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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Steeves, 2012 ONCA 106
DATE: 20120216
DOCKET: C53101
Goudge, Epstein JJ.A., and Newbould J. (ad hoc)
BETWEEN
Her Majesty the Queen
Appellant
and
Mykel Steeves
Respondent
Andreea Baiasu, for the appellant
Louis P. Strezos and Shannon O’Connor, for the respondent
Heard: January 17, 2012
On appeal from the order of the summary conviction appeal court by Justice Gary W. Tranmer of the Superior Court of Justice, dated December 6, 2010, allowing an appeal from the conviction entered by Justice Paul H. Megginson of the Ontario Court of Justice on January 6, 2009.
Goudge J.A.:
[1] The respondent was convicted of sexual assault after a trial in the Ontario Court of Justice. The summary conviction appeal court (the SCAC) allowed his appeal and ordered a new trial. The Crown now asks this court for leave to appeal and, ultimately, to restore the conviction. It seeks to base its appeal on the proposition that the SCAC erred in finding a misapprehension of the evidence by the trial judge.
[2] In R. v. R.(R.) (2008), 2008 ONCA 497, 90 O.R. (3d) 641, this court articulated the test for leave. It has two branches. The Crown acknowledges that the first branch – that the legal issue raised by the appeal has significance to the administration of justice beyond the particular case – does not apply here. Rather, it relies on the second branch, which requires that the merits of the appeal appear very strong. While R.(R.) arose in the context of a convicted appellant seeking leave, I will proceed on the basis that the second branch of the test applies mutatis mutandis where it is the Crown seeking leave to appeal to this court.
[3] The Crown argues that the test is met here because the SCAC was clearly wrong in finding that the trial court misapprehended the evidence of the complainant about whether or not, in the encounter with the respondent, she consented to the activity at the beginning but said no to his subsequent advances.
[4] The evidence at trial was that the encounter during which the alleged sexual assault occurred began with the respondent suggesting to the complainant that they take a nap in his room. They each told very different stories about what happened then. They were the only ones present. Credibility was the central issue at trial. While the trial judge rejected the respondent’s evidence, he found the complainant credible and convicted the respondent.
[5] The trial judge held that the complainant’s evidence was that while she did not initiate the conduct of a sexual nature, she consented to it in the early stages, when it involved kissing and some touching externally. He found that she never said that it was not consensual at the start. Later, particularly once the respondent’s penis came out of his shorts, she “began a series of some eleven protestations of no.”
[6] The SCAC found that the trial judge misapprehended the complainant’s evidence by finding that she was consistent in saying that the early parts of the sexual conduct were consensual, and that she never said it was not consensual at the start. I agree with the SCAC.
[7] There is no doubt, as the SCAC acknowledged, that in cross-examination the complainant said she consented at the beginning. However, the SCAC points persuasively to a number of passages in her video statement to the police (which was before the trial judge) and in her evidence in chief, which were very clear that she did not consent from the very beginning.
[8] Several excerpts from her evidence in chief are enough to make the point. She said that the first physical contact was the respondent touching her legs, something that left her shocked. She then testified as follows:
Q. The touching, the gliding on your leg what was the next thing that happened?
A. He started kissing me.
Q. Kissing you where?
A. On my lips.
Q. Okay. Do you see that coming?
A. Yes.
Q. Okay so tell us about that? Was there any discussion about kissing?
A. There was no discussion about kissing it just – I guess it just happened.
Q. Okay who started that; who kissed who?
A. He kissed me.
Q. What was your reaction to that?
A. Again I was shocked.
Q. Okay. Why were you shocked?
A. Because he has a girlfriend.
Q. Sorry?
A. Because he has a girlfriend.
Q. Did you say anything about that?
A. Yes I did.
Q. What did you say?
A. Ah you have a girlfriend; this is not right.
Q. Did you want him to kiss you?
A. No.
Q. In your mind was it okay; if he would have asked would you have said that’s fine go ahead?
A. If he would have asked I would have said no.
[9] Since R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, the law has been clear that in sexual assault, the absence of consent is assessed subjectively. The actual state of mind of the complainant towards the touching at the time it occurred is determinative. Against this standard, there can be absolutely no doubt that the passages quoted above constitute evidence of the complainant’s lack of consent in the early part of the sexual encounter.
[10] In cross-examination, the complainant gave a contradictory account of the early part of the sexual encounter in which she agreed that she consented at the beginning. The inconsistency between her two versions of events is clear. The trial judge, however, proceeded to assess her credibility on the basis that no such inconsistency existed.
[11] The SCAC was correct in concluding that the trial judge misapprehended the complainant’s evidence in a way that was very important to the central issue in this trial and in ordering a new trial as a consequence.
[12] We see no error, let alone a clear error in the decision from which the Crown seeks leave to appeal.
[13] Leave is therefore denied.
Released: February 16, 2012 “STG”
“S.T. Goudge J.A.”
“I agree G.J. Epstein J.A.”
“I agree Newbould J. (ad hoc)”