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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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

(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.

(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(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.

(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.

(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.

(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 of Appeal for Ontario

Date: 20200302 Docket: C65366

Simmons, van Rensburg and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Manuel Esquivel-Benitez Appellant

Counsel: Lance Beechener, for the appellant Natalya Odorico, for the respondent

Heard: February 19, 2020

On appeal from the conviction entered by Justice Carole J. Brown of the Superior Court of Justice on June 2, 2017, and from the sentence imposed on April 17, 2018.

Reasons for Decision

A. Overview

[1] At the conclusion of the oral hearing we allowed this appeal for reasons to follow. These are our reasons.

[2] Following a judge alone trial, the appellant was convicted of sexual assault and sentenced to 22 months’ imprisonment plus two years’ probation. He appeals against conviction and seeks leave to appeal against sentence.

[3] The appellant raises five issues on his conviction appeal.

[4] We conclude that the following three issues are dispositive of the conviction appeal and require that the appeal be allowed, the conviction set aside, and a new trial ordered.

B. Analysis

[5] First, we accept the appellant’s submission that the trial judge made an R. v. W.(D.) error by treating the credibility issue as a contest between the complainant and the appellant and failing to consider whether the evidence as a whole left her with a reasonable doubt: , [1991] 1 S.C.R. 742.

[6] On several occasions throughout her reasons, the trial judge framed her conclusions in language indicating she was deciding which version of events she preferred and that reasonable doubt did not play a role in her findings. Some examples are the following, found at paras. 96, 124, 127 and 130 of the reasons below:

Except where otherwise stated, I prefer the complainant’s testimony to that of the accused.

As indicated herein, I find the complainant’s version of facts to be more credible.

I am left with a significant doubt as regards [the appellant’s] evidence of the occurrences of that evening.

I find this evidence to be somewhat suspect and contrived. As indicated, in terms of credibility I prefer [the complainant’s] version of the facts, which I find is more credible.

[7] We acknowledge that the trial judge instructed herself on the principles of reasonable doubt in accordance with W.(D.). Nonetheless, reading her reasons as a whole we cannot be satisfied she properly applied those principles. In addition to treating the credibility issue as if it were a contest between competing versions of events, having found the complainant to be the more credible witness, the trial judge failed to step back and consider whether the whole of the evidence, including the appellant’s evidence, was nonetheless capable of giving rise to a reasonable doubt.

[8] Second, we agree that the trial judge failed to meaningfully recognize or address the evidence of the complainant’s possible motive to fabricate when assessing credibility.

[9] It was undisputed at trial that, following an afternoon and evening of drinking and partying with friends, the appellant had sexual intercourse with the complainant on the couch in his living room while the complainant’s husband was sleeping in an adjacent room.

[10] Just as these events were ending, the complainant’s husband emerged from the adjacent room. He immediately asked what was going on and flew into a violent rage.

[11] As the couple walked home, the complainant’s husband persistently questioned her as to what had happened. He threatened to leave the complainant and stated repeatedly, “Tell me this guy abused you” or “Did he abuse you?”. The fact that the complainant did not immediately, when confronted, tell her husband that she had been assaulted and did so only after they had returned home, in response to his repeated entreaties, was relevant to whether she had a motive to fabricate, and ultimately to her credibility.

[12] Rather than giving this evidence proper consideration, the trial judge dismissed the defence focus on this evidence as “part of an ongoing myth regarding sexual consent”: at para. 133.

[13] This was an error. Undoubtedly it was open to the trial judge to accept the complainant’s evidence that she did not consent to sexual activity and that her response to her husband’s questioning was due to a myriad of factors that had nothing to do with fabrication. However, in the circumstances of this case, the trial judge was also obliged to consider whether the events gave rise to a motive to fabricate and, if so, how that reflected on her assessment of the complainant’s credibility.

[14] A motive to fabricate can be an important factor that is germane to a witness’s credibility: R. v. Batte (2000), 49 O.R. (3d) 321 (C.A.), at para. 120.

[15] Here, it was incumbent on the trial judge to consider the evidence that was both consistent and inconsistent with consent, which was the central issue at trial. The complainant’s actions, including the fact that she did not “assuage” her husband’s concerns and doubts by responding to his questions when asked what was going on, were relevant. This evidence ought to have been addressed and not dismissed as irrelevant by the trial judge.

[16] Third, we accept the appellant’s submission that the trial judge relied improperly on the appellant’s presence in the courtroom when the complainant testified to negatively assess his credibility. Twice in her reasons the trial judge referred to the appellant’s presence in the courtroom while the complainant testified and used this factor against him in assessing his credibility.

[17] At paras. 91, 129 and 130 of her reasons the trial judge said:

Further, his testimony, coming after hearing the complainant’s testimony, essentially mirrored her description of what occurred leading up to and during the sexual encounter, but he portrayed her as the aggressor. This simply does not have the ring of truth. I found his evidence to be contrived.

[The appellant’s] testimony, following thereafter, recounted the same occurrences, but made her the “aggressor”. He testified that she attempted to kiss him, he rebuffed her as he did not want to “get her hopes up”. She attempted a second time to kiss him, and then put her hand on his penis outside and then inside his pants. Throughout, he attempted to rebuff her and she continued as the “aggressor”.

Thus, his evidence essentially mirrored hers, but throughout his testimony, he portrayed, the actions as coming from her, not him, and made her the aggressor. I find this evidence to be somewhat suspect and contrived. As indicated, in terms of credibility, I prefer her version of the facts, which I find is more credible. [Emphasis added.]

[18] As this court recognized in R. v. Jorgge, 2013 ONCA 485, 4 C.R. (7th) 170, accused persons have not only a statutory obligation but also a right to be present at their trial, grounded in their constitutionally guaranteed rights to a fair trial and to make full answer and defence: at para. 12. On our review of her reasons, the trial judge used this right against the appellant to find that he had the opportunity to tailor his evidence and that he did so. This line of reasoning is not permissible: Jorgge, at para. 18.

[19] The respondent acknowledges that absent an allegation of recent fabrication it is impermissible to reason that an accused person tailored their evidence to correspond with the prosecution’s evidence. However, the respondent argues that did not happen here. Rather the trial judge was merely commenting on the sequence of the evidence. Moreover, the trial judge gave many valid reasons for disbelieving the evidence. Even if the trial judge fell into error, it was a minor error that did not occupy a prominent position in her reasons for rejecting the appellant’s evidence.

[20] We cannot accept the respondent’s submissions. On a plain reading of the paragraphs we have quoted, read in context, the trial judge used the appellant’s presence in the courtroom as a basis for rejecting his evidence. We are unable to say that this error did not taint the trial judge’s reasoning process. Moreover, when considered with the other errors we have identified, we are satisfied that the cumulative effect of the trial judge’s errors requires a new trial.

C. Disposition

[21] Based on the foregoing reasons, it is unnecessary to consider the remaining grounds of appeal. The appeal is allowed, the conviction is set aside and a new trial is ordered.

“ Janet Simmons J.A.”

“K. van Rensburg J.A.”

“A. Harvison Young J.A.”