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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Court of Appeal for Ontario

Date: 2017-11-02

Docket: C62759

Panel: Watt, Epstein and Brown JJ.A.

Between:

Her Majesty the Queen Respondent

and

Jacob Stephen Orwin Appellant

Counsel:

Robert F. Goddard, for the appellant

Jill Witkin, for the respondent

Heard: September 7, 2017

On appeal from: The conviction entered on October 28, 2015 and the sentence imposed on February 17, 2016 by Justice Brian W. Abrams of the Superior Court of Justice, sitting without a jury.

Decision

By the Court:

[1] The appellant appeals his conviction of a single count of sexual assault and the sentence imposed upon him for that conviction.

[2] At the conclusion of oral argument, we announced that the appeals from conviction and sentence would be dismissed for reasons to be provided at a later date. Our reasons follow.

The Background Facts

[3] The principals were involved in a short-term casual sexual relationship. At the time of the events with which we are concerned, the appellant was 23, the complainant 18.

[4] Feeling stressed about her impending move out-of-province to attend school, the complainant went over to the appellant's home one evening. The couple shared some wine and went to bed. Neither was fully clothed. No sexual activity occurred.

[5] The following morning, the complainant was still stressed. The appellant offered to give her a massage to alleviate her stress. The complainant agreed that he could do so. As the complainant lay on her stomach, the appellant began to massage her back. From this point, the accounts of the principals diverge.

[6] According to the complainant, she made it clear to the appellant, by what she said and what she did, that she did not consent to him touching her buttocks, either over or beneath her underwear. Nor did she consent later when he penetrated her anus, first with his finger and then with his penis. When the appellant stopped anal penetration, the complainant rolled over, said "what the fuck" and walked into the bathroom. There, she noticed bite marks, scratches and hand marks on her body. She decided to leave.

[7] When the complainant returned to the bedroom from the bathroom, the appellant asked "don't you want to finish me off". She declined. She was upset, but told the appellant, in response to his question, that she was "fine".

[8] The day after the incident the complainant sent a text message to the appellant. She told him that she had not consented to the anal intercourse. He responded: "I feel as though I raped you". Later that same day, the complainant reported the assault to the police.

[9] Two months later, the appellant sent the complainant a Facebook message asking her if she had gone to the police.

[10] The appellant, relying on his own testimony, advanced consent as his principal defence. But he also argued that he should be found not guilty because he honestly but mistakenly believed that the complainant consented to anal intercourse.

[11] The appellant grounded his claim of honest but mistaken belief in consent on what he interpreted were positive signs from the complainant. She moaned with pleasure. She did not say "no". Her body language was consistent with her physical reaction during consensual intercourse on previous occasions. The appellant claimed that they had had consensual anal intercourse on several prior occasions.

[12] The appellant recalled that the complainant seemed somewhat "off" after the anal intercourse occurred, although she said she was "fine". After she made her allegation via text message, the appellant began to wonder whether her moans reflected pain, not pleasure.

[13] The appellant explained that the facially inculpatory Facebook and text messages he sent the complainant after the events were meant to reflect his empathy for her. They were not admissions of guilt.

The Appeal from Conviction

[14] On the appeal from conviction, the appellant contends that the trial judge made three errors:

i. he failed to give effect to the "defence" of honest but mistaken belief in consent by failing to consider, at all or adequately, evidence from the complainant that tended to support this "defence";

ii. he applied a stricter standard of scrutiny to the testimony of the appellant than to the evidence of the complainant; and

iii. he misapprehended the appellant's evidence about his characterization of the complainant's moans during anal intercourse.

Ground #1: Mistaken Belief in Consent

[15] On the issue of consent, the appellant acknowledges that the versions of events provided by him and by the complainant are irreconcilable. The trial judge, as he was entitled to do, rejected the appellant's account and accepted that of the complainant. But where the judge foundered, the appellant says, was in his failure to consider whether a reasonable doubt could arise from a viable set of facts cobbled together to constitute a "defence" of mistaken belief in consent.

[16] The appellant points to several items of evidence that he says the trial judge failed to take into account in connection with the "defence" of honest but mistaken belief in consent:

i. the complainant's description of the appellant's demeanour after anal intercourse had occurred;

ii. the complainant's expressed self-doubt about the appellant's knowledge of consent during the anal intercourse;

iii. the complainant's unhurried departure from the appellant's home after anal intercourse had occurred;

iv. the "double cancelled" date;

v. the lack of anal soreness on the part of the complainant; and

vi. prior consensual anal intercourse between the parties.

[17] The cumulative effect of these several items of evidence, the appellant says, provided an evidentiary foundation for the "defence" of honest but mistaken belief in consent. The trial judge's failure to consider the cumulative effect of this evidence in his determination that the "defence" of honest but mistaken belief in consent lacked an air of reality was an error of law undone only by ordering a new trial.

[18] We do not give effect to this ground of appeal.

[19] We begin our consideration of this ground of appeal with the well-established principle that, in giving reasons for judgment in a criminal case, a trial judge is not required to refer to each and every morsel of evidence admitted at trial: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 20. It necessarily follows that, without more, the simple failure of the trial judge to refer to a specific item or feature of the evidence does not constitute legal error or render the reasons insufficient to permit meaningful appellate review.

[20] In our assessment of this claim of error we must also keep in mind several features of what criminal law practitioners and judges describe as the "defence" of honest but mistaken belief in consent.

[21] The "defence" of mistake is simply a denial of mens rea. It does not impose any burden of proof upon an accused. Applied to the issue of consent in cases such as this, honest but mistaken belief is an argument that the Crown has failed to prove beyond a reasonable doubt that the accused knew that the complainant was not consenting to the sexual activity in question: R. v. Ewanchuk, [1999] 1 S.C.R. 330, at para. 44; R. v. L.S., 2017 ONCA 685, at paras. 37 and 39.

[22] For an accused's conduct to be morally innocent, the evidence must show that he believed that the complainant communicated consent to engage in the sexual activity alleged to constitute the actus reus of the offence: here, anal intercourse. Speculation by an accused about what was going on in a complainant's mind affords no defence: Ewanchuk, at para. 46. Further, an accused's belief that silence, passivity, or ambiguous conduct constitutes consent is a mistake of law, and thus provides no defence: Ewanchuk, at para. 51.

[23] A final point concerns the limitation on mistaken belief in consent imposed by s. 273.2 of the Criminal Code. A mistaken believe in consent cannot arise from an accused's own recklessness, wilful blindness, or a failure to take reasonable steps, in the circumstances known to the accused at the time of the sexual activity, to ascertain that the complainant was consenting.

[24] Turning to the evidence advanced by the appellant to found his claim of honest but mistaken belief in consent, we are satisfied that neither individually nor cumulatively can they ground his denial of mens rea.

[25] Taking first the complainant's evidence about the appellant's demeanour after anal intercourse had occurred. To the extent that this evidence is offered to describe the appellant's state of mind at the time of anal intercourse – that is to say, his belief that she was consenting – it is inadmissible speculation. Further, it is at odds with the appellant's later text and Facebook messages acknowledging his recognition that he had done something wrong. What is more, a fair construction of the appellant's text messages reveals recklessness on his part, a state of mind that negates the availability of honest but mistaken belief in consent as a defence.

[26] In her testimony, the complainant was very clear that she communicated her lack of consent to anal intercourse unequivocally by her words and conduct the morning the offence occurred. The relevant time for consent, likewise honest but mistaken belief in consent, is at the time of the sexual activity said to be consensual. The complainant's self-doubt about the timing of the prior communication of non-consent was of no real relevance to the availability of the defence now advanced.

[27] The appellant makes two further claims. First, that evidence that the complainant waited for the appellant to complete his shower before leaving belied her claim of a hurried departure. Second, that the appellant's suggestion that his text message cancelling a date the complainant claimed she had previously cancelled called into question the reliability of the complainant's recollection of events.

[28] These claims can be considered together. At best, these pieces of evidence were relevant to the complainant's credibility as a witness. Neither relates to the reliability of her evidence denying consent. Neither alone nor together can they provide an evidentiary foundation for an antecedent belief in consent. Nor can the reliability of the complainant's evidence be measured or diminished by what the appellant later did.

[29] No expert evidence was adduced about the likelihood of anal soreness after forced anal intercourse. In the absence of such evidence, no adverse inference can be drawn about the complainant's credibility or the reliability of her evidence of what occurred. Further, it is difficult to see how this after-the-fact discovery of a physical condition could have had any influence on the appellant's contemporaneous state of mind.

[30] The appellant and complainant differed about how many times they had previously had anal intercourse. The complainant insisted, as she wrote in a text message to the appellant, that she had previously told him that she "wasn't okay with anything anal". We are unable to see how any inconsistency on this issue could assist the appellant in establishing an air of reality for the "defence" of honest but mistaken belief in consent. The complainant's consent to anal intercourse in the past cannot be used to support the appellant's claim of mistaken belief in consent: R. v. Barton, 2017 ABCA 216, 38 C.R. (7th) 316, at paras. 169 and 254.

[31] In rejecting this ground of appeal we are also mindful that the appellant clearly based his defence on consent and testified that the complainant was a willing partner. The complainant's version was one of unmistakable resistance. The issue was one of credibility, of consent or no consent: R. v. Park, [1995] 2 S.C.R. 836, at para. 26.

Ground #2: Uneven Scrutiny

[32] The appellant also complains that the trial judge applied a more demanding level of scrutiny in his assessment of the appellant's evidence and credibility than he did when considering the evidence and credibility of the complainant.

[33] This argument, or some variation of it, has become a staple in appeals from conviction in judge alone trials where the evidence sets the word of the complainant, on the one hand, against the denial of the accused, on the other, with the result contingent upon the trial judge's credibility assessments. This is a difficult argument to advance successfully. An appellant must do more than show that a different trier of fact could have decided credibility differently. Or that the trial judge left something out that she could have said in assessing the respective credibility of the principals. Or that the trial judge failed to set out, in express terms, legal principles relevant to that credibility assessment. To succeed the appellant must point to something in the trial judge's reasons, or perhaps elsewhere in the trial record, that makes it clear that the trial judge applied different standards in assessing the evidence of the appellant and the complainant: R. v. Howe, 192 C.C.C. (3d) 480, at para. 59.

[34] In this case, the appellant says that the uneven scrutiny argument is made out because the trial judge rejected as incredible the appellant's account of honest but mistaken belief in consent on the basis of:

i. the appellant's failure to correct the complainant's text message that she had previously told him that she "wasn't okay with anything anal";

ii. the short-term nature of their relationship, which had an "expiry date"; and

iii. the inculpatory contents of the appellant's text messages sent shortly after the events that formed the subject-matter of the charge.

But, in deciding that the complainant's account of non-consensual anal intercourse was credible, failed to take into account:

i. her failure to correct the appellant's text message cancelling their proposed date to point out that she had already cancelled it;

ii. her characterization of the short-term nature of their relationship; and

iii. the portions of the appellant's text messages that were said to be consistent with his claim of honest but mistaken belief in consent.

[35] We decline to give effect to this ground of appeal.

[36] In our view, a fair reading of the trial judge's reasons, taken as a whole, fails to reveal the flaw claimed by the appellant.

[37] The first complaint of uneven scrutiny focuses on the text messages sent by the appellant and complainant shortly after the events that formed the subject-matter of the charge. To be more specific, the appellant complains that the trial judge considered his (the appellant's) failure to correct the complainant's message that she "wasn't okay with anything anal" as telling against his credibility, but failed to consider the complainant's omission to correct the appellant's message cancelling the Saturday night date as impeaching her credibility.

[38] Apart altogether from the absence of any obligation of a trial judge to articulate a consideration of every item of evidence adduced in a criminal trial and record findings of fact about it, we see a world of difference between the two omissions. On the one hand, the appellant failed to respond to a text message that essentially accused him of a crime. His failure to respond in the circumstances could be considered an admission by silence. On the other hand, the complainant's failure had to do with something that was to occur, if at all, well after the alleged offence and was of no real relevance to the issues in dispute. The complainant was cross-examined about the omission. This provided the trial judge with the opportunity to assess her responses and their impact on her credibility and the reliability of her evidence. That he did not consider the omission as worthy of mention does not amount to uneven scrutiny.

[39] The second submission about uneven scrutiny faults the trial judge for considering the short-term nature of the relationship between the principals in his assessment of the credibility of the appellant, but not that of the complainant.

[40] Once again, we see a difference in the significance of the evidence to the issues in the case. It was common ground that the relationship was a casual sexual relationship, characterized by the parties as "fuck buddies". It had an "expiry date" – the complainant's imminent departure from the province to pursue her education elsewhere.

[41] The complainant's characterization of the relationship is of no relevance to her credibility when she said that she did not consent to anal intercourse. Such a characterization cannot support an inference from past conduct that she is more likely to have consented, especially to conduct which she had previously opposed, or that she was less worthy of belief.

[42] On the other hand, the appellant's evidence that the relationship had an expiry date could support an inference, when considered along with the balance of his evidence about his sexual preferences for anal intercourse and his analysis of what his sexual partner means by "no", which tended to rebut his claim of honest but mistaken belief in consent by showing that he was reckless or wilfully blind about the complainant's consent.

[43] The final allegation of uneven scrutiny is that the trial judge considered only the inculpatory portions of the appellant's text messages and not those portions that are said to be exculpatory. Nothing in the reasons of the trial judge suggests that he failed to consider the messages as a whole. In our view, when considered as a whole, there is little exculpatory about these messages. For the most part, anything that appears exculpatory on its face demonstrates either that the appellant was reckless as to whether the complainant was consenting to anal intercourse, or that he failed to take reasonable steps, in the circumstances as he knew them, to determine that the complainant was consenting.

Ground #3: Misapprehension of Evidence

[44] The final ground of appeal against conviction is that the trial judge misunderstood or misapprehended the appellant's evidence about the complainant's moans during anal intercourse. It is common ground that the trial judge was wrong to conclude that the appellant admitted that the complainant was moaning in pain during anal intercourse.

[45] It is elementary that not every misapprehension of evidence will result in a miscarriage of justice and thus require a new trial. The test on appellate review of claims of misapprehension of evidence is stringent. The misapprehension must relate to material parts of the evidence. The error must play an essential part in the reasoning process of the trial judge resulting in the conviction: R. v. Morrissey, 97 C.C.C. (3d) 193, at p. 221; R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2. Said in another way, an error in the assessment of 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: R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at para. 56.

[46] We do not dispute that the trial judge relied upon this misapprehension of evidence to reject the appellant's "defence" of honest but mistaken belief in consent. That said, the trial judge advanced several reasons for rejecting this "defence":

i. the appellant's view of his sexual relationship with the complainant as having an expiry date and soon-ending;

ii. the appellant's self-proclaimed proclivity for anal sex;

iii. the complainant's express rejection of the appellant's sexual advances by words and conduct the morning of the alleged offence;

iv. the aggressive nature of the appellant's conduct;

v. the appellant's contemporaneous text messages, which confirmed the complainant's version of events and more accurately described the events than the revisionist account the appellant advanced at trial; and

vi. the appellant's Facebook message to the complainant two months later questioning whether she had gone to the police, sent to curry sympathy with the complainant by suggesting that he had already suffered enough.

[47] In the result, we are not satisfied that the trial judge's misapprehension of the evidence caused a miscarriage of justice requiring the order of a new trial.

[48] For these reasons we dismissed the appeal from conviction.

The Appeal from Sentence

[49] At trial, Crown counsel (not Ms. Witkin) sought a penitentiary sentence of 3 and ½ years. Trial counsel for the appellant (not Mr. Goddard) sought a reformatory sentence of 9 months followed by a period of probation. The trial judge imposed a sentence of imprisonment of two years less one day, followed by one year of probation.

[50] The appellant alleges four errors in the trial judge's sentencing decision. He submits that the trial judge erred:

i. in considering that the offence involved abuse of the appellant's spouse or common-law partner as an aggravating factor on sentence under s. 718.2(a)(ii) of the Criminal Code;

ii. in considering that the offence involved abuse of the appellant's position of trust in relation to the complainant as an aggravating factor on sentence under s. 718.2(a)(iii) of the Criminal Code;

iii. in failing to apply the parity principle of s. 718.2(b) of the Criminal Code; and

iv. in failing to accord sufficient weight to the appellant's mental health struggles, including his bipolarity.

[51] We approach our consideration of the fitness of the sentence imposed in this case mindful of the highly deferential standard of review applicable in sentencing cases. Except where the sentencing judge has made an error of law or of principle that has an impact on the sentence imposed, we may not vary the sentence unless it is demonstrably unfit: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 11.

[52] For an error of law or of principle to be material, the error must have affected the sentence determination in something more than just an incidental way. And the error must be an error in law; an error in principle; a failure to consider or accord sufficient weight to a relevant factor; or erroneous consideration of an aggravating or mitigating factor: Lacasse, at para. 44.

[53] A sentence is demonstrably unfit if it unreasonably departs from the fundamental principle of proportionality in light of the individual circumstances of the offence and offender, and the acceptable range of sentence for similar offences committed in similar circumstances by similar offenders: Lacasse, at paras. 52-55.

[54] In his reasons for sentence, the trial judge identified several aggravating factors:

i. abuse of a spouse or common-law partner;

ii. abuse of a position of trust in relation to the complainant;

iii. the significant impact of the offence on the complainant; and

iv. the gratuitous violence inflicted on the complainant.

[55] The trial judge also considered several mitigating factors:

i. the appellant was a youthful first offender;

ii. the impact of the conviction on the appellant's employment and employability;

iii. the appellant's rehabilitative prospects; and

iv. the appellant's mental health issues.

[56] The trial judge accurately identified the appropriate range of sentence for the appellant and his offence. He imposed a sentence at the low end of that range. In these circumstances, we cannot say that the trial judge paid no or insufficient heed to the appellant's status as a youthful first offender, his rehabilitative prospects or the principle of parity.

[57] The trial judge considered the appellant's abuse of his spouse or common-law partner as an aggravating factor, even though he appears to have acknowledged that the complainant was neither. This was an error, whether of law or of principle is of no great moment. The trial judge rightly considered the appellant's abuse of trust as an aggravating factor in accordance with the decision in R. v. C.R., 2010 ONCA 176, 260 O.A.C. 52, at para. 85. In the circumstances of this case, we are unable to see how his erroneous consideration of abuse of a spouse or common-law partner had any impact on the sentence imposed in light of his appropriate consideration of the effect of the abuse of trust as an applicable aggravating factor.

[58] Nor are we persuaded that the trial judge gave insufficient weight to the appellant's compromised mental condition as a mitigating factor. The record does not support any nexus between the appellant's bipolarity and his commission of the offence: see, R. v. Barham, 2014 ONCA 797, at para. 8.

[59] In the result, we granted leave to appeal sentence but dismissed the appeal from sentence.

Conclusion

[60] The appeals from conviction and sentence are dismissed.

Released: November 2, 2017

"David Watt J.A." "Gloria Epstein J.A." "David Brown J.A."