WARNING

This appeal is subject to a mandatory publication ban under s. 276.3. This section of the Criminal Code provides:

276.3 (1) No person shall publish in any document, or broadcast or transmit in any way, any of the following:

(a) the contents of an application made under section 276.1;

(b) any evidence taken, the information given and the representations made at an application under section 276.1 or at a hearing under section 276.2;

(c) the decision of a judge or justice under subsection 276.1(4), unless the judge or justice, after taking into account the complain­ant’s right of privacy and the interests of justice, orders that the decision may be published, broadcast or transmitted; and

(d) the determination made and the reasons provided under section 276.2, unless

(i) that determination is that evidence is admissible, or

(ii) the judge or justice, after taking into account the complainant’s right of privacy and the interests of justice, orders that the determination and reasons may be published, broadcast or transmitted.

(2) Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction.

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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: 20221013 DOCKET: C67516

Strathy C.J.O., Coroza and George JJ.A.

BETWEEN

His Majesty the King Respondent

and

O.F. Appellant

Counsel: Paul Calarco, for the appellant Nicolas de Montigny, for the respondent

Heard: March 16, 2022 by video conference

On appeal from the conviction entered by Justice Kim A. Carpenter-Gunn of the Superior Court of Justice on December 21, 2018, and the sentence imposed on May 7, 2019.

Coroza J.A.:

I. OVERVIEW [1]

[1] The appellant, O.F., was convicted of sexually assaulting his girlfriend’s 18-year-old daughter contrary to s. 271 of the Criminal Code, R.S.C. 1985, c. C-46. The appellant’s position at trial was that the complainant had consented to the sexual activity, or in the alternative, that he had an honest but mistaken belief in consent. He brought an application pursuant to s. 276 of the Criminal Code seeking to admit evidence that on several occasions before the incident, and during his relationship with her mother, the complainant flirted and made physical contact that suggested she was sexually interested in him. The appellant claimed this evidence was necessary because it would “speak to the reasonableness of the [appellant’s] perception of events” during the sexual activities in question. The trial judge ruled that this evidence was inadmissible. The trial proceeded and the Crown tendered the evidence of the complainant and her mother. The appellant did not testify.

[2] In her reasons for convicting the appellant, the trial judge found that the complainant had not consented to the sexual activity. She also found that any consent would have been vitiated because the appellant, the boyfriend of her mother, induced the complainant by abusing a position of trust per s. 273.1(2)(c) of the Criminal Code. The trial judge also rejected the appellant’s claim that he had an honest but mistaken belief in consent. The trial judge sentenced the appellant to 15-months incarceration.

[3] The appellant appeals against his conviction and seeks a new trial. He raises three issues. First, the appellant seeks to tender fresh evidence consisting of social media chats and postings and TikTok videos that he claims are statements by the complainant that the appellant had done nothing wrong and that the allegations were fabricated.

[4] Second, the appellant submits that the trial judge erred in dismissing his s. 276 application. He repeats the same arguments made at trial – that the prior sexual activity provided context and narrative to the relationship between the complainant and the appellant, and that it was relevant to several issues including consent, honest but mistaken belief in consent, and whether the complainant’s consent was vitiated.

[5] Third, the appellant argues that the trial judge erred in finding that the appellant occupied a position of trust and that the complainant’s consent was vitiated because he had induced the complainant into sexual activity by abusing that position of trust.

[6] If his conviction appeal fails, the appellant seeks leave to appeal his sentence. He argues that the trial judge erred in sentencing him to a custodial sentence of 15 months. He argues that the trial judge erred in finding that the appellant occupied a significant position of trust. He submits that an appropriate custodial sentence should not exceed six months.

[7] I would dismiss the appellant’s appeal from his conviction. I am of the view that the proposed fresh evidence does not meet the test for admissibility. Nor do I accept the submission that the trial judge erred in dismissing the s. 276 application. The prior sexual activity was not relevant as context or narrative, or to any issue at trial. Finally, it is not necessary to address the appellant’s argument relating to the trial judge’s finding that any consent would have been vitiated by an abuse of a position of trust. That is because I see no basis to interfere with the trial judge’s finding that the complainant did not factually consent to the sexual activity in question. It is only if subjective consent exists, or if there is a reasonable doubt as to subjective consent, does a trier of fact need to go on and ask whether that consent was vitiated: see R. v. G.F., 2021 SCC 20, 404 C.C.C. (3d) 1, at para. 53. Therefore, the trial judge’s finding that the complainant did not factually consent is dispositive of the appellant’s argument relating to s. 273.1(2)(c).

[8] While I would grant leave to appeal his sentence, I would dismiss the appeal. The trial judge’s balancing of the aggravating and mitigating factors is owed deference and the sentence she imposed is fit.

II. BACKGROUND FACTS

(a) The Relationship Between the Appellant and the Complainant’s Mother

[9] The appellant and the complainant’s mother were in a sexual relationship during two time periods. First, they were in a brief relationship for approximately one month when the complainant was 12 years old. Then, they resumed their relationship for a couple of months when she was 18 years old.

[10] During their first relationship, the complainant lived with her biological father and only visited her mother on weekends. The complainant’s mother testified that the complainant knew that she and the appellant were having a sexual relationship during this time, as “she didn’t hide things from the kid”. The complainant had met the appellant “a few times” while visiting her mother. However, their interactions were limited as the complainant would “do her own thing”.

[11] The complainant’s mother and the appellant resumed their relationship when the complainant was 18 years old. Throughout this second relationship, the complainant was living at her mother’s house with both her mother and grandmother. The complainant’s cousin, T.Y., and the cousin’s husband, J.R., resided in the basement of her mother’s home. After the second relationship between the appellant and the complainant’s mother ended, the appellant formed a romantic relationship with the complainant’s cousin, T.Y.

[12] During the second relationship between the complainant’s mother and the appellant, the complainant saw the appellant “quite frequently” as he would occasionally spend the night at her mother’s house. Her mother’s evidence was that the complainant viewed the appellant “kind of like a step-dad” at this time and that she had often heard the appellant refer to the complainant as his daughter and the complainant refer to the appellant as her father.

[13] The complainant’s mother said that the appellant and her daughter would go to the reserve together, but was not otherwise aware of them ever being alone.

(b) The Sexual Activity

[14] The sexual activity took place during the second relationship between the appellant and the complainant’s mother. The appellant was in his early 30’s. The complainant was 18 years old.

[15] The appellant and the complainant went to a reserve to purchase cigarettes with two of the appellant’s friends. After dropping off his friends, the appellant drove to a parking lot near a bridge. The appellant parked the vehicle and “chilled a bit” with the complainant, who was seated in the passenger seat beside him.

[16] According to the complainant, the appellant then told her to give him a hand job. The complainant complied but did not say anything. When she stopped, the appellant told her to perform oral sex on him. Again, the complainant complied but did not say anything. The appellant held the complainant’s head down while she performed oral sex on him. He then undid her pants and pulled them down before digitally penetrating her. The complainant assisted the appellant in pulling her pants down.

[17] The complainant asked the appellant to stop but he continued. She then asked him to stop again, and he complied. At trial, the complainant agreed that it was possible that the appellant did not hear her ask him to stop the first time, and that he stopped right away when she asked him to stop the second time. Before leaving the parking lot, the appellant told the complainant not to tell her mother what happened.

[18] The complainant testified that she was “not okay” with performing these sexual acts and that she only acquiesced because she was scared. At trial, she described feeling uncomfortable throughout the sexual activity and wanting to go home. She stated that the appellant did not use violence or force during the encounter.

[19] About a month after the appellant and the complainant’s mother ended their relationship, J.R. provided information to the complainant’s mother that gave her concern that the appellant may have been sexually active with her daughter. That same day, she spoke with the complainant and asked whether the appellant had ever done anything sexual to her. The complainant then told her mother about the sexual activity that took place in the appellant’s car. They reported the incident at the police station the following day.

(c) The Complainant

[20] At the time of trial, the complainant was 21 years old. However, her mother testified that she was not “mentally 21 years of age” and that she had “special needs”. The appellant was aware that the complainant had some degree of special needs.

[21] The complainant’s mother explained that the complainant had difficulty reading and writing, as she could “read little words but not big words” and that she had not yet graduated high school. In addition, she said that her daughter could not differentiate between coins and paper currency, and that she continued to assist her daughter with banking and how to spend her money. The complainant’s mother also testified that she had to assist her daughter with routine personal activities, such as reminding her to shower.

[22] The complainant was diagnosed with ADHD when she was around five years old and received the same diagnosis at the time of trial. She had managed her ADHD symptoms with medication at various times in her life, but was not on medication at the time the sexual activity took place.

[23] At the time of trial, the complainant was not employed, and she relied on the Ontario Disability Support Program. She was working to complete her high school education and was on track to graduate.

(d) The Trial Judge’s Reasons

[24] The trial judge found the complainant to be a credible and reliable witness. She accepted, on the totality of the evidence, that the complainant did not factually consent to the sexual activity in the car. She further found that no consent could have been obtained pursuant to s. 273.1(2)(c) as the appellant induced the complainant to engage in the sexual activity by abusing his position of trust towards her. Finally, the trial judge held that the appellant was statutorily barred from invoking the defence of honest but mistaken belief in consent because he failed to take reasonable steps to ascertain the complainant's consent as required by s. 273.2(b) of the Criminal Code. The trial judge found the appellant had taken his girlfriend's 18-year-old daughter with special needs to an unfamiliar location in a parking lot and asked her for a hand job and oral sex while alone in his vehicle. This was the first time that they were alone together. The fact that the appellant may have honestly believed that the complainant was consenting is not enough. He was required to take reasonable steps to ascertain whether she was consenting to the sexual activity at the time it occurred. In the absence of these steps, she explained, the appellant could not rely on the defence of honest but mistaken belief in consent.

[25] Based on the foregoing, the trial judge was satisfied that the Crown had proven all of the essential elements of sexual assault beyond a reasonable doubt and that the appellant could not avail himself of any defence. Accordingly, the matter proceeded to sentencing.

[26] The trial judge imposed a 15-month custodial sentence with three years’ probation and ancillary orders. The trial judge found, as aggravating factors, that the appellant abused his position of trust and that the complainant was a vulnerable person.

III. ISSUES ON APPEAL

[27] The appellant raises the following issues on this appeal:

1. Is the proposed fresh evidence admissible?
2. Did the trial judge err in determining that the evidence of prior sexual activity was inadmissible under s. 276 of the Criminal Code?
3. Did the trial judge err in finding that the complainant’s consent was vitiated because it was induced by reason of an abuse of a position of trust, power, or authority per s. 273.1(2)(c) of the Criminal Code?
4. Did the trial judge err in sentencing the appellant to a 15-month term of imprisonment?

IV. ANALYSIS

ISSUE 1: Is the proposed fresh evidence admissible?

[28] I will briefly deal with the appellant’s application to introduce fresh evidence.

[29] The appellant was released on bail pending appeal in October 2019. Shortly thereafter, T.Y., (the appellant’s current partner) received unsolicited messages from a third party containing an online conversation between an unknown third party and the complainant, as well as social media postings (including TikTok videos) appearing to originate from the complainant’s accounts. The appellant claims that the conversations with the third party contain statements by the complainant suggesting that the appellant “did nothing wrong” and that the postings display that the complainant has a deep animus towards the appellant and T.Y.

[30] In response, if the appellant’s fresh evidence is admitted, the Crown seeks to tender its own fresh evidence consisting of the complainant’s affidavit in which she denies authoring the messages and postings attributed to her, and a police report contemporaneous to the time of these postings in which the complainant alleges that her Facebook account had been hacked. The complainant was not cross-examined on her affidavit.

[31] The admission of fresh evidence on appeal is governed by s. 683 of the Criminal Code. This court may admit evidence that was not adduced at trial if the following criteria are met:

• The evidence is admissible under the operative rules of evidence [admissibility].
• The evidence is sufficiently cogent in that it could reasonably be expected to have affected the verdict [cogency].
• If the first two criteria are met, is there an explanation offered for the failure to adduce the evidence at trial and does that explanation affect the admissibility of the evidence? [due diligence]: see Re Truscott, 2007 ONCA 575, 225 CCC (3d) 321, at para. 92.

[32] In this case, I agree with the Crown that the fresh evidence has not met the cogency requirement. Whether the proposed evidence satisfies the cogency requirement depends on three factors:

• whether this evidence is relevant to a potentially decisive issue,
• whether the evidence is credible in that it is reasonably capable of belief, and
• whether the evidence is sufficiently probative that it could reasonably be expected to have affected the result.

The cogency inquiry requires a qualitative assessment of the proposed evidence: Re Truscott, at paras. 99-100.

[33] I do not take issue with the submission that the complainant’s statement to the third party that the appellant “did nothing wrong” could be relevant to a potentially decisive issue.

[34] However, the fundamental problem with this evidence is that it is not sufficiently credible to satisfy the requirement of being reasonably capable of belief. The evidence is hearsay, and the complainant has not adopted the conversation. Indeed, the Crown sought to tender evidence that she reported to the police on October 14, 2019, that her social media accounts have been hacked.

[35] The appellant has the onus of demonstrating that this evidence is cogent. The absence of any examination of the complainant on her denial leaves this court in a difficult position to determine whether this evidence is capable of belief. The Crown submits that the complainant’s position is that the conversations and postings are not authentic. As I see it, the record tendered by the appellant does not provide this court with any basis to find that these conversations with an unknown third party are admissible.

[36] Clearly, there were avenues available to the appellant’s counsel. Section 683(1) of the Criminal Code allows this court to order a witness to be examined and to admit such testimony into evidence. Counsel did not avail himself of these avenues, but instead relied on a police interview of the complainant. That interview does not, however, assist the appellant in satisfying his onus.

[37] Nor do the alleged postings and TikTok videos that allegedly display the complainant’s animus towards T.Y. satisfy the cogency requirement.

[38] Even if these postings are capable of belief, the connection to this case is remote and they cannot be said to be sufficiently probative that they could have affected the result. While the complainant may have displayed an animus to the appellant, the timing of the videos and postings is also consistent with having been sexually assaulted. The trial judge found the complainant credible and reliable and accepted what the complainant said happened in the car. In my view, assuming that this evidence is capable of belief, post-verdict expressions of animus towards the appellant would not be surprising. Consequently, I see nothing in the postings that could have affected the result.

[39] Accordingly, I would not admit the fresh evidence. I now turn to the conviction appeal.

ISSUE 2: Did the trial judge err in determining that the evidence of prior sexual activity was inadmissible under s. 276 of the Criminal Code?

[40] As noted above, the appellant brought an application pursuant to s. 276 of the Criminal Code in which he sought to adduce evidence of prior sexual activity that he claimed took place between himself and the complainant. In his materials filed before the trial judge, the appellant attested that during his second relationship with her mother, the complainant would flirt with him and initiate physical contact with him that was suggestive of sexual interest. The appellant’s position at trial was that excluding this evidence would “interrupt the narrative” in relation to the complainant's consent and the appellant's honest but mistaken belief in her consent.

[41] On appeal, the appellant makes two submissions. First, the appellant argues that the trial judge erred in mischaracterizing the position of the defence on the s. 276 application. Second, he submits that the trial judge’s analysis is flawed because she improperly held that because the prior sexual activity was so different than the incident in the car that it could not be relevant to the issues.

[42] I start with the appropriate standard of review. The determination of whether sexual activity evidence is admissible under s. 276 is a question of law that is subject to review by this court on a standard of correctness: R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3, at para. 101. In my view, the trial judge correctly dismissed the application.

[43] Section 276 of the Criminal Code precludes the admission of sexual history evidence relating to the complainant where its admission would serve the purpose of drawing one of the twin-myth inferences. Put otherwise, evidence of a complainant’s sexual history will be inadmissible where it advances either the inference that the complainant was more likely to have consented to the sexual activity at issue or the inference that the complainant is less worthy of belief: Goldfinch, at para. 105.

(a) No Mischaracterization of the Position of the Defence.

[44] The appellant points to specific passages in the trial judge’s reasons where the trial judge described the appellant’s position to be that since there was prior sexual activity between the appellant and the complainant, it made it more likely that the complainant consented to the sexual activity in the car.

[45] The appellant submits that this is a significant misapprehension of the appellant’s argument. Instead, his position before the trial judge was that the prior sexual activity was admissible because it would ensure that the sexual activity in the car was not taken out of context. He argued that there was a development of the relationship between the appellant and the complainant and that it was the complainant who initiated the sexual activity on prior occasions.

[46] The record does not support the appellant’s claim that the trial judge misunderstood his position. In her reasons, the trial judge noted that the appellant “asserts that if he is not allowed to ask the question about prior behaviour between he and the complainant, then the evidence would be out of context”. Later in her reasons, the trial judge described the defence position as a submission that the “nature of their relationship leading to the sexual incident in the applicant’s car will speak to the reasonableness of the applicant’s perception of the events”. Finally, the trial judge accurately summarized the appellant’s position during an exchange with counsel during the hearing. She put the defence position this way:

[T]he issue that seems to be at the nub of this specific case is the consent and/or honest mistake and [sic] belief in consent, and the defence position is because these other things happened at an earlier point in time, that if you don’t allow those discrete questions about she says how, how she greeted the accused, whether there was any kissing, whether – sitting on the lap, that if that’s not allowed, the defence view is that that interrupts the narrative in terms of the issue of consent and the honest mistake and [sic] belief consent. I think that’s the position of the defence. [Emphasis added.]

[47] There is no merit to the position that the trial judge misconstrued the appellant’s argument. I would not give effect to this ground of appeal.

(b) The Trial Judge’s Finding that the Prior Sexual Activity was Different

[48] The appellant also argues that the trial judge erred in finding that the prior sexual activity – flirting and physical touching initiated by the complainant – was so different than the sexual activity in question (oral sex and digital penetration), that it could not be relevant to the issues and was therefore inadmissible.

[49] As I read her reasons, it is evident that the trial judge was responding to the Crown’s submission made at trial that because the type of conduct alleged was so dissimilar to the sexual activity forming the subject matter of the charge, it was not significantly probative and did not substantially outweigh the prejudicial effect of the evidence. Arguably, these impugned passages may have been the trial judge’s attempt to explain that the strength of the inferences that could be drawn from the prior sexual activity was weak and the evidence did not have significant probative value: R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443, at para. 41.

[50] Read in isolation, the trial judge’s comments are problematic. After all, depending on the circumstances, flirting and forms of physical contact could have significant probative value. However, when her reasons are read as a whole, it is clear the trial judge did not simply dismiss the application because the prior sexual activity was different. Instead, she dismissed the application because the prior sexual history evidence was not admissible as narrative or context, and she found that the dissimilarity of the prior sexual activity made the evidence irrelevant to any issue raised at trial.

[51] In Goldfinch, Karakatsanis J. clarified that evidence of a complainant’s sexual history is not admissible merely to establish “context”. Sexual evidence of a generalized nature risks invoking the line of twin-myth reasoning that because the complainant had previously consented to sexual activity in the past (the “context”), she was more likely to have consented to the sexual activity at issue: Goldfinch, at para. 119.

[52] Evidence of a complainant’s sexual history will only be admissible where the accused demonstrates that the evidence relates to a legitimate aspect of his defence and is integral to his ability to make full answer and defence: Goldfinch, at para. 83. To do so, the accused must be able to identify specific evidence that is relevant to an issue at trial and has significant probative value that is not substantially outweighed by prejudice to the proper administration of justice: s. 276(2) of the Criminal Code. There must be an explicit link between the evidence sought to be tendered and specific facts or issues relating to the accused’s defence: Goldfinch, at para. 119.

[53] Evidence is relevant if it has some tendency, as a matter of logic and human experience, to make the proposition of fact for which it is advanced slightly more likely than that proposition would be without that evidence. Bare assertions that evidence of a complainant’s extrinsic sexual activity is relevant to provide context for other evidence, to amplify the narrative or to impugn the complainant’s credibility, fall short of the standard required by s. 276(2)(b): see R. v. Sanclemente, 2021 ONCA 906, 408 C.C.C. (3d) 429, at para. 56.

[54] On this record, the appellant faced an uphill climb and could not succeed on the application by merely suggesting that the prior sexual history was admissible because it provided “context” or “narrative” to the incident. It was his onus to identify a specific, explicit link between the evidence or specific facts that was not merely helpful to the defence, but “fundamental to the coherence of the defence narrative”: Goldfinch, at paras. 66, 119. This he did not do.

[55] The trial judge also properly rejected the appellant's submissions that the evidence was relevant to the issue of the complainant's consent. Relying on Darrach, the trial judge noted that evidence of prior sexual activity would rarely be relevant to the issue of consent, as consent is determined subjectively from the complainant's perspective at the time the sexual acts in question occurred. The prior flirting and physical contact was not relevant to consent.

[56] Furthermore, I see no error in the trial judge’s rejection of the appellant's submission that the proposed evidence was relevant to the defence of honest but mistaken belief in consent. She observed that simply believing that an individual would have consented because they had consented to similar acts in the past was not enough to give an air of reality to the defence of honest but mistaken belief in consent.

[57] I do not see how the evidence was relevant to the appellant’s defence of honest but mistaken belief in consent. While evidence of a complainant’s extrinsic sexual activity may be relevant to a defence of honest but mistaken belief in communicated consent, that belief cannot simply rest upon evidence that the complainant appeared to welcome sexual activity in the past and this informed the appellant’s perception of the incident. Indeed, that would implicate twin-myth reasoning: Goldfinch, at para. 62.

[58] The trial judge had to assess the appellant’s submission in light of the evidence that the complainant did not communicate her consent but claimed that she was afraid when the appellant had asked her for “head”; that she had said no to the appellant; and that the appellant took no reasonable steps to ascertain consent.

[59] The appellant’s evidence on the voir dire fortifies the conclusion that he took no reasonable steps to ascertain if the complainant was consenting. The appellant testified that it was the complainant who had initiated sexual activity in the car. He testified that he “wasn’t the one who planned on what was going on” and he just “went along with it”. This evidence contradicts any assertion of taking reasonable steps to ascertain consent.

[60] In sum, this ground of appeal fails because the appellant did not establish with any specificity how the evidence of prior sexual activity was relevant to his defence of honest but mistaken belief in consent. In my view, contrary to the appellant’s submission, his claim to relevance follows a path of prohibited twin-myth reasoning and the trial judge was correct to dismiss the application.

ISSUE 3: Did the trial judge err in finding that the complainant’s consent was vitiated because it was induced by reason of an abuse of a position of trust, power, or authority per s. 273.1(2)(c) of the Criminal Code?

[61] The appellant argues that the trial judge erred by finding that the appellant occupied a position of trust and accordingly, any consent would have been vitiated because of the application of s. 273.1(2)(c).

[62] At trial, the appellant argued that his relationship with the complainant’s mother was of limited duration and that the complainant did not depend on him as a guardian or parent. The trial judge rejected this position and found that the totality of the circumstances supported the finding that the appellant was in a position of trust with the complainant and that he had induced consent by abusing that position of trust. The trial judge determined that the appellant was in a position of trust notwithstanding that he was not living with the complainant and her mother and that he did not support them financially. In doing so, she explained that financial assistance or dependency, or lack thereof, was not determinative in assessing whether a relationship of trust existed.

[63] The appellant was in his early 30's while the complainant was only 18 years old. The appellant was in a relationship with the complainant's mother, and he regularly attended the complainant's home in the months leading to the incident. The complainant was vulnerable, and the appellant was aware that she had special needs. The complainant did not have a relationship with her biological father at the time the sexual activity took place. The complainant referred to the appellant as “daddy” and he referred to her as “his daughter”. Despite her biological father's absence, however, the complainant knew that the appellant was not her actual father and knew that he did not replace her father. Instead, her mother explained, she viewed the appellant as "kind of a step-dad”.

[64] In my view, it is not necessary to deal with this ground of appeal. That is because, the trial judge’s finding that the complainant did not factually consent is dispositive of the issue. [2] The trial judge found the complainant to be credible and reliable. The trial judge addressed the defence position that the complainant had embellished her evidence. She also grappled with the inconsistencies in the complainant’s evidence and resolved any major inconsistencies as being a product of the complainant’s age, level of education and the fact that she was not a sophisticated individual. There is no basis to interfere with her thorough assessment of the complainant’s evidence and her finding that the complainant did not subjectively consent.

[65] Only if subjective consent exists, or if there is a reasonable doubt as to subjective consent, does the trier of fact need to go on and ask whether that consent was vitiated: G.F., at para. 53. Consequently, it is not necessary to deal with the trial judge’s finding that consent had been vitiated and I should not be taken as necessarily agreeing with the trial judge’s analysis.

ISSUE 4: Did the trial judge err in sentencing the appellant to a 15-month term of imprisonment?

[66] The Crown and the defence had significantly divergent views on sentence. The Crown sought a term of imprisonment of two years less a day, while trial counsel for the appellant sought an intermittent sentence of 90 days. In support of this position, trial counsel argued that the case fell at the low end of the spectrum for a position of trust and noted that the complainant was not a child when the offence took place as she was 18 years old.

[67] Faced with sentencing submissions that were at “two polar opposite ends of the spectrum”, the trial judge sentenced the appellant to a term of imprisonment of 15 months, a probationary period of three years and various ancillary orders including that the appellant register under the Sex Offender Information Registration Act, S.C. 2004, c. 10, for 20 years.

[68] The trial judge held that a custodial sentence of 15 months was appropriate in the circumstances. She acknowledged that the appellant's criminal record was dated and that he had committed no further offences since the sexual assault. Nevertheless, the appellant induced the complainant to engage in sexual activity by abusing the position of trust he held. The complainant was a vulnerable individual and the appellant told her not to tell her mother about the sexual activity.

[69] I see no basis to disturb the trial judge’s careful weighing of the aggravating and mitigating factors.

[70] Although I need not address whether the appellant abused the position of trust to vitiate consent, it was open to the trial judge to find that the appellant did occupy a position of trust for the purposes of sentencing. In any event, even if the trial judge placed undue emphasis on whether the appellant occupied and abused a position of trust in relation to the complainant, the sentence was nevertheless fit. The complainant was an 18-year-old with some level of special needs, and the appellant, a man in his 30’s, was in a relationship with her mother. The 15-month sentence for a sexual assault on a vulnerable victim was within the acceptable range.

V. THIS HEARING WAS HELD IN CAMERA

[71] As an issue on this appeal concerned the regime under s. 276 of the Criminal Code (since amended), the Crown requested that submissions related to that ground of appeal be heard in camera. This was because, at trial, the s. 276 application was heard in camera, as is required by the Criminal Code: see s. 276.2(1) (now s. 278.94(1)). The evidence was ruled inadmissible, and the trial judge did not make an order permitting publication: see s. 276.3(1) (now s. 278.95(1)).

[72] The appellant did not necessarily oppose the request because he did “not wish any publicity in this matter”. However, the appellant submitted that, because the Criminal Code was silent on the power of a reviewing court to proceed in camera when considering these applications, this court did not have jurisdiction to do so.

[73] We respectfully disagreed and proceeded in camera with respect to the grounds of appeal that would disclose the contents of the appellant’s s. 276 application and the facts underlying it. Even assuming without deciding that s. 276.2(1) (now s. 278.94(1)) does not provide this court with the jurisdiction to proceed in camera, this court has the inherent jurisdiction to control its processes and thus, to proceed in camera.

[74] In this case, we exercised this jurisdiction in order to respect the nature of the proceeding under review – that is, a proceeding that had to be held in camera according to the Criminal Code and that resulted in an inadmissibility determination and no order permitting publication.

[75] These reasons were released only to the parties on October 4, 2022, because oral submissions had been made in camera and because s. 276.3 of the Criminal Code (now s. 278.95) imposes a publication ban in relation to the s. 276 application. Neither the appellant nor the Crown (who had also consulted the complainant) objected to the publication of these reasons. Taking into account the parties’ positions, the s. 486.4 publication ban that will continue to protect the complainant’s identity, and the importance of supporting the development of the jurisprudence in this area of the law, we have determined that it is in the interests of justice for this court to exercise its inherent jurisdiction and publish these reasons without redaction: R. v. N.H., 2021 ONCA 636, 158 O.R. (3d) 294.

VI. DISPOSITION

[76] For these reasons, I would dismiss the conviction appeal. While I would grant leave to appeal sentence, I would also dismiss the sentence appeal.

Released: October 13, 2022 “G.R.S.” “S. Coroza J.A.” “I agree. G.R. Strathy C.J.O.” “I agree. J. George J.A.”

Footnotes:

[1] As an issue on this appeal concerns the regime under s. 276 of the Criminal Code, by order of the panel, this appeal was heard in camera. After the trial, amendments to the Criminal Code were enacted and Parliament introduced ss. 278.92 to 278.94 into the Criminal Code, R.S.C. 1985, c. C-46, as amended by S.C. 2018, c. 29, ss. 21(1)-22. Consequently, the s. 276 regime was modified. For ease of reference and consistency, these reasons refer to the old regime that was in force at the time of the application.

[2] During oral submissions, counsel for the appellant fairly acknowledged that if the appellant failed on the ground of appeal relating to s. 276 it would be very difficult for the appellant to argue that this court should interfere with the factual finding of the judge that the complainant did not subjectively consent.