Court of Appeal for Ontario

Citation: R. v. Fleming, 2007 ONCA 808

Date: 2007-11-26

Docket: C45893

Between:

Her Majesty the Queen (Respondent)

and

Robert Stephen Fleming (Appellant)

Before: Cronk, Juriansz and Watt JJ.A.

Counsel:

Robert C. Sheppard, for the appellant

Christine Tier, for the respondent

Heard and released orally: November 15, 2007

On appeal from the conviction entered on June 29, 2006 by Justice J.F. McGarry of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant appeals from his conviction for sexual assault on three grounds. He argues that the trial judge erred: (1) by finding that the complainant was drugged by the appellant; (2) by failing to engage in a fair and balanced assessment of the appellant’s evidence; and (3) by failing to consider the defence of honest but mistaken belief in consent. We reject these grounds of appeal.

[2] The trial judge’s finding that the appellant drugged the complainant was amply supported by the complainant’s evidence at trial. The complainant testified that she accepted an invitation from the appellant to have dinner with him at his apartment. After they dined and drank some beer, the complainant went to the washroom. She said that when she returned from the washroom she saw the appellant, who had his back to her, pouring something into her glass, which she assumed was beer. She stated that she began to drink what the appellant had poured for her but very quickly began to feel immobilized, disoriented and sick. In addition, her vision became blurry and distorted, the appellant’s voice sounded far away, and she felt limp – like a rag doll or a dead person – although she was conscious. The complainant indicated that although she had a high tolerance for alcohol, she had never felt anything like this before and that it was not an alcoholic high.

[3] As the Crown argues, this testimony painted a picture of “a rapid and over-whelming deterioration” in the complainant’s ability to function, the onset of which occurred almost immediately after she began to consume the last drink poured for her by the appellant.

[4] Based on this evidence, which the trial judge accepted, it was open to the trial judge to find that the complainant was drugged by the appellant. See the recent decisions of this court of R. v. Bell (2007), 2007 ONCA 320, 223 O.A.C. 243, at paras. 30-37, leave to appeal to the S.C.C. dismissed [2007] S.C.C.A. No. 351; and R. v. L.G., 2007 ONCA 654, [2007] O.J. No. 3611, at paras. 5, 10 and 80. No evidence corroborating the complainant’s version of events was required to support this key factual finding, which attracts considerable deference from this court. We see no basis for appellate interference with it.

[5] We also reject the appellant’s claim that the trial judge’s assessment of his evidence was unfair or inadequate. The only issue at trial was consent to the sexual activity in question. The appellant did not testify. His videotaped statement to the police, in which he recounted his version of events including his assertion of consensual sex, was tendered at trial as part of the Crown’s case without objection by the defence.

[6] It is clear from the trial judge’s reasons that he took the contents of the appellant’s statement into account in assessing the totality of the evidence before him. The trial judge indicated that he rejected the appellant’s version of events because it did not have the ring of truth, it defied logic, and the appellant’s manner of responding to questions posed to him during his police interview revealed what the trial judge regarded as an attempt by the appellant to structure his responses to the police so as to avoid incriminating himself. These comments by the trial judge demonstrate that he considered and rejected the appellant’s account of events and his assertion of consent as being implausible and contrived. This conclusion was also open to the trial judge on the evidence.

[7] Finally, the appellant’s contention that the trial judge erred by failing to consider the defence of honest but mistaken belief in consent is unsustainable. The appellant’s counsel acknowledged before this court, properly in our view, that once the trial judge found as a fact, as he did, that the appellant drugged the complainant without her knowledge as a precursor to sexual activity, this defence had no air of reality and was foreclosed.

[8] We note that the appellant’s assertion that the trial judge further erred by reversing the burden of proof was not pursued by the appellant in oral argument.

[9] For the reasons given, the appeal is dismissed.

“E.A. Cronk J.A.”

“R. Juriansz J.A.”

“David Watt J.A.”