WARNING

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), (3) or (4) or 486.6(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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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) an 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, 279.01, 279.02, 279.03, 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.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

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. 2005, c. 32, s. 15.

CITATION: R. v. Bisson, 2010 ONCA 556

DATE: 20100818

DOCKET: C51357

COURT OF APPEAL FOR ONTARIO

Rosenberg, Rouleau and Epstein JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Justin Bisson

Appellant

Michael Lacy, for the appellant

Melissa Adams, for the respondent

Heard: June 14, 2010

On appeal from the decision of the summary conviction appeal court dated December 4, 2009 by Justice Robbie D. Gordon of the Superior Court of Justice, dismissing an appeal from the conviction entered on July 9, 2008, by Justice Malcolm McLeod of the Ontario Court of Justice.

Epstein J.A.:

OVERVIEW

[1] On July 9, 2008, Justin Bisson was convicted by McLeod J. of the Ontario Court of Justice of sexually assaulting his former girlfriend and was sentenced to 9 months in jail and 18 months probation. His appeal to the Superior Court was dismissed on December 4, 2009. Mr. Bisson now seeks to appeal to this court.

[2] In keeping with the court’s current policy, counsel were asked first to argue the motion for leave to appeal. The leave motion was argued on the grounds that the summary conviction appeal judge made an error in applying the curative proviso on his own initiative. The Supreme Court has stated clearly that the proviso should only be applied upon submission from a party: R v. Pétel, 1994 CanLII 133 (SCC), [1994] 1 S.C.R. 3, at para. 31. See also R. v. McMaster, 1996 CanLII 234 (SCC), [1996] 1 S.C.R. 740, at para. 37. Leave to appeal was granted for the reasons given orally.

FACTS

[3] Briefly summarized, the following is the factual back-drop to this matter.

[4] The appellant and the complainant, university students who had previously been involved in a relationship with each other, met at the appellant’s apartment to have a few drinks and watch television prior to going their separate ways upon graduating. There is no issue over the fact that the two engaged in sexual activity in the early morning of Saturday, May 12, 2007. The dispute is over whether intercourse took place and, more significantly, whether the sexual conduct that did occur was consensual. The appellant testified that there was no intercourse and that all sexual conduct was consensual. The complainant’s evidence was that the appellant “raped” her twice and that she did not consent to any interaction of a sexual nature.

[5] When the complainant left the appellant’s apartment, she was in disarray, without her shoes or keys. A friend at her residence let her in and then contacted her boyfriend. Her boyfriend called the police. However, when the police arrived, the complainant told them that nothing had happened.

[6] The day after the incident, the appellant met with the complainant at her request. While their versions of the conversation differ, both agreed that they discussed obtaining counselling for the complainant and that there was at least some mention of his paying her wages for the summer. The next day, the appellant looked for a counsellor for the complainant.

[7] Shortly after the incident, the complainant went to a campus nurse for STD testing and then to the police and reported what had happened. The police brought her to Sudbury Regional Hospital where she was seen by another nurse who observed bruising and scratches on her.

[8] The Monday after the incident, the appellant met with Mr. Roberge, his warrant officer in the Canadian Armed Forces. Mr. Roberge testified that the appellant told him that he had forced himself onto the complainant and that digital vaginal penetration had taken place.

[9] The trial judge convicted the appellant mainly on the basis that he had substantially confirmed the complainant’s version of events in his “confession” to Mr. Roberge, leaving no room for reasonable doubt.

[10] The summary conviction appeal judge found that the trial judge erred by improperly using the complainant’s prior consistent out-of-court statements to support his finding of credibility in her favour but dismissed the appeal by applying the proviso in s. 686(1)(b)(iii) of the Criminal Code.

ISSUES

[11] The appellant submits that the trial judge erred in the following five respects:

a) He failed to deal with motive to fabricate;

b) He engaged in a piecemeal treatment of the evidence;

c) He erred in applying the rule in Browne v. Dunn;

d) He improperly used the complainant’s prior out-of-court statements to bolster her credibility; and

e) He was unable to make a finding as to whether intercourse had taken place, and therefore must have been left with a reasonable doubt regarding the complainant’s credibility.

ANALYSIS

a) Motive to fabricate

[12] The appellant argued before the summary conviction appeal judge that the trial judge failed to address the complainant’s motive to fabricate, namely that she had to explain to her boyfriend the fact of her sexual encounter with the appellant. The summary conviction appeal judge found that the trial judge implicitly considered this argument and then rejected it in the following paragraph.

If this was simply a case of being anxious to get home because she was late to head off Jonathan Woodgate [her current boyfriend], to stop him from making enquiries which might lead to the disclosure that she’d been having sexual relations with another man, why did she pick an opportunity when Justin Bisson was out of commission and unable to interfere? Why was she emotionally distraught? If she wanted to avoid any situation developing with Jonathan Woodgate why would she put herself into a situation where an explanation was mandatory because of her condition?

[13] Before this court, the appellant argues that even if the motive to fabricate may have been implicitly addressed, in this paragraph the trial judge went beyond a “common sense” analysis of the complainant’s behaviour and assumed the truth of her allegations. In my view, this submission has no merit.

[14] It is clear that the trial judge concluded that the complainant’s behaviour was not consistent with an attempt to ward off her boyfriend’s predictable suspicions of what went on at the appellant’s apartment. He recognized that, in fact, her behaviour did quite the opposite. Her dishevelled and distraught condition drew attention to her and was not consistent with an attempt to cover up a sexual liaison.

[15] This is exactly the kind of “common sense” analysis that would be expected in the circumstances, and I see no error in it.

b) Piecemeal analysis of the evidence

[16] The appellant next argues that the trial judge engaged in a “piecemeal analysis” of the evidence by considering the appellant’s testimony only where it conflicted with Mr. Roberge’s. I agree with the summary conviction appeal judge that the trial judge was careful in his approach to the evidence and I adopt his statement that “although [the trial judge] did not, aside from the conflicting evidence of Mr. Roberge, set out express reasons why he rejected the contentious parts of Mr. Bisson’s evidence, I am satisfied that he indeed considered the testimony of the accused in arriving at this verdict.”

c) The rule in Browne v. Dunn

[17] As for the rule in Browne v. Dunn, I agree with the summary conviction appeal judge that the trial judge made little, if any, use of the fact that the appellant’s version of what he said to Mr. Roberge was not put to Mr. Roberge in cross-examination. The trial judge did not specifically find that the appellant’s credibility was negatively affected by this failure. I see no merit in this ground of appeal.

d) The use of the complainant’s prior out-of-court statements to bolster her credibility

[18] One of the two main grounds of appeal counsel for the appellant advanced in oral argument is that the trial judge improperly relied upon the complainant’s prior consistent statements to bolster her credibility. The statements said to have been improperly relied upon by the trial judge are the complainant’s statements to the nurse that she had been sexually assaulted, her discussion with Bisson regarding counselling and wages, and her report to the police of the assault.

[19] The appellant and the complainant gave diametrically opposed evidence on the central issue of consent. The credibility of both parties was therefore central to the case. The trial judge was careful not only to set out the approach mandated by the Supreme Court in R. v. W.D. (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.) but also to follow it.

[20] It was clear that the trial judge did not believe the appellant’s evidence regarding consent and that it did not raise a reasonable doubt because it contradicted the appellant’s earlier, freely-given confession to Mr. Roberge.

My sole purpose in looking at [Mr. Bisson’s] testimony is to see if it raises a reasonable doubt on the principal issue. Was the sexual activity on consent?...In light of [his confession to Mr. Roberge] the substantial elements of [the complainant’s] account of what happened in that apartment, those elements are confirmed out of the mouth of the accused. There is no room in this case for reasonable doubt.

[21] In terms of whether the Crown’s evidence established lack of consent beyond a reasonable doubt, the real focus of the analysis at trial and the argument before the summary conviction appeal judge was the complainant’s credibility. In this respect, the most significant aspect of the evidence that the trial judge had to deal with was that her testimony that she had been sexually assaulted was inconsistent with her initial statement to the police that “nothing happened”. The trial judge referred to this inconsistency at the outset of his reasons as the “strongest argument in terms of [the complainant’s] reliability”.

[22] The appellant points to the following paragraph as evidence of the trial judge’s error in relying on the complainant’s out-of-court statements in support of her credibility.

She met with Justin Bisson because something happened that they needed to talk about. They discussed counselling because something happened for which she needed counselling. They discussed monetary compensation for the time she would lose from work because something happened that would cause her to lose time from work. She went to the clinic to be checked because something happened. She went to the police and complained about Justin Bisson because something happened. She came to court and testified because something happened. That’s her explanation.

What I’ve been saying is my distillation of her explanation of why she’s here even though she said to the police that night nothing happened.

[23] The summary conviction appeal judge expressed concern over this, as follows.

This second group of statements, in the context used by the trial judge, do not appear to have been considered solely as narrative. In my view, by accepting this view of the complainant’s explanation, the trial judge may have used her out of court statements to improperly bolster her credibility relative to the allegation that she had been sexually assaulted by the appellant.

[24] It was on this issue that the summary conviction appeal judge incorrectly applied the proviso when he went on to say:

That I have found the trial judge to have used prior consistent statements of the complainant improperly does not necessarily mean that appellate relief is to be granted. That requires a consideration of whether a substantial wrong or miscarriage of justice has occurred.

[25] It is well-established that prior consistent statements are generally inadmissible because they are viewed as lacking probative value and are self-serving: R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5. Had the trial judge considered the complainant’s out-of-court statements to Mr. Bisson, to the nurse, or to the police, as confirming her version of the events, this would indeed be an error.

[26] However, the trial judge did not, in my view, use the out-of-court statements in this way. Rather, read in context, the trial judge’s review of the complainant’s statements appear to have been considered as part of the narrative recounted by the complainant. At no point does the trial judge indicate that he is relying on these statements for the truth of their contents or that they formed part of his decision to prefer the complainant’s evidence as to what happened on the night in question to that of the appellant. I therefore do not agree with the summary conviction appeal judge’s finding that “the trial judge ... used [the complainant’s] out-of-court statements to improperly bolster her credibility.”

[27] In my view, the trial judge properly considered the complainant’s explanation for her inconsistent statements to the police and then tested her version of events in a number of ways including the extent to which it was corroborated by the testimony of others. He chose to accept that “she said nothing happened, not because it was true, but because she did not want to involve the police. She wasn’t satisfied in her own mind that she wanted to put herself and Justin Bisson through this ordeal, she did not know what to do so she was trying to do nothing.” He went on to say that the complainant’s explanation for the apparent inconsistency “makes sense”. “It fits with a reasonable understanding of human nature; she was conflicted not over what happened, but what to do about it.”

[28] As for the credibility of her version of events, the trial judge had this to say: “Her explanation, her account fits with all of the surrounding testimony. In large measure it fits with Justin Bisson’s testimony.”

[29] As can be seen, in assessing whether the Crown had proven lack of consent beyond a reasonable doubt, the trial judge first addressed why the complainant changed her story – thereby rejecting the most significant challenge to her credibility − and then considered whether her testimony before the court was supported by other evidence. In the end he accepted the complainant’s evidence as credible, as he was entitled, based on “a reasonable understanding of human nature” and the consistency of her testimony with respect to the totality of the evidence.

e) The trial judge was unable to make a finding as to whether intercourse had taken place

[30] Finally, the appellant argued that because the trial judge did not make a finding about whether penile penetration took place, he must have had a reasonable doubt as to whose version of events was true.

[31] In his reasons for sentence, the trial judge stated as follows:

See, it’s my responsibility in a trial to make findings of fact. Findings that are ultimately grounded on what I must determine is reliable evidence. So in this case it is not that there wasn’t penetration; and it is not that I’ve found that there was penetration; it is simply an area where at the end of the day, as I tried to express in my reasons for conviction, I was left unable to make a determination. But, what I did clearly find and did clearly try to express to Mr. Bisson, [the complainant] and the community, was that she was betrayed by a person in whom she reposed trust and confidence. That she was betrayed, physically attacked and abused by Justin Bisson for his sexual gratification. To use Mr. Bisson’s own words: “He forced himself on her”.

[32] The trial judge’s inability to resolve this issue, the appellant argues, indicates indecision on his part as to whether the complainant was exaggerating or lying when she claimed to have been “raped” twice – an indecision that must lead to a reasonable doubt about other aspects of her story, including consent.

[33] I do not accept this submission. In my opinion, the trial judge’s inability to resolve this issue is not fatal to the conviction. As the summary conviction appeal judge put it, “A trial judge is entitled to accept all, some, or none of a witness’s evidence.”

[34] The trial judge had cautioned himself regarding the application of R. v. W.D. (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.), and made clear that he would be “mindful that the existence of problematic areas ... demands that the court consider the need for confirmatory evidence before charging ahead into the mistake of balancing the evidence of the complainant against that of the accused.”

[35] Before the trial judge, there was ample reliable evidence capable of confirming the complainant’s testimony that a non-consensual sexual encounter had occurred – the complainant’s behaviour immediately after the encounter, as evidenced by testimony of those who spoke to her and by the video of her leaving the appellant’s building, the conversations she had with the appellant, and of the appellant’s “confession” to Mr. Roberge. As for penile penetration, there was not a similar wealth of confirmatory evidence. The trial judge was aware of that. He was also aware of the fact that he did not need to resolve that issue in order to convict the appellant of sexual assault.

[36] In my view, the fact that the trial judge found himself unable to determine whether penile penetration had taken place does not undermine his essential finding that the sexual activity that did take place was non-consensual.

CONCLUSION AND DISPOSITION

[37] In my view, the trial judge did not err in the use he made of the complainant’s out-of-court statements, so while the summary conviction appeal judge did err in resorting to the proviso on his own initiative, the error was of no moment because there was no underlying error to correct. Further, I see no merit in any other grounds raised on appeal, including the manner in which the trial judge dealt with the issue of penile penetration.

[38] For these reasons, I would dismiss the appeal.

RELEASED: “MR” “Gloria Epstein J.A.”

“AUG 18 2010” “I agree M. Rosenberg J.A.”

“I agree Paul Rouleau J.A.”