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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. Colbourne, 2013 ONCA 308
DATE: 20130509
DOCKET: C54866
Weiler, Gillese and Hoy JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Darren Colbourne
Appellant
Leo Adler, for the appellant
Megan Stephens, for the respondent
Heard and released orally: May 7, 2013
On appeal from the conviction entered on October 27, 2011 and the sentence imposed on February 29, 2012 by Justice David Salmers of the Superior Court of Justice, sitting without a jury.
ENDORSEMENT
OVERVIEW
[1] The appellant was found guilty of sexually assaulting the complainant. He was sentenced to fourteen months’ imprisonment followed by two years’ probation. He appeals his conviction and, if leave to appeal is granted, seeks leave to appeal his sentence. In relation to conviction, the appellant raises three grounds of appeal, all of which relate to the trial judge’s reasons. The appellant alleges that the trial judge erred in three respects. 1) He made findings of fact based on conjecture and misapprehensions of the evidence. 2) He failed to properly apply R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 (S.C.C.). 3) He failed to consider the appellant’s honest but mistaken belief in consent. In relation to sentence, the appellant submits that it is overly harsh and long.
FACTS
[2] After an evening spent drinking at a bar, the appellant, his brother, and three women drove to the appellant’s home. Except for the appellant’s brother who was driving, all of them were drunk.
[3] The complainant felt unwell during the truck ride on the way to the appellant’s house and put her head down in the lap of her girlfriend, Ms. Reid. Upon arrival, she opened the truck door and vomited on the driveway. She had to be helped out of her boots in the house, and helped upstairs to a second floor bedroom and into bed.
[4] The others continued the party in the kitchen then moved to the computer room. The appellant left the computer room where the party was ongoing. After a very brief period of time his absence was noted. Ms. Reid left the computer room and discovered the appellant having sexual intercourse with the complainant. Ms. Reid testified that she grabbed the appellant and told him to get off the complainant. The complainant was still fully clothed from the waist up; her winter coat was still on and her purse was across her torso; her pants were partially off. Ms. Reid said the complainant seemed stunned, began crying and looked confused. Ms. Reid and Ms. Ruscoe eventually helped the complainant put her pants back on, helped her down the stairs, put on her boots and then helped her leave the house.
[5] The complainant testified that she was sleeping in the bedroom when she felt a dark figure over top of her. She felt pressure in her vaginal and pelvic areas. It was uncomfortable but did not seem real. She testified that it seemed like it was a dream.
[6] The appellant testified that he was on his way to the bathroom when he met the complainant in the hallway. He stated that they kissed in the hallway and moved to the bedroom where she had previously been. They then had consensual sexual intercourse there.
THE TRIAL COURT JUDGMENT
[7] The trial judge found that at the time that Ms. Reid first assisted the complainant into bed, the complainant was without capacity to consent to sexual activity, including sexual intercourse with the accused. After the discovery of the sexual intercourse, the evidence of the complainant, Ms. Reid, and Ms. Ruscoe’s testimony was to the effect that the complainant was not pretending to be asleep or confused. She was genuinely extremely groggy and confused.
[8] The trial judge did not believe the appellant’s testimony about what happened between him and the complainant. He rejected the appellant’s evidence that the sexual intercourse was consensual and added:
Further, the accused’s testimony does not raise a reasonable doubt in my mind about whether the sexual intercourse was consensual. Finally, I am satisfied beyond a reasonable doubt, that when the accused was having sexual activity, including intercourse, with the complainant, she was incapable of consenting to the sexual activity including sexual intercourse and that the accused knew that. I am satisfied beyond a reasonable doubt that the incapacity of the complainant was due to intoxication, illness and/or sleepiness, either any one of them alone or in combination with one or all of the other factors.
ISSUES AND DISPOSITION
(1) Did the trial judge err by making findings of fact based on conjecture and misapprehensions of the evidence?
[9] The appellant submits that the trial judge’s analysis of the evidence was faulty. He submits that the trial judge based his conviction of the appellant on an inappropriate analysis, on speculation and conjecture and on findings of fact unsupported by the weight of the evidence. In particular, the appellant submits that the trial judge used the fact the appellant and complainant met for the first time that night and that she was still wearing her coat with her purse strapped across her torso, the appellant’s inability to give detail about their move from the hallway to the bedroom, the issue of whether the bedroom door was open and the appellant’s alleged lie about his daughter being home that night, to find it implausible that the complainant would have sex with the appellant.
[10] In our opinion, the appellant’s allegations do not meet the stringent standard that applies to appellate reversal on the basis of misapprehension of the evidence.
[11] The core of the trial judge’s reasoning is that when the complainant was put to bed by her friend, Ms. Reid, the complainant was without capacity to consent to sexual activity. He found that a short while later, she was still without capacity to consent to sexual activity when found by her friends having intercourse with the appellant. We do not agree that the trial judge engaged in speculation. The trial judge was entitled to take into consideration the evidence of how long the appellant and complainant had known each other, her state of dress when she was having intercourse, and the appellant’s omission of detail respecting how the complainant got from being upright in the hallway onto the bed with him, along with all of the other evidence concerning her physical condition in assessing the credibility of the witnesses. Even assuming there is some merit in the appellant’s contention i.e. concerning whether his daughter was asleep in the house, and whether the door to the bedroom was open, these points are peripheral and do not affect the core of the trial judge’s reasoning. Overall, the trial judge made reasonable inferences from the evidence and did not engage in impermissible speculation.
[12] The appellant further submits that the trial judge gave greater scrutiny to a minor inconsistency in the appellant’s prior consistent statements to the police than to the complainant’s erroneous statement respecting the doctor’s report. Simply because the trial judge weighed these two individual pieces of evidence differently does not mean that he applied greater scrutiny to the evidence of the appellant than of the complainant. We do not agree he applied different levels of scrutiny to the evidence of the defence and the Crown witnesses. The findings the trial judge made were open to him.
(2) Did the trial judge err in his application of R. v. W.(D.), supra, by not properly evaluating the whole of the evidence to determine reasonable doubt?
[13] The trial judge applied the correct burden and standard of proof – he did not treat this case as turning on whose evidence he accepted. He provided extensive reasons for why he found the complainant lacked the capacity to consent, and explained why he believed the Crown had proven guilt beyond a reasonable doubt.
(3) Did the trial judge err by not considering the defence of honest but mistaken belief in consent?
[14] On the basis that the case was argued at trial, the sole issue was whether the complainant consented to have sex with the appellant. Section 273.1(2)(b) provides that no consent is obtained where the complainant is incapable of consenting to the activity.
[15] Before us, the appellant submits that the trial judge was also obliged to consider whether the appellant had an honest belief in the appellant’s consent. Inasmuch as we see no error in the trial judge’s finding that the complainant was incapable of consenting to sexual activity and his finding that the appellant knew this, the defence has no air of reality.
[16] The appeal as to conviction is dismissed.
SENTENCE
[17] The sentencing judge was alive to the appellant’s health condition and personal circumstances. The appellant has not shown any error in principle that would warrant interference with the sentence. If anything the sentence was at the low end of the range.
[18] Accordingly while we grant leave to appeal sentence, the appeal as to sentence is also dismissed.
“K.M. Weiler J.A.”
“E.E. Gillese J.A.”
“Alexandra Hoy J.A.”