COURT OF APPEAL FOR ONTARIO

DATE: 20241024 DOCKET: COA-23-CR-0126

Thorburn, Coroza and Favreau JJ.A.

BETWEEN

His Majesty the King Respondent

and

N.D. Appellant

Counsel: Brandon Chung, for the appellant Amy Rose, for the respondent

Heard: March 15, 2024

On appeal from the conviction entered on March 11, 2022 and the sentence imposed on January 10, 2023 by Justice Nancy A. Dawson of the Ontario Court of Justice.

REASONS FOR DECISION

A. Overview

[1] The appellant was found guilty of two counts of sexual assault. He was sentenced to a custodial sentence of 18 months. He appeals his conviction and seeks leave to appeal his sentence.

[2] For the reasons below, we dismiss the conviction appeal, grant leave to appeal the sentence, and dismiss the sentence appeal.

B. Conviction Appeal

(1) Background

[3] At the time of the alleged sexual assaults, the appellant was 18 years old, and the complainant was 17 years old. They had been dating for two months, starting around February of 2020. However, the alleged incidents occurred several months after they stopped dating.

[4] The first incident occurred around late June or early July of 2020. The appellant picked the complainant up at her house, and they drove to a marina close by. The appellant claimed that they agreed to meet to have sex, whereas the complainant said that they had planned to watch a television show together on her iPad.

[5] In her evidence, the complainant said that, when they arrived at the marina, they got into the back seat of the car and started watching the show on her iPad. The appellant then started kissing her lips and other parts of her body, including her breasts and neck. He then removed her underwear and proceeded to lick and kiss the complainant’s vaginal area. Throughout this time, the complainant did not say anything. She said that she did not know what to do, but she pushed herself away from the appellant up against the door of the car, and also tried to keep her legs together. The appellant then pulled his own pants down and tried to pull her over top of him. The complainant’s evidence is that she tried to move in such a way so as to prevent him from penetrating her vagina with his penis. She does not know if his penis ever entered or touched her vagina. The complainant testified that the appellant next tried to get her to give him a blow job and she did not want to do so. There is some inconsistency in the complainant’s evidence regarding whether she recalled the appellant making a verbal request for the blow job, but she was consistent in her evidence that he pushed her head down toward his penis. The appellant then took her hand and rubbed it up and down his penis until he ejaculated.

[6] The appellant’s evidence regarding the first incident was that he started off by kissing the complainant’s cheeks, then kissing her neck and breasts, and next kissing and licking her vagina. The appellant testified that he did not ask the complainant whether he could engage in this sexual conduct with her, but, while he was performing cunnilingus, he did ask whether she was enjoying it and she nodded her head “yes”. He gave evidence that after performing cunnilingus, he pulled down his pants and asked the complainant for a blow job, and she said no. He next asked the complainant if she would have sex with him. At this point, he put on a condom. He testified that the complainant then got on top of him, but the car was too small and he was not able to get his penis into the complainant’s vagina. He asked the complainant for a hand job, to which she responded that she had never done one before. But she then grabbed his penis and started stroking it, after which he put his hand over hers to make it go faster and he ejaculated.

[7] After the first incident, the appellant blocked the complainant on social media. He claimed that this was because he “couldn't give her the time that she wanted to spend together” as he was busy with work.

[8] The second incident occurred in August 2020 in the complainant’s bedroom. The complainant’s evidence was that the appellant came over on his lunch break to play a video game. When the appellant arrived, they went to her bedroom. The appellant did not want to play a video game. She believes she put a movie on instead. The complainant recalls the two of them sitting on her bed, and at one point, the appellant reached over and undid her pants. She tried to move away, but he reached into her pants, touched the area of her vagina and digitally penetrated her. She did not say anything, but she tried to move away from him and cross her legs. He then stood up and started undoing his pants. The complainant said no, and the appellant said he had to go back to work.

[9] The appellant’s evidence about the second incident was that he went to the complainant’s house at lunch time on a weekday. They went to her bedroom and she put on a television show or movie. They were then kissing and cuddling when the appellant asked if he could “go into” her pants. He then put his hand in the complainant’s pants and touched her vaginal area. He inserted his fingers into her vagina. After two or three minutes, he heard a sound downstairs and took his hand out. The complainant redid her pants up, and he then went back to work.

(2) Trial judge’s decision

[10] The issue with respect to both incidents was whether the complainant consented to the sexual activity. There was also an issue regarding whether the appellant had a mistaken belief in the complainant’s consent regarding the first incident.

[11] In her lengthy reasons, the trial judge reviewed the positions of both the Crown and the appellant, described the evidence of the complainant and the appellant in detail and then reviewed the applicable legal principles.

[12] The trial judge next conducted her credibility assessment. She recognized that the complainant showed some hesitancy during her testimony and had memory issues regarding some aspects of the evidence, but she nevertheless found her credible and generally reliable. The trial judge was satisfied that the complainant’s hesitancy was due to being upset and finding the experience of testifying uncomfortable. She was also satisfied that the complainant did not exaggerate her evidence and that she acknowledged when she had trouble remembering parts of what occurred.

[13] In contrast, the trial judge did not find the appellant credible. Specifically, she did not believe the appellant’s evidence that he asked for the complainant’s consent at different points during the first incident or the second incident. In making this finding, the trial judge pointed to various times when the appellant explicitly stated that he continued with the sexual activity because the complainant did not tell him to stop. For example, when he was cross-examined about whether the complainant was reluctant to engage in sexual intercourse in the car, he said, “I wouldn’t say that. If she didn’t want it, she would not have gotten on top”. When it was then pointed out that his evidence was that he guided the complainant on top of him, he said “she could still say no”. As another example, the trial judge noted that when the appellant was cross-examined about the second incident regarding whether he did anything without the complainant’s consent he said “no, she didn’t tell me to stop or anything”. In summarizing her view of the appellant’s evidence, she said that his evidence was driven by an “agenda”, describing it as follows:

I found that [the appellant’s] evidence was clearer [than the complainant’s], but his evidence is coloured by an agenda and mindset that if a person is not objecting or saying, no, or stop, he can then forge ahead. I do not believe, and I reject his evidence that he made inquiries as to doing things in the car such as moving her top and asking her if she liked it in regards to the oral sex.

[14] The trial judge also found that the defence of mistaken belief in communicated consent was not available to the appellant with respect to the first incident because he did not take reasonable steps to ensure the complainant was consenting throughout the incident. She noted the fact that the complainant “said nothing or let [the appellant] do things” does not equate to consent on the complainant’s part. She clarified that she did not believe the appellant when he said that he asked the appellant if she was enjoying the cunnilingus, nor did she believe that he asked for the complainant’s consent before engaging in various aspects of the sexual activity. She emphasized that the appellant’s own evidence was that the complainant seemed inexperienced, and found that, in the circumstances, she was not satisfied the appellant took reasonable steps to ensure the complainant was consenting.

(3) Issues and analysis

[15] The appellant argues that the trial judge erred: (1) in her application of the principles articulated in R. v. W.D., [1991] 1 S.C.R. 742; and (2) by applying uneven scrutiny to the evidence of the appellant and the complainant.

[16] We do not agree that the trial judge made any reviewable errors in her assessment of the evidence and her findings of credibility.

[17] Before addressing these issues, it is helpful to emphasize that this court owes significant deference to the trial judge’s credibility findings because she had the advantage of seeing and hearing the witnesses testify: R. v. Tynes, 2022 ONCA 866, 165 O.R. (3d) 321, at para. 57; R. v. R.A., 2017 ONCA 714, 355 C.C.C. (3d) 400, at para. 44, aff’d 2018 SCC 13, [2018] 1 S.C.R. 307. An appellate court should not interfere with findings of credibility unless they cannot be supported on any reasonable view of the evidence: R. v. R.P., 2012 SCC 22, [2012] 1 S.C.R. 746, at para. 10. Absent a palpable and overriding error, an appellate court must not interfere in a trial judge’s credibility findings: R. v. G.F., 2021 SCC 20, 71 S.C.R. (7th) 1, at para. 81; R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20; and Tynes, at para. 57.

(a) No errors in the W.D. analysis

(i) The trial judge’s reasons did not treat the witnesses’ evidence as a credibility contest.

[18] In his factum, the appellant suggests that the trial judge treated the evidence of the complainant and the appellant as a credibility contest, and that she therefore failed to properly apply W.D. We disagree.

[19] Trial judges are presumed to know the law and do not need to articulate reasons for every inference that was or was not drawn: R. v. Hodgson, 2024 SCC 25, at para. 68; G.F. at para. 74; and R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 45. In this case, the trial judge specifically instructed herself on the correct legal principles in assessing the credibility of the complainant and the appellant. She correctly articulated the principles in W.D.

[20] At one point in her reasons, the trial judge stated that, where the evidence of the appellant contradicts that of the complainant, she does not believe the appellant’s evidence. However, read in context, this does not amount to a W.D. error. As reviewed above, the trial judge went through a careful and lengthy analysis of the appellant’s evidence, and she explained why she did not believe his evidence that he asked the complainant for her consent at various points during the incidents. In part, this was because of internal inconsistencies in his evidence and also because of the attitude he displayed which suggested he thought it was appropriate for him to “forge ahead” as long as the complainant did not explicitly say “no”. Having found that the appellant was not credible, the trial judge then explained why she found the complainant credible despite various gaps in her memory.

[21] It is evident from her analysis that the trial judge did not treat the witnesses’ evidence as a credibility contest, but, rather, that she was careful to subject the evidence to an appropriate W.D. analysis. Although she rejected the appellant’s evidence on points where it diverges from the complainant’s, she explained her rationale for doing so, first explaining why she rejected the appellant’s evidence and then explaining why she accepted the complainant’s evidence.

(ii) The trial judge’s factual finding regarding the appellant’s verbal request for oral sex does not undermine her overall credibility assessment.

[22] The appellant’s argument regarding an alleged W.D. error was significantly different during oral submissions than in his factum. During oral argument, he pointed to a potential factual error in the trial judge’s reasons that he says infected her credibility analysis. Specifically, he takes issue with the trial judge’s finding of fact that “when [the appellant] asked for the blow job, it was not a verbal request, but that he was pushing down on the back of [the complainant’s] head towards his penis”.

[23] The complainant did provide somewhat differing answers when asked about the appellant’s verbal request for oral sex. When giving evidence regarding the first incident, the complainant testified that the appellant tried to get her to “give him a blow job”. In her examination-in-chief, upon questioning, the complainant stated that she did not remember him “verbally asking” but recalled him pushing her head down towards his penis. On the other hand, during her cross-examination, when asked again about the verbal request, the complainant explained that she remembered the appellant asking her for a blow job, to which she responded “no”.

[24] On appeal, the appellant claims that the trial judge erroneously found that the appellant did not verbally ask for a blow job. He argues that, had she not made this error, she may have assessed the appellant’s evidence that he asked for the complainant’s consent at various points during the encounter differently.

[25] We are not persuaded that the trial judge made this error.

[26] In her summary of the complainant’s evidence, the trial judge does in fact go through the complainant’s differing answers. She first explains that the complainant “did not remember [the appellant] verbally asking her for a blow job”. She then moved on to recount that the complainant, at a different point in her testimony, “did recall [the appellant] asking for a blow job, and she said, no”. In the concluding section of her reasons, the trial judge does explicitly clarify that she finds “when [the appellant] asked for the blow job, it was not a verbal asking”.

[27] Although the complainant may have had dissimilar answers to whether the appellant verbally asked her for oral sex, this does not mean the trial judge could not accept the complainant’s testimony in part. The trial judge was alive to the inconsistencies in the complainant’s evidence, explicitly noting: “[a]lthough there were some inconsistencies, they were not enough to say that she was not reliable”. She went further to explain that despite the complainant’s difficulty recalling certain details, she does not believe that affects the credibility or reliability of her evidence.

[28] The trial judge also accepted the complainant’s evidence that the appellant pushed her head towards his penis and that she tried to resist by saying she was tired. In other words, even if the appellant asked for a blow job and she said no, on the complainant’s evidence, which the trial judge accepted, the appellant nevertheless tried to compel her to give him oral sex.

[29] More importantly, in our view, the appellant’s submission is an invitation to parse the reasons of the trial judge, line by line, in search of an error, as cautioned against by the Supreme Court: G.F., at para. 69; and R. v. Chung, 2020 SCC 8, [2020] 1 S.C.R. 405, at paras. 13, 33. We are required to read the trial judge’s reasons as a whole, in the context of the evidence, the issues and the arguments at trial, together with an appreciation of the purposes or functions for which they are delivered: Chung, at para. 13. This is an isolated issue, and it does not undermine the trial judge’s overall detailed and considered assessment of the appellant’s evidence.

(b) No uneven scrutiny

[30] The appellant argues that the trial judge applied uneven scrutiny to his evidence as compared to the complainant’s evidence. We see no basis for accepting this ground of appeal.

[31] Uneven scrutiny is a “notoriously difficult argument to prove”, as it engages the trial judge’s credibility findings, which are owed significant deference: G.F., at para. 99. In fact, the Supreme Court has expressed “serious reservations” regarding whether uneven scrutiny is a helpful analytical tool for assessing a trial judge’s findings of credibility: G.F., at para. 100. In any event, to succeed in this argument, the appellant must point to something in the reasons of the trial judge or perhaps elsewhere in the record that make it clear that the trial judge had applied different standards in assessing the evidence of the appellant and the complainant: R. v. Howe (2005), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59.

[32] The appellant submits that there were several areas where the trial judge applied uneven scrutiny to his evidence and the complainant’s evidence.

[33] First, he relies on the trial judge’s rejection of his evidence that he and the complainant planned to have sexual intercourse at the marina on the basis that this was inconsistent with the fact that they got in the back of his car to watch a show on the complainant’s iPad. It is worth noting that, even if the trial judge’s rejection of the appellant’s evidence on this point was based on ungrounded common sense, this is not an error of law: R. v. Kruk, 2024 SCC 7, 433 C.C.C. (3d) 301, at para. 57. It would, at most, be an error of fact, which could only affect the outcome if it was a palpable and overriding error.

[34] Here, the trial judge’s observation that getting into the back of the car to watch a show on the iPad was inconsistent with a plan to engage in sexual activity was not a central or significant part of her credibility analysis. As the trial judge pointed out, even if the appellant and the complainant had agreed to meet at the marina to engage in sexual activity, this would not constitute consent because broad advance consent does not amount to consent to the sexual activity: R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 99. Besides, the trial judge provided many other reasons for disbelieving the appellant’s testimony that he sought the complainant’s consent, including his ongoing suggestions that, if the complainant was not consenting to the sexual activity, she would have said “no”. Ultimately, it was also open to the trial judge to believe the complainant’s evidence that there was no planned sexual activity, and that she understood that they were going to the marina to watch a television show on her iPad.

[35] Second, the appellant argues that the trial judge’s statement that his evidence is “coloured by an agenda” amounts to circular logic. He argues that the trial judge improperly assessed his evidence based on her view that his agenda was that if a person is not objecting or saying “no”, or “stop”, he can then “forge ahead”. We disagree. The finding that this was the appellant’s attitude was grounded in the appellant’s evidence. The trial judge clearly supported this finding through her careful review of the appellant’s testimony. It was open to her to conclude that this was the appellant’s attitude and to consider it in assessing whether she believed his evidence that he asked the complainant whether she was enjoying the cunnilingus and whether she wanted to engage in various other sexual activities.

[36] Third, the appellant argues that the trial judge gave improper weight to text messages he sent to the complainant. There was uncertainty over when the messages were sent, but in the message the appellant appeared to express regret over how he treated the complainant. There is no basis for the appellant’s complaint about how the trial judge treated the messages. She explicitly stated that she is “not regarding these text messages of being confirmative of the complainant’s testimony” because it was unclear when they were sent or what they referred to.

[37] Finally, the appellant argues that there was uneven scrutiny because the trial judge unfairly excused frailties in the complainant’s evidence, including her memory lapses and a few contradictions. We do not agree. The trial judge clearly grappled with these issues and explained why, overall, she nevertheless believed the complainant’s testimony.

(4) Conclusion on the conviction appeal

[38] The appellant challenges the trial judge’s credibility assessment. We see no reviewable errors in her assessment. She applied the correct legal principles and explained why she did not accept the appellant’s evidence that the complainant consented to the sexual activity and instead accepted the complainant’s evidence that she did not consent. Her findings are entitled to deference. It is not the role of this court to re-assess the witnesses’ credibility. Absent a reviewable error, the trial judge’s findings are entitled to deference.

C. Sentence Appeal

[39] There are two components to the sentence appeal. First, the appellant seeks to appeal his 18-month custodial sentence. Second, the appellant argues that the SOIRA order should be vacated on the basis of s. 24(1) of the Canadian Charter of Rights and Freedoms.

(1) The 18-month custodial sentence

[40] The trial judge gave the appellant an 18-month custodial sentence, broken down into consecutive sentences of 12 months for the first sexual assault and 6 months for the second sexual assault. This is to be followed by a two-year period of probation. The appellant argues that the trial judge made a number of errors in imposing this sentence on a youthful first-time offender. He argues that he should have received a non-custodial conditional sentence instead. We disagree.

[41] This court owes considerable deference to the trial judge’s sentencing decision. It is only appropriate for the court to intervene if the sentence imposed by the trial judge is demonstrably unfit or if she erred in principle, such that there was a failure to consider a relevant factor or an erroneous consideration of an aggravating or mitigating factor that has had an impact on the sentence: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 44, 51; R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 26.

[42] The appellant argues that the trial judge erred in finding as an aggravating factor that he and the complainant were in a relationship of trust because of their prior relationship. We see no error in this respect. In R. v. A.J.K., 2022 ONCA 487, 162 O.R. (3d) 721, at para. 76, when considering whether the range of sentences for sexual assaults involving intimate partners should be different than between strangers or friends, this court explicitly stated that “a pre-existing relationship between the accused and complainant places them in a position of trust that can only be seen as an aggravating factor on sentencing”.

[43] The appellant also argues that the trial judge misapprehended the one-year age difference between the appellant and the complainant and assumed that it was bigger. He also argues that she failed to consider that he was a youthful first-time offender. It is evident from the trial judge’s reasons that she did not misapprehend the appellant’s age and circumstances.

[44] Ultimately, this was a fit sentence. The appellant committed two sexual assaults. These involved two occurrences of unwanted sexual acts, including cunnilingus and digital penetration. In R. v. R.S., 2023 ONCA 608, 168 O.R. (3d) 641, at para. 27, this court explained that a conditional sentence may be appropriate for sexual assaults at the “lowest end of the range of wrongful conduct”. However, as held in A.J.K. and R.S., the primary objective in sentencing for sexual assaults is denunciation and deterrence, and custodial sentences are the norm. For violent sexual assaults involving penetration, this court has recognized a three-to-five-year range. Given the nature of the offences in this case, taking into consideration the appellant’s circumstances, the 18-month custodial sentence was appropriate.

(2) The SOIRA order

[45] As part of the sentence, the trial judge made a 20-year SOIRA order. The appellant did not dispute the 20-year SOIRA order before the trial judge but instead brings, for the first time, a Notice of Constitutional Question challenging that order. Before this court, the appellant is seeking a personal remedy pursuant to s. 24(1) of the Charter on the basis that the trial judge found that he does not pose a risk of reoffending. The appellant argues that the 20-year SOIRA order should be set aside because the impact of the order on his liberty bears no relation or is grossly disproportionate to the objective of s. 490.012 of the Criminal Code, R.S.C. 1985, c. C-46. The respondent opposes this aspect of the appeal. The respondent submits that, generally speaking, offenders in the appellant’s position should challenge SOIRA orders in the trial court. The respondent argues that the appellant has not established that his inclusion on the registry either bears no relation or is grossly disproportionate to the objectives of the registry. Additionally, the respondent submits that the appellant does not fall within the circumstances contemplated by s. 490.012(3) of the Criminal Code, under which the court can exempt an offender from being subject to a SOIRA order. Alternatively, the respondent suggests that this issue should be left to the court below on an application to be brought by the appellant under s. 490.04.

[46] Section 490.012 of the Criminal Code sets out the circumstances under which courts must make a SOIRA order. Section 490.012(3) allows for some exceptions, namely where:

(a) there would be no connection between making the order and the purpose of helping police services prevent or investigate crimes of a sexual nature by requiring the registration of information relating to sex offenders under that Act; or

(b) the impact of the order on the person, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under that Act.

[47] Section 490.012(4) sets out the factors the court must consider when deciding whether to make an exception under s. 490.012(3):

(4) In determining whether to make an order under subsection (3) in respect of a person, the court shall consider

(a) the nature and seriousness of the designated offence; (b) the victim’s age and other personal characteristics; (c) the nature and circumstances of the relationship between the person and the victim; (d) the personal characteristics and circumstances of the person; (e) the person’s criminal history, including the age at which they previously committed any offence and the length of time for which they have been at liberty without committing an offence; (f) the opinions of experts who have examined the person; and (g) any other factors that the court considers relevant.

[48] Section 490.04(1) permits a person who is subject to a SOIRA order that was made prior to the enactment of the exempting power set out in s. 490.12(3) to apply to the court for an exemption. The criteria for obtaining an exemption are the same as set out in ss. 490.12(3) and (4).

[49] We decline to decide the appellant’s Charter application. In our view, the record is not sufficiently developed to make the factual findings required to determine the appellant’s claim for a personal remedy. The trial judge did not provide reasons for making the SOIRA order although she did make a finding in deciding whether to impose a conditional sentence or not, that the appellant “serving his sentence in the community would not endanger the safety of the community”. In so finding, she “look[ed] at the risk posed by himself on reoffending.” In addition, the appellant was 18 years old at the time of the offence and there was evidence that he had the support of his family; he had a positive record of service and employment with the military; and there were no other allegations of sexual impropriety since the offence date. However, the trial judge did not consider whether the risk posed in deciding whether to impose a conditional sentence could be equated with a general risk of recidivism, an issue that is contested by the parties. In our view, therefore, a court of first instance would be in a better position to make the determinations relating to the appellant’s s. 24(1) application on a fresh application with further evidence that may be tested by the parties.

[50] As noted above, while we decline to grant the Charter application, the appellant may seek an exemption pursuant to s. 490.04(1) in the court of first instance. Again, while, there is some evidence in the record that would support granting an exemption, there is no fresh evidence on the appeal, such as further ongoing efforts at rehabilitation, or opinion evidence from an expert who examined the appellant, which is one of the considerations under s. 490.12(4). We are therefore not in a position to determine whether the statutory criteria for granting an exemption are met in this case.

[51] Accordingly, while this court may have the authority pursuant to s. 24(1) of the Charter to vacate the SOIRA order, we are not satisfied that the record is sufficiently developed for us to do so. Given the importance of the issue, and the need for further evidence, the best forum to litigate whether the appellant should be granted any relief from the imposition of a SOIRA order is a court of first instance. This is not a case, like several others decided by this court, where we are simply being asked to reduce a lifetime SOIRA order to a 20-year SOIRA order: see e.g., R. v. P.W., 2023 ONCA 672; R. v. Rule, 2023 ONCA 31; and R. v. G.H., 2023 ONCA 89. The consequences of removing the SOIRA order altogether are significant and should be based on a proper evidentiary record.

[52] We therefore decline to deal with the Charter application, but this does not preclude the appellant from pursuing relief in a lower court under s. 490.04 of the Criminal Code for an exemption based on a proper evidentiary record.

D. Disposition

[53] The conviction appeal is dismissed. Leave to appeal the sentence is granted, but the appeal is dismissed.

“Thorburn J.A.”

“S. Coroza J.A.”

“L. Favreau J.A.”

[1] This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.