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. 486.5(1), (2), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
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a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of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or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of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.
(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.
(4) An applicant for an order shall
(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and
(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.
(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.
(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.
(7) In determining whether to make an order, the judge or justice shall consider
(a) the right to a fair and public hearing;
(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer significant harm if their identity were disclosed;
(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;
(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;
(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;
(f) the salutary and deleterious effects of the proposed order;
(g) the impact of the proposed order on the freedom of expression of those affected by it; and
(h) any other factor that the judge or justice considers relevant.
(8) An order may be subject to any conditions that the judge or justice thinks fit.
(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way
(a) the contents of an application;
(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or
(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15.
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. 205, c. 32, s. 15.
CITATION: R. v. J.R., 2008 ONCA 200
DATE: 20080320
DOCKET: C46271 C46325
COURT OF APPEAL FOR ONTARIO
FELDMAN, SHARPE and SIMMONS JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
J.R. and J.D.
Appellants
Daniel Stein for the appellant J.R.
Joseph Di Luca for the appellant J.D.
Megan Stephens for the respondent
Heard: March 6, 2008
On appeal from the judgment of Justice Todd Ducharme of the Superior Court of Justice, sitting without a jury, dated June 30, 2006, and the sentences dated November 21, 2006.
FELDMAN J.A.:
[1] The appellants were acquitted of gang sexual assault and convicted of sexual assault by Ducharme J., sitting without a jury. They appeal both their convictions and their sentences.
[2] The events occurred at a small party in a hotel room that at least ten young men and women attended, including the complainant, the appellants, and two of their friends, brothers A.S. and J.S. The complainant and her female friends arrived at the party at around 10:30 p.m. The complainant’s female friends left by 3:30 a.m., but the complainant stayed. During the evening the complainant drank liquor and ingested some drugs. She has no memory of engaging in sexual intercourse or any other events at the party after 3:30 a.m., except for a flash of J.R.’s face. She awoke at around 10:00 a.m., alone in the hotel room, lying naked on the bathroom floor. In the weeks following the party, the complainant had begun to piece together what happened to her and believed that the appellants had assaulted her. Some months later, DNA test results from a vaginal swab of the complainant taken during the afternoon following the party indicated the presence of semen from each of the two appellants, as well as an unknown third man. Before the DNA results were known, the complainant and a friend of hers had confronted the appellant J.D. J.R. heard that he was a suspect through rumours within a few days of the party.
[3] Both appellants defended on the basis that the Crown did not prove that the complainant did not consent to intercourse. The appellant J.R., who testified at the trial, also raised the defence of honest but mistaken belief in consent. J.R. appeals his conviction on the following grounds: (1) that the trial judge applied a lower standard of scrutiny to the defence evidence than to the Crown evidence; (2) that the trial judge failed to give meaningful reasons for accepting the evidence of the complainant; (3) that the trial judge misapprehended the evidence regarding the complainant’s level of intoxication; (4) that the verdict was unreasonable; (5) that the trial judge misapplied the burden of proof and the rule in R. v. W.(D.) (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.). The appellant J.D. did not testify at the trial. On the appeal, he joined in and amplified the arguments made on behalf of J.R. to the extent applicable, and also objected that the trial judge failed to consider the issue of consent separately for him. I reject each of these grounds.
[4] In making the argument that the trial judge applied a more rigorous standard of scrutiny to the defence witnesses than to the complainant, the appellant J.R. has detailed aspects of the evidence of each witness and asks the court to find the defence witnesses credible and the complainant’s account implausible. He challenges the trial judge’s findings of credibility and the logic or basis for those findings, effectively asking this court to make its own findings or to find that the trial judge erred in his conclusions. In R. v. Howe (2005), 2005 CanLII 253 (ON CA), 192 C.C.C. (3d) 480 at para. 59, this court stated the test for succeeding on a claim that a trial judge unfairly employed different standards in assessing credibility as follows:
[t]he appellant must point to something in the reasons of the trial judge or perhaps elsewhere in the record that make it clear that the trial judge had applied different standards in assessing the evidence of the appellant and the complainant.
[5] The trial judge gave three reasons for rejecting the evidence of the appellant J.R. First, he did not believe that the appellant did not remember details of the sexual encounter. The trial judge found J.R. to be an evasive witness whose memory was “conveniently sketchy.” Although he was drinking that night and time had passed since the incident, because he knew within days that he was being accused of sexual assault, he would have had a “powerful motive to remember the details he knew then.” Second, if the intercourse occurred in the way the appellant described it at trial, with a lot of activity and different positions, he would have had no doubt that the complainant was consenting. Yet J.R. told police, effectively, “I don’t know, maybe I was wrong.” Third, there were numerous other contradictions between J.R.’s evidence and that of his two friends, A.S. and J.S., with respect to details of the party, such as their locations at different times, how and when J.R. was given the money to pay for the hotel room, and the times at which various people departed. These reasons are cogent and it was open to the trial judge to adopt them in considering the evidence.
[6] The appellant J.R. argued, relying on R. v. Esau (1997), 1997 CanLII 312 (SCC), 116 C.C.C. (3d) 289 at para. 24, that it was an error of law for the trial judge to find that his comment to the police, “maybe I was wrong”, was a damning statement that was inconsistent with a belief in consent. However, when asked at trial why he said that to police, J.R. did not say that he may have been mistaken about her consent, nor was that argued by trial defence counsel. There can be no error by the trial judge in using that statement as an inconsistency with the appellant’s version of events and a reason to disbelieve him.
[7] The trial judge examined the defence witness J.S.’s story in detail, including his excuse for failing to tell the police originally or the Crown at an earlier trial date that the complainant had fellated him at the party. He came forward with this story for the first time when he called defence counsel four years after the party and a few days before the actual trial. The trial judge rejected his story as a complete fabrication and gave six cogent reasons for doing so. There is also no merit to the argument that the trial judge erred by failing to treat as a prior consistent statement the defence witness A.S.’s evidence that J.S. had previously told him about the oral sex. The evidence was vague, it was elicited by the Crown on cross-examination, and defence counsel at trial placed no emphasis on it. Furthermore, although the trial judge found that A.S. testified in a straightforward manner, he also found that his reliability was undermined because he was very tired at the party, had drank to excess, and had passed out between 3:30 and 5:30 a.m.
[8] The trial judge gave extensive and detailed reasons for accepting the complainant’s testimony. The appellant J.R. raises two specific issues that he says should have prompted the trial judge to reject the complainant’s evidence. The first is the alleged contradiction between the complainant’s stated shock about two months after the incident when she was told that the DNA testing established that the appellant J.D. was one of the men who had had sex with her at the party, and her accusation of him when she encountered him prior to learning of the test results. The appellants say that her accusation revealed that she was not unconscious at the time of the intercourse and her claim of shock two months later suggests her untruthfulness. The trial judge’s reasons dealt with these aspects of the evidence. He believed they did not reveal inconsistencies in the complainant’s story. Although the complainant had no memory of the early morning hours of the party, she said that in the days following the incident, she pieced together in her mind what must have happened and concluded that the two appellants must have been the ones who sexually assaulted her. However, when she learned the results of the DNA testing, she was still shocked at the confirmation that the appellant J.D., who she thought was her good friend, would have assaulted her.
[9] The second issue raised by the appellant was the complainant’s statement that she would not have consented to sex with the appellant because he was black, and the various explanations she gave for that statement. The trial judge also dealt with this evidence in detail and concluded that it showed candour on her part rather than duplicity.
[10] The trial judge examined all of the evidence before making his findings of credibility regarding all of the witnesses and the parties. He gave full reasons for his conclusions in each case. I would not give effect to the first two grounds of appeal.
[11] The trial judge concluded that the complainant did not consent to intercourse with the two appellants. He found that she did not have the capacity to consent because of her intoxication, and although she had no memory of the attacks, he accepted that she would not have consented for the reasons she gave, including her recent abortion, her insistence that new sexual partners use condoms, her lack of sexual or romantic attraction toward either of the appellants, and her good friendship with the appellant J.D.
[12] The appellant J.R. argues that the trial judge misapprehended the evidence regarding the complainant’s level of intoxication. At one point in the written portion of his reasons, the trial judge found that the complainant’s blood alcohol level at 4 a.m. was at least 240 mg/100ml, when the only conclusion that the toxicological tests performed on the complainant supported beyond a reasonable doubt was that her blood alcohol was at least 155mg/100ml at some point during the evening.
[13] In my view, even if the trial judge erred in this finding, the error was of no moment. In his oral reasons for his findings, the trial judge concluded that over the evening, the complainant drank at least 13 ounces of rum and two beers, smoked marijuana, and involuntarily ingested a minor amount of cocaine. He concluded that as a result of her intoxication, she blacked out and had no memory of what happened except a brief flash at some point of the appellant J.R.’s face. Based on the evidence of the level of ingestion of alcohol and drugs together with the evidence of the complainant, the trial judge was entitled to make the findings that he made.
[14] The appellant next claims that the verdict was unreasonable because there was no evidence of who initiated the sexual intercourse and therefore no evidence that it was the appellant. I would not give effect to this ground of appeal. The trial judge was entitled to find that there was sexual intercourse without the complainant’s consent because of her incapacity, and that the only available conclusion was that it was initiated by the appellants.
[15] The appellant J.R.’s final complaint is that the trial judge did not properly apply R. v. W.(D.) and the burden of proof. There is no merit to this ground of appeal. The appellant’s complaint is based on a parsing of the reasons of the trial judge and his failure to repeat certain aspects of the evidence when he was discussing the application of W.(D.), although he had dealt with the evidence when reaching his conclusions regarding credibility. It is not clear why the trial judge chose to give oral reasons supplemented by further detailed written reasons. The result was that the two sets of reasons and analyses overlapped to some extent. Regardless, a trial judge is not required to mention all of the evidence to justify each aspect of his analysis. The trial judge’s conclusion is clear and fully supported by the evidence.
[16] The appellant J.D. also raised the further ground that the trial judge erred by relying on the ex post facto evidence of the complainant of the reasons why she would not have consented to intercourse as a basis for finding lack of consent. The appellant relies on the following statement of Major J. for the majority in R. v. Esau, supra at para. 23:
My colleague [referring to McLachlin J.] concludes that the complainant would not for personal reasons have consented. This, in view of the complainant’s failure to remember, is no evidence of her denying consent.
[17] The trial judge in the present case found that because of intoxication, the complainant did not have the capacity to consent. He also reasoned, based on her evidence, that she would not have consented and he accepted that the evidence of a lack of struggle also supported his conclusion of the complainant’s lack of capacity in those circumstances. In my view, the trial judge was entitled to view the cumulative effect of the evidence and draw the conclusions he did. In Esau, the majority was not laying down a rule, but was instead discussing why it rejected the minority’s view of the value and effect of the evidence in that case in the context of the defence of honest but mistaken belief in consent.
[18] The appellant J.D. also raises other objections to the trial judge’s conclusion that the complainant was credible. He asserts that the complainant’s reasons for saying she would not have had sex with the appellant were weak and that the trial judge unreasonably accepted that the complainant would not have voluntarily taken cocaine. I do not agree. The appellant’s argument amounts to an invitation to this court to retry the case and make our own findings of credibility. As discussed above, the trial judge was entitled to make the findings he did based on the evidence.
[19] Finally, the appellant asserts that the trial judge erred by treating the issue of consent as an all-or-nothing question and failed to consider that the complainant may have consented with the appellant J.D. but not with J.R. or with the third person whose semen was found. I do not agree. The trial judge dealt specifically with the evidence supporting his finding that the complainant did not consent to intercourse with her friend J.D. He accepted that evidence as part of his conclusion that she was incapacitated and therefore could not consent with anyone.
[20] I would dismiss the appeals against conviction.
Sentence Appeal
[21] The Crown at trial asked for a sentence of two years for each appellant and the trial judge imposed the requested sentence.
[22] The appellant J.R. asks that his sentence be reduced by one day in order to allow him to be able to have an immigration appeal in response to deportation proceedings. I understand that this issue was not before the trial court. The Crown has consented to this adjustment of the sentence.
[23] The appellant J.D. seeks a conditional sentence or a reduction in his sentence on the basis that the two offenders are very different and should not have received the same sentence. The appellant J.R. has a criminal record consisting of six convictions for trespassing, failure to comply, possession of property obtained by crime, and possession of illegal drugs. His pre-sentence report stated that he possesses an attitude of sexual entitlement towards women and concluded that he is likely to re-offend.
[24] The appellant J.D. has no record. He is of aboriginal background and his Gladue report was very positive. He had been employed up to the time of the charges, had done significant volunteer work and had an excellent character reference from his church minister. The trial judge rejected a conditional sentence as inappropriate in the circumstances of this case because it would inadequately reflect the principles of general deterrence and denunciation. He considered the Gladue report and concluded that the objectives of restorative justice did not weigh more heavily in this case than those two sentencing principles. Finally, he considered the differences between the two offenders, but concluded that they did not justify a lower sentence for the appellant J.D. in this case. In imposing the two-year sentence, he also considered that the appellant was a first offender and that this would be the first significant jail sentence for both men.
[25] I agree with the appellant J.D. that in most circumstances, he should have received a lower sentence than his co-accused, given the significant differences in their antecedents, respective characters, and prospects for rehabilitation. However, in my view, in the circumstances of this case, where each man took advantage of the complainant when she was incapacitated, leaving her in a state where she woke up naked, helpless, and alone on the bathroom floor of the hotel room, the two-year sentence is at the low end of the appropriate range of sentence. The appellant J.R. hardly knew the appellant and took advantage of her, while the appellant J.D. was her good friend and did the same thing. Both engaged in reprehensible criminal conduct. In these circumstances, there is no basis to impose a lower sentence than two years on the appellant J.D. I also note that he does not seek the one day reduction that the Crown has agreed will be accorded to the appellant J.R.
[26] The result of the sentence appeals is: (1) on consent of the Crown, leave to appeal sentence is granted and the two-year sentence imposed on the appellant J.R. will be reduced by one day to two years less a day; (2) leave to appeal sentence is granted but the appeal of the two-year sentence imposed on the appellant J.D. is dismissed.
Signature: “K. Feldman J.A.”
“Robert J. Sharpe J.A.”
“Janet E. Simmons J.A.”
RELEASED: “KNF” March 20, 2008