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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. Garrett, 2014 ONCA 734

DATE: 20141024

DOCKET: C57822 & C57919

Watt, Tulloch and Benotto

BETWEEN

Her Majesty the Queen

Respondent

and

James Garrett

Appellant

Paul Burstein, for the appellant

Dena Bonnet, for the respondent

Heard: August 29, 2014

On appeal from the conviction entered on July 17, 2013 and the sentence imposed on November 1, 2013 by Justice Melanie Dunn of the Ontario Court of Justice.

ENDORSEMENT

[1] Mr. Garrett appeals his conviction for sexual assault. The Crown appeals the sentence.

The Facts

[2] Mr. Garrett and the complainant had known each other for many years. After meeting by chance one day, they decided to go out on a date. They went to dinner then for drinks and generally had a good time. They kissed and held hands. At the end of the evening, the complainant invited him to her apartment. They had another drink and chatted. Neither was intoxicated. Mr. Garrett was on one sofa and the complainant was on the other. At one point, the complainant moved to the same sofa and they began kissing. Up until this point in the evening, it is common ground that the activity was consensual. Thereafter, the testimony of the complainant and Mr. Garrett differed.

[3] The complainant testified that the kissing was too aggressive. His teeth were hitting hers so she tried to slow things down. He was ignoring her requests. She testified that while still on the sofa, he was on top of her. She tried to slide out from under him and fell to the floor. She hit her back on the floor and testified that it was hurting. The complainant said that she told him to stop. He would not look at her but kept on. He pulled up her top, her bra, licked her breasts and had her pinned down. He was aggressive. She was trying to get him to stop. He took off her leggings then put his penis in her vagina. When he stopped, he told her that they had just made love. She said that was not making love. Upset, she left her own apartment and waited in her car until she saw his car leave.

[4] Mr. Garrett testified that the sex was consensual throughout. He testified that the complainant had initiated the kissing. He said that the sex was "high energy" but denied that he was aggressive or extremely physical.

[5] The incident was reported to the police and a sexual assault examination took place. Photographs filed in evidence showed a grapefruit-size swollen bruise on the complainant's tailbone and bruising on her inner thighs.

The Reasons for Judgment

[6] The trial judge reviewed the evidence. She found that Mr. Garrett was candid and straightforward. She noted frailties in the complainant's testimony. For example, she commented that the complainant seemed to be painting a different picture of the nature of the date by not initially referring to the kissing.

[7] The trial judge found, however, that the bruising was consistent with non-consensual intercourse and inconsistent with Mr. Garrett's testimony. The trial judge said this:

The injuries sustained, however, tell their own story. The bruising between her legs is consistent with non-consensual intercourse and is inconsistent with Mr. Garrett's version. The injury to her tailbone is inconsistent with her engaging in pleasurable intercourse.

[8] Although charged with sexual assault causing bodily harm, Mr. Garrett was convicted of the lesser offence of sexual assault.

[9] The trial judge sentenced Mr. Garrett to imprisonment for 90 days to be served on an intermittent basis and to be followed by two years of probation. She reasoned that the case presented "exceptionally unique circumstances." She referred to his long life with exemplary conduct, his reputation in the community – which was destroyed – his low if any risk of reoffending and the glowing character letters describing him as a gentleman.

The Conviction Appeal

[10] The appellant submits that the trial judge erred in two ways:

1. She erroneously took judicial notice of how the bruising was caused.

2. She did not address the mens rea of the offence.

[11] The appellant contends that the bruising was relevant to consent which was the dispositive issue in the case and the court cannot take judicial notice of a dispositive issue. (see: R. v. P.(T.), 2007 ONCA 585, 223 C.C.C. (3d) 289). The appellant submits that absent expert evidence on this point, the trial judge was not entitled to find that the injuries were consistent with non-consensual intercourse. In addition, the appellant argues that the trial was unfair because the trial judge did not warn defence counsel that she was going to take judicial notice of these facts and thus the defence was unable to call expert evidence to refute the inference.

[12] We do not accept this submission. The trial judge was not taking judicial notice of an adjudicative fact, but rather was relying on the fact that the injuries were consistent with complainant's testimony. Unlike P.(T.), there was no general or abstract matter under consideration. The trial judge was referring to the evidence before her. In addition, the trial judge accepted the complainant's testimony and found as fact that she was resisting Mr. Garrett's sexual conduct.

[13] The appellant argues further that the trial judge did not consider the mens rea necessary to found a conviction. In her reasons she alluded to Mr. Garett's failure to take reasonable steps to ensure consent. This imported the concept of mistaken belief of consent which was not argued by the defence at trial. His defence was consent.

[14] We do not accept this submission. Mr. Garrett took no steps to ensure consent. Therefore the defence was not open to him in any event.

The Sentence Appeal

[15] The parties agree that the sentence is outside the usual range. The Crown submits that the appropriate range is 2 to 3 years. (The trial Crown had submitted 18 months to 3 years.)

[16] The Crown argues that this case is neither exceptional nor unique. On the contrary, it represents a classic date-rape scenario. Hence, the primary sentencing objectives should be denunciation and deterrence. Mr. Garrett argues that the factors considered by the trial judge support a lenient sentence outside of the usual range.

[17] We agree that the sentence is outside the usual range and is manifestly unfit.

[18] The sentencing judge repeatedly referred to the circumstances of the offence as "unique." She commented that the date-rape offences which attract sentences of two to three years involve moral blameworthiness, gratuitous violence, demeaning behaviour or contemptuous disregard for the feelings and personal integrity of the victim. She said: "That is not the situation before me."

[19] In our view, the facts were neither exceptional nor unique. The complainant repeatedly told Mr. Garrett to stop. He did not. This, in itself, constitutes demeaning behaviour and contemptuous disregard for the personal integrity of the complainant and engages the predominant sentencing principles of denunciation and deterrence.

[20] In addition, the complainant's initial consent to kissing does not render less serious the subsequent non-consensual intercourse. The sentencing judge's analysis, read as a whole, appears to indicate otherwise.

[21] In our view, the sentencing judge erred by finding the situation was unique and then by over-emphasizing the mitigating factors.

Disposition

[22] For these reasons, the appeal from conviction is dismissed. Leave to appeal the sentence is granted and the appeal is allowed. The sentence imposed at trial is set aside. A term of imprisonment of 18 month is imposed. (We have been advised that Mr. Garrett has served "at most one to three" days of his intermittent sentence.) The terms of the probation order and the ancillary orders remain in place. If necessary, a warrant may issue for the arrest of Mr. Garrett.

[23] The sentence imposed by this court should not be taken as a sentence within the appropriate or usual range. We are constrained in this regard by the Crown's position at trial.

"David Watt J.A."

"M. Tulloch J.A."

"M.L. Benotto J.A."