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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: Court of Appeal for Ontario

Date: April 30, 2019

Docket: C62924

Panel: Doherty, Hourigan and Harvison Young JJ.A.

Between:

Her Majesty the Queen Respondent

and

Justin Graham Appellant

Counsel:

Joseph Wilkinson and Bryan Badali, for the appellant

Mabel Lai, for the respondent

Heard: January 11, 2019

On appeal from: The conviction entered on June 2, 2016 by Justice Kevin B. Phillips of the Superior Court of Justice, sitting with a jury.

Decision

By the Court:

I. Overview

[1] The appellant was convicted of one count of sexual assault and one count of sexual assault causing bodily harm. The sexual assault conviction was conditionally stayed.

[2] On appeal, he raises a number of issues regarding the evidence admitted at trial, the charge to the jury, and an answer given by the trial judge in response to a jury question. These reasons explain why we do not give effect to those submissions and dismiss the appeal.

II. Facts

[3] The events giving rise to the convictions occurred on July 27, 2013, while the appellant and the complainant, who were acquaintances, attended a party at the home of a mutual friend, G.W. The complainant and some of the appellant's friends testified that the appellant was hitting on the complainant throughout the evening, and that he shared some of his alcohol with her. G.W. testified that, at one point, the appellant told G.W. that he was "going to fuck" the complainant. G.W. told the appellant that he could not do that because the complainant was too intoxicated. G.W. then left to set up a bed for the complainant to spend the night on. After G.W. went to set up the bed, the appellant ended up alone with the complainant.

[4] The complainant initially had no recollection of the sexual encounter with the appellant. Her memory returned to her in flashbacks over the next one or two weeks. According to the complainant, the appellant told her that he had a present waiting for her in the backyard shed, so they went to the backyard. The appellant then pushed the complainant to the ground, pinned her down, pulled out her tampon, and proceeded to penetrate her vaginally and anally. G.W. eventually intervened, putting an end to the encounter. The complainant sustained several injuries, including vaginal tearing and bruising all over her body.

[5] The appellant did not deny that he engaged in a sexual encounter with the complainant, but testified it was consensual. His evidence was that the complainant led him to the backyard by hand, performed oral sex, and then pulled him on top of her and tried to insert his penis into her vagina. However, he stated that he lost his erection and that he did not penetrate the complainant. At trial, his position was that his sperm ended up in the complainant's vagina and rectum without any penetration having occurred.

III. Issues

[6] The appellant argues that the trial judge erred in:

1. Dismissing his application to adduce evidence of the complainant's prior experience of sexual assault, pursuant to s. 276 of the Criminal Code, and to produce third party counselling records relating to that assault and the incident at issue, pursuant to s. 278.1 of the Criminal Code.

2. Refusing to allow the appellant to lead in examination in chief his exculpatory statement to the police.

3. Charging the jury on incapacity and, having done so, not charging the jury on the defence of honest but mistaken belief in consent.

4. Responding to the jury's post-charge questions regarding bodily harm and consent.

5. Dismissing the appellant's application to sit at counsel table.

IV. Analysis

(1) Application Regarding Prior Sexual Assault

[7] At trial, the appellant applied to cross-examine the complainant on a previous incident of sexual assault, and to have relevant counselling records disclosed. In his factum, the appellant submitted that the trial judge erred in dismissing his applications, as the complainant's prior experience of sexual assault may have contaminated her recollections or perceptions of her sexual encounter with the appellant. This argument was not advanced in oral argument. That was a sensible decision on the part of the appellant's counsel, as there is no merit in this ground of appeal.

[8] The trial judge did not err in his ruling on the application to cross-examine the complainant on her prior experience of sexual assault. There was an insufficient evidentiary basis to establish the relevance of the complainant's previous assault. In addition, even if the evidence was relevant, the trial judge did not err in his discretionary determination that the probative value of the proposed cross-examination was substantially outweighed by its prejudicial effect.

[9] With respect to the counselling records, the trial judge correctly concluded that the appellant failed to establish the likely relevance of the complainant's psychiatric records, as required under s. 278.1 - 278.9 of the Criminal Code. In particular, there was no evidence of any tainting or co-mingling between the prior sexual assault of the complainant and the incident with the appellant. As a result, the trial judge properly dismissed the disclosure application.

(2) Prior Exculpatory Statement

[10] The appellant submits that the trial judge erred in finding that his prior consistent statement should not be admitted because of the time gap between his arrest and the giving of the statement. He argues that in R. v. Liard, 2015 ONCA 414, 327 C.C.C. (3d) 126, this court emphasized the contextual nature of the assessment of spontaneity; while the passage of time is relevant, it is not determinative.

[11] The appellant concedes that several hours had passed between his first learning of the accusation and the statement, but argues that his reaction to the details of the accusation was spontaneous. In the appellant's submission, his reaction to hearing the substance of the allegations for the first time during his police interview was probative evidence upon which the jury could have relied in assessing his credibility and his state of mind at the time of the incident.

[12] We are not persuaded by this argument. The appellant was arrested at 12:50 p.m. and began his statement to police at 8:20 p.m. The trial judge did not err in concluding that the passage of time and the intervening events deprived the appellant's statement of any potential relevance. He was entitled to give significant weight to the seven and a half hour gap between his arrest and the prior consistent statement in deciding that the statement lacked the necessary spontaneity to be admissible.

(3) Incapacity

[13] Some context is necessary to consider this ground of appeal. At the pre-charge conference, the trial judge asked counsel to make submissions on how he should instruct the jury on the issue of consent. Specifically, his concern was that the jury could believe the appellant's version of events or be left in reasonable doubt by it, yet still convict on the basis that the appellant engaged in sexual relations with a complainant who did not have capacity to consent.

[14] In response to this concern, the trial Crown took the position that although this would be a legally available avenue to convict the appellant, it would not be right or fair to do so in this case, because the appellant would be convicted "on a set of facts entirely different than what the Crown alleged and set out to prove, a version of facts that the Crown says never happened, and in a scenario where her actions demonstrate an ability to consent, that she is not incapacitated by alcohol and is the initiator of the sexual activity."

[15] The trial judge ultimately instructed the jury on incapacity as follows:

There is no such thing as implied consent in law. Consent must be communicated by word, act or gesture. You must determine whether the Crown has proved beyond a reasonable doubt that Mr. Graham knew that [the complainant] was not consenting. You should consider … Any evidence that you accept with respect to the risk that [the complainant] would have been in no condition to consent. Would Mr. Graham have had any reason to see risk in that regard? Did he just proceed anyway in the face of that risk? Any evidence that you accept about [the complainant's] level of intoxication being at the level of incapacity. Would that incapacity have been apparent to anyone who cared to turn his mind to it?

What is meant by "incapacity"? All of us know that alcohol causes intoxication, and that intoxication is a state where judgment is clouded and behaviour is disinhibited. It is normal for intoxicated people to behave in ways that are entirely and even woefully inconsistent with their behaviour while sober. Accordingly, the threshold for incapacity is not the same as mere intoxication. To have capacity, or to be capable of voluntarily agreeing to participate in sexual activity, [the complainant] must not have been so intoxicated or in any other type of mental state that rendered her unable to understand Mr. Graham's conduct, the sexual nature of Mr. Graham's conduct or the identity of Mr. Graham. [The complainant] must have been able to realize that she had the right to choose not to participate in sexual activity with Mr. Graham. In other words, [the complainant] must have been able to realize that she had the right to say no at any time. Her capacity in this regard is a continuous ongoing concept which must be in existence throughout the sexual transaction from beginning to end.

If you find that [the complainant] did not, in fact, have the capacity to consent, that does not end the matter. You must further determine, beyond a reasonable doubt, that Mr. Graham knew that she did not have the capacity to consent…

[16] The appellant submits that, notwithstanding the Crown's concession, the trial judge erroneously left the issue of incapacity with the jury. This, the appellant argues, constitutes reversible error. In the alternative, if the trial judge appropriately instructed the jury on incapacity, it was incumbent upon him to also instruct the jury on the defence of honest but mistaken belief in consent.

[17] We do not accept this ground of appeal. The trial Crown's concession, properly understood, was that she declined to rely on incapacity in the event that the appellant's evidence was accepted or raised a reasonable doubt, even though that route to conviction was legally available.

[18] There was no error in the trial judge instructing on incapacity as a route to conviction on the Crown's evidence. The incapacity instruction was given as part of the consideration of the appellant's mens rea. The issue for determination was whether the appellant knew that the complainant did not consent to the force that he intentionally applied. The jury was told that they might consider evidence of the complainant's incapacity to consent. The import of this instruction was to tell the jury: if you find that the complainant was so intoxicated that she was incapable of consenting, you may consider whether this evidence helps you decide whether the appellant knew that the complainant was not subjectively consenting at the time of the sexual encounter. This was a proper consideration for the jury to take into account, as there was substantial evidence of the complainant's intoxication, and the jury was entitled to consider that evidence in assessing the appellant's mens rea.

[19] The trial judge did not err by then failing to leave the defence of honest but mistaken belief in consent with the jury. There was no air of reality to that defence if the jury accepted the complainant's version of events. It might have application if the appellant's evidence was accepted or raised a reasonable doubt, but the jury was instructed to acquit if they reached that point in their analysis. There is no risk that a reasonable jury, instructed as they were here, would have applied the trial judge's incapacity instruction to the appellant's version of events. Thus, an instruction on the defence of honest but mistaken belief in consent was not necessary.

(4) Jury Questions

[20] The jury asked two questions as follows:

(1) … Is it sufficient to conclude that the force Mr. Graham intentionally applied to [the complainant] caused a bodily harm or do we also need to conclude (beyond a reasonable doubt) that a reasonable person in the circumstances would realize that the force put [the complainant] at risk of suffering some kind of harm? (i.e., the main question on p. 45 versus the specific question in paragraph 218).

(2) If some bodily harm was created by a force during a time of consent, but then the force became unconsentful [sic] and no further harm was created, would the defendant be found guilty of the first count.

[21] The second question was asked while counsel were making submissions on the first. The second question suggests that the jury, or at least one of the jurors, might be thinking that the complainant had consented to sexual activity that caused bodily harm, e.g. anal and vaginal intercourse, but had not consented to some unspecified, less intrusive sexual activity that preceded or followed the more intrusive sexual conduct. This scenario had not been suggested by either counsel or the trial judge in the course of the trial. It was not part of the Crown's case that the complainant had consented to any part of the sexual activity, or that any consent given by her was vitiated by the appellant's intentional infliction of bodily harm. The trial judge had given no instructions to the jury about the relationship between consent and the causing of bodily harm. Nor had either counsel requested any instruction.

[22] After discussions with counsel, the trial judge concluded that the jury's first question queried the approach to be taken in determining whether the sexual assault caused bodily harm for the purposes of count one in the indictment. The trial judge further determined that the second question was directed at a different scenario. In that scenario, the appellant caused bodily harm to the complainant in the course of sexual activity, which the Crown had not proved was non-consensual.

[23] The trial judge correctly observed that proof that the appellant had caused bodily harm during non-consensual sexual activity was measured on an objective basis: see R. v. Nelson, 2014 ONCA 853, 318 C.C.C. (3d) 476, at para. 25. However, bodily harm could negate or vitiate consent a complainant had given to sexual activity only if the appellant actually intended to inflict bodily harm in the course of the sexual activity: R. v. Zhao, 2013 ONCA 293, 297 C.C.C. (3d) 533 at para. 107.

[24] The trial judge provided written and oral instructions intended to address both proof of bodily harm for the purposes of count two, and the relevance of bodily harm if the Crown had failed to establish that the complainant did not consent to the sexual activity.[1]

[25] In the written instructions given in response to the question, the trial judge told the jury that if the Crown had proved that the complainant did not consent to the sexual activity, the jury could convict of sexual assault causing bodily harm, only if satisfied that a reasonable person in the circumstances would realize that his actions put the complainant at risk of suffering some kind of bodily harm. The trial judge referred to this as an objective test. No objection is taken to this instruction.

[26] In the written instructions, the trial judge also repeatedly told the jury that if they were not satisfied that the Crown had proved that the sexual activity was non-consensual, the infliction of bodily harm in the course of that activity by the appellant could vitiate or negate consent only if the appellant intended the infliction of bodily harm or was reckless in that regard. The trial judge consistently referred to this as a "subjective test" to be resolved by determining the appellant's actual state of mind when he inflicted the bodily harm.

[27] In our view, the written instructions, considered on their own, satisfactorily answered the questions posed by the jury.

[28] The written instructions, however, were provided after the trial judge had given oral instructions in response to the questions. The appellant alleges that the oral instructions contained a fatal error.

[29] In the oral instructions, the trial judge began by reminding the jury that if they had any reasonable doubt arising out of the appellant's evidence, they were obligated to acquit the appellant on both counts. The trial judge then turned to the two questions. He told the jury that in respect of the assault causing bodily harm charge (count one), the jury, if they were satisfied that the complainant had not consented to the sexual activity, should determine whether the appellant caused bodily harm using the "reasonable man" objective test he had instructed the jury on in his initial instructions. As indicated above, no one objects to this part of the trial judge's instruction.

[30] The trial judge then turned to the second question. He said:

But if you find that the acts which caused the bodily harm injury were done in the context when consent was alive, in other words not disproved by the Crown beyond a reasonable doubt, then you would apply a subjective test, which means you apply a level of intent specific to Mr. Graham.

[31] Having drawn the distinction between the approach to be taken depending on whether the Crown had proved the absence of consent, the trial judge went on to say:

It might help in my explanation to tell you sort of why this is or how the law has come to be this way. And I'm going to talk about another subject and that's just a fist fight. It's not illegal to have a fist fight. Two fellows could get in an argument in a bar and say, "Let's take this outside." And they can duke it out as long as they both consent to that. There's nothing wrong with that. No one is assaulting anybody because an assault requires an absence of consent. But as soon as one of them causes bodily harm, that consent evaporates. And the reason is simply for public policy reasons that our law has decided over the centuries to dissuade people from having violent interactions to the level of the causation of bodily harm. It is said, therefore, that bodily harm vitiates or eliminates consent, so consent can exist but the bodily harm will cancel it out.

[32] The appellant submits that the trial judge erred by providing the jury this example that was not legally correct. He argues it would have left the jury with the impression that consent was vitiated the moment bodily harm occurred, without reference to the requirement for subjective intention. This, the appellant contends, occasioned significant prejudice to him, since it effectively removed the necessary element of intended bodily harm from the equation.

[33] We accept that the trial judge's consensual fist fight example, standing alone, is inaccurate in that it does not identify the requirement that the person inflicting the bodily harm mean or intend to cause bodily harm: see Zhao. However, the trial judge immediately turned from the consensual fist fight example, which he described to the jury as explanatory of the rationale for and the evolution of the law, back to the specifics of the case. He said:

… I'll tell you simply that if you find that the Crown has not proved beyond a reasonable doubt that consent is absent at the time of those injuries, should you find them to be and should you find them to amount to bodily harm, at the time those physical effects were caused, then you must impose or use a subjective test, that is determining whether Justin Graham intended to cause that bodily harm. That means that he either intended to cause bodily harm or he intended to inflict harm that would likely cause bodily harm and was reckless as to whether bodily harm would ensue or not.

To do this, you would look at what Justin Graham did or did not do, what Justin Graham did or did not say, and you would analyze it through the lens of him, what you know about him, his age, his maturity, his level of sobriety, the circumstances as he saw them, a subjective analysis in other words putting yourself in his shoes.

If you were to find that he intended to inflict bodily harm, whatever consent was still in play, in other words not disproved by the Crown beyond a reasonable doubt, is vitiated, cancelled out. But to get there you have to analyze his intentions subjectively.

[34] The trial judge emphasized the subjective nature of the inquiry into the intention to cause bodily harm if the Crown had not proved the absence of consent on at least two more occasions in the course of his remaining instructions which take up about four pages of transcript.

[35] Jury questions signal that a juror or jurors need clarification on the matters raised by the question. It is fair to assume that those issues have taken on some prominence, at least in the mind of one juror. The adequacy of the trial judge's response to questions must be assessed in that light: R. v. Grandine, 2017 ONCA 718, at para. 62. The trial judge's response to the jury's questions must, however, like the rest of the charge, be considered as a whole.

[36] The trial judge's use of the consensual fist fight example was unhelpful and potentially misleading. That example was, however, surrounded by repeated correct instructions on the subjective approach to be taken to intention to cause bodily harm in cases in which the Crown had proved that the complainant had not consented. It is significant that the repeated correct instructions, unlike the consensual fist fight example, were not presented to the jury as a hypothetical intended to provide background for the trial judge's instruction on the applicable law. The correct instructions were presented as directly applicable to the facts of the case before the jury. The portion of the oral instructions which correctly set out the law were reinforced in the written instructions handed out to the jury after the oral instructions were given.

[37] We are satisfied that the jury got the message and were not misled by the unfortunate example used by the trial judge.

[38] The appellant raised a further issue in oral argument. He submitted that the trial judge erred in telling the jury that it was sufficient if the appellant was reckless as to whether his actions would cause bodily harm. The appellant submits that the Crown was required to prove intent to cause bodily harm in the narrow sense of that word. Recklessness would not suffice.

[39] This submission was not made at trial or in the appellant's factum, and was not fully argued before us. There is no case law on point. However, given the extent and nature of the bodily harm that was no doubt caused by the appellant's actions during the sexual activity with the complainant, recklessness with respect to the causing of that bodily harm, as distinct from intentionally causing that bodily harm, was not realistically a live issue.

(5) Counsel Table

[40] In his factum, the appellant submitted that he was prejudiced by not being permitted to sit at counsel table because it impaired his ability to communicate with defence counsel while witnesses gave their evidence. This submission was not advanced during oral argument. It is without merit. The trial judge reasonably exercised his discretion to dismiss the appellant's application to sit at counsel table. There is nothing on the record to suggest that this prejudiced the appellant's right to make full answer and defence.

V. Disposition

[41] For the foregoing reasons, we dismiss the appeal.

Released: "D.D." April 30, 2019

"Doherty J.A."

"C.W. Hourigan J.A."

"A. Harvison Young J.A."

Footnotes

[1] The trial judge was not asked to, and did not, consider whether the second question asked by the jury warranted further instruction on the meaning of consent in s. 273.1(1) of the Criminal Code. That section defines consent in respect of sexual assaults as "the voluntary agreement of the complainant to engage in the sexual activity in question". To the extent that bodily harm related to specific sexual activity, e.g. anal intercourse, it may have been appropriate for the trial judge to explain to the jury that it should consider the question of consent as it related directly to the specific sexual activity giving rise to the bodily harm: see R. v. Hutchison, 2014 SCC 19, [2014] 1 S.C.R. 346, at para. 54. The appellant does not, and cannot, complain that the trial judge did not go down this road. It could not possibly have helped the appellant.