W A R N I N G
The President of the panel hearing this appeal directs that the following should be attached to the file:
A non-publication and non-broadcast order in this proceeding under s. 486(3) of the Criminal Code, concerning the identity of and any evidence that would tend to identify the complainant(s), shall continue. Subsections 486(3) and 486(5) of the Criminal Code provide:
486.(3) Subject to subsection (4), the presiding judge or justice may make an order directing that the identity of a complainant or a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way, when an accused is charged with
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,
(ii) an offence under section 144, 145, 149, 156, 245 or 246 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under section 146, 151, 153, 155, 157, 166 or 167 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i), (ii) and (iii).
(5) Every person who fails to comply with an order made under subsection (3) or (4.1) is guilty of an offence punishable on summary conviction. R.S., c. C-34, s. 442; 1974-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6; 1999, c. 25, s. 2; 2001, c. 32, s. 29; 2001, c. 41, s. 16, 34 and 133(13), (14); 2002, c. 13, s. 20.
DATE: 20060110
DOCKET: C41180
COURT OF APPEAL FOR ONTARIO
ROSENBERG, GOUDGE AND SIMMONS JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Nathan M. Ross and S. Shaikh for the appellant
Respondent
- and -
ARTHUR COOPER
Jennifer Woollcombe for the respondent
Appellant
Heard: December 2, 2005
On appeal from the decision of Justice Rose T. Boyko of the Summary Conviction Appeal Court (Superior Court of Justice) dated December 12, 2003.
BY THE COURT:
[1] On December 6, 2002, the appellant was convicted in the Ontario Court of Justice of the sexual assault of F.C., a 19-year-old male. His appeal was dismissed by the Summary Conviction Appeal Court and he now seeks to appeal to this court.
[2] The essential facts are quite straightforward. On the evening of February 24, 2000, F.C. had arranged with the appellant to go to the appellant’s home in the hope and expectation of arranging part-time employment with the appellant’s company. The two had developed a friendship and F.C. was anxious about starting work. Unbeknownst to F.C. the appellant planned for the evening to be one in which he was going to “test the waters” sexually with F.C.
[3] The appellant picked F.C. up and after giving him $100 and telling him that he paid “upfront”, the two went to the appellant’s home.
[4] While their versions of what took place in the home differed in some respects, there was no dispute that, without any discussion about whether F.C. wanted to engage in any sexual act with him, the appellant took F.C. to the bedroom and told him that it was time to “initiate” him. The appellant then removed F.C.’s shirt and sweater and made some attempt to undo his pants. F.C. said the appellant also rubbed his chest. When F.C. expressed horror at what the appellant was doing, the appellant stopped and apologized.
[5] At trial, the appellant defended on the basis that the Crown had not proven that F.C. did not consent, and on the basis that the appellant held an honest but mistaken belief that F.C. was consenting.
[6] The trial judge was satisfied beyond a reasonable doubt that F.C. did not consent to the sexual touching. There was evidence to sustain this finding, despite the complainant’s testimony that he “was thinking it was, like, okay”. In context, it is apparent the complainant was consenting only to the appellant showing him the bedroom, not consenting to any kind of sexual conduct.
[7] The appellant’s principal argument in this court is in relation to the defence of honest but mistaken belief. He says that the trial judge required that the appellant, as an admittedly gay man, had to ascertain F.C.’s sexual orientation to avail himself of the defence of honest but mistaken belief and that this violated the appellant’s equality rights under s. 15 of the Charter of Rights and Freedoms.
[8] The finding of the trial judge on honest but mistaken belief is as follows:
[51] There is no doubt that when F.C. called Mr. Cooper on the evening of February 24, 2000, Mr. Cooper saw this as an opportunity to advance his intentions of having a sexual relationship with F.C. His former relationship had ended and he was now free to engage in another relationship. He told F.C. not to tell his parents where he was going and declined to pick F.C. up at his home in spite of the heavy rainfall that night. He knew all along that F.C. was interested in employment but he mistakenly believed that he could have a sexual relationship with him. But he was either wilfully blind or reckless in ascertaining whether F.C. was interested in such a relationship. He was the one who first introduced to this 19-year-old, on the night in question, a discussion on sexual affairs. He took it upon himself to assume that – according to him – because F.C. said that he had had an unsatisfactory experience with a woman, that ipso facto, that meant he wanted to have a sexual experience with a man. He should have enquired further to satisfy himself whether F.C. was so inclined and in failing to do so, he was either wilfully blind or reckless. Sansregret v. The Queen (1985) 1985 79 (SCC), 18 C.C.C. (3d) 223. There is no question that he had the necessary mens rea. The defence of honest but mistaken belief therefore fails. [Emphasis added.]
[9] We do not read this passage as the appellant suggests. Rather, the trial judge is simply saying that it was not enough for the appellant to assume that F.C. wanted to have a sexual experience with a man because he said that he had had an unsatisfactory experience with a women and that this therefore meant F.C. was consenting to a sexual relationship with the appellant. The trial judge held that the appellant should have inquired further to satisfy himself that F.C. was in fact consenting to a sexual relationship with him. The appellant was therefore wilfully blind or reckless with the result that the defence of honest but mistaken belief failed.
[10] We do not read the trial judge as imposing a special obligation of inquiry on the appellant as a gay man. Rather, in finding that the appellant was wilfully blind or reckless in acting on an assumption without receiving or eliciting consent to the sexual activity the trial judge applied the law applicable to all accused persons regardless of their sexual orientation.
[11] We therefore conclude that the appellant’s argument must fail. There was ample evidence to sustain the trial judge’s finding that the appellant was wilfully blind or reckless in not inquiring whether F.C. consented to a sexual relationship with him. The defence of honest but mistaken belief was therefore properly found to fail and the appellant was properly convicted.
[12] While leave to appeal is granted, the appeal must therefore be dismissed.
RELEASED: January 10, 2006 “MR”
“M. Rosenberg J.A.”
“S.T. Goudge J.A.”
“J. Simmons J.A.”