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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20220823 Docket: C69132

Pepall, Tulloch and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen Appellant

and

John Manuel Tubongbanua Respondent

Counsel: Jennifer Trehearne, for the appellant Fielding Burgoyne, for the respondent

Heard: March 22, 2022 by video conference

On appeal from the acquittal entered on January 20, 2021, by Justice Louise Botham of the Ontario Court of Justice.

Pepall J.A.:

Introduction

[1] The respondent was acquitted of one count of sexual assault. The Crown appeals from that acquittal.

[2] Surveillance footage from two cameras [1] in a service hallway of the concourse level at the Toronto Sheraton Hotel recorded the interaction between a young woman and the respondent, from two different angles, for a combined total of approximately two hours of footage or one hour each. The Crown alleged that the respondent sexually assaulted the young woman in the hallway on March 11, 2019, between 5:41 a.m. and 6:41 a.m. The defence conceded at trial that upon reviewing the surveillance videos, sexual activity did occur between the young woman and the respondent.

[3] Drug tests of the young woman showed that prior to the sexual activity she had consumed extremely powerful opiates. She did not give a statement to police nor did she testify at trial. The respondent did not testify either. The evidence at trial consisted of the video surveillance, the drug test results as interpreted by a toxicologist, and testimony from paramedics and a security guard, two of whom stated that the young woman appeared unconscious when they found her.

[4] The Crown alleged that the woman lacked the ability to consent either because she was unconscious within the meaning of s. 273.1(2)(a.1) of the Criminal Code, R.S.C. 1985, c. C-46, or because she was incapable of consenting due to impairment from drugs pursuant to s. 273.1(2)(b) of the Code. The trial judge was unable to conclude that the young woman must have been unconscious or incapable of consenting during the acts captured on video and accordingly acquitted the respondent.

[5] The Crown alleges that the trial judge erred because she made a finding of fact for which there was no evidence, failed to consider all the evidence relating to capacity to consent, and grounded her reasonable doubt on pure conjecture. If successful on the appeal, the Crown submits that this is a rare case where the proper remedy is to substitute a conviction for the acquittal. In the alternative, the Crown requests a new trial.

[6] For the reasons that follow, I would allow the appeal and order a new trial.

Facts

[7] The videos reveal that at 5:41 a.m., the respondent and the young woman entered the hallway. The respondent was smoking something. Between 5:47 a.m. and 5:48 a.m., the young woman was smoking something. She was unsteady on her feet. She doubled over, stumbled, and spun face-first into a wall. She fell to one knee. She got up, only to fall again.

[8] At 5:48 a.m., the respondent removed his clothes and attempted to remove the young woman’s pants. She appeared to resist by kicking, trying to hold her pants up, and covering her vaginal area with her hand.

[9] The respondent eventually succeeded in getting the young woman’s pants off and penetrated her vaginally with his penis. At around 5:50 a.m., the young woman was still moving. At one point, the respondent appeared to place his hands over her mouth.

[10] At 5:51 a.m., the respondent stood up and attempted to lift the young woman off the floor by her right wrist. She did not appear to be able to hold her head up.

[11] The respondent then changed position and, as he concedes, appeared to penetrate her orally. He again covered her mouth with his hands and penetrated her orally again. The young woman’s legs kicked sporadically, but by 5:53:43 a.m., they flopped to the side. The Crown submits that as of 5:53:43 a.m., she did not move of her own volition.

[12] At 5:54 a.m., the respondent repositioned the young woman by pulling her legs apart and penetrating her vaginally. The young woman’s right hand and face are visible and motionless. The respondent continued to reposition her legs as he penetrated her. As he thrusted, the young woman’s body slid across the floor.

[13] At 5:55 a.m., a person entered the hallway, briefly looked around the corner, and then left. The sexual activity did not stop. The young woman’s left leg slid off the respondent’s shoulder. He put it back up, but it quickly fell off again. The young woman continued to be unresponsive.

[14] From 5:57:40 to 6:01:18, there are gaps in the footage from both cameras. When the video resumes, however, the young woman remained on the floor underneath the respondent, who continued to thrust into her. At 6:02 a.m., the respondent repositioned the young woman’s legs again, which flopped to the side in response.

[15] At 6:03 a.m., the respondent rolled the young woman onto her stomach. She remained motionless as he penetrated her from behind. At various times, he attempted to reposition her. At 6:06 a.m., he tried to position her on her knees, but her body slid down onto her stomach. Her legs and feet were visible and motionless. From 6:06 a.m. to 6:07 a.m., the young woman remained face down on the floor while the respondent appeared to touch himself.

[16] From 6:07 a.m. until 6:08 a.m., the respondent continued to attempt to reposition the young woman and penetrate her. Her legs and right hand were visible and motionless.

[17] At 6:09 a.m., the respondent stood up and got dressed. The young woman continued to lie face down on the floor with her legs spread and her backside exposed. The respondent finished dressing himself, then fully removed the young woman’s pants from around her ankle. He put a sock back on her foot, then removed another pair of pants from a plastic bag and put them on her as well. He checked her coat pockets. He tried to pull her up and then left her on the floor. He arranged her on her side. Throughout, she appeared lifeless.

[18] At 6:39 a.m., Michael Macphaden and his partner from hotel security observed on the camera feed a female on the ground and a male walking back and forth near her. They went to the hallway to investigate. The respondent told Mr. Macphaden that he wanted his girlfriend taken to hospital. He admitted that both of them had taken drugs, and he believed his girlfriend had taken heroin and he had taken crack cocaine. He felt that his high was finished but she was not responding and would not wake up. Mr. Macphaden testified that the young woman appeared unconscious but was breathing. Toronto Fire Services attended as did two paramedics, Ben Freeborn and Steven Truong, who arrived on the scene at 6:55 a.m. Mr. Truong testified that staff told him that there was a person unconscious on the ground.

[19] Mr. Freeborn testified that when he and Mr. Truong arrived, the young woman was lying supine on the floor and he recalled that she was unconscious. Toronto Fire Services, who had arrived on the scene before the paramedics, was assisting her in breathing using a bag valve mask, which according to Mr. Freeborn, is usually used when someone is not breathing or in severe respiratory distress, and unconscious. Just as the paramedics were lifting her onto the stretcher, Mr. Freeborn stated that she regained consciousness, opened her eyes, and shortly afterwards, started to cry.

[20] The respondent identified himself as her boyfriend but could not provide her last name or her date of birth. He then stated that he had only known her for a couple of days or something to that effect.

[21] The young woman was transported to St. Michael’s Hospital. A blood sample was taken at 6:15 p.m. and a urine sample at 6:30 p.m. The police sent the samples to the Centre of Forensic Sciences for analysis.

[22] At trial, the toxicologist from the Centre was qualified to give expert evidence on the analysis and general effects of alcohol, drugs, and poisons on the human body and nervous system. She explained that the woman’s urine revealed, among other things, traces of cocaine, fentanyl, and carfentanil – an extremely potent opioid, 10,000 times more potent than morphine and used to tranquilize large animals like elephants, moose, and bison. When smoked or injected, symptoms could manifest in seconds or a minute. She stated that it has a central nervous depressant effect and can affect the level of consciousness as could fentanyl. She testified that there was no research on the elimination rate of carfentanil in humans. She therefore could not say when the carfentanil had been consumed. She described fentanyl as having a half-life of 3 to 12 hours. This reflects the time it takes for the drug to be eliminated from the body by 50%. Fentanyl could stay in the body for 15 hours to up to two days.

Reasons of Trial Judge

[23] In oral reasons for judgment, the trial judge found that the only conclusion she could take from the toxicological evidence was that the young woman had consumed cocaine, fentanyl, and carfentanil at some point recent to the events in issue. In particular, the fentanyl could have been consumed up to two days prior. The trial judge stated that the toxicologist did not opine on whether the young woman’s ability to consent would have been impaired by any of those drugs. [2]

[24] Although the trial judge had no issue concluding from the video that the respondent had intercourse with the young woman, she could not be certain that the young woman was incapable of consenting. She found that at 5:48:42 a.m., it looked like the two were embracing and during the first sexual incident, “she can be seen moving her arms and legs.” In addition, the trial judge found that when the stranger came by, the sexual activity stopped and then almost immediately resumed. When it did, the trial judge found that the young woman’s “legs can be seen to move, and it appears that her arms are on the defendant’s back.” At 6:09 a.m. when the respondent got up and started to get dressed, the trial judge noted that the young woman was motionless.

[25] Although she appeared to be unconscious when hotel security arrived, all sexual activity had stopped before then. The young woman was not particularly visible during any of the sexual activity. The trial judge acknowledged that it was possible that she lost consciousness while the respondent was having sex with her, but it was also possible that she remained conscious until he stopped at 6:09 a.m. Absent any direct evidence, there was insufficient circumstantial evidence to conclude that the only reasonable inference to be drawn was that she was unconscious: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000.

Analysis

[26] The Crown’s right of appeal from an acquittal of an indictable offence is limited to “any ground of appeal that involves a question of law alone”: Criminal Code, s. 676(1)(a). In R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at paras. 24-32, the Supreme Court analyzed when, in a Crown appeal of an acquittal, shortcomings in a trial judge’s assessment of the evidence constitute a question of law alone justifying appellate intervention. Cromwell J. explained that the jurisprudence currently recognizes at least four types of cases in which alleged errors in assessing the evidence may constitute an error of law alone:

(i) It is an error of law to make a finding of fact for which there is no evidence. The trier of fact’s conclusion of reasonable doubt is not a finding of fact for the purposes of this rule.

(ii) The legal effect of findings of fact or undisputed facts raises a question of law.

(iii) An assessment of the evidence based on a wrong legal principle is an error of law.

(iv) The trial judge’s failure to consider all of the evidence in relation to the ultimate issue of guilt or innocence is an error of law. That said, the reasons of the trial judge read as a whole must demonstrate that there was such a failure.

[27] In support of its appeal, the Crown relies on the first and fourth categories.

[28] I agree with the Crown that the trial judge both made a finding of fact for which there was no evidence and failed to consider all the evidence relating to capacity to consent.

(a) Finding of Fact for which there was no Evidence

[29] The trial judge made a factual finding for which there was no evidence in support. She found that after the stranger left, the young woman’s legs could be seen to move and it appeared that her arms were on the respondent’s back. This was in error. It was 5:55:51 a.m. when the stranger entered the hallway. The Fedora video shows that it was the respondent who lifted her leg with his arm, and seconds later it flopped back down. After the person left the hallway, the sexual activity did not stop and the young woman was on her back with arms spread out at her sides, sliding around the floor in response to the respondent’s thrusts.

[30] A full review of the videos allows for no reasonable inference that the woman was either moving of her own volition or a willing participant. Villaroman makes clear that alternative inferences must be “reasonable”. The Crown was not required to prove incapacity to a certainty, but only that there was no other reasonable inference. The video evidence, when reviewed in full is, as the Crown submits, “painfully clear”. In these circumstances, the trial judge clearly erred, the error was material as it contributed to the trial judge’s determination that she was unable to conclude that the young woman must have been unconscious or incapable of consenting. In these circumstances, appellate intervention is justified.

(b) Failure to Consider All the Evidence

[31] Relatedly, the trial judge also failed to observe that even at the beginning of the encounter, the young woman was unable to control the movements of her own body, fell face-first into a wall, fell down twice, and can be seen struggling as the respondent attempted to remove her pants. The video reveals no volitional movement by the young woman between 5:53:43 a.m. and 6:09:02 a.m., 15 ½ minutes during which the respondent performed various sexual acts on her. The trial judge failed to consider the complete change in the young woman’s behaviour and body movements. Her body slid around on the floor and her limbs were akin to those of a ragdoll. While the trial judge acknowledged that the young woman would have been unable to consent when the security guard appeared at 6:39 a.m., she did not consider that there had been no change in her appearance since 5:53:43 a.m.

[32] Had the trial judge considered this evidence and not made the aforementioned erroneous finding of fact, the trial judge may have been satisfied beyond a reasonable doubt that guilt was the only reasonable inference to be drawn from the evidence as a whole. Put differently, these errors might reasonably have had a material bearing on the verdict.

(c) Effect of Errors

[33] The next issue to consider is the effect of these errors.

[34] The respondent submits that even if the court accepts that there were errors in law, the Crown has not shown that the verdict would have been any different: R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609, at paras. 14-16. Even if the court accepts that the woman was unable to consent, the Crown has still not proven beyond a reasonable doubt that the respondent was aware of, wilfully blind to, or reckless to that lack of capacity.

[35] In contrast, the Crown submits that the result would not necessarily have been the same but for the errors. Each of the errors relates directly to the main issue in the trial: capacity to consent. The only other issue was whether the respondent was aware of, willfully blind to, or reckless to the lack of capacity to consent. The videos make clear that he must have been. No one could interact with the young woman for such a length of time without coming to that conclusion. Indeed, her struggles at the beginning of the sexual encounter show that the respondent was not concerned about whether she was communicating consent. The Crown asserts that this is one of those rare cases where the appropriate remedy is to enter a conviction. The facts necessary to support a conviction are not in issue – indeed, based on the video evidence, they cannot be disputed.

[36] I am not persuaded by the respondent’s argument, nor by the Crown’s argument that a conviction should be entered and the matter remitted to the trial judge for sentencing.

[37] I acknowledge that the onus on the Crown is a heavy one. However, as George J.A. stated in R. v. Kalonji, 2022 ONCA 415, at para. 31, relying on the Supreme Court’s decision in R. v. Graveline:

[F]for a Crown appeal to succeed, it must be shown that the error of law “might be reasonably thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal”: R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609, at para. 14. However, the Crown is not required to persuade an appellate court that the verdict would necessarily have been different: Graveline, at para. 14.

As I have discussed, the Crown has certainly met the requisite threshold.

[38] Moreover, and in any event, because she found that the Crown had not proven beyond a reasonable doubt that the young woman was incapable of consenting, the trial judge did not proceed to make any findings on the respondent’s mens rea. She simply did not address that issue. She only addressed the issue of consent. In the circumstances, a new trial is required.

[39] In R. v. Cassidy, [1989] 2 S.C.R. 345, the Supreme Court applied the common law test governing an appellate court’s substitution of a conviction for an acquittal: the Crown must establish that an error of law was committed at trial, and must satisfy the Court of Appeal that, but for the error of law, the verdict would not have been the same and the accused would have been found guilty. In order to meet this test, all findings necessary to support a verdict of guilty must have been made by the trial judge, either explicitly or implicitly, or not be in issue. Lamer J. (as he then was) went on to state: “In view of the [accused’s] right to a fair hearing, it is important that the test established at common law be strictly applied.” See also R. v. McRae, 2013 SCC 68, [2013] 3 S.C.R. 931; R. v. Katigbak, 2011 SCC 48, [2011] 3 S.C.R. 326, R. v. Leclair, 2020 ONCA 230; and R. v. I.E.B., 2013 NSCA 98. I would decline to grant the Crown’s request that a conviction be substituted for the respondent’s acquittal. He should receive a new trial.

Disposition

[40] For these reasons, I would allow the appeal, set aside the acquittal, and order a new trial.

Released: August 23, 2022 “S.E.P.” “S.E. Pepall J.A.” “I agree. M. Tulloch J.A.” “I agree. Grant Huscroft J.A.”

[1] The cameras are referred to as the “Fedora” camera and the “Concourse” camera. There are gaps in the footage from both, but except for three instances, one camera captured the events during the gap in the other. That said, in each of the three instances, the young woman was motionless and in the same position at both the beginning and conclusion of the gap. There was no audio.

[2] As already mentioned, the toxicologist did say that smoking carfentanil could cause one to become unconscious within seconds or a minute.