Her Majesty the Queen v. J.L.
[Indexed as: R. v. L. (J.)]
Ontario Reports
Court of Appeal for Ontario
Pepall, Lauwers and Fairburn JJ.A.
September 19, 2018
143 O.R. (3d) 170 | 2018 ONCA 756
Case Summary
Criminal law — Trial — Reasons for judgment
The accused was convicted of sexual assault on the basis of one alleged incident of non-consensual sex. The accused testified that he and the complainant had consensual non-penetrative sex on prior occasions and that the sex on the occasion in question was also consensual and non-penetrative. The complainant denied prior incidents despite text messages to the accused that appeared to confirm his testimony.
The trial judge concluded that the complainant's demeanour after the alleged assault was inconsistent with having had consensual sex and concluded that a woman wearing only a dress would not have willingly had sex outside in winter on a dirty and wet area. The trial judge erred in convicting the accused on the basis of the complainant's post-occurrence emotional state given evidence she was upset before the alleged assault and erred in relying on a behavioural assumption about the likely conduct of young women.
Those errors were exacerbated by the trial judge's failure to resolve material inconsistencies in the complainant's evidence and to grapple with exculpatory evidence. The accused's appeal was allowed.
Facts
Nature of Relationship
[1] The alleged assault took place on December 18, 2009. Prior to that time, the appellant, age 18, and the complainant, age 15, were friends. They had been next door neighbours and had attended the same high school.
[2] At trial, the nature of their relationship was the subject of dispute.
[3] The appellant testified at trial. He stated that he had known the complainant for about ten years. After attending a Britney Spears concert together along with some other friends in August 2009, the appellant and the complainant started communicating more frequently. They went to restaurants, walked around the city and spent time at the complainant's house together. They also started flirting and sending sexual text messages to each other. Since the fall of 2009, they had had a number of sexual encounters, none of which had resulted in intercourse.
[4] The appellant testified to a number of brief sexual encounters at school that involved kissing and touching each other's genitalia, as well as two occurrences in the complainant's home. The first occurred around September 2009 when they kissed and touched each other's genitalia in the bedroom of the complainant's brother. The appellant described the bedroom as containing an abundance of Toronto Maple Leaf memorabilia, a fact confirmed by the complainant. The second encounter occurred on Halloween of the same year. On this second occasion, the appellant testified that the complainant had texted him at 10:00 or 11:00 p.m. telling him to come over. The appellant cycled over to the complainant's home and sat on the porch with her and her friend, S.P. He stated that the complainant asked S.P. to turn away while the complainant and the appellant kissed and touched each other's genitalia.
[5] During the fall of 2009, they would occasionally meet in a secluded area of their school for 5-15 minutes and engage in kissing and touching, which included the appellant rubbing the complainant's vagina with his fingers and her rubbing his penis with his pants unzipped.
[6] In support of his version of events, the appellant identified numerous sexual text messages that he had received from the complainant, the bulk of which were dated within the October 30 to November 1, 2009 time frame. He testified that he had saved these messages because even though they had been exchanging sexual text messages since at least August 2009 and had had multiple sexual encounters, certain of their female schoolmates asserted that he and the complainant had never, and would never, engage sexually with each other.
[7] In contrast to the appellant's evidence, the complainant testified that she and the appellant were platonic friends who had grown up on the same street as children and who would say hi to each other at school. They would see each other in the school cafeteria and were friends on Facebook. They exchanged text messages, but she did not know how often. She testified that she had attended a Britney Spears concert in Hamilton with her friend H.F., the appellant and the appellant's friend N.A. in August 2009. She maintained that she and the appellant had never been alone together and had never been intimate. At trial, she asserted that the appellant may have texted her sexual messages, but she never sent such messages to him. She denied sending the October 30–November 1, 2009 text messages.
[8] A witness, S.P., testified in reply that she was with the complainant on Halloween at the complainant's home and the appellant was not present. At trial, the defence argued that S.P.'s evidence was compromised because during the course of the trial, the complainant had called S.P. and advised her of the evidence that had been given by the appellant at trial. S.P. denied having discussed the Halloween events with the complainant but could not recall what she was doing on Halloween in 2008, 2010 and 2011.
The Dance
[9] On December 18, 2009, the appellant and the complainant attended a dance. Each had arrived at the dance with a different group of friends, but both had been drinking alcohol. The appellant had been at a friend's house at around 6:00 p.m. where he had consumed about four or five alcoholic drinks. He arrived at the dance around 8:00 p.m. and may have consumed more alcohol there. The complainant said that she had had two "Vex" coolers and a couple of "Jell-O shooters" containing either Sourpuss liquor or vodka. The complainant's friend, C.H., testified that the complainant had had two to three drinks and was not intoxicated to the point she could not stand up.
[10] Like the divergent descriptions of the nature of their relationship, the appellant's and the complainant's versions of what transpired at the dance also differ.
[11] According to the appellant, the complainant approached him at the dance. She was upset and crying because she had seen D.V.S., a friend of the appellant on whom the complainant had a crush, dancing with another young woman. The appellant and the complainant went outside the dance hall where it was quieter and they could talk. The appellant told the complainant that she should not cry. The complainant leaned on the wall, tilted over to her right-hand side and then went down to the ground onto a small patch of wet grass. The appellant knelt down on the ground in front of her and asked her what was going on. The complainant hugged him, they started kissing and he touched her. He unzipped his pants, and she touched his penis and lifted her leg to rub his penis on her vagina through her underwear, which remained up. This was the furthest they had gone sexually. He stated that he did not penetrate her vagina but could not recall whether his fingers had touched the skin of her clitoris or vagina. He thought there was a possibility this had occurred. After about five or ten minutes of them being outside, the complainant abruptly stopped the sexual activity and stated that she wanted to go back inside to see D.V.S. The appellant testified that he walked back with her but before they got to the doors, she ran into the hall about a metre or two ahead of him. He returned to the dance. After about 20 minutes, his brother approached him and asked what he had done. The appellant was confused and asked what he meant, and his brother told the appellant that the complainant was saying he raped her. The appellant was surprised by the allegation.
[12] He went to the washroom area where he thought the complainant was and people started asking him questions. He then showed them texts on his phone to prove that this was not the first time the complainant and he had done anything like this, i.e., had had sexual encounters. His schoolmates appeared shocked.
[13] The complainant testified that about an hour after she had arrived at the dance, the appellant tried calling her over, saying he needed to talk to her about something important in a quiet place. She denied that she was angry because she saw D.V.S. dancing with someone else. The appellant put his arm around her and led her outside. They left the dance hall and walked along a gravel path that led to horse barns. It was dark and chilly but there was no snow on the ground. There was some light from a lamppost and possibly a lamp on the wall. She testified that the appellant started lifting up her dress and when they got to the back of the building around the corner, he grabbed her by the shoulders and forcefully put her down on the ground where she landed on her back. In her police interview, she said that she did not think he wanted to hurt her. She described the surface as being "rocky, dirt, cold [and] gravelly". According to the complainant, the appellant "came kneeling down at me and he had stuck his penis inside me". The appellant said something like "it won't hurt" or "it won't hurt for very long" or that he could "make it feel good". She was screaming or yelling for help during the assault and telling him to stop. She eventually got up and ran straight for the bathroom. He said not to go and as she looked back, she saw that he was masturbating. She was scared. In the bathroom, she was "being sick" and told another student, H.J., that "I think I was raped". When asked by whom, she responded that it was by the appellant.
Other Witnesses
[14] The complainant's best friend, C.H., testified at trial. At the dance, prior to the incident, she saw that the complainant was upset and crying, but did not know why. She tried to speak to her but the appellant intervened, grabbed the complainant's arm and said they were going outside. The two then left the building. When the complainant did not return, C.H. became worried. She and the complainant's brother looked for the complainant in the parking lot and around the dance floor. C.H.'s boyfriend went along the outside of the dance hall building to see if the complainant was there. No screaming was heard. C.H. and the complainant's brother found the complainant in a state of emotional distress and physical disarray in one of the washroom stalls. Her mascara was running down her face, her dress was soaked and there was dirt on her dress and on her knees. She said that the appellant had raped her and kept repeating "it hurts, it hurts".
[15] H.J. also saw the complainant in the washroom. The complainant said she had been raped and when asked who was responsible, she had difficulty getting out the answer as she was crying so much. She said it was the appellant. H.J. asked her repeatedly if she was sure because she "could tell that she was really drunk, because she kept saying that she was going to be sick". She told H.J. that the appellant had thrown her up against the wall and then put her on the ground. H.J. then called 911.
[16] Both C.H. and H.J. testified that before the police arrived, the appellant stood outside the bathroom saying that the complainant was a liar and that he had text messages that would prove it. He then showed the messages on his phone to H.J. saying that what had happened was consensual.
[17] D.V.S. testified that in 2009, he and the complainant were seeing each other but it was not serious. He testified that the complainant was really drunk on the night of the dance. After seeing D.V.S. dancing with another young woman, the complainant said: "How could you?" According to him, she was "pissed" that he was with another person and she went off in the corner and started crying. D.V.S. asked her if she was okay but she did not want to talk to him. He said that the appellant asked her if she was okay, and the complainant then grabbed the appellant's hand and they left. D.V.S. maintained that he usually saw her cry at dances; she was "emotional" and "always really drunk".
[18] In the bathroom, the complainant told her brother that the appellant had "stuck it into her". She was upset and crying. Her brother asked the appellant whether this was true and the appellant responded: "No man, why would I do that?"
[19] Constable Jeff Descheemaeker responded to the 911 call. In response to his inquiry as to what had happened, the complainant stated that she had told the appellant to stop. She did not know if she was raped. He testified that it was obvious she had been drinking and that, based on her reactions to everything, he thought alcohol may be a factor in this. She told the constable that she did not want to get the appellant into trouble; she liked his friend.
[20] Constable Descheemaeker described the appellant as being 100 per cent co-operative. He asked the appellant if he had had sex with the complainant and the appellant had responded that he had not; they had been kissing and there had been rubbing but his penis had not been out of his pants. He told the constable to go and ask the complainant; she would tell him. He said he could not believe this was happening; she was "always doing stuff like this". He advised the constable of the text messages.
[21] In the appellant's subsequent police interview with his mother at the OPP detachment, the appellant denied any non-consensual sexual activity. He smelt of alcohol and had some soil or dirt marks on his pants, but had no bruising, scratch marks, or torn or ripped clothing.
[22] Constable Elisha Duyvestijn spoke with the complainant at the hospital. The complainant related that she and the appellant were talking at the dance when the appellant started talking dirty and said he had to tell her something, to come with him and it would feel good. She said that he pushed her to the ground and he tried to rub his penis between her (sic) and she kept telling him it hurt and to stop. She thought his penis went in, it felt like it was "right up inside" her, and he "thrust it in maybe five times". It hurt every time. She also said he was "jacking off before he was inside her and that he was doing it to himself". She did not know if he had ejaculated inside of her.
[23] Testing of the complainant's vagina revealed the presence of cells with a single male Y-STR profile. It was compared with a sample profile taken from the appellant. The possibility that a randomly selected male individual unrelated to the appellant would share the same profile is 1 in 2,674. The test was inconclusive as to whether the DNA came from skin, saliva or sperm.
[24] There were no injuries or signs of trauma to the complainant's vaginal area or anywhere else on her body.
[25] The toxicologist's report established that blood and urine samples obtained from the complainant approximately five hours after the occurrence contained 109 to 155 milligrams of alcohol per 100 millilitres of blood.
[26] After attending the hospital, the complainant went to the OPP detachment and provided a statement. After doing so, she was told by police not to discuss the case with anyone. She was then observed on the video monitor making a call on her cellphone and speaking about the incident. She told the person on the other end of the call that she could not scream during the assault because the appellant was covering her mouth. That same day, she logged onto her Facebook account where she and her friends had posted pictures of themselves partying the previous evening.
[27] The appellant admitted lying in his police interview about the sexual contact with the complainant. In the interview, he said he did not have an erection when in fact he had, and his penis had touched the complainant's vagina. He said he lied because he was nervous and did not want his mother to know what had happened. However, he denied sexually assaulting the complainant and volunteered the text messages he had saved. Examples of the text messages sent by her during the October 30 to November 1, 2009 time period include the following:
October 30, 2009, 11:43 p.m.: "We should'a went by the elevator! I was turned on."
November 1, 2009, 2:06 p.m.: "not much OMG [Oh My God], orgasm it deluso [sic] so good."
November 1, 2009, 2:29 a.m.: "Felt so good. I want it again so bad. Please. Ugg."
November 1, 2009, 2:41 a.m.: "I wanted more so bad, it felt so good."
November 1, 2009, 2:50 a.m.: "Hey, so felt good OMG UGG so good orgasm."
November 1, 2009, 6:11 a.m.: "OMG J., I'm just letting you know it felt so so so good . . . I want it again :)"
[28] Although the complainant denied having authored these messages, the defence called a witness with expertise in cellphones. He largely contradicted the suggestion that the messages had not been, at a minimum, sent from the complainant's phone on the days and at the times noted.
[29] On the night of the alleged assault, the appellant and complainant's phones exchanged text messages. The appellant questioned why she was lying. At trial, the complainant denied replying to any of the text messages from the appellant, though the responses to his messages were admitted as evidence.
Trial Judge's Reasons
[30] In his oral reasons, the trial judge characterized the case as turning on a determination of what happened on December 18, 2009 -- the complainant alleging that she was raped and the appellant maintaining that any sexual contact was consensual.
[31] The trial judge briefly outlined the background facts and then turned to his finding on prior sexual contact. He concluded that there was a "real probability" that some sexual texting between the two occurred, which made "live the possibility" that some sexual contact occurred between the complainant and the appellant before December 18, 2009.
[32] He then found that there was insufficient physical evidence to conclude that the appellant's penis had penetrated the complainant's vagina.
[33] The trial judge then turned to the issue of credibility. He stated:
An argument can be made for believing either or neither of the parties. Their testimony contains, as counsel have argued, inconsistencies and many lapses of memory. This is not unexpected given that both parties were young persons testifying about an event that occurred almost six years ago when both had been consuming alcohol.
[34] He then instructed himself on the Supreme Court's direction in R. v. W. (D.), [1991] 1 S.C.R. 742. Although the trial judge concluded that the appellant had raised a reasonable doubt on the issues of penetration and prior sexual contact, he did not find the appellant's evidence to be believable on the "crucial issue". He found that the appellant continued to pursue sexual activity after the complainant told him to stop.
That prior contact may have led him to believe that the complainant would consent to intercourse. But on the evidence that I accept, any consent that may have existed or may have been mistakenly perceived on his part ceased to exist when the complainant said stop. I am satisfied beyond a reasonable doubt that the complainant clearly communicated a lack of consent to any further sexual contact and that the accused pressed on in an attempt at intercourse. The description of the complainant provided by the witnesses in the washroom and by the police officers who observed her very shortly after the occurrence are not the descriptions of a young woman who has just engaged in consensual sexual activity. I cannot accept that a young woman would go outside wearing a dress in mid-December, lie down in dirt, gravel and wet grass and engage in consensual sexual activity. That defies common sense and reason.
[35] It appears that the appellant's evidence failed to raise a reasonable doubt on consent due to the complainant's post-occurrence demeanour, and the trial judge's refusal to accept that a "young woman" would consensually do what the complainant was said to have done. On that basis, the trial judge found the appellant guilty of sexual assault.
Issues
[36] Before us, the appellant submits that the trial judge's reasons for decision were insufficient, and failed to confront both the inconsistencies in the complainant's evidence and the exculpatory evidence that favoured the appellant's innocence. Moreover, the trial judge improperly placed reliance on the complainant's post-occurrence emotional state, and on his assumption about the behaviour of young females. The appellant also argues that the verdict was unreasonable. In light of my disposition of the other issues, it is unnecessary to address the unreasonable verdict ground of appeal.
Analysis
Standard for Reviewing Sufficiency of Reasons
[37] Appellate courts are to take a functional approach to reviewing the sufficiency of reasons, keeping in mind that reasons do not have to meet a standard of perfection: R. v. Sheppard, [2002] 1 S.C.R. 869, [2002] S.C.J. No. 30, 2002 SCC 26, at para. 55; R. v. M. (R.E.), 2008 SCC 51, [2008] 3 S.C.R. 3, [2008] S.C.J. No. 52. An appeal based on insufficient reasons will only be allowed when the trial judge's reasons are so deficient that they foreclose meaningful appellate review: Sheppard, at para. 25; and R. v. Dinardo, [2008] 1 S.C.R. 788, [2008] S.C.J. No. 24, 2008 SCC 24, at para. 25. As Chief Justice McLachlin stated in R. v. B. (H.S.), 2008 SCC 52, [2008] 3 S.C.R. 32, [2008] S.C.J. No. 53, at para. 2:
So long as the trial judge fulfills the purpose of giving reasons -- to explain the decision, to provide public accountability and to permit meaningful appellate review -- a court of appeal is not justified in interfering with the verdict on the grounds of insufficiency of reasons. The purposes of giving reasons are fulfilled where the reasons for judgment, read in context, establish a logical connection between the verdict and the basis for it -- in other words, the reasons must explain why the judge made his or her decision. A detailed description of the judge's process in arriving at the verdict is unnecessary.
[38] As acknowledged by the trial Crown in his closing submissions, this case turned largely on credibility. In Dinardo, Charron J. addressed the approach to reviewing reasons rooted in credibility findings: "Where a case turns largely on credibility, the sufficiency of the reasons should be considered in light of the deference afforded to trial judges on credibility findings. Rarely will the deficiencies in the trial judge's credibility analysis, as expressed in the reasons for judgment, merit intervention on appeal": Dinardo, at para. 26.
[39] A trial judge need not resolve every inconsistency that may arise on the evidence: R. v. Dobson, [2009] O.J. No. 4116, 2009 ONCA 714, at para. 10. Even so, in the context of a case involving credibility findings, see Dinardo, at para. 27:
Reasons "acquire particular importance" where the trial judge must "resolve confused and contradictory evidence on a key issue, unless the basis of the trial judge's conclusion is apparent from the record" (Sheppard, at para. 55). Here, the complainant's evidence was not only confused, but contradicted as well by the accused. As I will now explain, it is my view that the trial judge fell into error by failing to explain how he reconciled the inconsistencies in the complainant's testimony on the issue of whether she invented the allegations. I also conclude that the trial judge's failure to provide such an explanation prejudiced the accused's legal right to an appeal.
[40] At para. 8 of B. (H.S.), McLachlin C.J.C. described the appellate court's task as being to ensure that read in the context of the entire record, the reasons demonstrate that the trial judge was alive to and resolved the central issues before the court.
[41] As mentioned, the trial judge did not engage in any analysis of the complainant's and appellant's testimony save to say that there were "inconsistencies and many lapses of memory". In essence, the trial judge relied on two facts to explain why he accepted that the complainant communicated a lack of consent to further sexual contact and that the appellant pressed on in an attempt at intercourse: (i) the complainant's demeanour following the occurrence and; (ii) his finding that it "defies reason and common sense" that "a young woman would go outside wearing a dress in mid-December, lie down in dirt, gravel and wet grass and engage in consensual sexual activity".
Post-Occurrence Description of the Complainant
[42] In relying on the third-party testimony regarding the complainant's emotional state after the occurrence, the trial judge did not advert to the fact that her state bore some similarities to her state before the alleged assault. The appellant described her as being upset and crying before they went outside. The complainant's best friend, C.H., testified that the complainant was upset and crying before she went outside with the appellant. D.V.S. also described her as being emotional and crying. He said that he often saw her that way at dances. Although it was entirely open to the trial judge to consider the complainant's post-occurrence conduct in coming to his decision, his failure to consider that her condition before the occurrence bore some similarity to her condition after the occurrence is concerning. Standing on its own, this would not be dispositive of the result on appeal. The difficulty is that it did not stand on its own.
[43] In addition, the complainant's physical state was consistent with the possibility of having engaged in consensual sexual activity.
Behavioural Assumption
[44] The second basis for the trial judge's conclusion depended on an assumption about what a "young woman" will and will not do. As mentioned, the trial judge said: "I cannot accept that a young woman would go outside wearing a dress in mid-December, lie down in dirt, gravel and wet grass and engage in consensual sexual activity." In other words, the trial judge could not accept, or even have a doubt arising from, the appellant's evidence because the trial judge was of the view that young women would not do what the complainant was said to have consensually done. There is a real danger that this reasoning contributed to the trial judge's assessment of whether, on the whole of the evidence, the Crown had proven the appellant's guilt beyond a reasonable doubt. I do not share the trial judge's view that it can be taken as a fact that no young woman would consensually engage in the alleged behaviour.
[45] Although trial judges must exercise common sense when making credibility findings and resolving what actually happened in a case, relying upon assumptions about what young women will and will not do may impact a judge's objective deliberation of the reasonable doubt standard. In R. v. Mah, [2002] N.S.J. No. 349, 2002 NSCA 99, at para. 75, Cromwell J.A. (as he then was) stated: "[A]ssumptions about the ways of the world appear to have contributed to the judge's failure to give proper consideration to the question of whether, on the whole of the evidence, he had a reasonable doubt." Here, by relying on an assumption regarding what young women will and will not do, as if it were a fact, and in light of the centrality of that assumption to the trial judge's reasoning, his finding of guilt was tainted by error.
Insufficiency of Reasons
[46] The trial judge's reliance on the complainant's post-occurrence behaviour absent a consideration of her pre-occurrence behaviour, combined with his assumptive reasoning, was exacerbated by his failure to resolve material inconsistencies in the complainant's evidence and to grapple with the exculpatory evidence. The inconsistencies and the exculpatory evidence were arguably sufficient to raise a reasonable doubt as to the appellant's guilt, but the trial judge did not attempt to reconcile the inconsistencies or meaningfully consider the appellant's denial and the factors that supported his version of events.
[47] Some of the unresolved inconsistencies included the following:
(a) At trial, the complainant asserted that she had never sent sexual text messages to the appellant and denied sending the messages subsequently authenticated by the defence expert.
(b) At trial, she testified that she was screaming throughout the alleged assault. On the day of the occurrence, police overheard her telling someone that she was unable to scream because the appellant covered her mouth.
(c) After the alleged assault, the appellant sent text messages to the complainant. She stated that she did not reply and that her phone was broken, but her responses were placed into evidence.
[48] The trial judge found that the complainant probably sent the text messages. However, he failed to consider that evidence and the other inconsistencies in assessing the nature of the relationship and whether the complainant's lack of credibility on any of these issues raised a reasonable doubt.
[49] The trial judge also did not explain why he rejected the appellant's evidence or, at a minimum, why it did not leave him with a reasonable doubt and did not address the features of the evidence that supported the appellant's innocence.
[50] The trial judge's decision rested on two factors: a behavioural assumption and isolated consideration of the complainant's post-occurrence behaviour. As discussed, this reasoning was improper. The analysis was exacerbated by the trial judge's failure to resolve contradictory evidence on key issues and to consider factors that favoured the appellant's innocence. In my view, the trial judge did not give proper consideration to the question of whether, on the whole of the evidence, he had a reasonable doubt as to the appellant's guilt.
Disposition
[51] In conclusion, I would allow the appeal, set aside the conviction and order a new trial.
Appeal allowed; new trial ordered.
Notes
1 The trial judge granted an order under s. 276(1) of the Criminal Code, R.S.C. 1985, c. C-46 permitting the complainant to be cross-examined on alleged prior instances of sexual activity with the appellant and on the text messages that she was said to have sent.
