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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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

(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.

(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(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.

(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.

(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.

(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: 20220214 DOCKET: C68636

Fairburn A.C.J.O., Doherty and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

E.A.P. Appellant

Counsel: Colleen McKeown, for the appellant Nicole Rivers, for the respondent

Heard: February 8, 2022 by video conference

On appeal from the conviction entered by Justice G.P. Renwick of the Ontario Court of Justice on December 19, 2019.

REASONS FOR DECISION

[1] The appellant was convicted of sexually assaulting X.F. The trial was short. There were three witnesses. There was one main issue in dispute. X.F. said she did not consent to sexual intercourse with the appellant. He testified she did.

[2] The appellant appeals conviction only.

[3] X.F. and the appellant had met at a car rally. X.F. modelled at those rallies. She placed an ad on Instagram, looking for a location for a photoshoot. The appellant offered his house. X.F. agreed to meet him at the house. The appellant picked her up and they drove to a local Walmart to buy some drinks. From there, they proceeded to the home.

[4] The appellant and X.F. both testified they had sexual intercourse at the appellant’s home. According to him, it was consensual and was the culmination of a series of consensual sexual contacts that began when he and X.F. were walking around Walmart. According to the appellant, he had his arm around X.F.’s waist and, on one occasion, touched her buttocks. X.F. acknowledged that this occurred. Although it made her feel somewhat uncomfortable, she did not say anything or move away from the appellant.

[5] X.F. testified the appellant made sexual advances after they arrived at his house. At one point, she told him she was fine with kisses, but nothing else was going to happen. The appellant persisted in his advances. After about 40 minutes, X.F., who was becoming upset, told the appellant she had no interest in having sex with anyone and nothing was going to happen.

[6] According to the appellant, he told X.F. that he wanted to make love with her and she said, “that’s fine” but that she would not see him again.

[7] X.F. testified that she eventually made her way out of the bedroom to the bathroom. The appellant followed. He picked X.F. up and placed her on the countertop. A couple of minutes later, he carried her to the bed. The appellant did not ask permission to do any of these things. X.F. did not tell him he could not do any of these things.

[8] X.F. testified, that when the appellant put her on the bed, she told him her pants were not coming off. She also told him that if he attempted to have sex with her, she would never speak to him again. She told the appellant she did not want to “have sex or bang”. She was crying.

[9] The appellant proceeded to insert his penis into X.F.’s vagina. A short time later, he stopped and said he was sorry.

[10] According to the appellant, X.F. never said she did not want to have sex. To the contrary, when he told her he wanted to make love to her, she nodded and said, “that’s fine”. She was not crying and she did not raise any objection to his actions. She told him everything was “okay” while they were having sex. He stopped when it seemed to him that they were not connecting emotionally.

[11] Immediately after the sexual intercourse, X.F. asked the appellant to take her home. She testified the appellant admitted he should not have had sex with her. Later that night, the appellant and X.F. exchanged text messages. He apologized, indicating that when he held her, “it just felt right”. X.F. told him he had to get better control of himself.

[12] The day after the alleged rape, X.F. spoke with her foster mother and told her she had been raped. Her foster mother took her to the hospital. X.F. was seen by Social Services and the police took a statement later that day. According to X.F.’s foster mother, X.F. was very upset when she spoke to her foster mother. In fact, her foster mother testified she had never seen X.F. so upset.

[13] The trial judge reviewed the evidence of the complainant and the appellant at some length. The central findings by the trial judge are set out below (at para. 39):

In the end, on the critical parts of his testimony, I do not accept as true what the defendant said about X.F.’s purported consent to have intercourse that night. Instead, I find as a fact that X.F. specifically told the defendant that her pants were to stay on and she did not want to “bang” or “have sex”. Despite her clear words, the defendant chose to disregard her wishes and took advantage of her physically because she was smaller, younger, and did not protest when he pursued his desires: (para. 31). There was no “vibe” that X.F. exuded to permit the defendant to engage in intercourse with her. I accept the defendant’s evidence that his statement “I want to make love” was said. X.F. did not deny this. However, she never agreed to this, she never said it was “fine” for him to act on his wishes and she did not give consent, nor say or do anything from which consent could reasonably be inferred. To the contrary, I find the complainant was clear that she was not interested in having sexual intercourse with the defendant and he simply chose to disregard her stated intentions.

Grounds of Appeal

Ground #1: The alleged “undue reliance” on X.F.’s demeanour when assessing her credibility

[14] Trial judges’ reasons must be examined as a whole, having regard to the live issues at trial, the evidentiary record and the arguments. They must also be examined, bearing in mind the trial judge’s assumed knowledge of the operative legal principles and the trial judge’s understanding of the fact-finding role.

[15] Where error is alleged, it is incumbent on the appellant to demonstrate that error, not merely a possible error, or an ambiguous turn of phrase capable of being read on appeal as a misapprehension of the law or a misunderstanding of the evidence: R. v. G.F., 2021 SCC 20, at paras. 68-72.

[16] When, as in this case, the challenge on appeal is to the trial judge’s credibility findings, appellate courts have repeatedly acknowledged the advantaged position of trial judges and approached arguments about credibility errors with strong deference to the trial judge’s findings: G.F., at paras. 81-82. As observed in G.F., credibility assessments are not to be overturned simply because a surgical parsing by the appellate court of the trial judge’s reasons reveals “an imperfect or summary expression on the part of the trial judge”: G.F., at para. 76.

[17] The trial judge made several references to elements of the complainant’s demeanour in his assessment of her credibility. Read as a whole, however, we cannot say those references demonstrate that the trial judge’s reliance on demeanour was “undue”. The trial judge addressed several other factors that were also relevant to credibility. He noted:

• X.F.’s evidence of the overall narrative was largely unchallenged;
• her evidence was internally consistent;
• she gave her evidence in a balanced way, acknowledging parts of the narrative which potentially assisted the appellant;
• she had a very good recollection of collateral detail; and
• her foster mother’s evidence that X.F. was very upset the following morning was confirmatory of her version of events.

[18] Counsel for the appellant submits that the finding that X.F.’s evidence was “balanced” was no more than a finding that she did not exaggerate her evidence, or make allegations that were worse than the ones she did make. We read the finding that the evidence was “balanced” as a finding that X.F. told her story frankly and in a manner which did not suggest she was shaping her evidence to put herself in the best light, or the appellant in the worst light. X.F. acknowledged facts that were not helpful to her, and offered some support for the appellant’s position. A finding properly rooted in the evidence that there are strong indicia of candour and forthrightness in a witness’s testimony, are positive features of that witness’s evidence, capable of supporting a finding that the witness’s evidence is credible.

[19] We accept that the mere absence of deliberate exaggeration by a witness does not make the witness more credible. In our view, however, the trial judge’s description of X.F. as giving “balanced” evidence went well beyond a mere finding that she did not deliberately exaggerate her evidence.

[20] Counsel’s argument that the trial judge failed to deal with inconsistencies between the complainant’s evidence and her statement to the police is not borne out by the record. There was one inconsistency identified by counsel. X.F. used different language in her statement and in her testimony when describing her reaction to the appellant’s advances at Walmart. To the extent that the two versions are inconsistent, the failure by the trial judge to expressly deal with this one inconsistency in no way undermines the overall force of the reasons. This kind of microscopic review of a trial judge’s credibility assessments is exactly what the Supreme Court has cautioned against in several cases, including G.F.

[21] Demeanour certainly factored into the trial judge’s assessment of credibility. No one suggests that it should not have. The appellant has not satisfied us that the trial judge’s consideration of demeanour was “undue”.

Ground #2: Did the trial judge take an overly narrow view of how consent can be communicated?

[22] The trial judge clearly and unequivocally accepted the evidence of X.F. that she told the appellant more than once that she did not want to have sex with him and was not consenting to sexual intercourse. The trial judge equally clearly and unequivocally rejected the appellant’s evidence that X.F. had communicated her consent to have sex with him by telling him “that’s fine” when he asked if he could make love to her. Therefore, the verdict in no way turned on how consent could or could not be communicated. On the findings, there was no consent to sexual intercourse of any kind communicated by X.F.

[23] The appellant nonetheless argues that, in rejecting the appellant’s testimony, the trial judge erred by relying upon an overly narrow view of how consent can be communicated. Specifically, based on the appellant’s acknowledgements that he had repeatedly touched the complainant in sexually suggestive ways throughout the evening without asking permission, the trial judge said, “one of the main problems I have with the defendant’s testimony is that the defendant made assumptions about the level of physical contact X.F. wanted with him and mistook her silence or acquiescence as consent”. It is clear from the decision, as a whole, that the trial judge reasoned that the appellant’s testimony about the communication that occurred relating specifically to sexual intercourse was implausible, given his pattern of behaviour relating to consent throughout the evening. We see no error in this reasoning. It does not reveal an overly narrow view of how consent can be communicated but instead, constitutes a pattern of conduct that the trial judge was entitled to rely upon.

Ground #3: Did the trial judge reverse the burden of proof on the question of mistaken belief in consent?

[24] The trial judge began his reasons with a full and accurate description of the Crown’s burden of proof. Near the end of his reasons, after finding that X.F. did not consent, the trial judge said:

I have considered whether on all of the evidence it is established that the defendant could have reasonably held an honest but mistaken belief in consent. In light of the factual findings I have come to, this defence also fails.

[25] The appellant submits that the above-quoted passage wrongly puts the onus on the appellant to “establish” a reasonable but mistaken belief in consent. There is some merit to the appellant’s submission, if the above-quoted passage is considered in isolation from the trial judge’s earlier, more detailed description of the burden of proof.

[26] In any event, on the trial judge’s findings of fact, all of which stand given our rejection of the first ground of appeal, there was no air of reality to a claim of an honest and reasonably held belief in consent. On the trial judge’s findings, there was sexual intercourse in the face of repeated refusals by X.F. to consent to sexual intercourse.

Conclusion

[27] As indicated at the end of argument, the appeal is dismissed.

“Fairburn A.C.J.O.”

“Doherty J.A.”

“David M. Paciocco J.A.”