WARNING

Publication Ban Notice

THIS IS AN APPEAL UNDER THE YOUTH CRIMINAL JUSTICE ACT AND IS SUBJECT TO:

Section 110(1): Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

Section 110(2): Subsection (1) does not apply:

• (a) in a case where the information relates to a young person who has received an adult sentence;
• (b) in a case where the information relates to a young person who has received a youth sentence for a violent offence and the youth justice court has ordered a lifting of the publication ban under subsection 75(2); and
• (c) in a case where the publication of the information is made in the course of the administration of justice, if it is not the purpose of the publication to make the information known in the community.

Section 110(3): A young person referred to in subsection (1) may, after he or she attains the age of eighteen years, publish or cause to be published information that would identify him or her as having been dealt with under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, provided that he or she is not in custody pursuant to either Act at the time of the publication.

Section 111(1): Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

Section 138(1): Every person who contravenes subsection 110(1), 111(1), 118(1) or 128(3) or section 129 of this Act, or subsection 38(1), (1.12), (1.14) or (1.15), 45(2) or 46(1) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985:

• (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
• (b) is guilty of an offence punishable on summary conviction.

Additional Publication Restrictions

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:

Section 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).

Section 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.

Section 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.

Section 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.

Section 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.

Section 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.

Section 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.

Section 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: February 8, 2019

Docket: C65441

Judges: Feldman, MacPherson and Nordheimer JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

C.P. Appellant

Counsel

• C.P., in person
• Matthew Gourlay, appearing as duty counsel
• Grace Choi, for the respondent

Hearing

Heard: December 11, 2018

On appeal from: The conviction entered on May 2, 2017 and the sentence imposed on April 13, 2018 by Justice K. Crosbie of the Ontario Court of Justice.

Decision

Nordheimer J.A. (Dissenting)

[1] Introduction

[1] C.P. appeals his conviction on a single count of sexual assault following a judge alone trial. For the reasons that follow, I would allow the appeal. In my view, based on a fair and balanced review of the evidence as a whole, proof of the offence beyond a reasonable doubt was not an available verdict. The conviction is therefore unreasonable.

A. Background

[2] The charge arises out of what is alleged to have been non-consensual sexual intercourse that occurred between the 15-year-old appellant and the 14-year-old complainant. The two were part of a group of young persons who had decided to go to a beach near the Scarborough Bluffs to celebrate a friend's birthday.

[3] Prior to going to the beach, the group purchased alcohol from an L.C.B.O. store. They did so through a process known as a "shoulder tap": one of them would tap an adult on the shoulder and ask them to purchase the liquor. The group managed to buy at least two bottles of vodka – a 26 ounce bottle and a "mickey".

[4] The appellant and the complainant were friends. After the liquor was purchased, they walked together to get a street car to take them to the area of the beach. During the course of their travel to the beach, they were both drinking from the bottles of vodka which, it appears, were being passed around among the group.

[5] When the group arrived at the area of the beach, they had to walk down a steep hill to actually get to the beach. When they got to the beach, there was already a group of slightly older youths who had a fire going. The appellant's group asked if they could join the older group and the older group agreed.

[6] The appellant and the complainant went and sat on a mattress that was near the fire. They began to kiss. At some point, they were interrupted because members of the older group decided that they wanted to throw the mattress onto the fire.

[7] The appellant and complainant got up. The complainant went over to sit on some rocks that were close by the fire. The appellant went to chat with a friend. Shortly thereafter, the appellant joined the complainant sitting on the rocks. They began to kiss again. The kissing proceeded to fondling. At some point, according to the appellant, the complainant said to him, "Fuck me [C]". The appellant responded "Okay". The sexual intercourse ensued. After having sex, the appellant got up and went to speak to some friends. The complainant pulled up her pants but remained lying near the rocks.

[8] At some point after the sexual activity, another friend, E.G., who was late arriving at the beach, went over to the complainant. According to E.G., although the complainant was asleep, it was obvious to her that the complainant was very intoxicated. The complainant had vomit "all over her". E.G. woke the complainant up. She said that the complainant could barely talk. All the complainant could say was that she was cold. E.G. got her a sweater and positioned the complainant so that she would not choke if she vomited again.

[9] Eventually, one or more of the mothers of some of the young persons arrived at the beach and took people home. The complainant was helped up the path from the beach by the appellant, among others.

[10] The next morning, the complainant received a message from a friend telling her that there were messages on social media commenting on the fact that the complainant had had sex with the appellant at the beach. The complainant had no memory of the sexual activity. The complainant was upset about this revelation and spoke to her mother. Her mother took the complainant to a hospital to be examined. Thereafter the complainant reported the matter to the police.

B. Standard of Review

[11] Section 686(1)(a)(i) of the Criminal Code empowers this court to allow an appeal against a conviction when it is of the opinion that the verdict is unreasonable or cannot be supported by the evidence. When the verdict is delivered by a jury, this power is to be exercised within markedly narrow confines. A court of appeal is required to examine the whole of the evidence to determine whether the verdict could have been reasonably rendered by a properly instructed jury acting judicially. Although the court cannot simply substitute its own view of the facts, the task does require it to re-examine and re-weigh the evidence within the limits of appellate disadvantage: R. v. Yebes, [1987] 2 S.C.R. 168 at p. 186; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36.

[12] However, when a verdict is delivered by a judge, the reasons for the verdict can also be scrutinized for flaws in the judge's analysis or evaluation of the evidence. As Arbour J. noted in Biniaris, at para. 97:

The Yebes test is expressed in terms of a verdict reached by a jury. It is, however, equally applicable to the judgment of a judge sitting at trial without a jury. The review for unreasonableness on appeal is different, however, and somewhat easier when the judgment under attack is that of a single judge, at least when reasons for judgment of some substance are provided. In those cases, the reviewing appellate court may be able to identify a flaw in the evaluation of the evidence, or in the analysis, that will serve to explain the unreasonable conclusion reached, and justify the reversal.

[13] As a result, when reviewing the verdict of a judge sitting alone, the test under s. 686(1)(a)(i) is, to some extent, broader. A court of appeal is still not free to substitute its own findings of fact or reverse a conviction on the ground that the trial judge's reasons could have been expressed with more clarity or detail. However, a verdict that rests on findings of fact that are demonstrably incompatible with uncontradicted evidence, that is not rejected by the trial judge, can be overturned. The Supreme Court encapsulated this branch of the test in R. v. P. (R.), 2012 SCC 22, [2012] 1 S.C.R. 746 where Deschamps J. said, at para. 9:

The appellate court may also find a verdict unreasonable if the trial judge has drawn an inference or made a finding of fact essential to the verdict that (1) is plainly contradicted by the evidence relied on by the trial judge in support of that inference or finding, or (2) is shown to be incompatible with evidence that has not otherwise been contradicted or rejected by the trial judge.

[14] Even before these decisions, however, appellate courts had found verdicts unreasonable on the strength of accumulated judicial experience brought to bear on their review of the evidence, including findings as to the credibility of witnesses. The Supreme Court has supported such appellate intervention: Biniaris, at paras. 41-42; R. v. Burke, [1996] 1 S.C.R. 474.

C. Analysis

[15] The trial judge was satisfied, beyond a reasonable doubt, both that the complainant was not capable of consenting to the sexual activity and that the appellant could not rely on an honest but mistaken belief that the complainant had consented. I find that the trial judge's verdict is unreasonable because her first conclusion is demonstrably incompatible with the whole of the evidence, especially the uncontradicted evidence. As a result, I will not address her second conclusion.

[16] Central to a finding of guilt in this case was the issue of the complainant's capacity to consent to the sexual activity. The trial judge was aware that the timing of the sexual activity was of central importance to the issue of the complainant's capacity to consent. The trial judge observed, at para. 90, that "there was a lack of clarity with respect to the timing of the sexual activity". She also noted that there was a lot of guesswork by the Crown witnesses on the issue of timing. She further noted that neither G.G. nor E.G. saw the sexual activity and thus could not assist in pinpointing the time when it happened. The trial judge then made the following point (para. 90):

Had the sexual activity occurred closer in time to when the group first arrived – when R.D. was drinking but not yet feeling significant effects of her alcohol consumption – the Crown may well have had more difficulty establishing that R.D. lacked the capacity to consent.

[17] The trial judge ultimately found that the sexual activity in question had occurred later in time. It is this essential finding that, in my view, makes the verdict unreasonable because it is irreconcilable with the totality of the evidence, especially when it is measured against the burden of proof.

[18] This was undoubtedly a difficult case because of the nature and quality of the evidence. First, although there was evidence that there were between 15 and 20 people on the beach at the time of the events, only two of those persons (beside the complainant and the appellant) gave evidence: G.G. and E.G. Second, all four of these witnesses had been drinking, albeit to different degrees, and all four were teenagers. Indeed, the complainant had imbibed to the extent that she claimed to have almost no memory of the central events. Third, the complainant's evidence at trial consisted entirely of her police statement that, while videotaped, was not under oath. It was admitted as evidence under the principled exception to the hearsay rule.[1] Notwithstanding that ruling, and somewhat unusually, the complainant was not produced for cross-examination at trial. Fourth, there was no real agreement among the witnesses as to the timing of the various events.

[19] A few facts are clear, however. One is, as I have said, that both the complainant and the appellant had been drinking prior to engaging in the sexual activity. Another is that the complainant does not remember the sexual activity. The complainant simply has no memory of the event. This salient fact distinguishes this case from those like R. v. Ewanchuk, [1999] 1 S.C.R. 330, where there is direct evidence of non-consent. Yet another is that one or more of the persons, who were present, witnessed the sexual activity but did not give evidence. This is evident from the fact that messages were posted on social media reporting that the appellant and the complainant had had sex on the beach.

[20] The trial judge began her analysis by properly stating the burden of proof that lay on the Crown. It was the Crown's burden to prove each of the essential elements of the offence beyond a reasonable doubt, including the complainant's lack of capacity to consent. The trial judge also set out the required approach when an accused person gives evidence, which was established under R. v. W. (D.), [1991] 1 S.C.R. 742.

[21] The trial judge continued her analysis and reached two central conclusions. One conclusion was that she rejected the evidence of the appellant (with one notable exception). The appellant had said that the sexual activity was consensual.

[22] The other conclusion was that the Crown had proven that the complainant was incapable of consenting to the sexual activity, because she found that the sexual activity had occurred later in the night when the complainant was severely intoxicated. She reached this conclusion based on the evidence of a single witness, E.G., supported by one answer from the evidence of the appellant.

[23] E.G. had said that she went to the complainant "instantly" after she arrived in the beach area, and found the complainant asleep and covered in vomit. The appellant testified on direct examination that, after the sexual activity, he stood up. He heard that E.G. and another person had arrived in the beach area. He then went over to E.G., and after a fifteen-minute chat, they came back to find the complainant in a changed position and vomiting. In cross-examination, the appellant agreed to an ambiguous suggestion made by Crown counsel that, on arriving at the beach, E.G. had gone "directly" to the complainant. It is this single answer from the appellant's cross-examination that the trial judge relied on to pinpoint the time of the sexual activity. She rejected the appellant's claim that he had chatted with E.G. for fifteen minutes.

[24] On the first finding, the trial judge was undoubtedly entitled to reject the appellant's evidence. However, having done so, it was then incumbent on her to explain why, having rejected all of the other evidence provided by the appellant, (e.g. that the complainant had asked him to have sex with her), she was prepared to accept this single piece of the appellant's evidence as confirmation of the evidence of E.G. on the issue of timing.

[25] Crucially, this piece of evidence supplied a missing link for the trial judge's chain of reasoning. As mentioned, the appellant was the only witness with any memory of the sexual activity in question. Therefore, he was the only one who could connect E.G's arrival with the time of the sexual activity, which was necessary to establish the complainant's level of intoxication. The trial judge could not have found, on her analysis, that the complainant did not have the capacity to consent without singling out, and relying on, this part of the appellant's evidence.

[26] I appreciate that any trier of fact is entitled to accept some, none, or all of a witness' evidence. However, the trial judge's reliance on this single piece of the appellant's evidence represents a dramatic exception to the trial judge's sweeping rejection of all of the rest of the appellant's evidence insofar as it related to anything that was controversial. The trial judge does not provide any reason why she is prepared to isolate this one piece of the appellant's evidence and then rely on it, especially in light of the appellant's evidence in chief which differed on the very same point. The failure to provide that explanation does not allow for effective appellate review. It thus constitutes an error in law. As the majority said in R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 19:

This Court has consistently admonished trial judges to explain their reasons on credibility and reasonable doubt in a way that permits adequate review by an appellate court.

[27] This error is one of some significance, given both the importance of the timing issue and the fact that the appellant himself was not consistent on this specific subject between his evidence in chief and his cross-examination. On that latter point, one must remember that the appellant had also been drinking and was, according to his own evidence, fairly drunk. Accepting the appellant's evidence on this solitary point is also inconsistent with the trial judge's general view that the appellant was "evasive and rattled" during his evidence.

[28] On the second finding regarding capacity, the trial judge ultimately found, based on the evidence of the appellant and E.G., that the sexual activity had occurred immediately prior to E.G.'s arrival. Based on this finding, she concluded that it had occurred late in the night. However, these inferences are incompatible with the uncontradicted evidence, in three ways.

[29] First, there were some significant problems with E.G.'s evidence. For example, E.G. said in her evidence in chief, which was introduced by way of a video statement, that she arrived at the beach some two hours after the group but she also said that she arrived around 10:00 p.m. The two cannot be reconciled on the evidence. E.G. essentially acknowledged as much by saying, in cross-examination, that she might be wrong about the time when she arrived at the beach.

[30] I repeat that timing is the critical element in this case. On that point, it seems clear that the group (including the appellant and the complainant) arrived between 10:00 p.m. and 10:30 p.m. This was, for example, G.G.'s recollection and appears consistent with the timing of the purchase of the alcohol and the street car ride to the beach. If E.G. is right that she arrived about two hours after the group did, that would mean that E.G. arrived at between midnight and 12:30 a.m. Further, G.G. said that she never saw E.G. before G.G. left the beach at 12:30 a.m. The trial judge accepted that that is when G.G. left the beach. G.G. said that she is certain that she would have seen E.G. if she had arrived before G.G. left. This evidence would then put E.G.'s arrival after 12:30 a.m.

[31] Second is the evidence that the trial judge fails to mention that relates to the issue of the timing of the sexual activity. For instance, G.G. said that all of the drinking had concluded within an hour of the group's arrival at the beach, which would be at 11:00 p.m. to 11:30 p.m., or at least an hour before E.G. arrived. G.G. also said that, at the time she was leaving, and very shortly before, she saw the complainant vomiting. It follows that E.G. must have arrived sometime after that point in order to witness the complainant asleep with vomit on her. It also follows that the sexual activity must have already occurred. [2] It further follows, given all of that, that there was a larger gap in time between the sexual activity and E.G.'s arrival than the trial judge allowed for. It is then difficult to see how E.G.'s observations could assist regarding the complainant's level of intoxication at the time that the sexual activity took place.

[32] The trial judge also fails to mention other portions of the evidence that impact on the timing issue and the involvement of E.G. For example, E.G. said that, when she arrived, she drank some of the vodka that was left. That fact is inconsistent with a finding that E.G. went "instantly" to the complainant. On this point, it should be noted that E.G. said that when she went to the complainant, she stayed with the complainant until they all left the beach.

[33] The trial judge's reliance on the evidence of E.G. to pinpoint the time of the sexual activity also fails to take into account the evidence that E.G. gave as to how she came to find out that the complainant and the appellant had had sex. On that point, E.G. said:

… I'm not really too sure who was saying it but a few people were like, oh like, [the complainant] and [the appellant] like, had sex earlier today, tonight and I was like when? And they were like on like, before you and [E.G.'s friend] showed up …

[34] The trial judge does not mention this evidence, which strongly suggests that the sexual activity occurred some period of time before E.G. arrived at the beach. Not immediately before, as the trial judge concludes.

[35] Third, the trial judge's finding of incapacity is also inconsistent with the evidence that, after the sexual activity, the complainant alone pulled up her pants. I appreciate that this evidence comes from the appellant (who the trial judge did not believe) but, importantly, it is confirmed by the complainant, who said that she remembered pulling her pants up. It is also a salient fact that, when E.G. found the complainant, she was dressed normally. No one suggested that the appellant or anyone else had pulled the complainant's pants up. The trial judge does not address this evidence either as it relates to the issue of capacity.

[36] All of this raises a serious concern about the conclusion that the complainant was incapacitated at the time of the sexual activity. However, even if one puts aside all of these problems, there is still the central issue: Having rejected the evidence of the appellant, what was the trial judge left with on which to reach a conclusion that the Crown had proved the offence beyond a reasonable doubt?

[37] I have already dealt with the problems that I see with the trial judge's conclusion on the timing of the sexual activity. In addition to that problem, however, there is the evidence of the complainant to consider. I earlier noted that the complainant did not say that she did not consent to the sexual activity. Rather, she said that she had almost no memory of the event. Indeed, what the complainant did say about the event in her police statement was that she remembered kissing the appellant, although her recollection of that was vague. She was also asked if she had wanted to have sex with the appellant and she said:

Uhm, I when it happened I don't remember it so, I don't, I don't think so.

[38] What we do know is that the complainant and the appellant engaged in kissing, not once but twice. This evidence does not come solely from the appellant. G.G. confirmed that she saw the complainant and the appellant kissing "a couple of times" and that the kissing was what G.G. described as "heavy kissing". It therefore appears that the complainant had the mental awareness to engage in that contact. The statement "I don't think so", in response to the question whether she wanted to have sex with the appellant, clearly leaves open the possibility that she did want to – a reality that the trial judge acknowledged. The complainant also remembers pulling her pants up which further suggests a level of awareness at the time that the sexual activity occurred.

[39] In addition to evidence about the complainant's consumption of some amount of alcohol before the sexual activity, that is essentially the totality of the evidence on the core issue of her capacity to consent, once the appellant's evidence is removed. I cannot see how, on that evidence, a judge, properly instructed and acting judicially, could reach the conclusion that the Crown had proven, beyond a reasonable doubt, that the complainant did not have the capacity to consent to the sexual activity. As the trial judge noted, cases where extreme intoxication have led to findings of incapacity "tend to include evidence of a loss of awareness or loss of consciousness" (para. 68). On any reasonable view of the evidence here, it does not rise to that level. Indeed, what the complainant's evidence suggests is a lack of memory of the sexual activity, not a lack of capacity to understand and agree to the sexual activity. Memory and capacity are two different things. On this point, when referring to a sexual assault complainant's less equivocal evidence that she would not have consented, Major J. said in R. v. Esau, [1997] 2 S.C.R. 777, at para. 23:

This, in view of the complainant's failure to remember, is no evidence of her denying consent.

[40] Given the errors in the trial judge's treatment of the appellant's evidence and the deficiencies and inconsistencies in the evidence, the trial judge's conclusion that the appellant "forced sexual intercourse on [the complainant] knowing she was incapable of consenting due to extreme intoxication" simply cannot be reconciled with the evidence as a whole. The evidence viewed fairly, and in its totality, does not allow for a conclusion to be reached, to the standard of proof of beyond a reasonable doubt, that the complainant did not have the capacity to consent to the sexual activity. The conviction must be set aside.

D. Conclusion

[41] I would allow the appeal, set aside the conviction, and enter an acquittal.

"I.V.B. Nordheimer J.A."

MacPherson J.A.

[42] I have had the opportunity to read my colleague's reasons in this appeal. His conclusion is:

I would allow the appeal. In my view, based on a fair and balanced review of the evidence as a whole, proof of the offence beyond a reasonable doubt was not an available verdict. The conviction is therefore unreasonable.

[43] With respect, I do not agree with this conclusion. It is clear from the case law that it is, and should be, "exceedingly rare" that an appellate court sets aside a trial verdict as "unreasonable": R. v. Sinclair, 2011 SCC 40, at para. 22 (Fish J., dissenting, but not on this point). In my view, the trial judge's decision in this case is far removed from deserving this label.

[44] I begin by observing that I agree with my colleague's description of the governing principles that structure the analysis in unreasonable verdict appeals. In particular, I accept the framework he lays out from the leading appellate unreasonable verdict cases, including R. v. Yebes, [1987] 2 S.C.R. 168; R. v. Biniaris, 2000 SCC 15; and R. v. R.P., 2012 SCC 22.

[45] My problem is with my colleague's application of those cases to the trial judge's decision in this case. In my view, there are three problems with his analysis. I will deal with them in turn.

(1) The Appellant's Evidence

[46] First, my colleague is critical – indeed, strongly critical as the language in the passage below makes clear – of the trial judge's acceptance of a "single piece" of the appellant's testimony relating to the timing of the sexual activity involving the appellant and the complainant. My colleague says:

I appreciate that any trier of fact is entitled to accept some, none, or all of a witness' evidence. However, the trial judge's reliance on this single piece of the appellant's evidence represents a dramatic exception to the trial judge's sweeping rejection of all of the rest of the appellant's evidence. The trial judge does not provide any reason why she is prepared to isolate this one piece of the appellant's evidence and then rely on it, especially in light of the appellant's evidence in chief which differed on the very same point. The failure to provide that explanation is an error because it does not allow for appellate review.

[47] In my view, this passage misstates and significantly exaggerates the trial judge's treatment of the appellant's testimony. I say this for several reasons.

[48] First, the trial judge accepted a number of aspects of the appellant's evidence, particularly on peripheral, narrative points such as the fact that he had been drinking along with the complainant from the time they left the LCBO. The trial judge also accepted that he genuinely did not recall certain details about the event.

[49] Second, the trial judge clearly explained her assessment of the appellant's credibility and why she did not accept some of his evidence. In her reasons, the trial judge stated:

There are aspects of C.P.'s evidence that did not suffer from the flaws I have just described. I note that if the accused was as drunk as witnesses suggest, it would be understandable for him to have gaps in his memory. He was also remembering an event from a year ago. C.P. is also only 16 years old and I suspect, was nervous when testifying, especially under skilled cross-examination of counsel. I am, by no means, criticizing his evidence in its entirety. What I have set out above are the many reasons upon which I rejected his evidence on certain, key points. [Emphasis added.]

[50] These key points relate to the appellant's evidence that the complainant seemed "fine" during the sexual activity. The trial judge did not accept the appellant's evidence on this point based on her assessment of his credibility; she determined the appellant was evasive and was not being forthright with the court. However, it was open to the trial judge to accept some, none, or all of the appellant's evidence: R. v. Zimunya, 2013 ONCA 265, at para. 4.

[51] The trial judge accepted, among other things, the appellant's evidence that after he ejaculated he stood up at the same time he heard "that Jeremy and E.G. … had arrived". In the context of the appellant's evidence, this was a narrative detail, similar in character to other evidence of the appellant accepted by the trial judge.

[52] Third, the inconsistency in the appellant's evidence in chief and in cross-examination on this point has been mischaracterized. As the trial judge noted, the appellant testified both in chief and in cross-examination that when he stood up after ejaculating he heard E.G. and Jeremy coming down the hill. The appellant's evidence was consistent on this point.

[53] The inconsistency in the appellant's testimony related not to the timing of E.G.'s arrival in relation to the sexual activity, but to whether the appellant spoke to E.G. when she arrived for 10-15 minutes, or whether E.G. went straight to see the complainant. On this point, the trial judge accepted E.G.'s evidence. She explicitly rejected the appellant's evidence in chief, based on the fact that it was internally contradictory (he both stated that he spoke with them for 10 to 15 minutes and later elaborated that E.G. went right over to the complainant when she arrived), that he testified his friend told him to sit because he was too drunk to be walking about, and that E.G. had very little to drink. The trial judge found that E.G. related events clearly and seemingly without exaggeration and displayed no animus toward the appellant. It was open to the trial judge to accept E.G.'s evidence. This was consistent with the appellant's evidence on cross-examination.

[54] Finally, on the issue of this 10-15 minute interval, it was open to the trial judge to conclude that the appellant told the truth in cross-examination and not in chief, especially considering the corroborating testimony from E.G. on that point. Nevertheless, whether or not the appellant spoke to E.G. and Jeremy for 10-15 minutes when they arrived is insignificant in the context of a 3-4 hour time period. This finding was not essential to the trial judge's conclusion on the timing of the sexual activity as being late in the night.

(2) Evidentiary Incompatibility

[55] My colleague states that the inferences made by the trial judge that led to her conclusion that the sexual activity occurred immediately prior to E.G.'s arrival were incompatible with the rest of the uncontradicted evidence for the following reasons:

1. There were significant problems with E.G.'s evidence in relation to the timing of her arrival in particular;
2. The trial judge fails to mention all of the evidence relating to the issue of timing, including the evidence of G.G. that she saw the complainant vomiting when she was leaving, but did not see E.G. until later when she returned to the beach;
3. The trial judge did not address the fact that the complainant pulled up her own pants, despite the conclusion that she was incapacitated at the time of the sexual activity.

[56] On the first issue, the trial judge acknowledged that E.G. allowed for the possibility that she was mistaken about the time she arrived and this did not affect her assessment that E.G. was a credible and reliable witness. She stated that E.G. was not challenged on what she found to be the crux of her evidence. My colleague also mentioned that E.G.'s testimony with respect to drinking some vodka when she arrived was inconsistent with the finding that E.G. went instantly to the complainant. These facts are not necessarily incompatible nor are they particularly relevant to the issue of timing. I agree that timing is a critical element in this case. However, the exact time of E.G.'s arrival and observation of the complainant is not critical. Rather, it is the relative time of her arrival in relation to the sexual activity as testified to by the appellant that is important.

[57] On the second issue regarding G.G.'s evidence, the trial judge considered E.G., G.G. and the complainant's evidence together as circumstantial evidence to draw inferences about her level of intoxication. The trial judge also acknowledged G.G.'s evidence that she did not see E.G. before she left and that she saw the complainant start throwing up as she left around 12:30 a.m. The trial judge had the benefit of all of the evidence before her and did not find this testimony to be in conflict. She reviewed the evidence and ultimately concluded that the complainant was found unconscious and generally unresponsive within a very short period of time from when the appellant, on his own evidence, had ejaculated inside her. I see no problem with this analysis.

[58] On the third issue regarding the complainant's pants, my colleague's analysis is speculative and does not bear at all on the analysis. There was no reason for the trial judge to address the fact that the complainant had her pants on (and potentially pulled up her own pants) as going to the issue of incapacity. The question to be determined, as indicated by the trial judge, was whether the complainant lacked the minimal capacity to consent, or withhold her consent, to the sexual activity. Whether she was able to pull up her pants would not negate a finding of incapacity.

(3) The Complainant's Evidence

[59] In my view, my colleague's treatment of the complainant's evidence is, in places, tilted against her.

[60] The strongest example is this passage early in the Background (i.e. Facts) part of my colleague's reasons:

The kissing proceeded to fondling. At some point, according to the appellant, the complainant said to him, "Fuck me [C.]". The appellant responded "Okay". The sexual intercourse ensued.

[61] In my view, including this as a background fact is not appropriate, especially in light of the trial judge's comprehensive rejection of it in her reasons:

I further find that R.D. did not ask C.P. to have sexual intercourse with her – and even if she had, she was too intoxicated to have given voluntary consent to sexual activity. I have discussed above why there are many aspects of C.P.'s evidence that I have rejected. For those reasons, I find it extremely difficult to believe that R.D. asked C.P. to "fuck me". More to the point, I have serious misgivings about whether R.D. said this because it would have been out of the blue. Even C.P. said he was taken by surprise by her asking him to "fuck me" because they were not close. R.D. and C.P. had socialized with their friends at Tim Horton's regularly for two months. The evidence before me was that they all sat in a group and sometimes C.P. and R.D. would be beside each other, seemingly not by design. C.P. also may have been to her house on one occasion. While it is true that they were talking and kissing, the nature of their relationship calls into question – on the facts before me – that it was a simple and natural progression for R.D. to ask C.P. to "fuck me" on this beach with people standing around nearby. I find she did not ask C.P. to "fuck me".

[62] A second example of reasoning that is, in my view, tilted against the complainant is where my colleague states "one or more of the persons, who were present, witnessed the sexual activity but did not give evidence."

[63] My colleague appears to draw a possible negative inference from the absence of other witnesses at the trial who saw the sexual activity. I would simply say that no inference should be drawn from this fact. This was not an issue raised at trial and the trial judge said nothing about it.

[64] My colleague also described the following as "clear" facts:

One is … that both the complainant and the appellant had been drinking prior to engaging in the sexual activity. Another is that the complainant does not remember the sexual activity.

[65] To the extent that a negative inference is drawn from the fact that the complainant said that she did not remember the sexual activity, I would say a fairer inference would be that it supports the truthfulness of her testimony. Rather than lying and saying "the appellant raped me; I did not consent", the complainant is being honest – "I do not remember, so I cannot say whether I consented". Further, the trial judge was alive to this issue. She said:

I have approached R.D.'s evidence with serious caution. I acknowledge that an inability to remember something that happened does not necessarily mean that the person was acting without capacity – or intent – at the time it happened. Furthermore, R.D.'s evidence – because of the faults in her memory and the weight that can sensibly be given to her evidence given she was not cross-examined – would not go a considerable way on its own toward meeting the high burden the Crown bears. I am also mindful that, although she was cautioned that she could be charged if she lied to the police, her statement was not under oath. However, when considering the whole of the evidence, R.D.'s evidence tends to support the conclusion that she was very, very drunk near the time the sexual assault occurred. [Citations omitted; emphasis added.]

Conclusion

[66] The trial in this case, like most criminal trials, turned on credibility. The appellant and the complainant (by videotaped police statement) both testified. Accordingly, the trial judge heard what they said and saw how they said it. This court sees only the trial transcript (the 'what' was said); we do not see the witnesses as they testify. This is an important difference, especially in a case where the allegation is that the trial judge's verdict is unreasonable.

[67] In R. v. A.G., 2000 SCC 17, [2000] 1 S.C.R. 439, Arbour J. said this in relation to unreasonable verdict, at para. 29:

[W]here a judge gives detailed reasons for judgment and when, as in this case, the reasons reveal that he or she was alive to the recurrent problems in this field of adjudication, the court of appeal brings no special insight to the assessment of the evidence. As this Court's s. 686(1)(a)(i) jurisprudence makes very clear, the fact that an appeal court judge would have had a doubt when the trial judge did not is insufficient to justify the conclusion that the trial judgment was unreasonable.

[68] In my view, the trial judge's careful and comprehensive reasons led to an entirely reasonable verdict. I would dismiss the appeal.

Released:

"KF" "J.C. MacPherson J.A."

"FEB -8 2019" "I agree K. Feldman J.A."

Footnotes

[1] Defence counsel conceded that both necessity and threshold reliability were met.

[2] It was not the Crown's position that the sexual activity had occurred after the complainant had gotten vomit on her. There was no evidence that would have supported that scenario. As in Burke, judicial experience can be relied upon at the appellate stage to require some foundation before such an unlikely sexual assault scenario would be accepted.