Court File and Parties

Court File No.: CR-19-00000045-00AP Date: 2020-06-05 Ontario Superior Court of Justice

Between: Her Majesty The Queen, Appellant And: Guy Solomon, Respondent

Counsel: Laurie Gonet, for the Appellant Nathan Gorham, for the Respondent

Heard: February 24, 2020

Subject to any further Order by a Court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way, pursuant to s. 486.4(1) of the Criminal Code of Canada.

Justice J. Copeland

Reasons for Judgment on Summary Conviction Appeal

Introduction

[1] The Crown appeals from the acquittal of Guy Solomon on one count of sexual assault.

[2] The background to the allegations is that the respondent and the complainant met at an office Christmas party in December 2017. They left the party at around 2:00 a.m., and agreed to share a taxi. The plan was for the complainant to be dropped off first, and then for the respondent to continue to his own residence. However, there was a dispute with the driver about the taxi fare, and both the complainant and the respondent got out of the taxi at her address. The complainant testified that she invited the respondent up to her condo to wait for a second taxi to take him home. The respondent testified that he was invited up to the complainant’s condo, but not for the purpose of waiting for a taxi. Both the complainant and the respondent testified that there was consensual kissing, making-out, and touching on the sofa in the apartment. But their versions of events differ from that point on, and differ about whether further sexual contact, including sexual intercourse, was consensual or not. The primary issue in dispute at trial was whether the Crown had proven non-consent beyond a reasonable doubt.

[3] The trial judge considered whether the Crown had proven non-consent beyond a reasonable doubt by considering the evidence of the sexual activity in three portions: the activity on the living room couch, the first intercourse in the bedroom, and the second act of intercourse. I note that this approach properly treats consent as an issue to be determined on an ongoing basis, and as being required for each sexual act. For each portion of the sexual activity, the trial judge reviewed the evidence and the positions of counsel in a summary way. He found that the sexual activity on the couch (which did not include intercourse) was consensual (Reasons for Judgment, paras. 46-48). With respect to the two acts of intercourse, the trial judge found that the Crown had failed to prove non-consent beyond a reasonable doubt (Reasons for Judgment, paras. 49-70).

[4] The appellant raises three grounds of appeal, which I address in turn below.

[5] I note at the outset that at times in its factum, the appellant characterizes the finding made by the trial judge in relation to consent as a finding that the complaint consented to intercourse. For example, at para. 26 of the appellant’s factum, counsel writes: “ultimately, the trial judge found that the complainant had consented to intercourse the first and second time”. With respect, this is not what the trial judge found. Although the trial judge found that the sexual contact in the living room (which did not involve intercourse) was consensual (Reasons for Judgment, para. 48), his reasons are clear that he did not make a positive finding that the complainant had consented to the two acts of intercourse. Rather, he found that the Crown had not proven non-consent beyond a reasonable doubt – or, put differently, that he had a reasonable doubt about non-consent. This is clear from reading his reasons as a whole, and in particular from paras. 60-61, 64-65, and 69-70.

[6] I highlight this point because, in my view, reading the reasons for judgment as a whole, what happened in this trial was that after considering the whole of the evidence, which consisted of the evidence of the complainant and that of the respondent, the trial judge was left with a reasonable doubt. An acquittal need not be based on a conclusion of innocence, but may properly rest on an inability to conclude guilt beyond a reasonable doubt: R. v. Darnley, 2020 ONCA 179 at para. 35. For reasons I will explain, I am not persuaded that the trial judge committed the errors alleged by the appellant in coming to that conclusion.

[7] Before turning to the three grounds of appeal raised by the appellant, I also note that at the outset of the reasons for judgment, the trial judge set out in some detail the principles of law applicable to this trial, including in relation to the presumption of innocence, the reasonable doubt standard, the application of the reasonable doubt standard to credibility issues, and the elements of sexual assault and evidentiary issues related to sexual assault trials (Reasons for Judgment, paras. 21-44). In my view, the summary of the law by the trial judge is comprehensive. The appellant has not argued that the trial judge’s summary of the applicable law contains any error. [1] Of course, a trial judge must not only state the law correctly, but must apply it correctly. But the correct statements of law at the outset are important context for considering the errors alleged by the appellant, in light of the obligation for an appellate court to consider the reasons as a whole.

Did the Trial Judge err in not finding that the events on the couch constituted a sexual assault, even on the respondent’s evidence?

[8] The appellant argues that the trial judge erred in failing to find that on the respondent’s own evidence, when he placed his hand in the waistband of the complainant’s pants the second and third time (but no further) when they were on the couch, that constituted a sexual assault. The Crown argues that each time the respondent put his hand in the waistband of the complainant’s pants, she said, no. The Crown argues that this was a “no” to any placing of his hands in her pants, not just a “no” to touching of her genitals or vagina. In particular, the Crown argues that after the complainant first said “no” to the respondent putting his hand further down her pants, that any further move by the respondent to put his hand down the complainant’s pants, even just at her waistband, constituted a sexual assault.

[9] The respondent argues that the trial judge found as a fact that the respondent did not cross any line set by the complainant. The respondent argues that the trial judge found that each time the complainant said no to the respondent putting his hand down her pants, they then returned to kissing, and over time, to touching each other’s genitals over their clothes. The trial judge found as a fact that after some time of this activity taking place, the respondent put his hand slowly just into the waistband of the complainant’s pants. She said no, and he stopped that conduct. And the other sexual contact continued. The trial judge found as a fact in placing his hand just inside the complainant’s waistband the respondent did not cross a boundary set by the complainant. Rather, he came up to the boundary, and when he was told no, he stopped, and returned to other sexual activity that was consensual (kissing and touching over clothes).

[10] I am not persuaded by this ground of appeal. In my view, the trial judge made a factual finding that he was entitled to make. He assessed the issue of consent with respect to the factual context of the particular sexual contact that was taking place each time the respondent put his hand inside the waistband of the complainant’s pants.

[11] As I have noted above, the trial judge correctly stated the applicable law before engaging in his analysis of the evidence. He was alive to the law that there is no such thing as implied consent, that silence does not equal consent, that consent is judged from the complainant’s subjective state of mind, and that where a complainant denies that there was consent to particular sexual activity, the court must assess all of the evidence to determine whether the complainant’s stated lack of consent has been proven beyond a reasonable doubt.

[12] Reading the section of the trial judge’s reasons on this issue (paras. 6-9, and 46-48) in the context of the reasons as a whole, I find that the trial judge found as a fact that the complainant had drawn a boundary line that the respondent could not touch her genital area (under her pants), but that the respondent putting his hand just inside the waistband of her pants (but not reaching down to her genitals) was not beyond the boundary that the complainant had drawn, that is, that she consented to the touching at her waistband, but at that point said no to anything further.

[13] In reaching this conclusion, the trial judge considered the whole context of the interaction on the couch. He found that the complainant, by her words and gestures, expressly consented to the respondent putting his hand just in the waistband of her pants, but said no to him reaching further and touching her genitals under her pants. The trial judge found that each time the respondent put his hand inside the waistband of the complainant’s pants, she told him to stop going any further, and he did stop. They then resumed their previous sexual activity progressing from talk, to kissing, to fondling over clothes. The trial judge found that in this context, the respondent sliding his hand into the complainant’s waist band, but no further, was, in the words of the trial judge, “returning to the boundary line that had been drawn, but not a trespass beyond it” (para. 47, emphasis added).

[14] In effect, the trial judge found that by placing his hand inside the complainant’s waistband, the respondent was signalling by a gesture that he wanted to go further, but not proceeding unless and until he obtained consent from the complainant by word or gesture. Each time the complainant told him to stop there, the respondent stopped. This interpretation is supported by the trial judge’s summary of the evidence about this portion of the evening at para. 6 of his reasons for judgment:

Three times, the sexual activity on the living room couch escalated in a progression from talk, to kissing to fondling over clothes, to a point where the accused slides his hand inside the waistband of the complainant’s pants. Each time he slides his hand inside the waist of her pants she asked him to stop progressing further. Each time she asked him to stop he complied. The accused took this activity, each time, to be foreplay; he expected that one thing leading to another, that things might well progress further. When he slides his hand into the waistband of the complainant’s pants, he was clearly signalling an intention of reaching further down her genital area if she wanted him to. Each time the complainant asked him to stop at the waistband and each time he stopped. [emphasis added]

[15] In my view these findings of fact were open to the trial judge on the record before him. It is clear from the reading the reasons of the trial judge as a whole, that the respondent’s evidence overall left him with a reasonable doubt. In my view, it is also clear from the trial judge’s reasons on the particular issue of the intimacy on the couch, that the trial judge accepted the respondent’s evidence. I say this because the description by the trial judge of what happened on the couch closely tracks the respondent’s evidence (Transcript of April 10, 2019 at pp. 77-80; Transcript of April 12, 2019, pp. 11-19). The substance of the respondent’s evidence was that three times, the intimacy between him and the complainant progressed from talking, to kissing, to touching over the clothes, including touching of each other’s genital area over the clothes. He then put his hand just inside the complainant’s waistband. She said no to him going further, and he stopped. There was more conversation, including the respondent saying that he was interested in the sexual contact proceeding further, but if she was not, he would go home. Each time the complainant asked him to stay. There was more talking, which progressed to kissing, and then touching over the clothes again. It was in this context, on the respondent’s evidence with the complainant touching his genitals over his pants, and him touching her genitals over her pants, that the respondent again put his hand into the complainant’s waistband, but not further, she said no to him going further, and he stopped. This sequence, according to the respondent, happened three times over an extended period of time, which he estimated as “probably an hour and a half in total” (Transcript of April 12, 2019, p. 16).

[16] I note as well, as did the trial judge, that on the issue of the intimacy on the couch (before the complainant turned to check her phone), although there were some differences between the complainant’s and the respondent’s evidence, there was significant commonality in that the complainant the complainant agreed that there was kissing, making-out, and “touching and heavy-petting” that was consensual. The complainant also testified that on the couch, when she would say no to escalating the level of touching, the respondent would stop. I note that the complainant’s evidence was much less detailed than the respondent’s about this portion of the evening (Transcript of April 10, 2019, pp. 12, 37-39, and 44-45)

[17] The factual findings made by the trial judge in this case do not represent the type of “testing of the waters” that the Supreme Court has clearly said cannot be the basis for a finding of consent (or belief in communicated consent): R. v. Ewanchuk, [1999] 1 S.C.R. 330 at paras. 51-52, and R. v. Barton, 2019 SCC 33 at para. 107. Rather, what the trial judge found was that prior to each time the respondent put his hand inside the waistband of the complainant’s pants (and no further), the physical contact had escalated from talking, to kissing, to touching above the clothes, including the complainant and the respondent each touching the other’s genitals over their clothes. Based on the conduct of the complainant (on the respondent’s version of events), the trial judge found that each time the respondent put his hand inside the complainant’s waistband (but no further), this act went to the point the complainant was consenting to, but did not go further, and the respondent stopped when the complainant said no.

[18] This is not a situation of a defendant either just persisting after being told “no” to a specific sexual act, or just relying on the passage of time as the basis to find consent, which is what (in the context of mistake as to communicated consent) the Supreme Court in Ewanchuk and Barton held could not be the factual basis for a mistaken belief in consent. Rather, the trial judge’s factual finding of consent up to and including putting the hand in the waistband (but no further) was based on the acts and gestures of the complainant (based on the respondent’s evidence) at each time the respondent placed his hand in her waistband. The discussion in Ewanchuk about not “testing the waters” is clear that it does not displace the law that consent can be conveyed by words or gestures. This is clear from the statement of Justice Major at the end of para. 51 of Ewanchuk: “I take the reasons of Fraser C.J. to mean that an unequivocal ‘yes’ may be given by either the spoken word or by conduct.”

[19] This ground of appeal challenges findings of fact made by the trial judge. Although a Crown appeal in a summary conviction matter, unlike an appeal in an indictable matter, is not limited to questions of law, it is well-established that it is not the role of a judge hearing a summary conviction appeal to retry a case or to substitute their own view of the evidence for that of the trial judge. On questions of fact, a summary conviction appeal court may not interfere with a trial judge’s findings unless the findings are unreasonable or unsupported by the evidence: R. v. Smits, 2012 ONCA 524 at para. 67; R. v. Salerno, [2000] O.J. No. 3511 at para. 7 (SCJ); R. v. Polanco, 2018 ONCA 444 at para. 20.

[20] For the reasons I have explained, I am not persuaded that the findings of the trial judge are unreasonable or are unsupported by the evidence. I am not persuaded by this ground of appeal. Findings of fact by a trial judge on the issue of consent are very fact-specific and context-specific. In my view, the factual findings made by the trial judge were ones he entitled to make.

Were the Trial Judge’s reasons inadequate regarding the conflict in the evidence about whether the respondent pinned the complainant to the sofa?

[21] The second ground of appeal raised by the appellant is that the trial judge’s reasons were inadequate because, according to the appellant, the trial judge failed to address the conflict in the evidence between the complainant and the respondent about whether he pinned her to the couch prior to the moving into the bedroom where the sexual intercourse occurred.

[22] For reasons I will explain, I do not accept that the trial judge’s reasons were inadequate. On the contrary, his reasons fully satisfied the functional requirement of reasons of telling the parties, and the appellant court what he decided and why.

[23] Where an appellate court is asked to consider an argument about sufficiency of reasons, the court should take a functional approach to the reasons, reading them as a whole, in the context of the evidence and arguments at trial, and with an appreciation of the purposes for which reasons are delivered (telling the parties why the decision was made, public accountability, and permitting meaningful appellate review). A trial judge’s reasons must be intelligible, in the sense that the factual findings linking the evidence to the verdict can be logically discerned. In other words, do the reasons explain the logical connection between “what” the trial judge decided, and “why” she decided it? In deciding if the trial judge’s reasons establish the logical connection between the verdict and the basis for the verdict, an appellate court should consider the reasons in the context of the evidence, the submissions of counsel, and the live issues at trial, in order to determine the live issues as they emerged at trial. A trial judge is not required to make express findings on every piece of evidence or controverted fact: R. v. R.E.M., [2008] 3 S.C.R. 3, 2008 SCC 51 at paras. 11-21, 25, 35, 55-57; R. v. Sheppard, [2002] 1 S.C.R. 869, 2002 SCC 26 at paras. 24-33, 46, 55.

[24] As I have noted above, in this case, the trial judge found that he was left in a reasonable doubt by the respondent’s evidence, and that the complainant’s evidence did not persuade him beyond a reasonable doubt. In my view, the trial judge’s reasons very clearly explain these findings, in particular at paragraphs 49-70 of his reasons. The reasons at these paragraphs explain the “what” and the “why” of his findings. They are sufficient to serve the functional purposes of reasons of explaining why the respondent was acquitted, providing public accountability, and permitting effective appellate review.

[25] Further, in my view, reading the reasons as a whole, it is clear that the trial judge’s finding that he was left with a reasonable doubt by the respondent’s evidence, and that the complainant’s evidence did not persuade him beyond a reasonable doubt, included that he was not persuaded of the complainant’s version of events that the respondent pinned her to the couch prior to the first intercourse.

[26] The trial judge expressly adverted to the conflict between the evidence of the complainant and the respondent on the issue of whether the respondent pinned the complainant on the couch at para. 10 and 11 of his reasons. Thus, there can be no suggestion that he somehow missed the issue.

[27] His reasons are also clear that in order to assess the issue of consent, he had to consider the credibility of the complainant’s assertion that she “caved in” to intercourse with the respondent out of fear (see Reasons for Judgment at paras. 49-52). The complainant’s evidence that the respondent had pinned her on the couch was an important part the basis of her asserted fear of the Respondent that led her, on her evidence, to comply with intercourse out of fear.

[28] In my view, the trial judge’s reasons at paras. 49-70, where he finds that he is left with a reasonable doubt by the respondent’s evidence, and that he is not persuaded beyond a reasonable doubt by the complainant’s evidence, clearly include not being persuaded by the portion of the complainant’s evidence that the respondent pinned her to couch.

[29] For these reasons, I find that the Trial Judge’s reasons were sufficient.

Did the Trial Judge err in law by relying on myths and stereotypes?

[30] The appellant submits that the trial judge erred in his assessment of credibility as it related to the two instances of intercourse by relying on what that appellant argues were impermissible stereotypes. The appellant argues that the allegedly stereotypical reasoning related to three issues, which I outline below.

[31] The respondent submits that the trial judge did not rely on impermissible stereotypical inferences. Rather, he correctly cautioned himself against relying on stereotypes (for example at para. 59). The respondent submits that the trial judge then assessed, based on the factual record before him and the issues as framed by counsel at trial, whether or not the complainant’s actions were consistent or inconsistent various aspects of her evidence.

[32] For reasons I will explain, I find that the trial judge did not rely on impermissible stereotypes in his assessment of credibility.

[33] It is important to start by placing the three paragraphs that the appellant objects to in the context of the reasons as a whole. In my view, two points are important to note in terms of context.

[34] First, the trial judge strongly cautioned himself against relying on stereotypical reasoning and myths several times in his reasons (see in particular at paras. 21, 53, 54, 58, and 59). I reproduce one portion of his self-instruction here:

[53] Through education and experience in recent years, the criminal courts have gained a heightened understanding that the realities of human sexual dynamics often defy what some might otherwise consider to be common sense. Reliance on assumptions of what a complainant ought to have done or ought not to have done can be very dangerous. I caution myself accordingly.

[54] Curious behaviour does not always support a negative assessment of credibility or reliability, or the true subjective thinking of a victim of a traumatic experience. Common sense and the relative harmony of a witness’s evidence with accepted facts are usually reliable measuring tools in assessing the probabilities of the evidence being truthful or reliable. However, with sexual assault allegations, trial courts must be extra vigilant to guard against improper reliance on myths and stereotypical thinking which may masquerade as common sense.

Further, at paras. 58 and 59, he specifically cautioned himself about stereotypes related to raising a hue and cry.

[35] Second, paragraphs 57 to 59 of the reasons, those which the appellant objects to, sit within a context that shows the limited use that the trial judge made of the points in para. 57 to 59. Immediately following the self-instruction I have just quoted, the trial judge states in para. 55: “Counsel for the accused asked me to disbelieve the complainant, that her version of events was literally incredible and contrary to common sense. I pressed counsel to help me by pointing to specific frailties in her evidence.”

[36] Following this, are paras. 56-59 of the reasons, the portions the appellant objects to. Read in context, it is clear that these paragraphs are a summary of the points that defence counsel at trial argued made the complainant’s evidence incredible and contrary to common sense, and some commentary by the trial judge on these arguments (which I will return to in a moment).

[37] Then the trial judge concludes as follows at paras. 60 and 61:

[60] These are all legitimate areas of analysis, but they are far from substantial enough to completely undermine the credibility and sincerity of the complainant. They are a few examples of areas of her evidence that raise concerning questions, but none that would justify rejecting her evidence out of hand as dishonest.

[61] Apart from the evidence of the accused, there is no reason that is sufficiently compelling for me to reject the evidence of the complainant that she was not subjectively consenting to the sexual activity progressing further, and to having intercourse with the accused. However, there are enough questionable areas of concern to weaken the force of her evidence and render it incapable of neutralizing the evidence of the accused.

[38] In my view, when these portions are read in the context of the reasons as a whole, and in light of the burden on the Crown to prove the charges beyond a reasonable doubt, and the application of the reasonable doubt standard to the assessment of credibility pursuant to R. v. W.(D.), [1991] 1 S.C.R. 742, the trial judge was not finding that the complainant’s evidence was inherently unbelievable. Rather, he was finding that it was not strong enough to persuade him beyond a reasonable doubt, when faced with what he saw as reasonably credible defence evidence.

[39] I turn then to the appellant’s submission that the trial judge relied on impermissible stereotypical reasoning in his assessment of credibility.

[40] I take no issue with the proposition put forward by the appellant that if credibility assessment done by a trial judge relies on stereotypes or rape myths, that constitutes an error of law: see for example, R. v. Lacombe, 2019 ONCA 938 at para. 31-34.

[41] The need to eliminate rape myths from reasoning in sexual assault trials derives from the real and unfortunate history of stereotypical and discriminatory reasoning being used to discredit complainants in sexual assault cases. It is for this reason that both statutory law and common law have been changed to eliminate discriminatory practices in relation to assessment of evidence, such as the requirement of corroboration in sexual assault cases (s. 274 of the Criminal Code), and the elimination of the requirement that complainant’s make a “hue and cry”, coupled with the recognition that often there are reasons that complainants may not react by crying out, or fighting, or reporting immediately. I mention these as just some examples of discredited rape myths.

[42] The need to eliminate rape myths is designed to eliminate discriminatory beliefs, and to put complainants in sexual assault cases on an equal footing with complainants and witnesses in trials involving any other type of charge. But it is not designed to put complainants in sexual assault cases on a better footing than complainants and witnesses in other types of cases. As with any witness in any type of case, the evidence of a complainant in a sexual assault trial must be assessed rationally and objectively in the context of all the evidence at trial, and with regard to the burden of proof.

[43] The recognition that not all complainants will fight back or cry out in response to a sexual assault, and that complainants may react in different ways to a sexual assault, and that assuming either of those things is a rape myth, does not have the effect of prohibiting a trial judge from assessing, based on the evidence before them, whether or not they accept as credible a complainant’s assertion that they complied with a request for sex out of fear, and whether that assertion is consistent with the whole of the evidence, or not. In assessing credibility of the evidence of a complainant (or of any witness), a trial judge must consider the totality of the evidence, “including any ambiguous or contradictory conduct by the complainant”: Ewanchuk at paras. 29-30, 61; R. v. D.D., [2000] 2 S.C.R. 275, 2000 SCC 43, at paras. 60-65; R. v. Holland, 2020 ONSC 846 at para. 89. [2]

[44] The effect of this is that sometimes evidence may be properly relevant to an issue at trial, or to credibility, despite the fact that if used in a different way, it might be said to involve engaging in prohibited use of rape myths. To assess whether a trial judge has engaged in impermissible reasoning, one must consider the particular evidence, and the particular use of it by the trial judge, in the context of the evidence and issues at trial.

[45] I am not persuaded that the trial judge in this case relied on stereotypes or rape myths. As I have noted above, in my view, the issues addressed by the trial judge at paras. 57-59 were addressed in a very attenuated form, given the context of paras. 53-55, and 60 and 61 that bookend them. But setting aside that the trial judge’s consideration of the issues in paras. 57-59 was very attenuated, I am also satisfied that he was not relying on stereotypical reasoning or rape myths. Rather, these paragraphs of the trial judge’s reasons address particular issues and evidence which were before him at trial, in a manner that is relevant, and responsive to the issues before him.

[46] The first area where the appellant argues that the trial judge relied on stereotypes is at para. 57 of his reasons, where the trial judge addressed issues relating to the respondent coming up to the complainant’s apartment to wait for a taxi. The appellant submits that the trial judge relied on a stereotype about what a woman’s intentions are when a single woman invites a man up to her apartment at the end of the night.

[47] With respect, the trial judge’s reasons do not disclose this type of reliance on stereotype. Rather, the issue the trial judge was addressing was whether the complainant’s explanation that they went upstairs to her apartment on the 43rd floor to wait for his cab made sense, given the time required to go upstairs.

[48] The context of this issue is important. As the trial judge outlined at para. 56 of his reasons (immediately preceding the paragraph the appellant takes issue with), the complainant and respondent had shared a cab, with the intention that the cab would drop her off at home first, and then the cab would take the respondent to his own home. That plan fell apart when the cab arrived outside the complainant’s condo building. There was a confrontation between the complainant and the cab driver about the fare, which ended with the driver telling the complainant and the respondent both to get out.

[49] It is clear from the trial judge’s reasons at para. 57 that he is not relying on any stereotypes about what women who invite men up to their apartments want (which would be impermissible reasoning). Rather, he is assessing that he has some concern about the credibility of the complainant’s evidence that she invited the respondent up in order for him to wait for his cab, since it would take some time to take the elevator up to the 43rd floor, and if the purpose was waiting for a cab or an Uber to arrive, it would appear to make more sense to wait in the lobby.

[50] Further in relation to the point I made above about how attenuated the trial judge’s use of this evidence is (as he states at paras. 60 and 61 of his reasons), he ends para. 57 with a similar statement of the attenuated value of this evidence: “It is possible that these are simply two different understandings of the same event, however, the accused’s understanding seems entirely credible to me.”

[51] The second and third areas where the appellant submits that the trial judge relied on stereotypes are at paras. 58 and 59 of his reasons, where the trial judge considered the complainant’s asserted fear, and made reference to the fact that her roommate and the roommate’s boyfriend were in the apartment, and the complainant having had the opportunity to remove herself from the respondent’s reach, and also to the evidence of a discussion between the respondent and the complainant about not having a condom, and whether if the complainant was not consenting, that presented an opportunity to end things.

[52] I disagree with the appellant that the trial judge impermissibly relied on stereotypes in these portions of his credibility assessment.

[53] In paragraph 58, The trial judge properly cautioned himself that not all complainants in sexual assault cases will fights back or cry out in response to a sexual assault. Similarly, in para. 59 he cautioned himself that a fearful complainant might not react in a particular way.

[54] As I have noted, the recognition that complainants are not required to raise a hue and cry, and that complainant’s may react in different ways to a sexual assault requires that trial judges employ care in the inferences they draw in relation to whether a complainant’s actions or inactions are consistent or inconsistent with their evidence. But it does not render a complainant’s actions or inactions irrelevant for the purposes of assessing credibility.

[55] The context for paragraphs 58 and 59 of the reasons for judgment included evidence from the complainant that she consented to sexual intercourse with the respondent out of duress, and that she said, “let’s do it”, voicing consent to go into the bedroom with the respondent to have intercourse (but not actually subjectively consenting, on her evidence). She said she did this because she was scared (see summary of evidence on this issue at paras. 10, 50, 51 of the Reasons for Judgment). In this context, I find that with the appropriate cautions, which the trial judge gave himself, the trial judge was entitled to consider whether the actions of the complainant were or were not consistent with her assertion that she consented out of fear, and he was entitled to make this assessment taking into consideration the full context of the situation at that time in the apartment.

[56] The appellant argues that what the trial judge did in this case is the same error identified by the Court of Appeal in Lacombe at paras. 43-45. With respect, the reasoning by the trial judge in Lacombe that the Court of Appeal found was in error is different than the reasoning by the trial judge in this case. The reasons of the Court of Appeal in Lacombe, in particular at paras. 43 and 45, are clear that the error made by the trial judge in that case was to discount the complainant’s credibility because she remained with the accused, without giving any consideration to the assertion by the complainant that she was afraid, and why she said she was afraid.

[57] By contrast, the trial judge in this case repeatedly referred to the complainant’s evidence that she was afraid (for example at paras. 10, 51, 58, and 65). Indeed, the trial judge in this case did not reject the complainant’s assertion that she was afraid, but neither did he find that in the full context it was so persuasive that it was capable of proving the charge beyond a reasonable doubt, or of persuading the trial judge that the defendant’s evidence was not capable of raising a reasonable doubt. The trial judge in this case was properly permitted, indeed obliged, to assess the credibility of the complainant’s assertion that she consented to intercourse because she was afraid, within the factual context of all of the circumstances that night.

[58] As with the first area the appellant objects to, in paras. 58 and 59, the trial judge again closes by recognizing that one must be cautious in relying on inferences about how a complainant would or would not behave: “Again, perhaps a fearful and unwilling victim might not behave in such a logical fashion, but still it raises another basis for concern.”

[59] In sum, reading paras. 57-59 in their immediate context, and in the context of the reasons as a whole, I am not persuaded that the trial judge crossed the line into impermissible stereotypical reasoning in this case.

Conclusion

[60] The appeal is dismissed.

[61] I thank both counsel for their helpful and focussed submissions.

[62] In light of the current restrictions on court operations due to the pandemic, these reasons are official with the electronic signature below.

Justice J. Copeland Released: June 5, 2020

COURT FILE NO.: CR-19-00000045-00AP DATE: 20200605 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN Appellant – and – GUY SOLOMON Respondent

REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL

Justice J. Copeland Released: June 5, 2020

Footnotes

[1] The only area where it could be said that the trial judge’s general statement of the applicable law is incomplete, is that it does not contain a discussion of the reasonable steps requirement in relation to honest but mistaken belief in communicated consent (although he did reference the need for a mistake to be about communicated consent: Reasons for Judgement, para. 44). However, for a number of reasons I would not intervene as a result of this omission. First, a trial judge is not obliged to expressly state all the legal rules applicable to a given case. Second, the reason the trial judge acquitted the respondent was that he was not satisfied that the Crown had proven non-consent beyond a reasonable doubt. The trial judge’s findings in relation to honest but mistaken belief in communicated consent (paras. 71-75 of his reasons) are in the alternative. Thus, if one were to find an error in relation to honest but mistaken belief in communicated consent (which, I want to be clear, I am not finding), it could have had no practical effect, since mistake was only considered in the alternative. Third, the Crown did not raise any ground of appeal related to reasonable steps.

[2] See also Canadian Judicial Council model instruction on sexual assault, para. 9, in relation to proof of non-consent and assessing credibility of a complainant’s assertion on non-consent: “You have heard evidence that (Name of complainant) did not consent to the sexual activity in question. It is for you to decide whether this evidence satisfies you beyond a reasonable doubt that (Name of complainant) did not consent. Consider all the evidence, including the circumstances surrounding (Name of complainant)’s physical contact with (Name of defendant), to decide whether (Name of complainant) did not consent to it. Take into account any words or gestures, including evidence of any ambiguous or contradictory conduct, and any other indication of (Name of complainant)’s state of mind at the time