on assumptions about human conduct: see R. v. Quartey, 2018 SCC 59, at para. 3; R. v. G.H., 2018 ONCA 349, at para. 5; R. v. F.B.P., 2019 ONCA 157, at para. 9. Those cases all involve situations where the trial judge assessed credibility based on evidence about what a particular person would do in the specific circumstances of each case.

[21] In Quartey, the trial judge had found the appellant's evidence "fanciful". The Alberta Court of Appeal concluded that the trial judge's views were about the appellant, not men in general. On further appeal, the Supreme Court held:

Nor did the trial judge err by applying generalizations and stereotypes in rejecting the appellant's evidence. We agree with the majority at the Court of Appeal that the trial judge's statements in this regard were directed to the appellant's own evidence and to the believability of the appellant's claims about how he responded to the specific circumstances of this case, and not to some stereotypical understanding of how men in those circumstances would conduct themselves. [Emphasis in original].

[22] Likewise, in G.H., the trial judge considered evidence from the appellant about how he and the complainant behaved and measured that evidence against common sense and human behaviour. The trial judge did not reach outside the evidence to make credibility findings based on generalizations about the sexual behaviour of men and women. Finally, in F.B.P., the trial judge's inference that it would be implausible for the complainant to have had sex with the appellant on a public balcony was not central to the rejection of the appellant's evidence but in any event was based on the evidence.

[23] Here, the trial judge's repeated use of words like "implausible" and "nonsensical" to characterize various aspects of the appellant's testimony is untethered to an evidentiary base. It reflects a conclusion based almost entirely on an assumption about what a young woman would do in this context. And the context was significant: a women's only party in a highly sexualized environment involving alcohol and male dancers.

[24] On this basis alone I would allow the appeal. But the trial judge also seems to have utilized stereotypes about male aggression. When discussing the appellant's evidence, the trial judge said at p. 31:

[He] tried to paint [the complainant] as the sexual aggressor, in a way that did not accord with common sense.

[25] And in conclusion at p. 39:

I believe that this young woman was stunned and confused by the situation she found herself in and [the appellant] took advantage of that confusion.

[26] The trial judge reached this conclusion without mention of the uncontroverted evidence that the complainant actively pursued the appellant for dances. She purchased a dance shortly after arriving at the club, purchased a dance for her friend, then withdrew more cash to purchase another for herself in the VIP room. While this certainly does not lead to an inference of consent, it is evidence that the trial judge chose to ignore when she concluded that the complainant could not have been the sexual aggressor and was stunned and confused.

[27] The trial judge's path to conviction rested largely on a series of erroneous assumptions about what a young woman would or would not do in the circumstances of this case. The conviction must therefore be set aside.

[28] Since I accept the first ground of appeal, it is not necessary to consider the second ground alleging uneven scrutiny of the evidence.

[29] I would allow the appeal and order a new trial[1].

Released: June 27, 2019

"MLB"

"M.L. Benotto J.A."

"I agree L.B. Roberts J.A."

"I agree B.W. Miller J.A."

[1] The sentence appeal, which is now moot, was previously abandoned.