Publication Ban Warning
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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20220627 DOCKET: C69061
van Rensburg, Pardu and Copeland JJ.A.
BETWEEN
Her Majesty the Queen Respondent
and
Anibal Rivera Appellant
Counsel: Michael Davies, for the appellant Elena Middelkamp, for the respondent
Heard: June 7, 2022 by videoconference
On appeal from the conviction entered on June 26, 2019 by Justice Nathalie Champagne of the Superior Court of Justice, with reasons reported at 2019 ONSC 3918.
Reasons for Decision
[1] The appellant, Mr. Rivera, appeals from his conviction on one count of sexual assault, pursuant to s. 271 of the Criminal Code, R.S.C. 1985, c. C-46.
[2] The complainant and the appellant met on a dating website. Within a few days of meeting, they agreed to meet at the complainant’s home for a sexual encounter. In text conversations prior to that meeting, the complainant told the appellant that she had “2 rules: condoms are a must, and no means no”, and asked, “Is that ok with you?” The appellant responded, “Totally ok with that.” In the same text exchanges, the complainant told the appellant, “condoms are … my birth control”.
[3] The central issue at trial was whether the sexual intercourse between the complainant and the appellant was consensual. [1] The complainant testified that there was initially some consensual kissing and foreplay. Prior to intercourse, she told the appellant she needed him to wear a condom. He told her, “It will be OK, I’m clean. I’m clean”. She reiterated that condoms were her form of birth control. The appellant then penetrated her vagina with his penis without a condom.
[4] In his evidence, the appellant testified that he was aware of the complainant’s two rules (from the text conversation), and that he had brought condoms with him. He testified that after some foreplay, the complainant performed oral sex on him. He then moved beside the complainant to have intercourse. He testified that he was in the process of removing a condom from the package, when he asked the complainant if it would be OK if he did not wear a condom, and she agreed as long as he did not ejaculate inside her. He testified that they then had intercourse, and that as he approached orgasm, he withdrew and masturbated himself to ejaculation.
[5] The trial judge had significant concerns about the credibility and reliability of the appellant’s evidence, and rejected his evidence that the complainant agreed to have intercourse without a condom. She found the complainant’s evidence in relation to the first act of intercourse credible, and sufficient to prove the charge beyond a reasonable doubt. In particular, the trial judge was persuaded beyond a reasonable doubt that the complainant did not consent when the appellant proceeded to intercourse without a condom after she told him that she required him to wear a condom for intercourse.
[6] For the reasons that follow, we are not persuaded by any of the three grounds of appeal raised by the appellant.
[7] The appellant’s first ground of appeal is that the trial judge erred in failing to apply the second branch of the analysis from R. v. W.(D.), [1991] 1 S.C.R. 742 – whether the appellant’s evidence, although not believed by the trial judge, left her with a reasonable doubt. The appellant bases his submission primarily on the concluding paragraph of the trial judge’s analysis of the credibility and reliability of his evidence. In that paragraph, the trial judge states that she does not believe the appellant’s evidence that the complainant agreed to sex without a condom, but does not expressly say that his evidence does not leave her with a reasonable doubt.
[8] We do not accept this submission. In our view, reading the reasons of the trial judge as a whole, it is clear that she understood and applied the reasonable doubt standard to issues of credibility as instructed by W.(D.).
[9] Prior to assessing the credibility and reliability of the evidence of the appellant and the complainant, the trial judge expressly instructed herself about the presumption of innocence and the Crown’s burden to prove the charge beyond a reasonable doubt. She instructed herself that the case was not to be decided as a credibility contest, or from the perspective of “believing one person over another”. She expressly instructed herself in accordance with W.(D.).
[10] The trial judge then explained in detail why she found that the appellant’s evidence “gives rise to serious issues regarding his credibility and reliability”. We will not summarize all her reasons for coming to this conclusion, but they included the following points:
- The appellant admitted in cross-examination that he lied to police about how the sexual intercourse with the complainant occurred, providing a fabricated version of events on the central issue at trial. The trial judge characterized this as a lie “about a significant and material fact”, a characterization which was entirely reasonable.
- The appellant initially testified that, when he first attended to speak to police, he did not know the nature of the complaint against him. He was then confronted in cross-examination with the fact that he attended the first meeting with police armed with his written fabricated account. In response, he first asserted that he brought the written statement to the second meeting with police rather than the first, but then, after conceding he brought it to the first meeting, he changed his evidence to say he meant that he did not know about the nature of the complaint when the police left him a voicemail.
- The appellant asserted that he and the complainant did not discuss him staying the night on the day he came over; however, his evidence in this regard was contradicted by text messages between him and the complainant on the morning of the day he attended at her home, in which she asked what she should have on hand for breakfast.
[11] The trial judge also found that the appellant’s evidence that the complainant agreed to sexual intercourse without a condom was improbable given her evidence that she used condoms as her method of birth control, and the texts prior to the sexual encounter where she said condoms were “a must” and were her method of birth control.
[12] The trial judge then concluded:
For these reasons, I do not believe [the appellant’s] claim that the complainant agreed to have sex without a condom, but that does not necessarily mean he is guilty. The Crown must prove the alleged offence beyond a reasonable doubt. The Crown adduced evidence from one witness, the complainant.
[13] The trial judge then explained in detail why she found the complainant’s evidence credible, including that her evidence was not shaken in cross-examination, and that her evidence about insisting on condom use as a condition of consent to intercourse was consistent with her “two rules” set out in the texts between the complainant and the appellant, and with her attending at hospital the following day for a pregnancy test, STI tests and a sexual assault kit. The trial judge also considered the fact that the complainant took a few days to consider whether to contact police, and concluded that it was not a factor that reflected adversely on her credibility. The trial judge concluded in relation to the complainant’s credibility: “I find the complainant’s evidence to be proof beyond a reasonable doubt that [the appellant] committed a sexual assault against her by failing to wear a condom and engaging in sexual intercourse with her.”
[14] In the context of the significant concerns that the trial judge detailed in relation to the appellant’s evidence, her earlier self-instruction about the burden of proof, W.(D.), and not to treat the case as a credibility contest, and her repeated self-instruction about the Crown’s burden to prove the charge beyond a reasonable doubt, we are not persuaded that the trial judge erred in her approach to credibility and the Crown’s burden to prove the charge beyond a reasonable doubt. In the context of the reasons as a whole, the trial judge’s statement that she did not believe the appellant can only be read as a rejection of his evidence not only as not believable but also as not raising a reasonable doubt.
[15] The appellant’s second ground of appeal is that the trial judge’s alternate route to liability, based on fraud vitiating consent, is inconsistent with her finding that the complainant did not consent to intercourse without a condom, and undermines her finding that non-consent was proven beyond a reasonable doubt.
[16] It is important in considering this ground of appeal to bear in mind the facts found by the trial judge in relation to condom use and consent. In finding that the complainant did not consent to sexual intercourse without a condom, the trial judge stated:
It is clear from the complainant’s evidence that she was prepared to have sex with [the appellant] so long as he wore a condom and so long as he respected the rule “no means no”. In my view, sex without a condom is a qualitatively different act than sex with a condom and the complainant’s consent was withdrawn when [the appellant] penetrated her without a condom without her overt agreement. When a condom is used as a form of birth control or to prevent sexually transmitted infections, its use provides participants with a sense of security. The non-use of a condom against a participant’s wishes not only usurps that individual’s sexual autonomy and right to make decisions about how she/he/they engage in sexual activity, it is an activity against that person’s will, fraught with the gamut of emotions resulting from an assault. [Emphasis added.]
[17] We do not accept the appellant’s submission that the trial judge’s findings with respect to fraud vitiating consent undermine her factual finding that the complainant did not consent to sexual intercourse without a condom. Read in the context of the reasons as a whole, it is clear that the trial judge’s fraud analysis was an alternative basis for liability which responded to a perceived legal uncertainty about whether, where there is an issue about condom use in relation to a sexual act, the relevant sexual act for purposes of assessing whether non-consent has been proven beyond a reasonable doubt is “sexual intercourse” or “sexual intercourse without a condom”. This distinction arises from the different positions of the majority and concurring reasons in R. v. Hutchinson, [2014] 1 S.C.R. 346, on whether, in cases where a complainant was not aware that the defendant did not use a condom and she had asserted condom use as a condition of her (apparent) consent, the non-use of a condom should be considered within the analysis of proof of non-consent or in the analysis of whether consent was vitiated by fraud.
[18] In this case, in light of the facts clearly found by the trial judge – that the complainant knew the appellant did not wear a condom and expressed at the time of the intercourse that she was not consenting because he was not wearing a condom – the trial judge’s fraud analysis was superfluous. In other words, in this case, unlike Hutchinson, there was no mistake or lack of knowledge on the part of the complainant or non-disclosure by the appellant relating to condom use at the time of the intercourse. The trial judge found that the appellant said he was not wearing a condom, and the complainant expressed her non-consent, yet he proceeded to penetrate her with his penis.
[19] Although the fraud analysis engaged in by the trial judge was unnecessary, the facts the trial judge relied on in her fraud analysis were not inconsistent with her primary finding that the complainant did not consent when the appellant said he was not going to wear a condom. This is clear from the trial judge’s conclusion on the issue of fraud vitiating consent:
In my view, [the appellant] led the complainant to believe he would wear a condom as he had previously agreed to do so and at the last minute he penetrated her without a condom telling her it would be ok. I find his failure to wear a condom increased the complainant’s risk of pregnancy and constitutes a significant risk of bodily harm as set out in Hutchinson. Her consent was therefore vitiated by this action. [Emphasis added.]
[20] In effect, the trial judge’s analysis of fraud vitiating consent rested on the appellant having engaged in a bait and switch – agreeing ahead of time to the complainant’s condition of condom use, and at the last minute, reneging and penetrating her without a condom.
[21] The trial judge clearly and consistently found as fact that the complainant had told the appellant ahead of time that condom use was a pre-condition of her consenting to intercourse, and that immediately prior to the intercourse taking place, when the appellant told the complainant he was not going to wear a condom, she repeated her insistence that he wear a condom and did not consent to intercourse without a condom. The trial judge rejected the appellant’s evidence that the complainant agreed to intercourse without a condom. While it was not necessary for the trial judge to continue on to consider whether consent was vitiated by fraud, we are satisfied that her analysis of the fraud issue did not rest on factual findings that were inconsistent with her primary finding that the complainant’s non-consent was proven beyond a reasonable doubt.
[22] The appellant’s third ground of appeal is that the trial judge erred in finding that the complainant’s credibility was supported by the fact that she attended at a hospital for a sexual assault examination the day after the sexual contact with the appellant. The appellant submits that this is analogous to finding that a complainant is more credible because they pursue criminal charges, a line of reasoning which is impermissible because it risks undermining the presumption of innocence and the burden of proof on the Crown: see R. v. G.R.A. (1994), 35 C.R. (4th) 340 (Ont. C.A.), at para. 4; R. v. J.C., 2021 ONCA 131, 401 C.C.C. (3d) 433, at para. 88.
[23] We reject this submission. The trial judge did not reason that the fact that the complainant pursued charges made her evidence more credible. Rather, she found that the complainant’s attendance at hospital the next day, which included pregnancy and STI tests, was consistent with her evidence that she used condoms as a form of birth control and that she insisted on condoms for sexual intercourse (evidence which was also corroborated by the text messages between the complainant and the appellant). The appellant also contends that the complainant did not expressly say she went to the hospital for STI and pregnancy testing, but went because she believed she had been sexually assaulted. In our view, the complainant’s evidence as a whole leaves open the inference drawn by the trial judge.
[24] The appeal is dismissed.
“K. van Rensburg J.A.” “G. Pardu J.A.” “J. Copeland J.A.”
Footnote
[1] The complainant also testified that after the first intercourse, the appellant forced her to perform oral sex on him without her consent, and engaged in a second non-consensual act of intercourse with her. The appellant denied that there was a second act of intercourse, and said the oral sex occurred prior to the sexual intercourse. The trial judge stated that she “did not disbelieve” the complainant about the other two sex acts. She found that after the first intercourse, events “probably unfolded” as the complainant described, but she was not satisfied beyond a reasonable doubt in relation to the allegation of non-consensual oral sex and the second act of intercourse.