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), (2.1), (2.2), (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

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 victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.4(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, 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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

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: 2019-02-28

Docket: C61984

Judges: Feldman, Paciocco and Zarnett JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

F.B.P. Appellant

Counsel

Sherif M. Foda, for the appellant

Jeremy Tatum, for the respondent

Hearing and Appeal Information

Heard: February 13, 2019

On appeal from: the conviction entered by Justice Joseph F. Kenkel of the Ontario Court of Justice on January 26, 2016, and from the sentence imposed on April 12, 2016, with reasons reported at 2016 ONCJ 860 and 2016 ONCJ 861.

Decision

Paciocco J.A.:

[1] Introduction

[1] The appellant was tried before an Ontario Court of Justice trial judge on a charge of sexually assaulting C.I. Although C.I., who drank heavily that night, could not recall what happened, the appellant subsequently told her they had had sex. His DNA was found on her underwear. Not surprisingly, the intercourse was admitted at trial. The only issue was consent.

[2] Trial Evidence and Conviction

[2] Key evidence in the case was presented by C.I.'s friend, who testified that she witnessed the appellant helping C.I. to her bed when C.I. didn't seem very awake, appeared unable to function, and could not hold her body up anymore. The appellant gave a different account of C.I.'s condition when he brought her to the bed, claiming that despite her intoxication she was capable of consenting and did so by asking for sex. The trial judge disbelieved the appellant, and based in large measure on C.I.'s friend's evidence relevant to C.I.'s incapacity due to intoxication, convicted him. The trial judge found that C.I. did not consent because she was incapable of doing so, and that the appellant did not have an honest but mistaken belief in consent because he had not taken reasonable steps to determine her consent.

[3] Grounds of Appeal

[3] The appellant appeals his conviction. He has now abandoned the accompanying sentence appeal. For the reasons that follow, I would deny the conviction appeal, and dismiss the sentence appeal as abandoned.

[4] First Ground: Non-Probative Factors for Incapacity

[4] The first ground in the conviction appeal is that the trial judge relied on non-probative factors to ground his finding of C.I.'s incapacity, including evidence that C.I. continued to drink after vomiting, the severity of the complainant's hangover the next day, and her loss of memory.

[5] In my view, while none of these factors leads to a direct inference of C.I.'s incapacity, each of these factors is relevant evidence of C.I.'s intoxication, a central plank in the Crown's theory that C.I. was too intoxicated to consent. Since incapacity through intoxication cannot be established without proof of intoxication, evidence of indicia of intoxication is relevant and probative.

[6] Of importance, the trial judge recognized that "[i]ntoxication does not automatically equate to incapacity". There is no basis for concluding that, despite this understanding, he went on to use the indicia of intoxication directly as proof of incapacity, or gave this evidence improper weight.

[5] Second Ground: Shocked Reaction Evidence

[7] The trial judge also relied on C.I.'s shocked response when the appellant told her they had had sex. Specifically, C.I. testified that when the appellant told her he had had sexual intercourse with her, she responded "[w]hat?", and then shortly after, "I need to go to Shoppers – I need to go to Shoppers [to get a morning after pill]." The appellant says her shocked reaction is non-probative, self-serving hearsay. In my view, this evidence is probative as evidence confirming C.I.'s lack of memory, which, in context, was consistent with her intoxicated condition when the sexual intercourse occurred. The trial judge was therefore entitled to find her shocked reaction to be probative in supporting C.I.'s friend's description of C.I.'s mental and physical state prior to the sexual intercourse.

[8] No hearsay objection was made at the time this evidence was admitted. Had an objection been made it would have failed. C.I.'s shocked reaction, reflected in the comments she made, was clearly admissible. It is either non-hearsay circumstantial evidence of C.I.'s present state of mind, as described in R. v. P.(R.) (1990), 58 C.C.C. (3d) 334 at p. 341 (Ont. H.C.J.) by Doherty J., or if more properly characterized as an implied hearsay assertion according to R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520, it is implied hearsay that would nonetheless gain admission under the statements of present state of mind exception to the hearsay rule.

[6] Third Ground: Stereotypical Inferences

[9] During oral argument, counsel for the appellant also argued that the trial judge erred in law when rejecting the appellant's account of having intercourse with C.I. on the hotel room balcony prior to the alleged sexual assault, by drawing stereotypical inferences about how women would behave sexually in a set of circumstances. I disagree. The trial judge's finding that it would be implausible for the complainant to have had sex with the appellant in public, on a balcony, when both prior to this happening, and after this happening, she had shown no interest in him, and when there was a bedroom nearby, is grounded in common sense propositions about the likelihood of human behaviour in all of the circumstances. It does not depend upon impermissible stereotypes or rape myths.

[10] Nor were improper stereotypical inferences relied upon when the trial judge concluded that the appellant's description of his own conduct on the balcony was implausible. The trial judge was not concerned with the unlikelihood, in isolation, that the appellant would engage in intercourse on a public balcony. He found such behaviour to be implausible in light of the appellant's testimony that he intended to leave the balcony and was not interested in C.I.

[7] Fourth Ground: W.(D.) Framework and Honest but Mistaken Belief in Consent

[11] The appellant also urges that the trial judge failed to apply R. v. W. (D.), [1991] 1 S.C.R. 742 and reversed the onus of proof with respect to the defence of honest but mistaken belief in consent, which the appellant claims the trial judge failed to analyze. Again, I disagree.

[12] On the first point, it is apparent when reading the decision as a whole that although he did not cite W.(D). directly, the trial judge applied W.(D.). He said he did not accept the testimony of the appellant and then concluded his decision by commenting, with obvious reference to the appellant's evidence, "I can find no credible evidence that reasonably could leave a doubt". He then said, "I find that the Crown has proved the charge of Sexual Assault s. 271 beyond a reasonable doubt." Together these passages account for each of the W.(D.). requirements.

[13] With respect to the second point, the trial judge did consider the defence of honest but mistaken belief in consent, and he rejected it. The fact that the trial judge misspoke when doing so by describing the defence as "reasonable belief" in consent is of no moment. He rejected the defence based on the absence of reasonable steps.

[14] Since a judge may only consider a mistaken belief in consent defence that has an air of reality, it is clear that the trial judge did not reject the defence because he felt it had no air of reality, as the appellant suggests. The trial judge treated the defence as being before him and determined it on its merits.

[15] Nor did the trial judge commit a W.(D.). error in rejecting the defence. The appellant's submission in this regard is untenable. His argument focuses on the fact that the appellant was the only person to offer evidence about what transpired during the sexual intercourse, as C.I. had no memory. The appellant urges that even if the trial judge properly disbelieved the appellant's evidence beyond a reasonable doubt, since that would leave a complete absence of evidence, the Crown would be unable to discharge its burden of proving that reasonable steps were not taken. Not only would this submission, if accepted, produce the intolerable outcome of effectively preventing convictions in all cases of sexual assaults on unconscious women occurring in private, regardless of the strength of the incapacity evidence, but it is also wrong in law. If the air of reality test is met, the defence that is on the table and that requires rebuttal is the one that is grounded in evidence, in this case the mistaken belief in consent defence that arose from the appellant's version about what happened in the bedroom. Once the trial judge absolutely rejected the appellant's evidence, the only defence that was before the court was disproved beyond a reasonable doubt, and the Crown had discharged its burden. Quite simply, it is a misconception to think that where a particular set of facts gives an air of reality to a defence, the Crown must then lead affirmative evidence disproving every imaginable set of facts that could give rise to the same kind of defence. No reversal of onus occurred here.

[8] Evidentiary Misapprehensions

[16] I do agree, however, that the trial judge misapprehended evidence in three respects.

[17] First, although there was evidence that C.I. "passed out" at some point, there was no evidence capable of supporting the trial judge's finding that C.I. passed out before she was helped back to the bed where she was allegedly sexually assaulted. The trial judge was mistaken in finding that C.I.'s friend had offered such testimony. The only evidence that can be taken to address whether C.I. was passed out at that time was the appellant's statement to the contrary, that C.I. was lying down in the other room [the "other room evidence"]. The trial judge did not believe the appellant that C.I. was merely lying down in the other room, as he was entitled to. But he was not entitled to parlay that disbelief into an affirmative finding that C.I. was passed out in the other room. There was no affirmative evidence to support that conclusion.

[18] Second, the appellant testified to a sexual advance by C.I. on the balcony. The trial judge interpreted the appellant's evidence as being that this advance was unwanted, a characterization his testimony does not reasonably bear. To be sure, the appellant did say that he was not interested in C.I. as more than a friend, but that disinterest alone cannot support an inference that the sexual advance was unwanted in the face of the appellant's testimony that he was happy it had happened and could not help himself when propositioned.

[19] Third, the trial judge said that C.I.'s friend drank less than C.I. had, when the only evidence relevant to the relative condition of the two was C.I.'s friend's evidence that she was less intoxicated than C.I. was.

[9] No Miscarriage of Justice

[20] I do not find, however, that these mistakes caused a miscarriage of justice by playing an essential part in the trial judge's reasoning.

[21] The mistaken "other room evidence" was used as further proof of C.I.'s state of intoxication. That intoxication was decisively established by other indicia of alcohol consumption and impairment, including C.I.'s friend's direct evidence of C.I.'s condition upon returning from the other room with the appellant.

[22] The mistake about an unwanted sexual advance was considered by the trial judge, along with other evidence, to demonstrate the implausibility of the appellant's testimony that he would respond by having sex with C.I. on the balcony, and that he would then accompany C.I. to the bed where the alleged sexual assault occurred. However, these inferences were not central to the rejection of the appellant's version of the sexual intercourse that formed the subject of the assault charge, and the reasons the trial judge considered the balcony event to be implausible went well beyond his misconception that the appellant considered that sexual advance to be unwanted. More importantly, a key consideration for the trial judge in rejecting the appellant's testimony about what transpired in the bed was C.I.'s friend's evidence of C.I's condition at the time, which was "completely inconsistent with the statements and aggressive physical reactions [that the appellant] attributes to [C.I.]."

[23] Finally, the mistake about C.I.'s friend having drunk less alcohol than C.I. was used in evaluating the reliability of C.I.'s friend's testimony, by inferring that she was not as intoxicated as C.I. was. This error does not matter because, as indicated, C.I.'s friend testified directly that she was not as intoxicated as C.I.

[10] Reasonableness of Conviction

[24] During oral argument, counsel asked us for the first time to entertain an appeal from the reasonableness of the conviction, given the state of evidence and the problems with the reliability of the Crown evidence. This ground of appeal cannot succeed. The trial judge was alive to the reliability problems with the Crown's evidence. On the record before us, I would not interfere with the credibility and reliability determinations of the trial judge. They were his to make. Nor would I interfere with his verdict. It, too, was one the trial judge was entitled to come to on the evidence before him.

[11] SOIRA Order

[25] It was also drawn to our attention orally that the trial judge imposed a 5 year SOIRA order, instead of the required 20 year SOIRA order. The Crown did not press this court to amend the order. In the absence of an appeal I decline to do so.

[12] Disposition

[26] The conviction appeal is therefore dismissed. The sentence appeal is also dismissed as abandoned.

Released: "DB" Feb 28 2019

"David M. Paciocco J.A." "I agree. K. Feldman J.A." "I agree. B. Zarnett J.A."