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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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 of Appeal for Ontario

Date: 2019-11-07

Docket: C65352

Panel: Fairburn, Harvison Young and Thorburn JJ.A.

Between

Her Majesty the Queen Respondent

and

L.A. Appellant

Counsel:

• Jill Presser and Shakir Rahim, for the appellant
• Lisa Joyal, for the respondent

Heard: October 30, 2019

On appeal from: the conviction entered on March 12, 2018 by Justice A. Duncan Grace of the Superior Court of Justice.

Reasons for Decision

Facts

[1] This is an appeal from conviction for sexual assault. The complainant was the appellant's former girlfriend. There is no dispute that they remained close friends after their romantic relationship ended, continuing with some sort of relationship.

[2] The complainant and some other individuals were at the appellant's home drinking on the night in question. After the appellant had retired to his bedroom, he sent the complainant a text message, asking her to come to his room because he could not sleep.

[3] The complainant testified that upon receiving the appellant's text message, she went to his room, laid down on her back and fell asleep on his bed. It was not unusual for her to sleep over at the appellant's home and even in his room with him after the end of their romantic relationship. The complainant testified that she awoke to find that her pants had been removed and that the appellant was having vaginal intercourse with her. She testified that she yelled at the appellant, retrieved her clothing and left his room.

[4] The appellant's version of events was fundamentally different. While he agreed that he had texted the complainant, asking that she come to his room, he testified that the sexual intercourse only commenced when the complainant said to him, "fuck me". The appellant testified that the complainant gave a "weird gasp" during the course of consensual intercourse, got up, grabbed her clothes and left the room. He surmised that the complainant may have been upset because he had, perhaps, mistakenly inserted his penis into her anus.

[5] It is common ground that the appellant and complainant's relationship never recovered.

Grounds of Appeal

[6] The appellant contends that the trial judge erred in three respects:

(a) reversing the burden of proof;

(b) misapprehending the evidence; and

(c) failing to provide reasons for why he rejected the defence of honest but mistaken belief in consent.

[7] We do not agree that the trial judge erred in these respects.

Burden and Standard of Proof

[8] The trial judge's reasons carefully set out the burden and standard of proof. They specifically state that the verdict could not be based on a choice between the appellant's and complainant's evidence. The trial judge properly applied the principles in R. v. W.(D.), [1991] 1 S.C.R. 742. Finally, the reasons display a keen understanding of the fact that the central issue for determination was whether, based on the whole of the evidence, the Crown had proven the appellant's guilt beyond a reasonable doubt.

Misapprehension of Evidence

[9] The trial judge gave detailed reasons for rejecting the appellant's evidence. He found that there were significant inconsistencies in the appellant's version of the circumstances from the time that the complainant entered his room until the time that she purportedly asked to have intercourse. The trial judge set out those circumstances as follows:

One version was an "in the moment" awareness of a continuous chain of events that started with [the complainant] removing her pants and initiating sexual intercourse almost immediately afterward. The other involved an after-the-fact realization of the presence of another semi-nude person. Although the two versions became one, their commencement cannot be rationalized.

[10] In oral submissions, the appellant suggested that this passage reflects a material misapprehension of the evidence going to the heart of why the appellant's evidence was rejected and, therefore, the heart of the verdict. The appellant contends that the trial judge must have misunderstood his statement to the police, thinking that it only suggested that he awoke after the complainant was already in his bed, nude from the waist down. Yet the statement includes a qualifier not mentioned by the trial judge: "I don't know if it was her that came by – like come into the room that possibly woke me up and made me reach over, want a drink of water, but I – maybe she moved around, I don't know." Accordingly, the appellant submits that the trial judge found inconsistencies where there were none.

[11] We find no misapprehension of the evidence.

[12] In his statement to the police, the appellant repeatedly suggested that he only realized that the complainant was in his room when he reached over to get a bottle of water and discovered her already in his bed. His qualifier – that he may have awoken when she came into the room – came much later in his statement.

[13] In the appellant's affidavit filed on the s. 276 Criminal Code application, he definitively suggested that his "sleep was disturbed" by the complainant's entry into the room. In contrast, in his evidence in-chief at trial, he reverted to the suggestion that he "woke up to [the complainant] next to [him]". Then in cross-examination he said that he "noticed her getting into [his] bed, and as that happened she disturbed [his] sleep". He also said that he "heard the door, and then I was still laying there, and didn't think anything of it, and then when she got undressed, and then finally came into bed, she disturbed my sleep. So I moved over, and at the same time, when I moved, I went to get a glass, or a drink of water from the bottle that was next to my bed."

[14] We are satisfied that the trial judge did not materially misapprehend the evidence. It was open to the trial judge to conclude that the appellant had described the events in that period of time in different ways. We would defer to that factual determination.

[15] Moreover, contradictions in the appellant's description of when he awoke were not the only reason that the trial judge gave for rejecting the appellant's credibility. The trial judge also gave other reasons for rejecting his evidence, including that the appellant's version of the events made no sense:

The evening had been a pleasant one from all accounts. The get-together had been planned albeit only earlier that day. No friction of any kind was identified in the shack during the initial or later portion of the evening or during the time at the Creamery. In short, absolutely nothing had happened before [the complainant] entered the bedroom that gave any indication that anything troubling would occur that night. [The appellant's] "report of unintentional anal penetration during a complainant initiated sexual encounter, followed by a complete disintegration of a long-term post-relationship, does not resonate at all. That version of events is not truthful. It is not reliable. It is invented.

[16] We also note that the trial judge also gave detailed reasons for believing the complainant's evidence. To the extent that her evidence contained frailties, he addressed and resolved them. Close to the end of his reasons, the trial judge mentioned the legal proposition arising from R. v. J.J.R.D., 215 C.C.C. (3d) 252 (Ont. C.A.), at para. 53, leave to appeal to S.C.C. refused, [2007] S.C.C.A. No. 69, that an accused's evidence could be rejected upon a "considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence". This was yet another reason for why the trial judge rejected the appellant's evidence. We would defer to his credibility findings.

Alternative Defence of Mistaken Belief in Consent

[17] Finally, the appellant argues that trial judge erred by failing to address his alternative argument that, even if the complainant did not consent, he held an honest but mistaken belief in the fact that she did. The trial judge merely said that "[t]he case does not involve a complainant who forgot that she had consented to sexual intercourse. Nor does it involve an accused who honestly, but mistakenly, believed consent had been given."

[18] The appellant says that this cursory comment, dismissing his alternative defence, was insufficient and lacks any reasoning. He makes two broad points. First, he maintains that the trial judge erred by not considering whether the complainant was in a parasomniac state (see R. v. Luedecke, 2008 ONCA 716, 93 O.R. (3d) 89, at para. 28), leaving her with the ability to consent to the sexual acts while asleep, but with no memory of that consent. In support of that proposition, the appellant relies upon this court's decision in R. v. Garciacruz, 2015 ONCA 27, 320 C.C.C. (3d) 414. Second, he argues that it is possible to "splice some of each person's evidence with respect to the encounter, and settle upon a reasonably coherent set of facts, supported by the evidence" that would be capable of supporting his alternative defence of mistaken belief in consent: R. v. Park, [1995] 2 S.C.R. 836, at para. 25.

[19] We conclude that the trial judge was under no obligation to address the alternative defence beyond what he said.

[20] First, Garciacruz is a fundamentally different case. It involves a complainant who admitted that she was in a blackout state on the night in question which began long before the alleged sexual assault took place and ended some time afterwards. During that time, the complainant performed many acts of which she had no memory, including her inability to recall leaving a bar, walking to a car, taking a ride, having a conversation with her cousin, and ordering a taxi for her cousin's use. In those circumstances, involving the complainant functioning, but with no memory of what she did, this court said that it was incumbent on the trial judge to consider whether the complainant may have consented to the sexual activity, but simply have no recollection of having done so: Garciacruz, at para. 55-57.

[21] This case bears no resemblance to Garciacruz. This was not a case about a blackout, but about a complainant falling asleep and waking up to find sexual intercourse in progress. The complainant in this case had a clear recollection of the events prior to and after the sexual activity in question. She remembered receiving the appellant's text message, entering his room, falling asleep and then awaking to find the intercourse occurring. She also remembered what she said when she awoke, getting dressed, being very upset and eventually going back out to the shack where the others were still gathered. The trial judge accepted that evidence as true.

[22] In addition, the factual foundation for the parasomnia argument rests on the appellant's version of events, that the complainant invited sexual intercourse. Yet that version of events was rejected by the trial judge, a finding that is owed deference by this court. In these circumstances, we agree with the respondent that it would have been entirely speculative to infer that the complainant initiated sexual intercourse while she was asleep.

[23] Second, this is not a case where it was possible to splice together a coherent set of facts capable of supporting the suggestion of a mistaken belief in consent. The complainant and appellant gave diametrically opposed accounts, one involving consent and the other involving no consent. Importantly, on the salient points, the trial judge entirely rejected the appellant's version of events and accepted the complainant's version. Based on his findings of fact, there was no air of reality to the suggestion that the appellant had mistakenly believed that the complainant had consented.

[24] Accordingly, there was no need to address the alternative defence.

Disposition

[25] The appeal is dismissed.

Fairburn J.A. Harvison Young J.A. Thorburn J.A.