COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Rand, 2012 ONCA 731

DATE: 20121030

DOCKET: C53113

Rosenberg, Blair and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Travis Rand

Appellant

Travis Rand, acting in person

Emily Morton, as duty counsel

Andreea Baiasu, for the respondent

Heard: August 16, 2012

On appeal from the conviction entered on September 13, 2010 and the sentence imposed on November 23, 2010 by Justice Richard G. Byers of the Superior Court of Justice, sitting without a jury.

Rosenberg J.A.:

[1] With the assistance of duty counsel, the appellant appeals from his conviction and sentence for sexual assault and breach of probation. The appellant and his co-accused, Daniel See, were tried by Byers J. without a jury. The appellant was sentenced to four years imprisonment for the sexual assault and 30 days concurrent for the breach of probation. For the following reasons, I would dismiss the appeal.

THE CONVICTION APPEAL

[2] The principal issue raised by duty counsel is the sufficiency of the trial judge’s reasons and, in particular, whether he adequately dealt with a gap in the complainant’s memory shortly before the sexual assault.

[3] At the time of the events leading to the sexual assault, the appellant was 27 years of age. His companion, Mr. See, was 20 years of age. The complainant was 17 years of age. She had never met the appellant and Mr. See before. The sexual assaults occurred at Zwick’s Park in Belleville the evening of June 21, 2008. There was an open-air concert with several performers, most notably, the Tragically Hip. Before attending the park, the complainant drank a considerable amount of alcohol: at least three bottles of beer, some “shots”, some mixed drinks such as Margaritas and some Rockstars, a cooler with vodka. She was intoxicated by the time she and her friends left for the park around 7:00 p.m. At the park, she had several large gulps of liquor from a mickey she and her friends had smuggled into the park, before it was confiscated by security personnel.

[4] Once at the park, the complainant socialized with her friends and others, and at some point she met the appellant and Mr. See. Despite the fact that she had never met these men, she began dancing and flirting with the appellant. The flirting included a brief period of consensual kissing. During this period, the complainant lost contact with her friends. By this time, the concert had begun, there were many more people present and the complainant felt quite confused. She believed from her last conversation with her friends that they had gone to the washrooms and so she headed towards them. At this point, the complainant’s recollection of events became “blotchy”. She did not think she made it to the washrooms. Her next memory is lying on the ground in the bushes with her pants down and the appellant lying on top of her, penetrating her vaginally. She felt that she had no control over her body and felt very weak. She wanted to get up but she could not. She was in and out of consciousness throughout. She told the appellant “No. No. No. You don’t have a condom. No.” She remembered the appellant reassuring her that it was okay. She kept repeating the same things. The appellant stopped the vaginal intercourse and engaged in oral sex. She felt dizzy and kept trying to move. At some point, she was able to roll over but the appellant then penetrated her anally.

[5] The appellant finally stopped and left the area. At this point, Mr. See came into the bush and penetrated the complainant vaginally. The complainant also said “no” to him.

[6] The complainant’s evidence was unclear as to the gaps in her memory. She did not know how long the gap in her memory was. She heard the Tragically Hip playing both when she headed over to the bathrooms and when she came to in the bushes with the appellant on top of her. She therefore agreed with counsel for Mr. See that the gap in her memory may have been fairly brief. Independent evidence established that the Tragically Hip started playing at 8:45. This would have been about three hours after the complainant last had any alcohol to drink.

[7] In cross-examination, the complainant conceded that because of her lack of memory, there may have been some conversation between her and the appellant in which she consented to sex. But, she added: “And irregardless if there was consent beforehand, when I was conscious and able to speak for myself, I was not consensual [sic].”

[8] After the assaults, the complainant woke up alone in the bush. She was able to get dressed and leave the bush. She had no money and was unable to locate her friends. She eventually walked to her friend’s home with the assistance of a man, whom she had never met. The complainant told her friend what happened. When the complainant woke up in the morning, she was bleeding from her anus and there was blood on the sheets. That morning, the complainant went to the hospital where she was examined and samples were taken. The complainant had suffered relatively minor injuries to her back and right arm and an abrasion between her vagina and her anus. When seen at the hospital, she was visibly upset and crying.

[9] The appellant and Mr. See were eventually identified through DNA identification. When they were arrested, both men admittedly lied to the police. The appellant lied about who he was with and he claimed that he and another man were accosted by the complainant who grabbed their penises. She then dragged the appellant into the bush and had sex with him.

[10] The appellant did not testify. Mr. See did testify. He confirmed that he and the appellant met the complainant and engaged in flirting with her. At some point, he needed to go to the bathroom and so the three of them went there. After they all used the toilet, the appellant and the complainant went into the bush. The complainant then came out and took him into the bush where she performed oral sex on him and they engaged in consensual intercourse. They left the bush, but Mr. See realized that he had dropped his cell phone. He went back to get it, and when he returned the complainant was gone.

[11] The trial judge accepted the evidence of the complainant and rejected Mr. See’s evidence. The trial judge gave extensive reasons for doing so. The ground of appeal raised by duty counsel concerns the trial judge’s failure to explicitly deal with what counsel at trial characterized as the complainant’s convenient memory lapse. Defence counsel put the issue this way to the trial judge:

And I suggest to you it’s convenient that there’s this period of time when she says she wakes up unconscious, she can’t defend herself and her friend’s comment the next morning, how could this happen unless she was drugged, unless she was date raped drugged because [the complainant’s] a strong, assertive girl.

And:

[T]here’s a complete loss of intellectual and physical function on her part and a sudden regaining of it during the commission of the criminal offence. If an accused went into the witness stand and said to you in the immediate prelude to committing this crime, I for unexplained reasons lost memory or lost function and I suddenly regained it in the midst of committing this criminal offence, Your Honour would say I don’t believe you. There’s no explanation for that. That’s not true. That’s too convenient.… Such a fundamental part of the case of the sequence of events that night is that the person claims without any legitimate explanation, a complete absence of memory or a complete absence of the function we knew she had immediately before and after and Your Honour can look at that and say not only do I not believe that part of the evidence, I find that causes me to doubt her whole evidence.

[12] In R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 31, Charron J. summarized the trial judge’s duty to give reasons in a case such as this as follows:

As I explained at the outset of the analysis, the inquiry into the sufficiency of the reasons should be directed at whether the reasons respond to the case's live issues. In this case, the complainant's truthfulness was very much a live issue -- the trial judge recognized it as so during the voir dire to determine whether the complainant was competent to testify. At trial, two of the witnesses testified that the complainant could be untruthful and manipulative. While it was open to the trial judge to conclude that he was convinced beyond a reasonable doubt of the guilt of the accused, it was not open to him to do so without explaining how he reconciled the complainant's inconsistent testimony, particularly in light of the accused's own evidence denying her allegations.

[13] At para. 32 of the same decision, Charron J. explained that where the reasons are deficient, “the reviewing court must examine the evidence and determine whether the reasons for conviction are, in fact, patent on the record”. However, it is not open to an appellate court to “engage in a reassessment of aspects of the case not resolved by the trial judge.” Thus, “[w]here the trial judge's reasoning is not apparent from the reasons or the record, as in the instant case, the appeal court ought not to substitute its own analysis for that of the trial judge.”

[14] In this case, the trial judge did not expressly deal with the effect of the complainant’s memory gap on her credibility. The question then is whether the reasons for conviction are nevertheless patent on the record. In my view, they are. The trial judge dealt both with the complainant’s credibility, in the sense of honesty, and with her reliability. He saw the issues as whether the complainant was honest in her testimony that she did not consent and whether her recounting of events was reliable.

[15] In my view, the reasons respond to the real issues in the case. The trial judge fully understood that consent was an issue, particularly given the complainant’s earlier conduct with the appellant and Mr. See. The memory gap was not a material issue in the case because the trial judge accepted that irrespective of what had occurred earlier, the complainant clearly and unequivocally expressed her lack of consent in the course of the sexual acts with the appellant. In other words, even if the complainant did consent to some kind of sexual acts initially, she withdrew that consent. The trial judge’s reasons make that clear. In the course of his reasons, the trial judge referred to a portion of the complainant’s testimony in these terms:

[41] There was a moment towards the end of Mr. Hurley’s cross-examination I shall not soon forget. Mr. Hurley was pressing hard and the following took place.

Question: “And it was then between the vaginal sex and the anal sex that Mr. Rand performed oral sex on you?”

Answer: “Yes.”

Question: “And throughout this period of time you’re not doing anything to resist him, or are you?”

Answer: “I couldn’t do much to resist him. I was pushing at this point. Like I had said before, I was saying no.”

Question: “Were you trying to push him off?”

Answer: “Yes.”

Question: “You were actually physically doing that?”

Answer: “Trying to. It was... – I can’t explain what it was like. It was... Does it matter where? Like, is...”

Question: “Did you move your legs or your body in any way?”

Answer: “I didn’t want to be there. I said no. I said no over and over and over again. I said, “You don’t have a condom on. Get off me.” I said no. That’s what should matter. What the fuck? Excuse my language, Your Honour. These stupid things are not what matters. What matters is that I said no.”

[42] Reading from that evidence does not do justice to that electrifying exchange in this court room. You could hear a pin drop when it was over. It was obvious to me and everyone else that [the complainant] was spontaneously angry and outraged.

[16] Later in his reasons, the trial judge described what happened the night of the assault in these terms:

[69] This was fast, grubby sex with two strangers in the dark, in the bush, in the middle of a rock concert. And I believe [the complainant] when she says that she did not consent to it.

[70] Her memory of that night is not perfect. She got some things wrong. But she got most of it right. Two strange men had sex with her. At that point she couldn’t know that DNA would prove that two men did have sex with her. And she said one used a condom and one did not. That turned out to be true. One of those men had a Mohawk. That was true too. Her description of the two men was basically accurate.

[71] Her chances of ever finding these men were remote. Notwithstanding she told the police about it. Why bother? Her story to the police was essentially consistent throughout. She says she did flirt with the men, but she also said she did not consent to the sex, and I believe her.

[72] I do not believe them – either of them. In my view they would say anything to escape their predicament.

[73] Is her evidence reliable. Defence argues that the flirting, the making out is consistent with someone consenting to sex later on; that her decision to stay with the men is consistent with her consenting to sex later on; that her failure to tell the first available policeman about the assault somehow taints her disclosure hours later; that she couldn’t have been that drunk given how little alcohol she had had at the concert.

[74] She was foolish to make out with a strange man that evening. But she was young, and she was still intoxicated. Maybe she ought to have reported the assault to the first available policeman, but she just wanted to get home, and she did report it then. Her demeanour at home and at the hospital was consistent with the notion that something bad had happened to her.

[75] I accept Kristen’s evidence about how [the complainant] was crying when she disclosed, and later her complaints about pain and about the blood. The marks found on her body tend to support her evidence.

[76] And finally I was struck by her evidence about the two men consoling her during sex. In all my years as a judge hearing hundreds of these sorts of cases, I’ve never heard that. She didn’t make that up. It really happened. And I can’t see having to console someone having consensual sex. You console someone who doesn’t like what’s happening to them.

[77] So in my view her evidence is reliable. That means I am satisfied beyond a reasonable doubt that [the complainant] did not consent to sex that night with Mr. Rand, and she did not consent to sex with Mr. See.

[17] The complainant’s memory loss, which was probably brief, did not undermine her credibility or the reliability of her evidence on the crucial issue of whether she consented to the sexual acts with these two strangers. Whether or not she voluntarily went into the bushes with the appellant and whether or not some kind of consensual activity may have occurred during the memory gap period, the complainant did not consent to the continuing sexual acts with the appellant. For the purpose of determining whether the actus reus of the offence was committed, the relevant period of time was when the sexual touching was occurring, not what occurred earlier in the evening or even earlier in the sexual touching in the bushes. The Supreme Court of Canada reiterated this point in the recent decision in R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at para. 46:

The only relevant period of time for the complainant's consent is while the touching is occurring: Ewanchuk, at para. 26. The complainant's views towards the touching before or after are not directly relevant. An offence has not occurred if the complainant consents at the time but later changes her mind (absent grounds for vitiating consent). Conversely, the actus reus has been committed if the complainant was not consenting in her mind while the touching took place, even if she expressed her consent before or after the fact.

[18] Accordingly, I would dismiss the appeal from conviction.

THE SENTENCE APPEAL

[19] The appellant also appeals from his sentence of four years imprisonment. I would not interfere with the sentence. The appellant took advantage of a vulnerable intoxicated young woman. He committed acts of unprotected anal and vaginal sex. He has a prior criminal record dating back to 2004 that includes offences of dishonesty and also convictions for crimes of violence, including assault, assault with a weapon, and assault with intent to resist arrest. Two of the assault convictions, in 2004 and 2007, involved incidents of domestic violence. The sentence imposed by the trial judge in this case was well within the appropriate range. The trial judge’s reasons disclose no errors in principle.

[20] Accordingly, while I would grant leave to appeal sentence, I would dismiss the appeal.

Released: “M.R.” October 30, 2012

“M. Rosenberg J.A.”

“I agree R.A. Blair J.A.”

“I agree M. Tulloch J.A.”