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:

An order restricting publication in this proceeding under ss. 486.4(1), (2) or (3) or 486.5(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of:

(a) any of the following offences:

(i) offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) 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 subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step‑daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) 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) to (iii).

(2) In proceedings in respect of the offences referred to in paragraph (1) (a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order.

CITATION: R. v. Perkins, 2007 ONCA 585

DATE: 20070830

DOCKET: C44807

COURT OF APPEAL FOR ONTARIO

DOHERTY, GOUDGE and FELDMAN JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

TYLER PERKINS

Appellant

Peter Copeland for the appellant

D. Lepofsky for the respondent

HEARD: April 13, 2007

On appeal from the convictions entered by The Honourable Mr. Justice Bruce A. Glass of the Ontario Superior Court dated December 16, 2005, reported at [2005] O.J. No. 5420, and from the sentences imposed on February 3, 2006, reported at [2006] O.J. No. 428.

DOHERTY J.A.:

I

OVERVIEW

[1] The appellant was convicted, after a trial before a judge without a jury, of sexual assault, assault, and threatening death. He received sentences totalling four years. The appellant appeals his conviction and sentence.

[2] All of the charges arose out of an incident that occurred at the apartment of R.L.* on the evening of March 9, 2004. R.L. testified that she was raped by the appellant, forced to perform fellatio, punched several times, and threatened with death if she told anyone about the attack. The appellant testified that the sexual activity, including sexual intercourse, was consensual and that he did not hit or threaten R.L.

[3] The trial judge gave detailed reasons for convicting the appellant. In the end, he was convinced that R.L. was telling the truth and that the appellant’s testimony was untrue and did not leave him with any reasonable doubt.

[4] Counsel ably argued several grounds of appeal. Two of those grounds must succeed and I will address only those two grounds in these reasons. First, the trial judge erred in determining an important factual issue by reference to his personal perception of how a “virile young man’s” penis would function in the course of sexual intercourse. Second, the trial judge misapprehended the evidence of a Crown witness, Ms. S. This misapprehension figured materially in the trial judge’s determination that Ms. S.’s evidence confirmed a significant portion of R.L.’s evidence relating to her relationship with the appellant prior to the incident.

[5] These two errors require reversal. I would quash the convictions and order a new trial.

II

THE EVIDENCE

(a) The Prior Relationship

[6] R.L. and the appellant had worked together since 2001. They gave different versions of their relationship prior to the events of March 9, 2004.

[7] R.L. testified that the appellant, who was younger than she was, would often tease her at work, sometimes making fun of her in a cruel way. She indicated that after they had worked together for about two years she and the appellant began to jog together from time to time. The appellant also took R.L. to a store to get her son’s skates sharpened and visited her apartment to fix her DVD player. R.L. testified that, despite this social interaction, she was uncomfortable around the appellant because he often acted like a bully.

[8] R.L. testified that on one occasion the appellant made sexual advances towards her in his car after they had been jogging together. R.L. told him that she was not interested, and the appellant eventually relented. R.L. also indicated that after the incident in the car the appellant would contact her either on the telephone or over her computer. In time, he began to insist that they engage in “phone” sex. He threatened her with physical violence if she did not go along with his demands. R.L. said she would pretend to engage in “phone” sex with him because she was afraid of him.

[9] R.L. testified that in November 2003, about three months before the incident giving rise to the charges, the appellant made sexual advances towards her while he was visiting her apartment. He insisted that she have sex with him. R.L. refused and the appellant man-handled her in a violent fashion. R.L. became very upset and eventually the appellant stopped. He apologized to her and then stayed at the apartment for quite some time talking with her.

[10] In the weeks following this incident, the appellant would talk to R.L. at work and on the telephone. He insisted that she was acting stupidly towards him and threatened her should she complain about his behaviour to anyone. For some reason unknown to R.L., this aggressive behaviour stopped around Christmas 2003. The appellant told R.L. that she had misunderstood the events in the apartment in November.

[11] The appellant gave his version of the prior relationship in his testimony. He agreed that he would joke with the appellant at work and sometimes joke with her about her age. She was about ten years older than the appellant. According to the appellant’s testimony, they became friends and would often speak on the telephone or over the computer. They also jogged together on several occasions.

[12] The appellant testified that a sexual relationship developed between R.L. and him. This relationship included “phone” sex and actual sexual activity including sexual intercourse. The first act of sexual intercourse occurred in August 2003.

[13] The appellant described their relationship as purely physical. He had a girlfriend.

(b) The Events on March 9, 2004

[14] R.L. testified that the appellant contacted her a few days before March 9, 2004 and told her that he had something for her son’s fish tank. After cancelling one visit, the appellant arrived at R.L.’s apartment shortly before 9:00 p.m. on the evening of March 9. R.L.’s son was staying with her ex-husband and was not in the apartment.

[15] R.L. and the appellant talked for a while. At about 10:50 p.m. R.L. told the appellant that she was tired and asked him to leave the apartment. The appellant ignored the request and continued to talk to R.L. about different things. He suggested that they look at R.L.’s family photographs.

[16] As the night wore on, the appellant’s mood became considerably darker, and R.L. became frightened. The appellant insisted that they enter the bedroom. R.L. resisted but eventually the appellant physically manoeuvred her into the bedroom. R.L. said “please don’t”. The appellant persisted and manoeuvred her towards the bed.

[17] In the bedroom, the appellant forced R.L. to partially undress and masturbate him. When she resisted, he would tell her that she was not listening to what he was telling her to do. After some time, the appellant removed R.L.’s pants and ripped her underwear away from her. They struggled and the appellant forced his penis into R.L.’s vagina. R.L. was crying, and the appellant put a pillow over her head.

[18] R.L. testified that she felt a “splash” on her left leg when the appellant ejaculated. Afterwards, he lifted himself off of her, got up from the bed, and put on his clothes. R.L. became very upset when she realized that the appellant was not wearing a condom.

[19] R.L. testified that after the act of intercourse was complete the appellant treated her in a physically abusive and emotionally derisive manner. She was crying. He struck her several times and told her that she would be dead if she told anyone what had happened. The appellant eventually put R.L. on to the bed, threw a blanket over her, and left the room. R.L. fell asleep.

[20] On the appellant’s version, he went to the apartment on March 9 on invitation from R.L. He agreed with her testimony that he had originally planned to go the apartment on an earlier date but had cancelled his first planned visit.

[21] The appellant testified that he and R.L. had consensual sexual intercourse. He testified that he put a condom on but that during the prolonged sexual intercourse his penis softened somewhat and the condom came off. The appellant testified that he continued to engage in sexual intercourse, pulling out of R.L.’s vagina just before he ejaculated on her leg. The appellant knew that R.L. would not agree to unprotected sex. He conceded that he acted stupidly in continuing to engage in sexual intercourse after the condom came off.

[22] The appellant testified that R.L. became hysterical when she realized that the appellant was not wearing a condom when he ejaculated. She talked about the authorities taking away her son and the risk of death should she become pregnant.[^1] The appellant testified that he tried to calm R.L. down, but that he became frustrated when she continued to cry and complain. He told her that her reaction was too much for him and that in any event he had a girlfriend and should not be getting involved with someone else. The appellant said “I’m getting out of here”. They struggled briefly and both the appellant and R.L. fell backwards to the floor. The appellant then left the apartment. The appellant denied that he assaulted R.L. or threatened her.

(c) Subsequent Events

[23] R.L. testified that she went to a medical clinic on March 10 and requested the “morning after” pill. She told the doctor that she had been raped, but she was not examined by the medical staff. R.L. was afraid because the appellant had threatened to kill her.

[24] Ms. S., a friend of R.L.’s, testified that she spoke to R.L. on March 11. R.L. asked her to babysit. Ms. S. was not available. R.L. did not say anything in this conversation about being sexually assaulted.

[25] R.L. spoke to Ms. S. again on March 12, and told her that she needed Ms. S. to babysit so that R.L. could go to the Rape Crisis Centre. R.L. indicated that the appellant had raped her. According to Ms. S., R.L. was not herself. She was pale, jumpy and seemed intimidated. R.L. was moving quite slowly. Ms. S. noticed a small bruise on R.L.’s chin and one on her rib cage.

[26] Some time after R.L. had been to the Rape Crisis Centre, she gave Ms. S. information that would allow Ms. S. to access the evidence gathered at the Rape Crisis Centre. R.L. asked Ms. S. to be sure to get the information to the police if something happened to her before the appellant’s trial.

[27] R.L. and Ms. S. had been friends for several years. Their children attended the same school. Ms. S. was not asked what, if anything, she knew about R.L.’s relationship with the appellant prior to March 9. There was no evidence that Ms. S. was aware of the relationship, much less the nature of that relationship.

[28] The incident of March 9 came to the attention of the police through a somewhat indirect route. After R.L. had spoken with Ms. S., Ms. S. spoke to her husband. He decided to go to the police. The police then interviewed R.L.

[29] Judy Wotherspoon, a registered nurse, examined R.L. on March 12, 2004 at the Rape Crisis Centre. She said that R.L. was tearful and afraid. R.L. told her that she had been raped and beaten. Ms. Wotherspoon observed bruising on R.L.’s chin, jaw, left side, left hip, and left lower leg. The bruises were of different colours and ranged from four centimetres to a half centimetre in size. The bruising could not be dated.

III

THE GROUNDS OF APPEAL

(a) The Trial Judge’s Rejection of the Appellant’s Evidence That the Condom Came Off When He Lost His Erection During Sexual Intercourse

[30] It was common ground between R.L. and the appellant that he was not wearing a condom when he ejaculated. Even on the appellant’s evidence, R.L. would not have consented to unprotected sex. It therefore became important to determine whether the appellant was wearing a condom that came off during the sexual activity, or whether the appellant was never wearing one as alleged by the Crown. The trial judge addressed this facet of the evidence at paragraph 53 of his reasons:

Mr. Perkins explained that the condom came off his penis because he lost some of his erection and it became loose. Then, he did not stop to put on any condom, but rather put his penis back into R.L. and carried on until he was about to ejaculate. At that time, he withdrew and semen projected from his penis onto her leg. First of all, this man was 24 years old. He appears to be in good health and there is no indication that he is not. He had not ejaculated when he was losing his erection. I find it hard to believe that such was the case. A virile young man with a full erection bound on having a climax would not lose his erection. There is one reasonable interpretation. He did not have a condom on at all. He just kept going with his sexual activity and pulled out spilling out seminal fluid on R.L. [Emphasis added.]

[31] There was no medical or other expert evidence as to the functioning of the penis during sexual intercourse. The trial judge’s conclusion that a “virile young man” in good health would not lose his erection during sexual intercourse was apparently based on his own perception of the physiology of the penis of a healthy, virile young man.

[32] In so finding, the trial judge acted on his own initiative and without any notice to the parties. Crown counsel did not argue in his closing submissions that the appellant’s explanation for losing his erection was medically implausible or that it was common knowledge that the event described by the appellant was highly improbable.

[33] The appellant and the Crown disagree as to the proper characterization of the trial judge’s comment. Crown counsel submits that the trial judge was using his “common sense and human experience” to assess the plausibility of the appellant’s evidence. He submits that this is pre-eminently the function of the trier of fact and that this court must defer to the trier of fact in the exercise of that function.

[34] The appellant argues that the trial judge effectively took judicial notice of how the penis of a normal, virile young man functions during sexual intercourse. Counsel for the appellant contends that the trial judge went beyond the proper limits of judicial notice in doing so. Counsel contends that the possibility of a healthy male losing his erection during sexual intercourse is not the sort of thing that is either known by everybody or readily capable of proof by resort to available sources of undisputed accuracy.

[35] The appellant’s characterization of the trial judge’s comment is correct. Whether a healthy young man can lose his erection during sexual intercourse is hardly a matter of “common sense”. To the extent that it reflects the trial judge’s personal experience or understanding, it is not a substitute for evidence. If the trial judge’s comment reflects his own understanding of the physiology of the penis, his understanding cannot be treated as representing the medical norm applicable to all persons such that it can be regarded as a fact in a criminal proceeding in the absence of any evidence. I think the trial judge clearly reached outside of the evidence to find that:

A virile young man with a full erection bound on having a climax would not lose his erection.

[36] The trial judge was entitled to go beyond the evidence to make findings of fact only if he could take judicial notice of that fact. Judicial notice is an essential, regularly used, and often unnoticed, fact-finding mechanism. As has been observed, trials would be interminable and fact-finding suspect without regular use of judicial notice to set the context and background for the real factual battle: see I. Binnie, “Judicial Notice: How Much is Too Much?” Law Society of Upper Canada Special Lectures 2003: The Law of Evidence (Toronto: Irwin Law, 2004) 543.

[37] Fact-finding through judicial notice, however, has risks. The “fact” judicially noticed may be wrong. Judicial notice can also jeopardize trial fairness in that it may deny the parties an opportunity to challenge the existence of the fact of which the trial judge eventually takes judicial notice. These risks require careful limits on the reach of judicial notice. In Canada, those limits are set out in R. v. Find (2001), 2001 SCC 32, 154 C.C.C. (3d) 97 (S.C.C.) and R. v. Spence (2005), 2005 SCC 71, 202 C.C.C. (3d) 1 (S.C.C.).

[38] In Spence at paras. 57-65, Binnie J. described judicial notice as a flexible fact-finding device. The scope of judicial notice depends on the nature of the fact of which judicial notice is taken, and the centrality of that fact to a dispositive issue in the litigation. If the fact is an adjudicative as opposed to legislative or social fact, the scope of judicial notice is narrowed. Similarly, if the fact is central to a dispositive issue, resort to judicial notice is restricted.

[39] The functioning of the penis of a normal, virile young man during sexual intercourse was an adjudicative fact in this proceeding. On the authority of Spence at para. 53, judicial notice of an adjudicative fact will only be taken if that fact is:

(1) so notorious and generally accepted as not to be subject of debate among reasonable persons; or

(2) capable of immediate and accurate demonstration by resort to readily accessible sources of undisputed accuracy. (Citing R. v. Find, supra, at para. 48.)

[40] Not only is the fact of which the trial judge took judicial notice an adjudicative fact thereby limiting the scope of judicial notice, the fact was also central to a crucial issue in the case. The trial judge effectively used the fact of which he took judicial notice to reject the evidence of the appellant concerning the condom. The rejection of that evidence, given the appellant’s acknowledgement that R.L. would not consent to unprotected sex, all but decided the case against the appellant.

[41] I find it impossible to say that the unlikelihood of a healthy young male losing his erection during sexual intercourse is so well known as to be a notorious fact that could not be the subject of debate among reasonable persons. Certainly, there is nothing before this court to suggest that the fact assumed by the trial judge is capable of immediate and accurate proof by resort to some readily accessible source of indisputable accuracy. To the contrary, the subject matter, a blend of human sexuality and physiology, suggests a variety of possible reactions within a broad norm.

[42] Assuming that a trial judge’s decision to take judicial notice of a fact is entitled to some deference on appeal, I would still hold that the trial judge erred in law in taking judicial notice that a healthy young male’s penis would not lose its erection during sexual intercourse. There is nothing that elevates that observation from the personal to the notorious or that offers any assurance of the accuracy of that observation. The trial judge’s improper resort to judicial notice to reject a crucial part of the appellant’s evidence constitutes reversible error.

(b) The Alleged Misapprehension of Ms. S.’s Evidence

[43] As often occurs where the complainant alleges sexual assault and the appellant contends that she consented, the Crown focused its submissions on the evidence of other persons that the Crown contended supported R.L.’s claim. Ms. S.’s evidence fell into that category.

[44] The trial judge addressed Ms. S.’s evidence at para. 44 of his reasons:

It is apparent from both persons that Mr. Perkins wanted to engage in sexual intercourse over several months, but it is not apparent that such activity took place. Rather, I do not find it to be the case. [Ms. S.] is a friend of R.L. and lived in the same apartment building. She saw R.L. several times a week. It appears that R.L. and [Ms. S.] confided in each other. One would anticipate that if there was some relationship between the complainant and the defendant, [Ms. S.] would have been aware of it. Her first awareness of any contact R.L. had with the defendant was after March 10, 2004. [Emphasis added.]

[45] Counsel for the appellant argues that the trial judge misapprehended Ms. S.’s evidence. First, he argues that the trial judge was wrong when he said that Ms. S. lived in the same apartment building as R.L. Counsel is correct. They did not live in the same apartment building. This error is, however, of no significance.

[46] Counsel next submits that there was no evidence that R.L. confided in Ms. S. I agree that there is no direct evidence to support this finding. However, the trial judge could reasonably infer from their long friendship, their regular contact, and the fact that R.L. confided to Ms. S. that she had been raped, that R.L. would confide in Ms. S. in respect of other personal matters. I do not agree that the trial judge misapprehended this aspect of Ms. S.’s evidence.

[47] The appellant’s main challenge to the trial judge’s fact-finding as it related to Ms. S. turns on the trial judge’s finding that Ms. S. did not know about any relationship between R.L. and the appellant before March 10, 2004. The trial judge used Ms. S.’s ignorance of any relationship to infer that there was no prior sexual relationship and that the appellant was lying about the prior relationship.

[48] The trial judge’s use of the inference that the appellant was not telling the truth about the prior relationship because R.L. had not told Ms. S. about the prior relationship is made explicit in para. 49:

The testimony of [Ms. S.] also provided supporting evidence to that of R.L. because it demonstrated that Mr. Perkins was not known to her as a male companion of R.L. Her friendship with the complainant was close enough that she would have known.

[49] There is no evidence as to when Ms. S. first became aware of the appellant much less any evidence about what she knew about the prior relationship between the appellant and R.L. Neither R.L. nor Ms. S. was asked about what, if anything, Ms. S. knew about the relationship between R.L. and the appellant before March 10, 2004.

[50] The trial judge was wrong on the evidence when he indicated that Ms. S.’s first awareness of any contact between R.L. and the appellant was on March 10, 2004. It follows that his inference that the appellant was not telling the truth about the prior relationship is tainted because it flows from a primary finding of fact based on a misapprehension of evidence.

[51] The trial judge’s misapprehension of the evidence is material to the outcome. It ultimately played a significant role in the trial judge’s rejection of the appellant’s evidence and his acceptance of R.L.’s version of the prior relationship between her and the appellant. The trial judge’s finding concerning the nature of the prior relationship was integral to the reasoning process that led to the conviction. The misapprehension of the evidence was material and the verdict cannot stand: see R. v. Lohrer (2004), 2004 SCC 80, 193 C.C.C. (3d) 1 at 25 (S.C.C.).

IV

CONCLUSION

[52] I would allow the appeal, quash the convictions, and direct a new trial on all counts.

RELEASED: “DD” “AUG 30 2007”

“Doherty J.A.”

I agree S.T. Goudge J.A.”

I agree K. Feldman J.A.”

• There is an order banning publication of any information identifying the complainant.

[^1]: There was some evidence that at some point in the past R.L. had a blood disorder and had been told by a physician that she could be at serious risk should she become pregnant. She apparently did not have that disorder as of March 2004.