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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. A.D.H., 2015 ONCA 690

DATE: 20151015

DOCKET: C59604

Hoy A.C.J.O., Weiler and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

A.D.H.

Appellant

Stephen Whitzman, for the appellant

Dayna Arron, for the respondent

Heard: October 7, 2015

On appeal from the decision of the Summary Conviction Appeal Court dated October 17, 2014 by Justice Peter A. Douglas of the Superior Court of Justice, dismissing the appeal from the conviction entered on January 17, 2014 by Justice John D.D. Evans of the Ontario Court of Justice.

ENDORSEMENT

[1] The appellant was convicted of sexually assaulting the complainant, a niece of his common-law wife. He seeks leave to appeal from the decision of the Summary Conviction Appeal Judge (“SCAJ”) dismissing his appeal from conviction. The appellant submits that the SCAJ committed two errors in his decision. First, the SCAJ erred by concluding that there was no air of reality to the defence of honest but mistaken belief in consent. Second, and consequently, the SCAJ erred by concluding that the trial judge had not erred by failing to turn his mind to that issue.

[2] The complainant and the appellant both attended a party celebrating her grandparents’ 50th wedding anniversary. The party ended around 1:00 a.m. The complainant’s parents were hosting several of the guests at their home overnight, so the complainant drove a group of them, including the appellant, to her parents’ house in a van. When they arrived at the house, the appellant remained passed out in the van from his alcohol consumption. The appellant woke up in between 3:00 a.m. and 4:00 a.m., and went into the house. The appellant went into the complainant’s bedroom. Initially, it was intended that the appellant and his wife would be staying in that room. However, on that night, the complainant was sleeping in her bedroom.

[3] Beyond this point, the evidence at trial relates two different scenarios.

[4] According to the complainant, the appellant entered her room, began sexually touching her and then performed oral sex on her. The complainant thought she was having a dream. She admitted that her body movements assisted the appellant in removing her shorts. The oral sex persisted for about five minutes, and caused the complainant to wake up. At this point, the appellant stood up and removed his pants. The complainant was then able to identify the man before her as the appellant. He put her hand on his penis, but she quickly removed it. He then attempted to push her legs apart and she resisted. He continued to push on her legs and responded with something along the lines of “what’s the matter?” The complainant then jumped out of bed and ran out of the room. The complainant testified that she believed the appellant thought she was his wife, as they had a similar build and his wife was initially supposed to stay in that room.

[5] At trial, the appellant denied having any sort of sexual interactions with the complainant or his wife that night. He says he entered the complainant’s room, thought that the person sleeping in the bed was his wife, and fell asleep naked beside her in the bed. The appellant denied that he had engaged in sexual activity with anyone believing that she was his spouse.

Trial Judge’s Decision

[6] The trial judge found the complainant to be credible and rejected the evidence of the appellant. He held that the appellant was guilty beyond a reasonable doubt of the sexual assault of the complainant.

[7] As noted, the appellant denied any sexual contact on the night at issue. The defence of mistaken belief in consent was not raised by the appellant. The trial judge commented that, because the appellant denied any sexual encounter with the complainant, he was not suggesting that he had an honest but mistaken belief in consent.

Appeal Decision

[8] The SCAJ accepted that an accused is entitled to rely upon all alternate defences for which a foundation of fact appears in the record. This applies to any defence, whether or not raised in submissions by the defence, which has an air of reality. To meet the air of reality test, there must be some evidence upon which a properly instructed trier of fact, acting reasonably, could acquit if it believed the evidence to be true.

[9] The SCAJ noted that the defence of honest but mistaken belief in consent may be available to an accused even though he does not testify that he held that belief. However, in this case, the SCAJ concluded that the evidence at trial provided no foundation for an air of reality to the defence of honest but mistaken belief. The complainant’s belief as to the appellant’s state of mind was purely speculative. Further, the complainant was not consciously trying to assist the appellant in taking off her pants, so this did not go towards creating an honest but mistaken belief in consent.

[10] The SCAJ determined that the verdict was reasonable and the trial judge did not err.

Analysis

[11] There is no dispute that the SCAJ correctly articulated the air of reality test. Before this court, the appellant suggests that a defence based on the appellant’s mistaken identification of the complainant was also available.

[12] An appeal lies to this court, with leave on questions of law alone, pursuant to s. 839 of the Criminal Code. Whether there is an air of reality to a defence does raise a question of law.

[13] As explained in R. v. R.R., 2008 ONCA 497, 90 O.R. (3d) 641, at para. 37, leave to appeal will be granted only:

• Where the merits of a proposed question of law are arguable, if not strong, and the issue has significance to the administration of justice generally; or

• Where there appears to be a clear error in the particular case.

[14] The appellant concedes that his appeal does not meet the first branch of the test.

[15] Furthermore, there is no clear error identifiable in the reasons of the SCAJ. As the Alberta Court of Appeal pointed out in R. v. Flaviano, 2013 ABCA 219, aff’d 2014 SCC 14, at para. 46:

[We] accept that the law does not currently require the accused's testimony to establish an air of reality to the defence – that it may be found in the evidence of other witnesses. However, as the ultimate issue requires an assessment of whether the accused honestly held, or may have held, such a belief, it obviously may be negated by the testimony of the accused. For example, where an accused asserts he had no sexual contact of any kind with the complainant, it would be fantasy to speculate that he was lying on that point, but to then attribute to him a defence completely incompatible with his evidence, namely that he was the assailant but he may have been operating on a mistaken belief. [Citation omitted.]

[16] The appellant has not identified any exceptional circumstances which would justify a second appeal.

[17] Accordingly, leave to appeal is denied.

“Alexandra Hoy A.C.J.O.”

“K.M. Weiler J.A.”

“G. Pardu J.A.”