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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. Alboukhari, 2013 ONCA 581

DATE: 20130927

DOCKET: C54425

Laskin, LaForme and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Omar Alboukhari

Appellant

Norman Boxall, for the appellant

Shawn Porter, for the respondent

Heard: April 29, 2013

On appeal from the conviction entered by Justice John A. McMunagle of the Superior Court of Justice, sitting without a jury, on October 15, 2010.

Epstein J.A.:

INTRODUCTION

[1] On June 21, 2008, a group of young people, including the appellant and the complainant, S.R., went on a camping trip. On the first night of the trip, the appellant and S.R., alone in a tent, engaged in sexual activity. S.R. participated under the misapprehension that the man with whom she was having sex was her boyfriend, Donald Doucette, who was also on the camping trip. The trial judge concluded that the appellant did not take reasonable steps, under the circumstances known to him, to ensure that S.R. knew it was him with whom she was having sex. He therefore concluded that the appellant could not avail himself of the defence of honest but mistaken belief in consent and convicted him of sexual assault.

[2] The issue on this appeal is whether the trial judge misapprehended certain evidence and if so, if it resulted in a miscarriage of justice or a legal error. In my view, the trial judge misapprehended the evidence on several key issues central to his reasoning process, resulting in a miscarriage of justice. I would therefore order a new trial.

background

[3] There were seven people on the camping trip – four men and three women. Donald Doucette, Jamie Fisher and Shawn Lehn were roommates. Mr. Doucette invited the appellant. Mr. Doucette also invited his girlfriend, S.R. who, in turn, invited two girlfriends, Marie Claire Bouchard and Lisa McBride.

[4] Upon arrival at the campsite at about 8:00 p.m., the group set up the tents and built a campfire. Mr. Doucette erected his tent, the larger of the two, closest to the fire. While putting up the tents, everyone in the group started to drink except the appellant, who did not consume alcohol for religious reasons.

[5] After dinner, Mr. Fisher, Mr. Doucette and the appellant went for a boat ride during which they engaged in “guy talk”. Mr. Doucette expressed a desire to have sex with Ms. Bouchard, describing her as “so hot” and stating, “I want to sleep with her”. Mr. Doucette then invited the others to “make a play” for S.R., saying, “[y]ou can fuck my girlfriend if you want to”. The appellant concluded that Mr. Doucette and the complainant were not in a committed relationship.

[6] By the time the men returned from the boat trip, the complainant, who by then had consumed a substantial amount of alcohol, was quite ill. Mr. Doucette took S.R. to his tent and helped her, fully clothed, into a sleeping bag. S.R. fell asleep immediately.

[7] Shortly thereafter, the appellant joined S.R. in the tent, where the couple engaged in sexual activity that led to intercourse. S.R. abruptly ended the sexual engagement when she realized that the man in the tent was the appellant, not Mr. Doucette.

[8] The next day, the complainant reported the matter to the police and the appellant was charged with sexual assault.

THE EVIDENCE

[9] There were five Crown witnesses at trial: the complainant, Mr. Fisher, Mr. Doucette, Mr. Lehn and Ms. McBride. The appellant was the only witness for the defence. Given that the testimony of the complainant and that of the appellant differed on several key issues, I find it helpful to summarize their respective accounts of the events in question.

[10] The complainant testified that she had never met the appellant before the night in question. She also admitted that on that night she drank to excess, as a result of which she vomited and retired to Mr. Doucette’s tent early. Her next recollection was of being awakened by someone, whom she believed at the time to be Mr. Doucette, attempting to have vaginal sexual intercourse with her. When this attempt was unsuccessful, S.R. proceeded to perform oral sex on him, after which they engaged in vaginal sexual intercourse in what is known as the missionary position.

[11] The complainant testified that she believed she was having sex with her boyfriend, Mr. Doucette. However, she stated that it was “pitch black” in the tent and that she could not see the face of the man with whom she was having sex. While the complainant had no memory of how long the sexual activity lasted, she testified that she called out “Don” on five separate occasions. S.R. stated that it was only when she spoke into “Don’s” ear and told him that she loved him that the appellant responded by saying “shut up, I’m not Don”. At that point, the complainant became distraught, pushed the appellant off of her, and ran out of the tent.

[12] The appellant testified that he had never previously met the complainant. He stated that upon returning from the boat trip with Mr. Fisher and Mr. Doucette, he took a few minutes to unload a beer cooler from the boat and was not at the campsite when the complainant vomited. He admitted that he was later told that the complainant was not feeling well, but said he had no reason to infer that she had vomited or that her illness was caused by excessive alcohol consumption. The appellant testified that shortly after they returned from the boat trip, Mr. Doucette suggested that the appellant should go to bed and led him to the tent in which the complainant was sleeping. The appellant described the visibility in the tent as very good. He stated that he could see S.R.’s face and assumed she could see his.

[13] The appellant testified that when he lay down in the tent, he asked the complainant if she was feeling alright. The complainant maneuvered her body toward him and pressed against him in a sexually suggestive manner. They kissed for 20 to 30 seconds. The appellant then asked S.R. to perform oral sex on him. She obliged. A few minutes later, they assumed the missionary position and engaged in vaginal intercourse for about 20 minutes.

[14] The appellant testified that toward the end of the sexual activity, the complainant called out “[o]h, Don”. He was shocked by this utterance, and immediately replied, “[w]hat? I am not Don”. The appellant stated that the complainant then cupped his face in her hands and stated, “[o]h Don, I love you so much”. The appellant responded more firmly that he was not Don, at which point the complainant pushed him away and stumbled out of the tent.

THE TRIAL JUDGE’S REASONS

[15] Consent was not at issue – it was clear that the complainant did not consent to have sex with the appellant. The issue was whether the defence of honest but mistaken belief in consent was open to the appellant. Citing s. 273.2 of the Criminal Code, the trial judge properly identified the only disputed issue as whether the appellant was able to demonstrate, in the circumstances known to him at the time, that he had taken reasonable steps to ascertain that the complainant was consenting to have sex with him.

[16] In his extensive reasons for judgment, the trial judge noted, at para. 14, that “[i]n this case, it is clear that the credibility of the witnesses is the central issue before this Court”. After setting out the evidence, the trial judge summarized his assessment of the veracity of the witnesses. Citing demeanour and internal and external consistencies, the trial judge concluded, at para. 129, that Ms. McBride, Mr. Lehn and Mr. Fisher were “not only credible, but also reliable”. While not completely rejecting Mr. Doucette’s evidence, the trial judge described him as being self-serving and evasive, adding that he preferred the evidence of Ms. McBride, Mr. Lehn and Mr. Fisher when it conflicted with that of Mr. Doucette.

[17] At para. 131, the trial judge described the complainant’s evidence as having been given “in a clear, thorough, straightforward and non-evasive or argumentative manner”. He accepted her version of events without qualification.

[18] The trial judge then turned to the evidence relating to the appellant’s defence that he took reasonable steps, in the circumstances, to ensure he had the complainant’s consent.

[19] Relying primarily on S.R.’s testimony and other inferences he drew from the evidence, the trial judge made a number of findings relevant to the circumstances known to the appellant at the time he had sex with S.R.

[20] He found that the appellant was present when the complainant vomited and was therefore aware that she was intoxicated. The trial judge, accepting S.R.’s testimony that she was awakened to find a man attempting to vaginally penetrate her, found that it was the appellant who initiated sexual contact.

[21] The degree of visibility in the tent was an issue the trial judge described, in para. 69, as “the most important piece of evidence in the case” and “crucial to the Court moving to the ultimate decision”. He rejected the appellant’s evidence that there was good visibility and found that it was pitch dark in the tent. Finally, the trial judge held that during the sexual encounter, the complainant called out the name “Don” at least five times and heard no response from the appellant until after the fifth utterance.

[22] The trial judge relied heavily on this court’s decision in R. v. Crangle, 2010 ONCA 451, 256 C.C.C. (3d) 234, leave to appeal to S.C.C. refused, [2010] S.C.C.A. 300, a case in which the complainant had intercourse with her boyfriend’s identical twin brother. In that case, the accused knew that the complainant had an on-going sexual relationship with his twin brother, that she had fallen asleep, intoxicated, in his brother’s bed and that the bedroom was pitch dark. Further, from the accused’s perspective, he had no reason to believe that the complainant would ever consent to sexual intercourse with him. This court agreed with the trial judge’s conclusion that in such circumstances the accused had to make his identity perfectly clear to the complainant.

[23] Here, the trial judge viewed the “analogy” between Crangle and this case as “obvious”. In the light of the circumstances known to the appellant, the trial judge concluded that for “identical reasons” to those set out in Crangle, he would make the “identical finding” that the reasonable steps analysis required the appellant to make his identity “perfectly clear” to the complainant (at paras. 159, 167). Because the appellant failed to do so, the trial judge reasoned that he could not avail himself of the defence of honest but mistaken belief in consent.

ISSUES ON APPEAL

[24] There are two issues on appeal:

i) Did the trial judge misapprehend or fail to consider material evidence?

ii) If so, did the evidentiary errors result in a miscarriage of justice under s. 686(1)(a)(iii) of the Criminal Code or a legal error under s. 686(1)(a)(ii) of the Criminal Code?

[25] In cases in which it is alleged that a misapprehension of evidence has resulted in both a miscarriage of justice and a legal error, this court has previously stated that the proper procedure is to consider first whether there was a miscarriage of justice, and only proceed to consider whether there was a legal error if the answer to the first question is negative: see R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 540. Because I conclude that the trial judge’s misapprehensions of the evidence created a miscarriage of justice and would order a new trial on that basis, there is no need to go on to consider whether there was a legal error warranting a new trial.

ANALYSIS

The Applicable Legal Principles

(1) Misapprehension of Evidence

[26] A misapprehension of evidence includes “a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to evidence”: see R. v. Morrissey, at p. 538.

[27] This court’s decision in Morrissey and the Supreme Court’s decision in R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, are the leading cases on the misapprehension of evidence resulting in a miscarriage of justice. In order to result in a miscarriage of justice, the misapprehension must relate to evidence central to the finding of guilt. In Morrissey, Doherty J.A. summarized the test as follows, at p. 541:

Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction then, in my view, the accused’s conviction is not based exclusively on the evidence and is not a “true” verdict. Convictions resting on a misapprehension of the substance of the evidence adduced at trial sit on no firmer foundation than those based on information derived from sources extraneous to the trial. If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice. This is so even if the evidence, as actually adduced at trial, was capable of supporting a conviction.

[28] The Supreme Court has repeatedly emphasized that the misapprehended evidence must be central to the trial judge’s reasoning. If the trial judge would inevitably have come to the same conclusion without the misapprehended evidence, there is no miscarriage of justice: see R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 56-57. Therefore, “an error in the assessment of the evidence will amount to a miscarriage of justice only if striking it from the judgment would leave the trial judge’s reasoning on which the conviction is based on unsteady ground”: Sinclair, at para. 56.

[29] For this reason, in Lohrer, Binnie J. described the Morrisseystandard as “stringent”, and set out the analytical process as follows, at para. 2:

The misapprehension of evidence must go to the substance rather than to the detail. It must be material rather than peripheral to the reasoning of the trial judge. Once those hurdles are surmounted, there is the further hurdle (the test is expressed as conjunctive rather than disjunctive) that the errors thus identified must play an essential part not just in the narrative of the judgment but “in the reasoning process resulting in a conviction.”

[30] Put more simply, an appellate court must ask itself whether the trial judge failed to direct him or herself to the relevant issues or erred in the appreciation of evidence in a manner that could have affected the outcome: Lohrer, at paras. 7-8. However, the focus is on the impact of the misapprehension on the fairness of the trial, not on whether the result could or would have been different (R. v. Iamkhong, 2009 ONCA 478, 250 O.A.C. 220, at para. 52; and Morrissey, at p. 541). If the misapprehension rendered the trial unfair, there is a miscarriage of justice, even if other evidence was capable of supporting a conviction: Morrissey, at p. 541. If an accused demonstrates that there has been a miscarriage of justice, he or she need not show that the verdict cannot be supported by the evidence.

[31] The application of the Morrissey/Lohrer test to this appeal involves assessing the effect of any misapprehended evidence that directly informed the trial judge’s finding of guilt or the credibility assessment on which the guilty finding was based.

[32] Jurisprudence provides guidance as to how the Morrissey/Lohrer test has been applied in similar factual situations.

(a) Evidence on which the trial judge directly based the finding of guilt

[33] In cases in which the misapprehension relates to evidence on which the trial judge directly based his or her finding of guilt, the reviewing court must determine the extent to which the misapprehended evidence underpinned the conviction. If the misapprehension relates to a key piece of direct or circumstantial evidence, it is more likely to have tainted the trial judge’s reasoning process.

[34] R. v. Bains, 2012 ONCA 305, 291 O.A.C. 135, illustrates this principle. In Bains, the appellant had been convicted of possession of stolen property after he was found with stolen refrigerators. A major point of contention was whether the accused knew the refrigerators had been stolen. In concluding that the accused knew they were stolen, the trial judge relied in part on evidence that the refrigerators were bought and delivered at night. However, the evidence was that the refrigerators were bought and delivered during business hours. The timing of the sale and delivery was one of the factors that the trial judge concluded “added up” to proof beyond a reasonable doubt that the refrigerators were stolen property. Although there was other evidence that supported the conviction, the court held that there had been a miscarriage of justice because the misapprehension coloured the trial judge’s view of the other circumstantial evidence. A new trial was ordered.

[35] In contrast, if the misapprehension relates to an issue that was not central to the trial judge’s conclusion or if the other evidence would inevitably have led to the same conclusion, there is no miscarriage of justice. In Sinclair, the accused was convicted of manslaughter. The trial judge proceeded on the basis that the Crown's theory that Mr. Sinclair and two others had planned to go out together to commit a robbery was evidence of such a plan. Mr. Sinclair argued that this misapprehension underpinned the trial judge's conclusion that Mr. Sinclair was at the scene of the crime. LeBel J. concluded that even if the trial judge misapprehended the evidence, she inevitably would have found that Mr. Sinclair was at the scene of the crime on the basis of the other circumstantial evidence that she did accept. Moreover, the trial judge attached little importance to this supposed plan to commit a robbery, and it was not central to her reasoning (at para. 57). Therefore, the Supreme Court held that there was no miscarriage of justice.

(b) Evidence that informed the trial judge’s credibility assessment

[36] In cases in which the Morrissey/Lohrer test applies to a misapprehension of evidence that is used to assess credibility, it can be more challenging to ascertain whether there has been a miscarriage of justice because of the difficulty in determining the basis of credibility findings. Ultimately, the decision as to whether a miscarriage of justice has occurred turns on the extent to which the misapprehended evidence played a role in the trial judge’s credibility assessment.

[37] If the trial judge concluded that the accused was giving dishonest testimony but overlooked evidence that confirmed the accused’s evidence, there may be a miscarriage of justice. In R. v. R.G.L. (2004), 2004 CanLII 32143 (ON CA), 186 O.A.C. 355 (C.A.), appeal quashed, 2005 SCC 18, [2005] 1 S.C.R. 288, the defendant was accused of sexually assaulting his friend’s young daughter. Credibility was essential to the case. One of the two factors the trial judge relied upon in concluding that the accused was not credible was his testimony that he had never helped the complainant get ready for bed, tucked her into bed or checked on her at night. The trial judge concluded that the accused’s evidence on this point was not credible. However, in so doing, he overlooked evidence given by the complainant and her sister, which was consistent with the accused’s testimony on this point. A majority of this court concluded that the misapprehension of this evidence called the trial judge’s credibility findings into question, which in turn cast doubt on the finding of guilt. A new trial was ordered. See also: R. v. J.C. (2000), 2000 CanLII 1931 (ON CA), 131 O.A.C. 230 (C.A.); and R. v. A.D., 2000 BCCA 346, 140 B.C.A.C. 19.

[38] Similarly, if the trial judge mischaracterized parts of the accused’s evidence that were central to the assessment of credibility, there is more likely to be a miscarriage of justice: see R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5; and Whitehouse v. Reimer (1980), 1980 ABCA 214, 34 A.R. 414 (C.A.).

[39] In contrast, if the trial judge misapprehended certain pieces of evidence, but that evidence was not essential to the credibility assessment, there is no miscarriage of justice: see Rothman J.A.’s dissenting reasons in R. v. C.R. (1992), 49 Q.A.C. 37, which were adopted by the Supreme Court in reversing the majority’s holding, 1993 CanLII 142 (SCC), [1993] 2 S.C.R 226. See also Iamkhong, at para. 55. A trial judge’s credibility finding is not rendered unfair even when it is based on one or two dubious examples. Rather, the significance of an error must be assessed by reference to its impact on the fairness of the trial: see Morrissey, at p. 541; and Lohrer, at paras. 1-2.

(1) Reasonable Steps

[40] A complainant’s apparent consent to sexual activity may provide an accused charged with sexual assault with a defence. Since the identity of an individual’s sexual partner is an inseparable component of consent to sexual activity, s. 273.2(b) of the Criminal Code requires that reasonable steps be taken to ascertain that the individual is consenting to have sex with the accused. The accused may rely on the defence that he honestly but mistakenly believed that the complainant was consenting to have sex with him. However, that defence is not available if the accused did not take reasonable steps, in the circumstances known to him, to ascertain consent.

[41] The Manitoba Court of Appeal has described the approach to determining if the accused has taken reasonable steps to ascertain consent as a “quasi-objective test”: R. v. Malcolm, 2000 MBCA 77, 147 C.C.C. (3d) 34, at para. 24, leave to appeal to S.C.C. refused, [2000] S.C.C.A. No. 473. In Malcolm, the court set out a useful approach to the determination, as follows, at para. 24:

First, the circumstances known to the accused must be ascertained. Then, the issue which arises is, if a reasonable man was aware of the same circumstances, would he take further steps before proceeding with the sexual activity? If the answer is yes, and the accused has not taken further steps, then the accused is not entitled to the defence of honest belief in consent. If the answer is no, or even maybe, then the accused would not be required to take further steps and the defence will apply.

[42] Thus, while reasonable steps are assessed from an objective point of view, this assessment is informed by the circumstances subjectively known to the accused. The accused is not under a positive obligation to determine all of the relevant circumstances; rather, the assessment is based on the circumstances actually known to him or her at the time: R. v. Darrach (1998), 1998 CanLII 1648 (ON CA), 38 O.R. (3d) 1 (C.A.), at p. 89, aff’d on other grounds 2000 SCC 46, [2000] 2 S.C.R. 443.

[43] What is required in terms of reasonable steps depends on the facts. As the British Columbia Court of Appeal stated in R. v. G.(R.), at para. 29:

[Section] 273.2(b) clearly creates a proportionate relationship between what will be required in the way of reasonable steps by an accused to ascertain that the complainant was consenting and "the circumstances known to him" at the time. Those circumstances will be as many and as varied as the cases in which the issue can arise, and it seems to me that the section clearly contemplates that there may be cases in which they are such that nothing short of an unequivocal indication of consent from the complainant, at the time of the alleged offence, will suffice to meet the threshold test which it establishes as a prerequisite to a defence of honest but mistaken belief.

[44] The accused’s mistaken belief in consent need not be reasonable in order for the defence to be available. As Morden A.C.J.O. stated in Darrach, at p. 90, “[w]ere a person to take reasonable steps, and nonetheless make an unreasonable mistake about the presence of consent, he or she would be entitled to ask the trier of fact to acquit on this basis”.

The Application of these Principles to this Case

i) Did the trial judge misapprehend or fail to consider material evidence?

[45] The appellant submits that the trial judge’s reasonable steps analysis was based, to a large extent, on findings that were not supported by the evidence. The trial judge’s assessment of the appellant’s credibility was also heavily influenced by instances of misapprehended evidence. The appellant argues that the trial judge’s evidentiary errors and faulty credibility analysis undermine the legitimacy of his reasonable steps analysis.

[46] Crown counsel does not dispute that the trial judge misstated the evidence in certain respects, but argues that these misstatements did not result in a miscarriage of justice. The Crown argues that any misapprehensions did not undermine the essential aspects of the trial judge’s reasoning process.

[47] The Crown points to several findings that support the trial judge’s reasonable steps analysis. In particular, the Crown relies on the finding that the complainant called out the name “Don” several times during the sexual activity and that the appellant failed to respond. This finding, based on the trial judge’s rejection of the appellant’s evidence, significantly influenced his conclusion that the appellant did not take reasonable steps, a conclusion reinforced by other findings that the Crown submits are supported by the record.

[48] In my view, the trial judge misapprehended the evidence in relation to five issues. These misapprehensions coloured his assessment of the appellant’s credibility and led him to make certain factual findings relating to the reasonable steps analysis – specifically, the circumstances known to the appellant at the time he engaged in sex with S.R.

(a) The Appellant’s Knowledge of S.R.’s Illness

[49] The trial judge found that the appellant was with S.R. when she vomited, a fact that the trial judge stated was of “crucial importance to this Court”.

[50] In making this finding, the trial judge specifically rejected the appellant’s evidence that “he was down at the dock struggling with a heavy beer cooler at the time when the complainant was throwing up on Ms. McBride’s feet” (at para. 167). He concluded that “it makes little sense that Mr. Alboukhari would bring a heavy beer cooler by himself up to the campsite” (at para. 60). Instead, the trial judge accepted that everyone was around the campfire when S.R. vomited, saying that “all the other witnesses stated that [the appellant] was at the campfire at the time the complainant vomited”. As further support for this conclusion, he relied on Mr. Fisher’s evidence that the appellant was present at the campfire when the complainant threw up and that Mr. Doucette told the appellant that S.R. was “so wasted”.

[51] These are not correct statements of the evidence. While some Crown witnesses assumed that the reason for S.R.’s illness was common knowledge, none of them stated that the complainant witnessed the complainant vomit. Both Ms. McBride and the complainant testified that they could not remember if the appellant saw S.R. vomit. More importantly, the record shows that Mr. Fisher, Mr. Doucette and Mr. Lehn all supported the appellant’s testimony that he was not present when S.R. vomited. Although not mentioned in the reasons, Mr. Lehn testified that when the complainant vomited, the other three men were still on the boat and did not get back to the campsite for another 20 minutes. In keeping with this testimony, the evidence of both Mr. Fisher and Mr. Doucette suggested that while they heard that the complainant had vomited or saw evidence to that effect, they did not actually witness her doing so. Because Mr. Fisher, Mr. Doucette and the appellant were on the boat together and returned to the campfire around the same time, their testimony supports the appellant’s evidence on this point. Contrary to the trial judge’s recitation of the evidence, at no time did Mr. Fisher state that the appellant was present when S.R. threw up or that Mr. Doucette told the appellant that S.R. was “wasted”.

[52] The trial judge relied on this misapprehended evidence both in determining the circumstances known to the appellant and in assessing his credibility. At para. 167, the trial judge made it clear that the appellant’s knowledge that S.R. had vomited from excessive alcohol consumption was one factor that informed the reasonable steps analysis. Moreover, in rejecting the appellant’s testimony on this point, the trial judge concluded that the appellant was lying about this issue of “crucial importance” – a conclusion that factored into his ultimate credibility assessment.

(b) The Visibility in the Tent

[53] The trial judge also misapprehended the evidence relating to the visibility inside the tent – an issue he identified as “the most important piece of evidence in the case”.

[54] The trial judge, rejecting the appellant’s claim that the visibility in the tent was “very good” and that “you could see everything clearly”, found that it was pitch dark inside the tent. In coming to this conclusion, he stated, at para. 92, that the appellant’s evidence about the visibility in the tent was “completely unsupported by all of the other witnesses”. Again, the trial judge was incorrect in his recitation of the evidence.

[55] The trial judge stated that Mr. Fisher described the inside of the tent as being “pitch black”. This was not Mr. Fisher’s evidence. Mr. Fisher did testify that an hour after the incident he went back into the tent and turned off his flashlight to test the lighting. He said it was, at this point, “very dark” in the tent. Mr. Fisher could not recall whether he conducted this “lighting test” before storm clouds came in.

[56] The trial judge also stated that Mr. Doucette claimed that the visibility inside the tent was practically non-existent. This was not Mr. Doucette’s evidence. In fact, Mr. Doucette did not describe the lighting conditions in the tent.

[57] Further with respect to visibility, the trial judge said that all the Crown witnesses described the campfire as having been reduced to burning coals by the time of the incident. The record does not support this statement. Mr. Lehn testified that the fire still had a “little bit of flame”. S.R. testified that when she ran out of the tent, the campfire was still burning. Ms. McBride said she could not remember whether the campfire was still going or not.

[58] On their own, these misstatements might not significantly undermine the trial judge’s important finding about the visibility inside the tent. However, in my view, the fact that the trial judge also failed to take into account direct evidence about the visibility in the tent seriously weakens his conclusion that the tent was “pitch dark”.

[59] I refer to the testimony of Mr. Fisher and Mr. Doucette about their ability, upon entering the tent immediately following the incident, to see the appellant and discern his state of dress. Under cross-examination about what he saw when he went into the tent after S.R. emerged, screaming, Mr. Fisher was asked about the look on the appellant’s face. He responded by saying, “He … he … he just kept … well the look on his face I wouldn’t say is … a little surprised”. Mr. Fisher also testified that when he entered the tent, the appellant was wearing his boxers and putting on his pants. Similarly, upon entering the tent shortly after Mr. Fisher, Mr. Doucette testified that he was able to see that the appellant was fully clothed. These observations are direct evidence that the tent was not in fact “pitch dark”. For some reason, the trial judge appears to have ignored this uncontradicted evidence – direct evidence that supported the appellant’s assertion that visibility was good enough for him to see the complainant’s face.

[60] Furthermore, the trial judge did not refer to the evidence of the moonlight or of the ease with which the others were able to move around the campsite without flashlights – evidence that also supported the appellant’s testimony.

[61] These misapprehensions were critical to the trial judge’s reasonable steps analysis. Based on his erroneous view of the evidence, the trial judge concluded that the tent was too dark for the complainant to discern the identity of her sexual partner. Based on this conclusion, the trial judge found, at paras. 167-68, that the appellant was required to make his identity “perfectly clear” in order to satisfy the reasonable steps requirement.

[62] In addition to the importance attached to this visibility finding in terms of circumstances known to the appellant for the purposes of the reasonable steps analysis, the trial judge also relied on it in concluding that the appellant was not a credible witness. Based on his erroneous view of the evidence, the trial judge dismissed the appellant’s evidence on this point as a “convenient truth”. Significantly, the trial judge stated that the contradiction between the accused’s evidence and that of the other witnesses on this issue was “one that [was] crucial to the Court moving to the ultimate decision”.

(c) The Appellant’s Timeline of Events

[63] The trial judge also rejected the appellant’s timeline of events. At para. 147 of his reasons, the trial judge concluded that no other witness’s evidence supported the appellant’s timeline because “both Mr. Fisher and Mr. [Doucette] claim that they were out on the boat for anywhere between 20 minutes and an hour-and-a-half, before they heard the moans and ultimately the screams that came from the tent”. I do not see how this evidence conflicts with the appellant’s timeline. Mr. Fisher testified that when he and Mr. Doucette were on the boat, they were approaching the shore when they heard the cries. As the trial judge noted, Mr. Fisher estimated that this second boat trip lasted 20 to 30 minutes. This evidence is consistent with the appellant’s testimony that the sexual activity lasted for 25 to 30 minutes, at the end of which S.R. began crying and screaming.

[64] I further note that the trial judge, at para. 147, stated that no other testimony supported the appellant’s evidence pertaining to the time when various events took place on the night in question. Yet at para. 113, the trial judge commented that Mr. Lehn’s evidence supported the appellant’s timeline.

[65] Also at para. 147, the trial judge rejected the appellant’s evidence that the sexual activity began immediately. Seemingly by way of explanation, he noted that “by [the appellant’s] own admission, he was sitting around the campfire for anywhere from five to 10 minutes before entering the tent”. It is unclear how this explains the trial judge’s rejection of the appellant’s evidence on this point: the appellant testified that sexual activity began virtually immediately after he entered the tent. I fail to understand the relevance of the fact that he sat around the campfire first.

[66] Although the misapprehensions concerning the appellant’s evidence as to the timing of various events did not directly affect the trial judge’s reasonable steps analysis, they did factor into his credibility assessment. The trial judge said, at para. 147, that the accused’s evidence about the timeline of events was a “major difficulty the Court has with the accused’s evidence”.

(d) The Physical Differences between the Appellant and Mr. Doucette

[67] In my view, the trial judge also erred by inferring that other differences between the appellant and Mr. Doucette would not have been detectable given the lack of visibility in the tent. This inference was not supported by the evidence and led him to dismiss the significance of two physical differences between the appellant and Mr. Doucette

[68] Of particular concern, in my view, is the manner in which the trial judge dealt with the difference in body type between the two men. The evidence established that Mr. Doucette is 5’9” and, in June of 2008, weighed 200 lbs. The appellant is approximately the same height but considerably smaller. At the time, the appellant weighed 155 lbs. The relevance of this evidence is clear especially given the fact that while engaged in sexual intercourse the appellant was on top of S.R., in the missionary position, for about 20 minutes.

[69] The trial judge assigned little weight to this substantial difference in body mass, saying, at para. 152, that “clearly the accused is a smaller man physically compared to Mr. [Doucette] by approximately fifty pounds or more. However, in a pitch black tent, this size difference would be very difficult to ascertain and almost impossible to do so visually given the lack of light”.

[70] A trier of fact may draw factual inferences from the evidence. However, the inferences must be logically available from a fact or group of facts established by the evidence. Otherwise it is speculation.

[71] In the absence of any other evidence, I fail to see how the visibility in the tent would have affected S.R.’s ability to perceive the significant differences in body type between Mr. Doucette and the appellant. The trial judge’s inference that such a size difference could not be appreciated in the dark was based on speculation. He therefore erred in not assigning any value to this evidence.

[72] Furthermore, the trial judge made no mention of a second difference between the appellant and Mr. Doucette – their hair. Mr. Doucette has a receding hairline, while the appellant’s hair is thick and curly. Given S.R.’s evidence that when the man in the tent was on top of her engaging in vaginal intercourse, she took his face into her hands, this evidence is relevant and should not have been ignored.

[73] The trial judge’s failure to consider the physical differences between the appellant and Mr. Doucette created a situation whereby he considered the circumstances known to the appellant through a lens that presented an incomplete picture.

(e) The Reliability of S.R.’s Evidence

[74] I now turn to two critical findings made by the trial judge: first, that S.R. was awakened by the appellant’s attempt to have vaginal intercourse with her; and second, that the complainant called out “Don” five times during the sexual activity. Both of these findings appear to have been based on the trial judge’s preference of S.R.’s evidence over that of the appellant. He found S.R. to be credible but for various reasons, some of which I have referred to above, rejected the appellant’s evidence.

[75] The difficulty I have with these two findings is that the trial judge ignored factors that called into question S.R.’s reliability as a witness – a witness who was testifying as to specific details of a brief sexual encounter while she was intoxicated and that had taken place years earlier. While the trial judge mentioned that S.R. admitted that her memory of certain details were “hazy”, it does not appear that he considered whether this affected her reliability. In my view, the trial judge attributed an inappropriate capacity for recollection of detail to the complainant. First, he made no mention of S.R.’s intoxication in terms of its effect on her ability to observe and recollect the details of what took place when she and the appellant were alone in the tent. Furthermore, and importantly, he overlooked the fact that S.R. gave three different accounts of how the sexual contact started. Mr. Fisher testified that he heard the complainant say that she had initiated sex with the appellant. At the preliminary inquiry, the complainant testified that she woke up to someone nudging her and trying to wake her up. Finally, at trial, she testified that she was awakened by the appellant’s attempting to have vaginal intercourse with her.

[76] The trial judge’s failure to consider the factors that negatively affected the complainant’s reliability undermines the trial judge’s findings about how sex was initiated and the number of times S.R. called out “Don”. Further, in my view, these findings are also undermined because the trial judge’s disbelief of the appellant rested on misapprehensions of evidence.

[77] Before concluding, I make one last comment. I observe that the trial judge’s finding that the appellant initiated sexual contact while the complainant was still asleep is potentially significant as, by itself, it would support a conviction for sexual assault. However, for unknown reasons, this point was not argued at trial or on appeal. That said, on the basis of the above analysis, I conclude that this finding is significantly weakened by the various errors I have identified and cannot be relied upon.

CONCLUSION

[78] In my view the stringent test established in Morrissey and Lohrer is met in this case.

[79] As the Manitoba Court of Appeal set out in Malcolm, the starting point of the reasonable steps analysis is the circumstances known to the accused. On the trial judge’s findings of fact, the relevant circumstances were as follows: in a pitch dark tent the appellant initiated sexual contact with a woman he barely knew, who was intoxicated and who called out her boyfriend’s name many times during the course of the sexual encounter. However, as explained above, these findings are undermined by the trial judge’s evidentiary misapprehensions. And, as I have said, in my view the trial judge further erred in starting his reasonable steps analysis from a point at which evidence relevant to the circumstances known to the appellant had been erroneously omitted. I refer to the physical differences between him and Mr. Doucette – differences that could have been detected regardless of the visibility in the tent.

[80] Given my conclusion that the trial judge’s starting point for the reasonable steps analysis was unsound, Crangle simply does not apply. In Crangle, the trial judge’s findings concerning the circumstances known to the accused were supported by the record. Based on those findings, it was obvious that a reasonable man would have made his identity “perfectly clear” before engaging in sexual relations with the complainant.

[81] Here, because the trial judge’s reasonable steps analysis was fundamentally flawed, the conviction cannot be trusted as it is not based exclusively on the evidence.

DISPOSITION

[82] For these reasons, I would allow the appeal, set aside the conviction and order a new trial.

Released:

“SEP 27 2013” “Gloria Epstein J.A.”

“JL” “I agree John Laskin J.A.”

“I agree H.S. LaForme J.A.”