Court of Appeal for Ontario

Date: 2024-11-15 Docket: COA-23-CR-0374

Judges: Rouleau, van Rensburg and Madsen JJ.A.

Between:

His Majesty the King Respondent

and

D.S. Appellant

Counsel: Thomas F. Balka, for the appellant Stephanie A. Lewis, for the respondent

Heard: September 26, 2024

On appeal from the conviction entered by Justice Jocelyn Speyer of the Superior Court of Justice, sitting with a jury, on January 9, 2023 and the sentence imposed on March 30, 2023.

Rouleau J.A.:

A. Overview

[1] A jury found the appellant guilty of sexual assault. In his police statement, which was made an exhibit at trial, the appellant admitted to the sexual conduct. The central issue for the jury was consent.

[2] On appeal, the appellant argues that the trial judge erred by admitting evidence of an incident that occurred when he was under 18, about 2 years before the offence for which he was tried. The incident involved the appellant either kissing or trying to kiss the complainant and the complainant telling him “no”, and that she considered their relationship to be like brother and sister. As the incident suggested that the appellant had previously engaged in unwanted contact of a sexual nature with the complainant, it was treated as evidence of prior discreditable conduct. The appellant maintains that it ought not to have been admitted because it was highly prejudicial and had low probative value.

[3] The appellant also appeals from his sentence of two years less a day, arguing that the trial judge erred in not imposing a conditional sentence.

[4] For the reasons that follow I would dismiss the appeal.

B. Facts

[5] At the time of the offence the complainant and the appellant were both 19 years of age. They had known each other since they were around nine years old. For about two years, the complainant’s father and the appellant’s mother had been in a relationship and shared the same home. The appellant lived with them full-time, and the complainant lived with them part-time. After the appellant’s mother died in 2010, the complainant and the appellant kept in touch and saw each other a few times a year.

[6] In June 2018, the complainant, who at the time lived with her mother and two sisters, texted the appellant to come visit. When he arrived, they sat in his truck and smoked marijuana together before entering the residence and conversing some more.

[7] Around 1:00 am, the complainant told the appellant that he was welcome to spend the night knowing that he had to be at work early in the morning. She mentioned that she took prescribed medication that put her in a deep sleep and asked the appellant to wake her up before he left for work.

[8] They went to sleep in the same bed under separate blankets. At one point, the complainant was awoken when her younger sister came into the room to say hello. Before going back to sleep, the complainant, who was too warm, changed into a sports bra and took off her pyjama bottoms. She went back to sleep, but later woke up to find her sports bra pulled down, her left breast exposed, and the appellant sucking on her breast. She pushed him away, rolled over and fell back asleep.

[9] The complainant was later awoken again by the appellant licking her vagina. Out of fear, she pretended to be asleep. The appellant then rolled her onto her side and penetrated her with his penis. She continued to feign sleep and eventually the appellant got up and went to the bathroom where the complainant believes he ejaculated. The appellant returned to bed and went back to sleep. The complainant testified that she did not consent to any of the sexual acts performed on her, nor did she do or say anything to communicate that she was consenting.

[10] In a videotaped police statement, the appellant waived his right to consult with counsel. He confirmed the complainant’s chronology of the assault. He admitted to sexually touching the complainant and made a number of incriminating statements. He told the interviewing officer that he woke up in the night and the complainant was “completely naked”; then, he “got a stupid idea.” He said he “thought [he] was getting signals” but in hindsight recognized they were not signals. When asked what signals he believed he was getting other than the complainant’s state of undress, the appellant said: “I didn’t just like dive right in, I started, like, tryna, like, play around see if she was awake and…see if she’d wake up and, like, either tell me not to or whatever, but, no, nothing’s happened.” He further told the officer: “physically you could tell like, it was working, whatever I was doing”.

[11] When the officer asked the appellant if he believed that the complainant was awake, the appellant said “I, honestly I thought she was”, but he also added, “at the same time I really don’t know.”

[12] The appellant acknowledged that when the complainant woke up while he was licking her breast, she pushed him away. After some time had passed, he then “[t]hought [he]’d try again” by performing oral sex on the complainant. He said he thought the complainant was awake and “just figured she just let it happen.”

[13] The appellant, who was self-represented at trial, did not testify and called no evidence. Counsel appointed under s. 486.3 of the Criminal Code, R.S.C., 1985, c. C-46 cross-examined the complainant.

C. Issues

[14] On appeal, the appellant raises two issues:

1. Did the trial judge err in admitting the evidence of the prior incident; and
2. Did the trial judge err in not imposing a conditional sentence.

D. Analysis

(a) The admission of the evidence of the prior incident

(1) The admissibility ruling

[15] Before any evidence was led at trial, the Crown applied to introduce evidence of a prior incident involving the appellant and the complainant. That incident occurred about 2 years prior to the alleged offence at a time when they would have been 16 or 17 years old. It occurred when the appellant had been visiting the complainant. The appellant was offered to stay overnight, and he, the complainant, and a female friend of hers shared the same bed. According to the complainant, at one point during the night, the appellant started kissing her and trying to make out with her while she was sleeping. The complainant told the appellant “no”, and that he was like a brother to her. The appellant tried again, and the complainant told him no again. The complainant said that even after telling the appellant no several times, he continued to touch her buttocks.

[16] The appellant acknowledged the prior incident in the police statement he gave when arrested for the incident of June 2018 that resulted in the conviction under appeal. His account of the prior incident differed from the complainant’s, in that he said that they kissed, but stopped after the complainant told him to stop and said that he was like a brother to her.

[17] On appeal, this court was advised by counsel that a charge of sexual assault had been laid against the appellant with respect to this prior incident. As the appellant was a youth at the time of the prior incident, he was charged pursuant to the Youth Criminal Justice Act, S.C. 2002, c. 1 (“YCJA”). The Crown chose, however, to withdraw that charge before trial and proceeded only with the adult charge that resulted in the conviction under appeal. The Crown then sought to introduce the incident that underlay the youth charge as relevant evidence going to the appellant’s state of mind during the incident underlying the adult charge and whether the appellant was reckless or willfully blind on the issue of the complainant’s consent. From my review of the record, it appears that neither the Crown nor the appellant referred to the previous incident having been the subject of a youth charge at trial. There is no evidence that the trial judge was aware of the youth charge and its disposition.

[18] The trial judge ruled that a truncated version of the prior incident could be admitted in evidence at trial; both parties could introduce otherwise admissible evidence “that [the appellant] kissed the complainant and that she rebuffed him and explained that she perceived their relationship as one of brother and sister”. The trial judge held that the prejudicial effect of that portion of the evidence to the effect that the appellant persisted after being told “no” outweighed its probative value. Accordingly, she ruled that the jury would not be permitted to hear that aspect of the complainant’s anticipated account, but the remainder of the evidence could be led as its probative value outweighed its prejudicial effect. The trial judge explained the relevance of the evidence as follows:

In the circumstances of this case, evidence that two years before the alleged offence the complainant explained to [the appellant] that she did not consent to the sexual activity with him because they were like brother and sister, is relevant to the jury’s assessment of whether [the appellant] took reasonable steps to ascertain consent at the time of the alleged offence or whether he was reckless or wilfully blind about whether the complainant’s behaviour communicated her consent to the activity in question.

That is so because they in fact lived as brother and sister for a number of years and the complainant’s affirmation that she still saw their relationship that way, such that she did not wish to engage in sexual activity with the defendant many years after they no longer lived as a family, put him on notice that he needed to exercise caution and engage in clear communication…with the complainant about consent to sexual activity.

[19] The trial judge further determined that the limited prejudicial effect of this evidence could be mitigated by instructing the jury of its permissible and impermissible uses in a mid-trial instruction and in her charge to the jury.

[20] The jury therefore heard the complainant’s evidence about the prior incident in her trial testimony, as well as the appellant’s account as contained in his police statement. Both versions were limited to the aspects ruled admissible by the trial judge. The complainant testified only that, “[the appellant] began trying to kiss me and I told him no” and that she told him, “I’m sorry. Like I view you as my brother. Like this can’t happen”. The video of the appellant’s police statement, including his account of the prior incident, was shown to the jury in full.

[21] The jury also received instructions as to permissible and impermissible uses of the evidence in a mid-trial instruction and in the final charge. The mid-trial instruction focused on cautioning the jury against impermissible uses:

You heard some evidence today, both from [the complainant] and contained in [the appellant]’s statement to Detective Powell about an incident about two years prior to the incident we’re concerned with in this trial where [the appellant] either tried to or did kiss [the complainant].

There will be a longer instruction about what use you can make of that evidence at the end of the trial but for now I just want to tell you how you can not use the evidence just so you don’t get started down a wrong road.

You must not conclude that [the appellant] is guilty of the offence charged just because evidence has been given that he tried to kiss [the complainant] some years earlier. You must not punish him for anything that he did in the past by finding him guilty of the offence that’s charged. You’re not trying [the appellant] for anything other than the offence with which he is charged in the indictment. You’re not trying him for anything anyone, including him, says he has done in the past.

Although evidence about his prior conduct may help you decide this case, and I’ll explain how that is later, don’t let the evidence about his previous conduct distract you from or confuse you about your task in this trial. You’re here to decide whether the Crown has proven beyond a reasonable doubt the offence charged in the indictment. Nothing more and nothing less. I will, as I said, tell you at the end of the trial how you may use the evidence. It will have a limited purpose but you’re not to use it to infer that if he did that he is somehow guilty of what he did this time just because he did that.

[22] In her final instructions, the trial judge repeated the impermissible uses of the evidence of the prior incident. She then went on to advise the jury of the permitted use of this evidence:

The evidence about the kissing incident may be used by you for only one purpose. You may consider that evidence when you assess whether the Crown has proved beyond a reasonable doubt that [the appellant] had the mental element, or state of mind, that is an essential element of the offence of sexual assault.

When considering [the appellant]’s state of mind, you may also consider the evidence about the kissing incident that occurred a couple of years before the alleged offence. [The complainant] testified that she told [the appellant] that she told him “no” then, when he tried to kiss her, that she was sorry and that she viewed him as her brother so that could not happen. You may consider [the appellant]’s statement to Detective Powell that on the earlier occasion she told him to stop and that he was like a brother to her, and he told her okay and that he understood. This evidence may be relevant to your consideration whether [the appellant] took reasonable steps on this occasion to ascertain whether [the complainant] consented, or not, and whether he saw a risk that [the complainant] would not consent to the physical contact but went ahead anyway despite that risk.

[23] Although the appellant takes no issue with the wording of the instructions to the jury, he submits that no instruction, however worded, could mitigate the risk of prejudice that attached to the admission of evidence regarding the prior incident. In the alternative, he argues the mid-trial instruction should have been more fulsome and, like the final charge, it should have told the jury precisely how the evidence could be used.

(2) The law

[24] It is well established that evidence of bad character or discreditable conduct of the accused beyond what is alleged in the indictment is presumptively inadmissible. To present such evidence, the Crown must show that the purpose of presenting this evidence to the trier of fact goes beyond demonstrating the accused’s general propensity to commit acts forming the subject matter of the charge. The Crown must show that the probative value of the evidence in relation to a live issue in the trial outweighs its prejudicial effect: see R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908; R. v. J.H., 2020 ONCA 165, at paras. 52-55.

[25] The assessment of probative value is a very fact-specific analysis: R. v. Luciano, 2011 ONCA 89, 267 C.C.C. (3d) 16, at para. 265. A trial judge’s weighing of probative value and prejudicial effect is entitled to significant deference on appeal: see R. v. James (2006), 84 O.R. (3d) 227 (C.A.), at para. 33, leave to appeal refused, [2007] S.C.C.A. No. 234; R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 73.

(3) Position of the appellant

[26] The appellant argues that the trial judge erred in weighing the probative value of the evidence against its prejudicial effect. He submits the evidence had little probative value and was highly prejudicial. Therefore, it should not have been admitted.

[27] The appellant submits the trial judge’s analysis omitted factors that would tend to reduce the probative value of the evidence of the prior incident. He argues the trial judge did not properly address the potential for the state of mind of each of the appellant and the complainant having evolved since the earlier incident. Although during the earlier incident the appellant was told by the complainant that she felt they were like brother and sister, this was said when they were 16 or 17 years old. This was but one incident, and since then the complainant and appellant had not lived together, did not act as siblings, and had matured.

[28] Given this change in context, a proper assessment would show that the prior incident had limited probative value with respect to the issues the jury had to decide. In his submission, the probative value was therefore clearly outweighed by the significant prejudice caused by introducing the evidence of the prior incident.

[29] Moreover, the appellant says, the concern over propensity reasoning was obvious: both were sexual incidents involving the complainant and the appellant in bed together. The complainant maintained that there was no consent on both occasions. Despite any instructions the trial judge might give, the jury would inevitably reason that because he did it before, he was likely to have done it again.

[30] For the first time on appeal, the appellant argues that because the prior conduct was the subject of a youth charge, the YCJA should have factored into the trial judge’s admissibility analysis. Although the youth charge was withdrawn by the Crown, the trial judge ought nonetheless to have considered the prejudice resulting from facts underlying a youth charge being put before a jury to support a conviction on an adult charge. In the appellant’s submission, allegations captured within the confines of the YCJA “enjoy an enhanced level of privacy and ought to be carefully considered, which is in keeping with the spirit and the overarching principles of the Youth Criminal Justice Act .” He argues that the admission of youth allegations raises the risk of moral prejudice, which cannot be overcome by instructions to the jury.

[31] As a result, the appellant maintains that the trial judge erred in admitting the evidence of the prior incident; a proper weighing of the prejudicial effect versus probative value clearly favoured denial of the Crown’s application.

(4) Analysis

[32] I see no basis to interfere with the trial judge’s admission of the evidence. The appellant is in essence asking this court to reweigh the probative value and prejudicial effect of prior discreditable conduct evidence. He has not, however, identified any error that would displace the substantial deference owed to a trial judge with respect to such rulings.

[33] At the outset, it is important to note that the fact the prior incident occurred was not really controversial. The portion of the complainant’s account of what had happened on the prior occasion that the trial judge admitted was quite similar to what the appellant said about it in his police statement.

[34] The evidence was clearly relevant, and relevance was rightly conceded by the appellant’s counsel on appeal. On the Crown’s application to admit evidence of prior discreditable conduct, it was presumed, based on the appellant’s police statement, that his defence would be honest but mistaken belief in communicated consent. This defence, which was indeed put to the jury at the appellant’s trial, is only available in circumstances where the accused took reasonable steps to ascertain whether the complainant was consenting. Such steps must be reasonable in the circumstances then known to the accused: R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 104; R. v. Alboukhari, 2013 ONCA 581, 310 O.A.C. 305, at paras. 40-44. As a result, the trial judge reasonably concluded that, in the circumstances of this case, the fact that two years before the alleged offence the complainant explained to the appellant that she was not interested in sexual activity with him because they were like brother and sister was relevant and properly formed part of the evidentiary mix that the jury was entitled to consider.

[35] Additionally, the trial judge was alive to other potential uses of this evidence that would have been prohibited since it involved the complainant. In her ruling, she indicated she was satisfied that the proposed use of the evidence would not give rise to impermissible reasoning based on myths and stereotypes. The evidence was not being tendered to support an inference that the complainant was more likely to have consented to the sexual activity that was the subject of the trial, or that she was a person less worthy of belief.

[36] As explained by the trial judge, the evidence of the prior incident could assist the jury in assessing whether the appellant “took reasonable steps on this occasion to ascertain whether [the complainant] consented, or not, and whether [the appellant] saw a risk that [the complainant] would not consent to the physical contact but went ahead anyways despite that risk.” Its relevance lay in providing insight as to the appellant’s state of mind and how he might reasonably have perceived the complainant’s behaviour throughout the events that formed the basis of the (adult) charge.

[37] The trial judge was of the view that there would be very limited prejudicial effect if she limited the evidence to the appellant’s attempt to kiss the complainant and being told that she did not want this given the context of their family relationship. There was no issue that the appellant had made an advance on that prior occasion. The evidence did no more than confirm this and the complainant’s reason for rebuffing that advance. Any potential prejudice could be addressed – and was – by a mid-trial instruction and a final instruction telling the jury that they could not use the evidence to infer that the appellant is the kind of person likely to commit the offence charged.

[38] In my view, the trial judge did not err in her assessment. The prior incident was not put in evidence to show propensity. By excluding the evidence that the appellant had persisted after the complainant “said no to making out a bunch of times”, the concern about propensity reasoning and misuse by the jury was greatly reduced. The prior incident was clearly of a less serious nature than the charge the jury had to rule on. In light of the direction given by the trial judge as to the limited use the jury could make of the evidence, any concern as to reasoning prejudice was, as the trial judge found, greatly reduced.

[39] I see no problem in the trial judge having decided not to include a direction as to how the jury could use the evidence as part of her mid-trial direction in this very short trial. Doing so in her final instructions to the jury was sufficient. It is well established that “the manner in which a limiting instruction is composed rests largely within the discretion of the trial judge. Substance counts, not form.”: R. v. Largie, 2010 ONCA 548, 101 O.R. (3d) 561, at para. 110. The key function of limiting instructions where evidence risks giving rise to propensity reasoning is to caution the jury against impermissible uses: see R. v. Sheriffe, 2015 ONCA 880, 333 C.C.C. (3d) 330, at paras. 68, 76; Largie, at para. 106. That was precisely the focus of the mid-trial instruction in this case. Through the mid-trial instruction and the final charge, the trial judge accomplished the purpose of cautioning the jurors about the limited use they could make of the evidence of the prior incident, including advising them of the permissible use. That is all that was required: see R. v. Johnstone, 2014 ONCA 504, 313 C.C.C. (3d) 34, at para. 29.

[40] It is also worth noting that when the truncated evidence of the prior incident was led at trial, no suggestion was made that the appellant had done something illegal or wrong at the time of the prior incident, nor did the Crown, in its closing, make such a suggestion.

[41] I also disagree with the appellant’s submissions that the trial judge’s failure to consider or refer to the YCJA constitutes reversible error. As I will explain, the YCJA does not restrict the admissibility of the prior discreditable conduct evidence in this case, and the spirit and principles that underlie the Act had no application in the circumstances.

[42] Importantly, the trial judge cannot be faulted for making no reference to the YCJA given that it does not appear to have been raised or argued at trial. Even on appeal, the appellant has not referred to any specific provisions of the YCJA that may apply.

[43] That said, the restrictions on access, disclosure and publication of youth records and information that arise from the YCJA, properly considered, would not have impeded the complainant from giving the evidence at issue. The complainant had firsthand knowledge of the earlier incident as it related to her own history with the appellant. Her testimony at trial was limited to the initial part of this incident, and neither identified the appellant as a young person dealt with under the YCJA, nor suggested that he could have been criminally charged for it. As noted above, the youth charge was not referred to in the court below, nor has it been argued that youth records kept under the Act were used in contravention of the Act.

[44] With respect to the spirit and principles of the YCJA, I note that the appellant made general reference to these in his submissions on appeal but did not specify which principles he was invoking, or how the spirit of the Act was relevant on the facts of this case.

[45] In my view, the principles underlying the YCJA have no relevance to the specific circumstances of this case. The trial was for a charge arising out of events that took place when the appellant was an adult. The truncated evidence of the initial part of the incident that occurred when the appellant was a youth was simply led as evidence relevant to his state of mind when he committed the later offence for which he was charged as an adult. As a result, principles such as promoting rehabilitation and reintegration, or diminished moral blameworthiness or culpability have no application. Concern over maintaining the privacy of information that could identify someone as a young person dealt with under the YCJA is also of no application in the particular circumstances of this case. As noted above, the youth charge was not raised, and no one has argued that any youth records arising out of that charge were used in contravention of the YCJA. Further, the portion of the prior incident found admissible was so narrow that it would not have suggested the appellant had been charged with an offence as a youth.

[46] Without invoking YCJA principles, the fact is that the appellant was at a relatively young age and reduced level of maturity at the time of the first incident, when he heard the complainant explain that she viewed him as her brother and was not willing to engage in sexual activity with him. The passage of time and the appellant’s different maturity levels between the first incident and the events that were the subject of the conviction under appeal, could have had some limited relevance in assessing the impact that the complainant having told him that she viewed him as her brother would have had on the appellant’s state of mind. However, any such relevance would have been considered by the trial judge in the weighing of the probative value and prejudicial effect of admitting the evidence. The trial judge was clearly aware of the age of the appellant at the time of the charged offence, and that the prior incident, having occurred about two years earlier, would have taken place when the appellant was a minor. While it may have been preferable for the trial judge to specifically advert to this, her failure to do so explicitly does not, in my view, constitute reversible error.

(b) The sentence appeal

[47] The appellant submits that the trial judge failed to properly address the balancing that was necessary between the mitigating and aggravating features of this case. He maintains that the least intrusive sentence that would achieve the overall purpose of being an appropriate and just sanction was a conditional sentence of two years less a day.

[48] I see no basis to interfere with the trial judge’s sentence. The trial judge properly instructed herself on the principle of restraint, particularly for a youthful first offender. She stated that sentencing courts should seek to impose the least intrusive sentence and the least quantum that will achieve the overall purpose of being an appropriate and just sanction, and cited R. v. Sousa, 2023 ONCA 100, 165 O.R. (3d) 641, at para. 37. She listed the many mitigating features in this case and relied on these to support her decision to impose a sentence that is below the usual range for cases of sexual assault involving forced penetration: see R. v. A.J.K., 2022 ONCA 487, 162 O.R. (3d) 721, at para. 77.

[49] As noted by the trial judge, there were many aggravating features, including unprotected sex, the impact on the complainant of being assaulted in her own bed, and the fact that the appellant exploited the complainant’s vulnerable state caused by her consumption of prescribed medication resulting in her sleeping deeply. The trial judge concluded the aggravating features in this case were such that “a conditional sentence would be utterly disproportionate to the gravity of the offence and would fail to reflect the impact of the offence on the victim and the need to denounce the crime of violence committed by [the appellant] and to generally deter such offences.”

[50] The trial judge is entitled to deference with respect to the sentence she imposed. This court can only intervene if a sentencing judge erred in principle and the error has an impact on the sentence or if the sentence is demonstrably unfit: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 44, 52. The appellant has not identified any error or other basis that would justify appellate intervention.

E. Disposition

[51] I would dismiss the conviction appeal. Although I would grant leave to appeal the sentence, I would dismiss the sentence appeal.

Released: November 15, 2024 “P.R.” “Paul Rouleau J.A.” “I agree. K. van Rensburg J.A.” “I agree. L. Madsen J.A.”

[1] This appeal is subject to publication bans pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46, and ss. 110 - 111 of the Youth Criminal Justice Act, S.C. 2002, c. 1.