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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

COURT OF APPEAL FOR ONTARIO

DATE: 20220819 DOCKET: C69575

Judges: Trotter, Harvison Young and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

N.P. Appellant

Counsel: Nicholas Hay, for the respondent Her Majesty the Queen Mark C. Halfyard, for the appellant N.P.

Heard: June 16, 2022

On appeal from the conviction entered by Madam Justice Célynne S. Dorval of the Ontario Court of Justice on April 22, 2021, and from the sentence imposed on July 14, 2021.

REASONS FOR DECISION

INTRODUCTION

[1] The appellant appeals his sexual assault conviction and his three-year sentence. He raises three grounds of appeal.

[2] First, he claims that the verdict was unreasonable. While both the complainant and the appellant testified, the trial judge convicted him of sexual assault on the basis of his testimony that there were two sexual incidents on the date in question, the second of which the trial judge found to be non-consensual. The appellant claims there was no direct evidence of the complainant’s state of mind at the time of the second incident, and that the circumstantial evidence of her state of mind at the time of the second incident was consistent with reasonable inferences other than his guilt.

[3] Second, the appellant claims that the trial judge erred in her analysis of the evidence under the framework set out in R. v. W.(D.), [1991] 1 S.C.R. 742. The appellant submits that the trial judge failed to consider whether the complainant’s evidence that there was only one sexual incident on the date in question, which the trial judge rejected, could have raised a reasonable doubt as to the appellant’s guilt.

[4] Third, the appellant claims that the three-year sentence for a first-time offender is disproportionate to his moral culpability, premised on the wrong sentencing range, and based on reasons that are erroneous and inordinately sparse.

[5] For the reasons that follow, we would allow the appeal from conviction on the second ground of appeal and order a new trial.

THE EVIDENCE

[6] The events in question took place on May 8, 2017, four months into the 22-month relationship between the appellant and the complainant. They agreed they had sexual intercourse on May 8, 2017. The contentious issue at trial was whether the intercourse was consensual.

[7] The appellant and the complainant also agreed on the following facts. The complainant was the appellant’s girlfriend. Their relationship was intense and volatile; they broke up and rekindled many times during their relationship. On the night in question, the appellant called the complainant to come over to his apartment. When she arrived, the appellant told her that things were not going well and that he wanted to break up with her. After talking about their feelings, they found themselves in bed in the appellant’s bedroom. A few weeks after the events of May 8, 2017, the relationship resumed for another 18 months.

[8] Apart from these facts, the appellant and the complainant gave conflicting accounts of what happened on the evening in question. In particular, they gave conflicting accounts of the sequence, the manner in which the sexual intercourse occurred, and the number of times sexual intercourse occurred.

The Appellant’s Evidence

[9] The appellant testified that there were two incidents of sexual intercourse on May 8, 2017.

The First Incident

[10] The appellant testified that he and the complainant were kissing on the couch in his apartment for about twenty minutes. The complainant then removed her shirt, and the two went to his bedroom. Once in the bedroom, they took off the rest of their clothes and got into the appellant’s bed. They continued kissing. For about five minutes she touched his penis, and he inserted his fingers into her vagina. He then got on top of her and inserted his penis into her vagina. The appellant testified that the complainant “seemed to be enjoying herself.”

[11] However, at one point during the course of vaginal intercourse, the complainant tilted her head to the left and let out a faint moan that he could not discern, but “sounded like a no,” whereupon he stopped having vaginal intercourse with her and asked her to repeat herself. The appellant said that the complainant told him “that she didn’t want to have sex if we weren’t going to be in a relationship.” He said that was “fine” but that he did not want to be “teased” by her.

The Second Incident

[12] The appellant testified that they remained in bed and talked about their relationship for about one hour. During that time, they kissed one another, and the complainant repeatedly touched his penis.

[13] The appellant testified that things then “naturally ramped up again,” and she performed oral sex on him for about five minutes. This ended the conversation. They resumed having vaginal intercourse. After about a minute of intercourse she looked at him and said, “I love you”. The appellant said that this caught him off guard and he did not reply. She looked uncomfortable and he stopped having sex with her. He said he went to the washroom for about five minutes and when he returned, she was gone.

The Complainant’s Evidence

[14] The complainant described only one incident of sexual intercourse on May 8, 2017. According to the complainant, the appellant invited her to his apartment and began telling her that he wanted to break off their relationship. She did not recall how the conversation went or where it took place, but said that at some point, they were in bed together and were discussing a breakup. They had a “sad but loving” conversation, and there was mutual kissing. The complainant said she removed her trousers and was only wearing a tank top, bra, and thong. She later acknowledged that she might also have removed her top. The appellant was naked.

[15] The complainant testified that she consented to kissing and at one point, she refused his request for oral sex. The appellant then said they should have “sex” one last time, but she refused. She said she did not want to have sex if they were not going to continue having a relationship.

[16] The complainant testified that he persisted in trying to have sex with her. He put his penis near her vagina and she moved her hips away five or six times. She testified that at one point, he was naked on top of her. He held her wrists over her head with one hand. He placed his other hand on her hip. He pushed aside her thong with his penis and had intercourse with her.

[17] The complainant said she said “no” and “stop” and started to cry. At this point, he got off her and said he could not climax with her crying. He went to the washroom. While he was gone, she got dressed and left his apartment.

[18] Importantly, in cross-examination, the complainant was confronted with the appellant’s testimony in which he said there were two incidents of sexual intercourse, separated by an hour. She was adamant that there was only one incident. She said, “We didn’t have sex for a second time. And, no, it wasn’t consensual.”

[19] After she left the appellant’s apartment, the complainant reported the incident to a friend who was a nurse. Her friend encouraged her to attend the hospital for a sexual assault examination. During her hospital examination, she mentioned that the appellant had his penis near her mouth. She reported the incident to police eighteen months later, when the appellant contacted her to request what he said was money she owed him.

THE TRIAL JUDGE’S REASONS

[20] At trial, the Crown submitted that it had proved that the complainant did not consent to the single alleged act of intercourse and that there was no room for the appellant’s defence of mistaken belief in consent. The appellant submitted that the complainant consented to all sexual activity that night and that he stopped when he was asked to. In the alternative, he submitted that, if the complainant was not consenting, he was honestly mistaken about her state of mind.

[21] The trial judge identified numerous shortcomings in the complainant’s evidence. She found that the complainant’s memory of the events was “lacking in many respects” which led her to conclude that the complainant’s evidence was “not entirely reliable.” The trial judge itemized her concerns in the following passage:

The complainant's lack of memory on certain issues involving the sexual activity, is, however, of concern. She denied touching his penis, but when asked whether she remembered this, she stated that she remembers feeling strongly that she didn’t want to do so, therefore she does not think she touched his penis and was fairly certain. This is not a recollection; it is retrospective reasoning as to what she thinks she would have done. When it was suggested that she gave him oral sex, she could not remember if it happened before the conversation about not having sex, but she testified that she was certain it had not happened after. Again, this seems to be retrospective thinking and not actual recollection. When asked for reasons for her lack of memory, she pointed out the passage of time and the possibility that she is blocking memories. She acknowledged that she told hospital staff that he had put his penis near her mouth but was unsure whether it had come in contact with her mouth. She could not recall when that had occurred but recalled telling him that she did not want to do that. If she recalls telling him 'no' to this sexual activity, why would she not remember if it happened before she told him she did not want to have sex? This inconsistency is on a significant issue. [Emphasis added.]

[22] The trial judge also found that, while the appellant’s evidence “lacked in credibility in some instances,” it raised “a reasonable doubt on the sequence and manner in which the sexual intercourse occurred.” The “sequence and manner in which the sexual intercourse took place” involved issues central to the allegation of sexual assault, including whether: (a) there were two incidents of sexual intercourse on the evening in question; (b) there was an interlude of over one hour after the first incident during which things allegedly “ramped up”, the parties had further discussion about remaining in a relationship, and they engaged in fondling; (c) there was an instance of oral sex performed by the complainant on the appellant before the second instance of sexual intercourse; and (d) there was physical force to restrain the complainant during sexual intercourse.

[23] The trial judge ultimately found that there were two incidents of sexual intercourse. She found that the appellant ceased penetrating the complainant during the first incident when he thought that she said “no”. However, the trial judge found the appellant guilty in relation to the second incident of intercourse, apparently based on what the complainant said during the first incident. The trial judge reasoned as follows:

Although I do not believe the entirety of the evidence of the accused on the allegation of sexual assault, his evidence, in the context of the entirety of the evidence does raise a reasonable doubt on the sequence and manner in which the sexual intercourse occurred. The defendant’s evidence raises a reasonable doubt with respect to the holding of the wrist of the complainant, and penetration by holding the hip. However, I accept that the complainant told the accused that she did not want to have intercourse with him as they were no longer in a relationship. The accused admitted that she did so. This is a clear statement as to lack of consent which is admitted by the defendant. The complainant had drawn a line between the intimate acts she was prepared to consent to and intercourse. The defendant believed he heard her say NO and that is the reason he stopped the intercourse initially. The evidence of the defendant as to what occurred after the initial penetration, does not raise a reasonable doubt on the issue of consent to the second penetration. The complainant's state of mind is the focus of the analysis on the issue of consent at this stage. I accept the complainant's evidence that she did not wish to have intercourse with the accused, The Crown has established her lack of consent and therefore the actus reus of sexual assault has been established. [Emphasis added.]

[24] The trial judge subsequently considered and rejected the appellant’s assertion of a mistaken belief in consent.

ANALYSIS

[25] We do not accept the appellant’s submission that the verdict was unreasonable. Although the trial judge identified numerous shortcomings in the complainant’s credibility, if accepted, her evidence was capable of providing a foundation for the appellant’s conviction for sexual assault.

[26] However, in our view, the trial judge did not analyze this evidence within the proper legal framework. In particular, the trial judge erred in her application of the principles in R. v. W.(D.). The trial judge adverted to these principles in the following passage:

I did not follow the usual three steps of analysis as recommended by the Supreme Court of Canada in R. v. W.(D.) in this case, as my findings of credibility of the defendant do not necessarily lead to the dismissal of the charges. I remain cognizant of the requirement to dismiss the charge if the evidence of the accused raises a reasonable doubt, and even if it does not, I must dismiss the charges if the evidence does not establish the elements of the offence beyond a reasonable doubt.

[27] Although there is no single method of giving effect to the principles in W.(D.), it is unclear why the trial judge declined to follow “the usual three steps of analysis” simply because the appellant’s evidence did not raise a reasonable doubt. This, in itself, was a curious conclusion given the trial judge’s finding that the appellant’s evidence did raise a reasonable doubt “on the sequence and manner in which the sexual intercourse occurred.” Nonetheless, the finding that the appellant’s evidence does not raise a reasonable doubt ought to have resulted in greater attention being paid to the second and third steps in W.(D.).

[28] The trial judge improperly limited her application of W.(D.) by failing to consider whether the complainant’s evidence could have raised a reasonable doubt. The trial judge accepted the appellant’s evidence that there were two instances of sexual intercourse. As noted above, the complainant was adamant that there was just one. And while the complainant’s evidence was obviously rejected by the trial judge, she never explained why she did so. More importantly, the trial judge never considered whether this evidence — on a critical issue — was or was not capable of raising a reasonable doubt with respect to the complainant’s assertion that she did not consent to what the appellant described as the second incident. The complainant’s denial that a second instance of intercourse occurred at all had direct bearing on the Crown’s ability to discharge its burden to prove lack of expressed consent during this specific incident beyond a reasonable doubt.

[29] The W.(D.) analysis is not restricted to the impact of the evidence of the accused; instead, it must embrace all of the evidence, including evidence tendered by the Crown, even when that evidence may contradict the appellant’s own narrative: R. v. Kirlew, 2017 ONCA 171, at paras. 17–19; R. v. Smith, 2020 ONCA 782, 69 C.R. (7th) 126, at paras. 12 and 26. In this case, the trial judge should have demonstrated that the complainant’s denial of the second incident was taken into account, but she did not do so: R. v. S.R., 2022 ONCA 192, 79 C.R. (7th) 162, at para. 28. This omission was particularly important in light of the many shortcomings the trial judge identified in the complainant’s account (see para. 21 above) and in light of her finding that the appellant’s evidence indeed raised a reasonable doubt on the sequence and manner in which the sexual intercourse occurred.

[30] This was no small detail – it was critical to the overall narrative of events of the evening. The trial judge had found in the appellant’s favour in relation to the first incident that he described. Having found that the second incident subsequently occurred, the trial judge was required to directly address the complainant’s denial of this incident and the potential impact that such denial may have had on the whether the Crown had discharged its burden on the issue of consent. The trial judge thus erred in her application of the second step of the W.(D.) analysis warranting a new trial.

[31] We would allow the appeal on this basis. In the circumstances, there is no need to address the sentence appeal.

DISPOSITION

[32] The appeal is allowed, the conviction set aside, and a new trial ordered.

“Gary Trotter J.A.”

“A. Harvison Young J.A.”

“J.A. Thorburn J.A.”