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 or 486.6 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(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) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order;
(b) on application made by the victim, the prosecutor or any such witness, make the order; and
(c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.
(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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;
(b) on application of the victim or the prosecutor, make the order; and
(c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.
(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.
(3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall
(a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order;
(b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and
(c) in any event, advise the prosecutor of their duty under subsection (3.2).
(3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have
(a) informed the witnesses and the victim who are the subject of the order of its existence;
(b) determined whether they wish to be the subject of the order; and
(4) An order made under this section does not apply in either of the following circumstances:
(a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or
(b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person.
(5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness.
486.6 (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor,
(a) the person knowingly failed to comply with the order;
(b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and
(c) a warning to the individual is not appropriate.
(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.
COURT OF APPEAL FOR ONTARIO
DATE: 20241002 DOCKET: COA-23-CR-0919 Simmons, van Rensburg and Thorburn JJ.A.
BETWEEN
His Majesty the King Appellant
and
Bevin Kerry Degale Respondent
Counsel: Linda Shin and Raoof Zamanifar, for the appellant Ryan Durran and James Coulter, for the respondent
Heard: August 13, 2024
On appeal from the acquittal entered by Justice Timothy R. Lipson of the Ontario Court of Justice on July 28, 2023, with reasons reported at 2023 ONCJ 346.
van Rensburg J.A.:
A. Overview
[1] The Crown appeals the respondent’s acquittal for aggravated sexual assault. The Crown asserts that the trial judge erred in acquitting the respondent of aggravated sexual assault after concluding that, while the actus reus of the offence was made out, he had a reasonable doubt based on a lack of evidence with respect to the mens rea of the offence.
[2] The Crown’s right of appeal is pursuant to s. 676(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46. In accordance with that provision, the Crown may only appeal an acquittal on a question of law alone. To succeed on the appeal, the Crown must prove that any established error of law “might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal”. An abstract or hypothetical possibility that the accused would have been convicted but for the error of law will not suffice. However, the Crown is not required to prove that the verdict would necessarily have been different: R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609, at para. 14. Section 686(4)(b)(ii) of the Criminal Code permits an appellate court on appeal from a judge alone to “enter a verdict of guilty with respect to the offence of which, in its opinion, the accused should have been found guilty but for the error in law”. This court can only enter a conviction if it concludes that the trial judge’s error was material and if “all findings necessary to support a verdict of guilty [were] made by the trial judge, either explicitly or implicitly, or [are not] in issue”: R. v. Tubongbanua, 2022 ONCA 601, at para. 39.
[3] For the reasons that follow I conclude that the Crown has met its heavy burden of establishing a legal error that had a material bearing on the respondent’s acquittal. I also conclude that, on the evidence in this case, but for the legal error, the respondent’s conviction was inevitable. Accordingly, I would allow the appeal, set aside the acquittal, and enter a conviction for aggravated sexual assault.
B. The Trial Decision
[4] The Crown alleged that the respondent had committed an aggravated sexual assault against his then girlfriend J.K. on December 8, 2021. [1] The offence was alleged to have occurred while the two were engaging in sexual activity in a van owned by the respondent’s brother, that was parked behind an apartment building where the respondent lived with his brother, sister-in-law and their children.
[5] J.K. did not testify at trial, or otherwise co-operate in the prosecution. The respondent did not testify and there was no defence evidence.
[6] The Crown’s evidence included the following:
- The testimony of a neighbour who testified that, at 10 p.m. the night of the incident she answered a knock at her door and saw J.K. who was crying “really hard” and said, “someone is trying to kill me”. J.K. refused the neighbour’s offer to call the police, but the neighbour did so anyway.
- The testimony of the respondent’s sister-in-law that the respondent’s brother owned the van, that the respondent was using the van for work, that J.K. was the respondent’s girlfriend, and that on the night in question she answered the door to find J.K. at the doorway, crying, with blood all over her lower body, and running down her legs from the vaginal area. She testified that J.K. said that “Kerry” had raped her, and that J.K. was crying and apologizing as she ushered her to the bathroom and told her to shower.
- The testimony of two police officers that they observed a trail of wet bare footprints in the stairway of the building; that they traced the footprints to a van in the parking lot that was registered to the respondent’s brother; that they observed a large red stain covering the entire front passenger seat of the van; that there was a pool of blood close by the respondent’s apartment door; and that, when J.K. was asked where she was bleeding from and where the assault happened, she motioned towards her vaginal area and responded, “in a van”.
- Photos depicting the bare footprints described by the officers and blood markings in the building and apartment, and of the inside of the van including the staining on the passenger seat.
- J.K.’s medical records disclosing that she suffered lacerations to her perineum, anus and vagina, each of which required surgery.
- Forensic evidence confirming that the blood in the van was J.K.’s.
- Certain utterances of J.K. that were admitted for the truth of their contents: first, under the res gestae exception to the hearsay rule, her statements to the neighbour that “someone is trying to kill me” and to her sister-in-law, “I was raped” and “Kerry raped me”; and second, under the principled exception to the hearsay rule, J.K.’s gesture to her vaginal area in response to the officer’s question about where the blood was coming from, and her response “in a van” to questions about where the assault took place.
- A grey t-shirt with J.K.’s blood on it that was found by the police in the garbage chute in the garbage compactor room of the apartment building.
[7] The trial judge accepted that the Crown had established beyond a reasonable doubt the elements of the actus reus of the offence of aggravated sexual assault. First, he found that the respondent had engaged in sexual touching of J.K., based on her statement “Kerry raped me” and the injuries to her genital area. [2] Second, he found that her injuries in the form of lacerations and the surgery required to treat them “[left] no doubt that [J.K.] suffered serious bodily harm” from the sexual activity with the respondent, and that her injuries amounted to “wounding” within the meaning of s. 273 of the Criminal Code. Third, he found that J.K. had not consented to the sexual touching that resulted in her injuries. In reaching this conclusion he relied on the complainant’s res gestae statements as “compelling evidence of her lack of consent”, and on the circumstantial evidence including: her physical injuries, her distressed condition, her state of undress observed five minutes after the incident, and the footprints and forensic evidence that showed that J.K. “fled from the van into the apartment building in her bare feet and half naked through the snow on a very cold winter night”. The trial judge concluded that “it [defied] common sense and human experience that J.K. consented to being injured in the manner she was during the course of sexual activity with the [respondent].”
[8] The trial judge went on to consider the mens rea element of the offence of aggravated sexual assault in three paragraphs of his decision.
[9] At para. 53 the trial judge concluded that the Crown had not proven beyond a reasonable doubt that the respondent knew that J.K. was not consenting or was wilfully blind or reckless as to her lack of consent. He pointed to an absence of evidence because J.K. had not testified. He stated:
With respect to the essential element of knowledge, the absence of the complainant’s account of the circumstances of the alleged offence leads me to reasonable doubt. There is simply no evidence of how the sexual interaction transpired, what J.K.’s body language was during the interaction or what words were exchanged between J.K. and [the respondent] during the interaction. There is no evidence that J.K. communicated her lack of consent to [the respondent] or that he knew or was wilfully blind to it. The Crown has not proven beyond a reasonable doubt that [the respondent] knew that J.K. was not consenting or was wilfully blind or reckless as to lack of consent.
[10] At paras. 54 and 55 the trial judge concluded that the Crown had not established that the respondent intended to cause serious bodily harm to J.K. He addressed this issue because of case law which he understood establishes that consent is not vitiated by bodily harm unless bodily harm is both caused and intended. He stated:
Consent cannot be nullified unless there is both intent to cause bodily harm and serious bodily harm is caused: see R. v. McDonald, 2012 ONCA 379, at paras. 25-28.
Again, in the absence of evidence as to the particular circumstances of the alleged offence, it is not possible for the court to find beyond a reasonable doubt that the [respondent] intended to harm J.K. or cause her bodily harm. The lacerations to J.K.’s genital area are significant. However, as submitted by the defence, there was no medical evidence as to what degree or kind of force would have been required to cause these lacerations. There is no evidence as to how the injuries were caused and what, if anything, was said by either J.K. or the [respondent] during the sexual activity that resulted in the injury. Counsel for [the respondent] correctly submits that there is a “dearth of critical information” necessary to permit a finding that the [respondent] intended to cause J.K. serious bodily harm.
C. Grounds of Appeal
[11] The Crown raises three issues on appeal: (1) whether the trial judge erred in law in his analysis of the mens rea for sexual assault; (2) if so, whether the legal error materially impacted the acquittal; and (3) whether this court should substitute a conviction because all the necessary findings have been made or are not at issue.
[12] The Crown submits that the trial judge made two errors of law. Relying on this court’s decision in R. v. H.W., 2022 ONCA 15, 160 O.R. (3d) 81, the Crown asserts that (1) the trial judge failed to correctly address the mens rea element of sexual assault where the defence of honest but mistaken belief in communicated consent is not available; and (2) the trial judge erred in requiring evidence that J.K. communicated her non-consent to prove the mens rea of sexual assault.
[13] The respondent contends that the trial judge proceeded in accordance with H.W. and other authorities. The respondent asserts that this court’s direction in H.W. is restricted to cases where an accused raises the defence of honest but mistaken belief in communicated consent, and where that defence is unavailable because it has no air of reality. In this case, according to the respondent, the trial judge, considering the mens rea element of the offence separately, as he was required to do, was entitled to conclude that, because of a gap in the evidence, the Crown had not discharged its burden to prove that the respondent knew J.K. was not consenting or that he was wilfully blind or reckless as to her consent.
D. Discussion
[14] I agree with the Crown that the trial judge erred when, at para. 53 of his reasons, he concluded that there was “no evidence” that the respondent knew or was wilfully blind to the lack of consent. I am also satisfied that this error, in the “concrete reality of the case”, had a material bearing on the acquittal.
[15] It is helpful to an understanding of the trial judge’s error to begin with a summary of certain relevant points from this court’s decision in H.W. As I will explain, the trial judge erred in considering evidence (or a lack of evidence) that could only have been relevant to the respondent’s belief in J.K.’s consent at the mens rea stage, when no defence of honest but mistaken belief in consent had been advanced.
[16] H.W. was also a Crown appeal, but from an acquittal for sexual assault after a jury trial. At issue was the jury instruction with respect to mens rea. After deciding that the defence of honest but mistaken belief in communicated consent was not available to the accused (a view that was shared by both Crown and defence counsel), the trial judge instructed the jury that the Crown was required to prove that the accused knew of or was wilfully blind or reckless as to the absence of the complainant’s consent. Zarnett J.A. for this court rejected the Crown’s argument that the mens rea for sexual assault is satisfied once the defence of honest but mistaken belief in communicated consent under s. 273.2 of the Criminal Code is unavailable. He emphasized that, since at least the Supreme Court’s decision in R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3, the Crown is required to establish as an element of the offence of sexual assault that the accused knew that the complainant was not consenting to the sexual act or was wilfully blind or reckless as to whether the complainant consented, irrespective of whether the defence of honest but mistaken belief in communicated consent is available. Zarnett J.A. stated that “[the Crown’s] legal burden remains, even if the displacement of a defence (or its unavailability) makes conviction a ‘virtual certainty’ and if, for practical purposes in most cases, there is little distance between negativing a defence (or its unavailability) and proving the requisite mens rea”: at para. 60.
[17] Zarnett J.A. went on to emphasize, at para. 86, that, where the knowledge element is at issue the trial judge must “ensure that the jury [considers] only evidence that [is] relevant to that issue, in a way that [inoculates] them from legal error.” This includes ensuring that any evidence of the accused’s mistaken belief in consent is “removed from the factual mix the jury [considers] on this issue, so as not to allow an unavailable defence in through the back door”. The trial judge must also “guide the jury as to how to approach the knowledge element on the basis of the evidence they [can] properly consider”. At paras. 90 and 93, he noted that any belief that does not meet the requirements of s. 273.2 of the Criminal Code is not a defence, and that “[c]are must thus be taken, in a case where the defence of honest but mistaken belief in communicated consent is unavailable, not to, for example, point the jury to evidence of belief in consent in their consideration of mens rea…”.
[18] Zarnett J.A. noted that, once evidence of belief in consent is “removed from the evidentiary mix”, “it may be necessary to provide the jury with additional guidance on how to approach the knowledge element”: at para. 94. He endorsed the observations of the Alberta Court of Appeal in R. v. Barton, 2017 ABCA 216, 55 Alta. L.R. (6th) 1 (“Barton ABCA”), rev’d on other grounds, 2019 SCC 33, [2019] 2 S.C.R. 579, that where mistaken belief in consent is not a live issue, and provided the jury is satisfied that all required actus reus elements have been met, a trial judge can instruct the jury that, if they are satisfied that the Crown has proven beyond a reasonable doubt that the complainant did not consent to the sexual activity, they should have little difficulty in concluding that the accused knew or was wilfully blind to the fact that the complainant was not consenting or was reckless and chose to take the risk. Should more be required, the jury instructions should identify what the Crown must then prove in respect of the accused’s mens rea: at para. 96. Zarnett J.A. also referred to what Bennett J.A. said in R. v. MacIntyre, 2019 CMAC 3, leave to appeal refused, [2019] S.C.C.A. No. 346, at para. 64:
In consent-or-no-consent cases … if the trier of fact accepts the complainant’s evidence that there is no consent, the knowledge element is easily proven. This supports the suggestion in footnote 105 of Barton ABCA that in the absence of a mistake of fact defence, juries may be told that if they accept the evidence of a complainant on the issue of consent, they will have little difficulty finding the element of knowledge proved.
[19] In H.W., this court determined that the trial judge erred in inviting the jury to consider evidence related to the accused’s mistaken belief in consent when both the Crown and the defence agreed that the defence of honest and mistaken belief in communicated consent did not arise. The jury was not told that the evidence of belief was not exculpatory or a defence, or that it must be removed from the evidentiary mix. Instead, the trial judge pointed to such evidence and told the jury it could be considered.
[20] In my view the same error occurred in this case. That is, in this “consent-or-no-consent” case, where there was no defence of honest but mistaken belief in communicated consent, the trial judge as the finder of fact, permitted himself to consider on the issue of mens rea, whether there was evidence that could only have been relevant to whether the respondent had a mistaken belief in consent. In his analysis of the actus reus of the offence, the trial judge concluded that it “defied common sense” that J.K. was consenting despite neither J.K. nor the respondent having testified. However, during his mens rea analysis, he referred to there being “no evidence of how the sexual interaction transpired, what J.K.’s body language was during the interaction or what words were exchanged”, and that “there was no evidence that J.K. communicated her lack of consent” to the respondent. When considered in relation to the trial judge’s analysis of the actus reus of the offence, the evidence that the trial judge said was missing at the mens rea stage can only be understood as evidence that went to whether the respondent might have believed that J.K. was consenting. The trial judge ought to have excluded from consideration on the mens rea issue evidence, or lack of evidence, that was pertinent to the respondent’s belief in consent.
[21] Contrary to the respondent’s submission, there was no “gap” in the evidence. The same evidence that persuaded the trial judge beyond a reasonable doubt that, despite J.K.’s not having testified at trial, the actus reus of the offence had been established, was also relevant to, and determinative of, the respondent’s mens rea for the offence of sexual assault: J.K.’s res gestae statements that were admitted for the truth of their contents, and the compelling circumstantial evidence, including the evidence of her conduct after the incident and her significant and obvious injuries. On the basis of this evidence, and in the absence of any defence evidence, the only reasonable inference was that the respondent knew that J.K. was not consenting or was wilfully blind or reckless as to her consent. This is a case that would have warranted a “no difficulty” instruction with respect to the mens rea element if the matter had been tried with a jury.
[22] I turn now to the effect of the trial judge’s error. The Crown submits that the trial judge’s error was material to the acquittal, and that if this court allows the appeal, a conviction for aggravated sexual assault should be entered, pursuant to s. 686(4)(b)(ii) of the Criminal Code.
[23] I am satisfied that, but for the legal error in the trial judge’s mens rea analysis, he would necessarily have found the respondent guilty of aggravated sexual assault. The trial judge concluded that the respondent sexually touched J.K., that the sexual touching caused injuries that amounted to both serious bodily harm and wounding, and that J.K. did not consent to the sexual touching that caused those injuries. Because the trial judge found J.K. did not consent to the sexual touching, it was unnecessary for him to address the issue of whether her consent was vitiated. Further, the offence of aggravated sexual assault under s. 273(1) of the Criminal Code is made out when, in committing a sexual assault, the accused “wounds, maims, disfigures or endangers the life of the complainant”. The mens rea for aggravated sexual assault requires only the intent for sexual assault plus objective foresight of the risk of bodily harm: see R. v. S.(F.) (2006), 262 C.C.C. (3d) 472 (Ont. C.A.), at para. 28; R. v. Godin, [1994] 2 S.C.R. 484, at p. 485; and R. v. Williams, 2003 SCC 41, [2003] 2 S.C.R. 134, at paras. 22, 44 and 45.
[24] All the findings necessary to support a verdict of guilty of aggravated sexual assault were made in this case or were not in issue. The whole of the evidence, including J.K.’s res gestae statements about having been raped by the respondent, her run from the van to the apartment without shoes, half-naked and bleeding on a winter night, and the nature and seriousness of the injuries she sustained, in the absence of any other evidence, is consistent only with the respondent having known of, or been wilfully blind to, her lack of consent. Having regard to the nature of J.K.’s injuries, objective foresight of the risk of bodily harm was simply not in issue: see R. v. A.E., 2022 SCC 4, 410 C.C.C. (3d) 423, at para. 2; R. v. Trachy, 2019 ONCA 622, 147 O.R. (3d) 250, at paras. 86, 88.
E. Conclusion and Disposition
[25] For these reasons I would allow the Crown’s appeal and convict the respondent of aggravated sexual assault. I agree with the Crown that it is appropriate for the appearance of fairness that a different trial judge of the trial court determine the sentencing: Trachy, at para. 92. Accordingly, I would remit the matter for sentencing before a different judge of the Ontario Court of Justice.
Released: October 2, 2024 “J.S.” “K. van Rensburg J.A.” “I agree. Janet Simmons J.A.” “I agree. Thorburn J.A.”
Notes
[1] The appellant was also charged with assault. The assault charge was dismissed following a non-suit motion at the conclusion of the Crown’s case. That ruling is not under appeal.
[2] The trial judge also relied on certain additional evidence to find that it was the respondent who engaged in sexual activity with J.K. in the van.
