DATE: 20000418

DOCKET: C30941

COURT OF APPEAL FOR ONTARIO

CARTHY, CHARRON and GOUDGE JJ.A.

B E T W E E N : )

) Clayton C. Ruby and

HER MAJESTY THE QUEEN ) A. Breese Davies, for the

) appellant

Respondent )

)

• and - ) Susan Kyle,

) for the respondent

J. C. (A Young Person) )

)

Appellant )

)

Heard: March 6, 2000

On appeal from his conviction by His Honour Judge Whetung on July

22, 1998

CHARRON J.A.:

[1] The appellant, a young person under the Young Offenders Act, R.S.C. 1985, c. Y-1, was found guilty of sexual assault by Whetung J. He received a disposition of 85 days in secure custody, one year in open custody, and 18 months’ probation. The appellant appeals against conviction and seeks leave to appeal the disposition.

[2] At the conclusion of the hearing, this court allowed the appeal against conviction, set aside the verdict and ordered a new trial, for reasons to follow. These are those reasons.

[3] In view of the fact that the appeal against conviction was successful, it is not necessary to deal with the appeal from the disposition. It should be noted, however, that the Crown rightly conceded at the hearing that the total disposition imposed by the trial judge is illegal, as it exceeds the two-year maximum disposition allowed under s. 20(3) of the Young Offenders Act.

[4] In view of the fact that there will be a new trial, I will only recite the evidence to the extent that it is necessary to dispose of this appeal.

[5] The appellant and the female complainant were friends who met at school in 1993 when he was in grade 6 and she was in grade 8. There was no dispute at trial that the appellant and the complainant had sexual intercourse on July 13, 1997, when he was 15 and she was 17 years of age and that the sexual encounter took place when the two were alone in the apartment of the complainant’s sister. There was also no dispute that neither the appellant nor the complainant had had sexual intercourse with any partner before that evening and that intercourse with the appellant caused pain and much bleeding to the complainant. The central issue at trial was consent.

[6] The appellant testified that the intercourse was consensual and that it had stopped when the complainant asked that it stop. The complainant testified that she had not consented to the intercourse and that she had told the appellant to stop at the commencement of the intercourse. She testified that he had nonetheless continued the act of intercourse until he was interrupted by her sister’s knocking on the door of the apartment.

[7] The trial judge entirely rejected the testimony of the appellant and found that, although there was consent at the commencement of the intercourse, he was satisfied that the appellant continued to have intercourse with the complainant after she had withdrawn her consent. Consequently, he found the appellant guilty of sexual assault.

[8] The appellant raises several grounds of appeal, all of which are related to the trial judge’s approach to and analysis of the evidence. Counsel for the appellant takes particular issue with the trial judge’s rejection of the appellant’s testimony without properly assessing it in the context of the other evidence at trial.

[9] I agree with the appellant’s contention that the trial judge’s approach to the appellant’s evidence was fundamentally flawed. The main error lies in the fact that the trial judge totally rejected the appellant’s testimony on the sole basis that, in his view, it was internally inconsistent, a basis that cannot reasonably be supported on the evidence. Having thus rejected the appellant’s testimony in its totality from the start, the trial judge then failed to properly assess it in the light of other evidence that supported the appellant’s version of events.

[10] During the course of his consideration of the appellant’s testimony, the trial judge stated as follows:

That the evidence of the accused was given as if reading from a form of script and that once the script was deviated from the evidence of the accused began to show a real difficulty insofar as consistency was concerned. This is no more evident than [in] the two versions of events at the apartment that were testified to by the accused in examination-in-chief and in cross-examination. In my opinion this is extremely telling in this matter as the two situations described are markedly different, both insofar as the sequence of events, location of parties, and nature of events. On this basis alone in my opinion the evidence of the accused regarding sexual activity on the night in question is not reliable and is unreliable to the extent that I am unable to attach weight to his denial, I'm sorry, to his version of events and I reject his version of events.

[11] On a review of the transcript, it is difficult to identify the “real difficulty” with respect to consistency that the trial judge perceived. Although there were some inconsistencies in the appellant’s evidence, these appear to be related to peripheral details and to be relatively unimportant. However, what is more important than this court’s reassessment of the testimony are the trial judge’s own reasons for rejecting this evidence. Immediately after the above-quoted passage, the trial judge said:

It is not open to me to say if this stems from dishonesty on the part of the accused, a desire to minimize involvement in this matter or a sincere lack of recollection and a desire to adduce details to satisfy other examination-in- chief or defence or cross-examination questions. Suffice it to say the evidence is in my opinion of such quality I cannot attach weight to it and I do not.

[12] If indeed the inconsistencies in the appellant’s testimony are due to “a sincere lack of recollection”, this certainly provides no basis for the total rejection of the testimony on matters that the appellant did recall, particularly on the crucial question of consent. I am mindful of the fact that this court, on appellate review, should not dissect a trial judge’s reasons nor should it interpret the reasons as necessarily reflecting the precise and complete analytical process followed by the judge in arriving at his conclusion. Nonetheless, these comments, when considered in the light of the nature of the inconsistencies in question, do raise a concern that the appellant’s testimony was not given proper consideration.

[13] This concern is heightened by the apparent difference in approach adopted by the trial judge in his assessment of the complainant’s testimony. There were a number of inconsistencies in the complainant’s evidence, some of which related not only to peripheral matters but to the central issue of consent, yet the trial judge did not consider this to be a basis for rejecting the totality of the complainant’s testimony as he did with respect to the appellant. Although it is quite open to the trial judge to accept only part of a witness’s testimony, his analysis of the respective testimonies of the appellant and the complainant, when considered in its totality, raises a concern that one standard of scrutiny may have been applied to the evidence of the appellant and another to that of the complainant.

[14] There is a further concern, arising from the reasons, that the trial judge failed to appreciate that other evidence supported the appellant’s version of events. Instead, he considered this evidence to be supportive of the complainant’s testimony. This may be due to the fact that the trial judge rejected the appellant’s testimony in its totality from the start and then failed to advert to it when considering other items of evidence. I will give two examples by way of illustration.

[15] The first example relates to the evidence about the use of condoms. The appellant testified that the complainant handed him some condoms and that he used two, one on top of the other, during the intercourse. The complainant denied giving any condoms to the appellant and did not know or recall whether the appellant had used any. A number of unused condoms were found at the scene as well as two used condoms, one with blood on the exterior and the other with a small amount of semen inside. The trial judge made specific reference to the “real evidence seized by the police” and found it corroborative of the complainant’s testimony.

[16] With all respect, this physical evidence may well be supportive of the complainant’s evidence that intercourse took place and that it caused her to bleed but these facts were common ground between the parties. Rather than supporting her testimony on the central issue, the physical evidence called into question the credibility of her denial and/or lack of recollection on the use of condoms. On the other hand, the physical evidence was entirely consistent with the appellant’s version of events.

[17] Another important feature of the evidence was the complainant’s inability to recall, at least at one point in her testimony, whether she had consented to the commencement of intercourse. The trial judge dealt with this aspect of her evidence as follows:

Yet, the complainant is not able to give reasons for all activities or recall all peripheral details, but she is able to recall and is consistent regarding the nature of sexual contact between she and the accused and her continued request that sexual activity stop. She is unable to give an explanation as to how sexual activity began or prior explicit consent or discussion between them as to how the sexual activity began, but in my opinion that is not the test. The benefit of the commencement of sexual activity goes to the accused insofar in these circumstances as there is clearly not an issue of consent regarding an issue of sexual contact and participation by the complainant. The issue becomes compliance with the requirements of s. 273.1(2) in this matter and that the complainant had consented to engage in sexual activity and expressed this by words or conduct, a lack of agreement to continue to engage in the activity. On the evidence before me of the complainant, am I satisfied in that regard.

Later in his reasons, the trial judge concluded as follows:

…in all of the circumstances I am satisfied beyond a reasonable doubt that in the circumstances of this matter sexual activity of a consensual nature having commenced, the accused simply exceeded the withdrawal of such consent, an expressed withdrawal on the part of the complainant, and that constitutes the offence in the circumstances.

[18] While it was certainly open to the trial judge to make this ultimate finding on the evidence before him, in my view it raises a further concern with respect to the trial judge’s assessment of the appellant’s testimony. It is difficult to understand how the trial judge found himself “unable to attach weight” to the appellant’s testimony when in the end result his ultimate finding that there was consent at the beginning of the sexual activity entirely supports the appellant’s version on this point. On the other hand this finding is contrary to the complainant’s evidence that she never consented to the intercourse.

[19] I am therefore left with the concern that if the trial judge had properly assessed the appellant’s testimony and recognized that, in many respects, it was credible and indeed supported by other evidence, he may well have arrived at a different verdict.

[20] For these reasons, I am satisfied that the verdict cannot stand and that there must be a new trial.

RELEASED: JJC APR 18 2000 Signed: "Louise Charron J.A."

"I agree J.J. Carthy J.A."

"I agree S.T. Goudge J.A."