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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

486.4(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.

486.4(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.

486.4(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.

486.6(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

Date: 2017-10-23

Docket: C60631

Panel: Doherty, LaForme and Paciocco JJ.A.

Between

Her Majesty the Queen Respondent

and

Adam Hughes Appellant

Counsel

Mark Halfyard and Breana Vandebeek, for the appellant

Kevin Rawluk, for the respondent

Heard

October 18, 2017

Appeal Information

On appeal from the conviction entered on March 11, 2015 and the sentence imposed on May 26, 2015 by Justice J. Elliot Allen of the Ontario Court of Justice.

Reasons for Decision

The Conviction and Sentence

[1] The appellant was convicted of sexual assault and sentenced to 18 months in jail. Consent was the only issue at trial. The incident occurred in the complainant's dormitory room at the university that both the complainant and the appellant attended. She testified that she did not consent. The appellant chose not to testify. The Crown, however, introduced a lengthy and mainly exculpatory statement that the appellant gave to the police. He claimed the sex was consensual.

[2] The trial judge found the complainant's evidence credible, the circumstantial evidence compelling, and the appellant's exculpatory statements unbelievable. After a review of the evidence, and a specific reference to the principles in R. v. W.(D.), [1991] 1 S.C.R. 742, the trial judge said:

When I look at the overall context of this case, I see what I think are the important, and indeed determinative factors in the case. Mr. Hughes and Ms. M. were mere acquaintances, not friends. They had no relationship in which one might anticipate they would become intimate. He walked into her room uninvited while the lights were off and she was sleeping. Ten minutes later, he had sex with her. She was naked and hiding behind the closet door when her roommate appeared. She was distraught for some hours after the event. She went to counselling, and she did not sleep in her own room for some time. This is not a scenario suggesting consensual sex.

Grounds of Appeal

[3] The appellant appeals both his conviction and sentence.

[4] On the conviction appeal he submits that the trial judge erred in several respects. He contends that the trial judge arrived at an unreasonable decision in finding that the complainant did not have a motive to mislead, and then "overemphasized" a "perceived lack of motive" on the complainant's part to lie about what happened. He also argues that the trial judge misapprehended evidence relating to how the complainant's bra came to be removed, resulting in a miscarriage of justice. Finally, he claims that comments made by the trial judge during sentencing raise a reasonable apprehension of bias requiring a new trial.

[5] On the sentence appeal he urges that the trial judge erred by treating the failure of the accused to leave the university he and the complainant attended as an aggravating feature, that he implicitly used the absence of remorse as an aggravating fact, and gave insufficient weight to the fact that the appellant is a youthful first offender.

Decision

[6] We do not accept these grounds of appeal.

Analysis of Conviction Appeal

Motive to Mislead

[7] With respect to motive, the trial judge was not instructing a jury but was, as the trier of fact, making findings in respect of factors relevant to the complainant's credibility. An examination of the trial judge's reasons do not support the appellant's complaints. The trial judge said this in the course of assessing the complainant's credibility:

Ms. M. presents as an honest witness, doing her best to recount what occurred. She had no malice against Mr. Hughes. She had no motive of any kind to make this up, although there is absolutely no onus on the defence as a matter of law to demonstrate any such thing. She recounted a very embarrassing detail, the wetting of the bed, and was unshaken in her evidence that she did not respond sexually to Mr. Hughes. She was generous in admitting the possibility of certain things, but as I said earlier I interpret her concessions as being based on her not having a complete memory due to her grogginess in the brief and unexpected encounter with Mr. Hughes.

[8] The finding that the complainant did not have a motive to mislead was not unreasonable. The trial judge was entitled, on the evidence he heard, to conclude that the complainant did not have a motive to make up the allegation. He found that the appellant and complainant were mere acquaintances, there was no indication of malice in her testimony, and she was ready to make concessions. Simply put, she did not present as a witness with an agenda.

[9] The trial judge rejected the submission that she was motivated by her embarrassment at being caught by her roommate in the middle of having sex. Counsel's submission that the complainant may have had some "unknown" motive, not revealed by the evidence, cannot assist. The trial judge, as the trier of fact, came to a different assessment.

[10] The submission that the trial judge moved directly from his conclusion that the complainant had no motive to fabricate to a finding that the complainant was credible, is also belied by the extracts from the reasons quoted above. The trial judge's reference to the absence of a motive by the complainant to make up the allegation was one of many factors the trial judge identified in his assessment of the complainant's credibility.

[11] In any event, on a reading of the totality of the reasons, it is clear that the trial judge was most heavily influenced by the circumstances which, in his view, contraindicated consensual sexual intercourse, and his finding that the appellant had repeatedly lied about the relevant events to school authorities and the police. Neither of these features of the case had anything to do with the complainant's motivation.

Misapprehension of Evidence

[12] The appellant is correct that the trial judge did misapprehend the evidence when he indicated that the appellant had removed the complainant's bra. The appellant's account in his police statement was that he undid the complainant's bra, but that she removed it. The complainant could not recall how her bra came to be removed.

[13] The trial judge's misapprehension of the evidence – the appellant undid the complainant's bra as opposed to removing her bra – was of minimal, if any, significance.

[14] The appellant seems to assume that had the trial judge properly recalled the evidence, he would have accepted the appellant's evidence and found that the complainant removed her own bra. This finding, says the appellant, would have supported the defence position that the sex was consensual.

[15] We cannot agree with this line of reasoning. The only evidence that the complainant removed her own bra came from the appellant's statements to the police. As the trial judge explained, he found many parts of those statements incredible. We do not think it follows that had the trial judge properly recalled the evidence, he would have accepted the appellant's evidence that the complainant removed her bra. It is much more likely that he would have found only that her bra came to be removed somehow.

[16] Not every misapprehension of evidence warrants reversal of verdicts. The misapprehension must relate to evidence that plays an essential role in the trial judge's reasoning process. The misapprehension identified by the appellant does not touch evidence that reaches that level of significance in the trial judge's analysis.

Reasonable Apprehension of Bias

[17] The reasonable apprehension of bias appeal fares no better. The presumption of impartiality has not been displaced. The appellant has not demonstrated that a reasonable and right-minded person, reflecting on the matter with the required information, would conclude that, more likely than not, the trial judge, whether consciously or unconsciously, would not decide fairly.

[18] The trial judge's impugned comments relate mainly to the policy of the university where the sexual assault occurred. The university permitted the appellant to continue to attend the university while the charges were outstanding. The trial judge expressed his strong disagreement with this policy.

[19] The trial judge also made one very negative comment directed specifically at the appellant's decision to remain on campus while the charges were proceeding through the courts.

[20] With respect to the comments about conditions at the university, we take no issue with a sentencing judge commenting on a social problem relating to a case, or the prevalence of the crime in the community, including the prevalence of sexual assaults in universities. It was not appropriate, however, for the trial judge to castigate the university where the sexual assault happened for its response to the sexual assault complaint. The trial judge had no information about what the university did or why. Nor should he have. The university's actions and policies were irrelevant to the determination of the appropriate sentence. Further, the university was not even a party before the trial judge. The trial judge's comments were uninformed and consequently potentially misleading and unfair to the university. It should not have been subject to this criticism.

[21] The comment about the appellant's choice to remain on campus was also unnecessary, and this comment was unfair to the appellant. The appellant was entitled to maintain his innocence and live his life accordingly while the charges were pending.

[22] We do not accept, however, that the comments made are suggestive of any reasonable apprehension of bias at the sentencing phase, much less during the trial itself. The sentence imposed of 18 months was within the range suggested by both counsel at trial. We see no connection between the quantum of sentence imposed and the trial judge's improper criticism of the appellant's decision to remain at the university after the charges were laid.

Analysis of Sentence Appeal

[23] This was a rape. Even when, as in this case, there are many legitimately strongly mitigating factors, a significant reformatory sentence is a fit sentence.

[24] These observations pertain, as well, to the sentence appeal. There is no basis for inferring that the trial judge treated the appellant's decision to remain in school as an aggravating factor, or for concluding that the absence of demonstrated remorse was aggravating. The trial judge was aware that the appellant was a youthful first offender, but he was a youthful first offender convicted of a serious sexual assault. We would not vary the sentence.

Disposition

[25] The appeal is dismissed.

"Doherty J.A."

"H.S. LaForme J.A."

"David M. Paciocco J.A."