Publication Ban 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20220127 Docket: C68425

Paciocco, Nordheimer and Sossin JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

R.H. Appellant

Counsel: Mellington Godoy, for the appellant Jennifer Epstein, for the respondent

Heard: January 12, 2022 by video conference

On appeal from the convictions entered by Justice Kevin B. Phillips of the Superior Court of Justice on January 24, 2020.

Nordheimer J.A.:

[1] R.H. appeals from his conviction for sexual assault. He was also convicted of other offences including assault causing bodily harm, mischief, and uttering threats. However, his appeal is solely with respect to the sexual assault offence.

A. Background

[2] The facts underlying the offences are somewhat unusual. The appellant and the complainant were in a relationship. At the time of the offences, the appellant was using drugs, including crack cocaine, which caused him to have paranoid hallucinations. Uncontested testimony from the complainant established that these hallucinations led the appellant to believe that the complainant was having sexual intercourse with other men while the appellant was with the complainant.

[3] More specifically, the appellant would be lying in bed with the complainant and would become convinced that the complainant was, then and there, having intercourse with another man. In an effort to convince the appellant that this was not occurring, the complainant would allow the appellant to touch her vagina so that he would be assured that no act of intercourse was taking place.

[4] The complainant testified that it was not the physical act of the appellant touching her vagina that made her uncomfortable. Rather, it was the appellant’s accusations that she was being unfaithful that bothered her. The complainant was consistent, both during examination in chief and cross-examination, that she allowed the appellant to touch her and that she did not feel that she had been sexually assaulted. The complainant also said that every time she and the appellant had sex, it was consensual.

B. The Trial Judge’s Reasons

[5] With respect to the sexual assault offence, the trial judge concluded that the complainant’s agreement to permit the appellant to touch her sexually was invalid. He said that any consent in this context was “an illusion”. The trial judge based his conclusion on the history of violence in the relationship. More specifically, the trial judge said:

[R.H.] would’ve understood full well that he had a form of control over her; that he had injected so much violence into this relationship, that when his partner acquiesced to him investigating her vagina to satisfy himself that other men were not then presently engaged in sex or had not recently been, he was being allowed to do so because he had a form of power over the complainant, brought about by his violent treatment of her.

C. Analysis

[6] In my view, the trial judge erred in reaching the conclusion that he did. In so concluding, I do not mean to suggest that such a conclusion would not be open to a trial judge to reach on the particular facts of any given case. It may well be that a trial judge could conclude, even in the absence of specific threatening conduct attached to an act of sexual touching, that based on the totality of the evidence of the conduct between the parties, the voluntariness of a complainant’s subjective agreement to that act of sexual touching was vitiated by the control that the accused person exercised through violence and intimidation within their relationship. Put simply, if a complainant agrees to sexual touching because of an operating fear of past acts of violence, their subjective agreement to sexual activity will be vitiated.

[7] The problem that arises in this case is that neither counsel argued this route to a conviction. This case was not litigated as a vitiation of consent case. The contest was about the factual question of whether the complainant subjectively agreed to the charged sexual activity.

[8] The Crown’s position was that the complainant was a difficult and reluctant witness at trial who downplayed in her testimony the actions of the appellant towards her. The Crown sought to have the trial judge make his finding of fact relating to her subjective consent based on a statement the complainant gave to the police, that was ultimately admitted at trial under the principles from R. v. B. (K.G.), [1993] 1 S.C.R. 740 (the “KGB statement”). Unlike her evidence at trial that the touching was consensual, in her police statement the complainant said that the touching had upset her. She also said, in response to a leading question from the interviewing officer, that she had not wanted the touching to happen.

[9] The Crown argued that the complainant’s evidence, through the police statement, should be preferred to the complainant’s evidence at trial. The Crown continued by asserting that the fact that the complainant said, in her police statement, that the touching bothered her constituted a violation of the complainant’s sexual integrity. The Crown concluded by asserting that the fact that the complainant said at trial, and contrary to her police statement, that all of the touching was consensual, should be rejected and should not raise a reasonable doubt.

[10] In response, the defence argued that the complainant’s police statement was suspect because, at the time, the complainant had a motive to fabricate her allegations. This arose, in part, from the complainant’s concern for her children and the possible involvement of the Children’s Aid Society. The complainant was very concerned about the possible loss of her children. She wanted to deflect any concerns about what was going on in the relationship, as it impacted on the children and her ability to care for them, entirely onto the appellant.

[11] As a consequence, the defence argued that the complainant’s evidence from her police statement should be approached with caution and with scepticism. Notably, the defence did not make any specific submissions regarding the sexual assault offence, other than to say, in reliance on the complainant’s trial testimony, that the Crown failed to negate consent beyond a reasonable doubt.

[12] The trial judge, because of the inconsistent accounts provided by the complainant, was left in a reasonable doubt relating to whether she subjectively consented. This led him to move on to consider whether that consent had been vitiated.

[13] I have already set out the vitiated consent theory the trial judge used to convict the appellant of the sexual assault offence. This theory was never advanced by either of the parties, nor did the trial judge raise it with the parties. In convicting on this basis in these circumstances, he visited an unfairness on the appellant. That unfairness has two parts. One is that raising this issue for the first time after evidence and argument were completed did not allow for either counsel, but especially defence counsel, to make any submissions as to the validity of that theory, on the facts of the case. It did not permit counsel the opportunity to provide case authorities on the subject, nor did it permit counsel to refer to evidence that might impact on that theory.

[14] This latter concern leads to the second part of the unfairness. Not only was there no indication that this was a route that might be taken to a conviction on the sexual assault offence, as I will explain, the manner in which the Crown presented the case suggested it would not be. Defence counsel was therefore misled in terms of his conduct of the defence. It is almost certain that had it been known that this theory was a live route to conviction, the defence would have explored the issue with the complainant during the course of her cross-examination.

[15] This is not a fanciful or speculative concern in this case. In the course of the examination in chief of the complainant, Crown counsel addressed the sexual assault offence. In particular, the following exchange took place:

Q. So, do you remember whether it was otherwise in terms of your pants coming down, that’s [sic] it’s not simply you doing it, but whether he did it as well?

A. What I said for him, that if he thought that something was going on, to check. So, I did allow permission.

Q. Did he ever do it without your permission?

A. No. I don’t feel as if [R.H.] has ever sexually assaulted me.

[16] Those answers were helpful to the defence. However, Crown counsel left things there, without asking any questions relating to the integrity of the permission the complaint gave. In light of that exchange, and the absence of any indication in the KGB statement that the complainant was concerned about the risk of violence when the accused touched her sexually, it is understandable why defence counsel would not address voluntariness issues in his cross-examination. In particular, there would be no reason for defence counsel to engage with the complainant on the subject of whether her stated consent was actually no consent because of the nature of her relationship with the appellant and the history of violence. Simply put, Crown counsel had not gone there, so why would defence counsel do so? I would add, on this point, that because of the differences between the complainant’s police statement and her evidence at trial, Crown counsel had been permitted to cross-examine the complainant pursuant to s. 9(2) of the Canada Evidence Act, R.S.C., 1985, c. C-5.

[17] The parties do not dispute that the absence of consent is subjective and is to be determined by reference to the complainant’s subjective internal state of mind towards the touching, at the time it occurred: R. v. Ewanchuk, [1999] 1 S.C.R. 330, at para. 26. However, to be legally effective, consent must be freely given. At the risk of stating the obvious, the complainant will be the primary source of their subjective view of whether they gave consent. The complainant will also be the primary source for determining whether any apparent consent was freely given. However, the complainant’s view is not the end of the inquiry. For policy reasons, the law may render apparent consent as legally ineffective: R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at para. 34.

[18] All of these principles highlight the need for the issue of consent, and its legal effect, to be canvassed at the trial. This will be especially so where the legal effect of the subjective consent is a live issue. It was not in this case. Consequently, the issue was not canvassed by counsel, either in their questioning of the complainant or in their submissions at the conclusion of the trial. That reality renders the subsequent reliance by the trial judge on the lack of a legally effective consent, leading to a conviction for sexual assault, fundamentally unfair to the appellant.

[19] The Crown responds to these concerns by pointing out that the trier of fact is not confined to the Crown’s theory in determining liability. To quote the Crown’s factum: “A conviction may be based on an alternative theory of liability not advanced by the Crown so long as it falls within the wording of the indictment and is supported by the evidence”.

[20] While that is undoubtedly true as a general principle, its application is not without constraint. In particular, that principle does not address the corresponding principle of trial fairness. An accused person is entitled to know the case that they are being asked to meet. It is fundamentally unfair to convict an accused person on a theory of which they are entirely unaware, and to which they have not had the opportunity to respond. On this point, I note that in two of the cases that the Crown relied on for its principle that a conviction can rest on an alternative theory, both this court and the Supreme Court of Canada made it clear that the defence was aware of the alternative theory on which the convictions ultimately rested: R. v. Groot (1998), 41 O.R. (3d) 280 (C.A.), at para. 25, aff’d, [1999] 3 S.C.R. 664; R. v. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198, at para. 21. Consequently, there was no unfairness to the accused in those two cases.

[21] In contrast, this court concluded in R. v. Ranger (2003), 67 O.R. (3d) 1 (C.A.), that unfairness to the accused had occurred where the trial judge instructed the jury on a route to conviction that had not been advanced by the Crown and which the defence did not know would be available. Specifically, Charron J.A. said, at para. 162:

In these circumstances, it cannot be said that the appellant was not materially prejudiced by the trial judge's failure to notify counsel of his intention to charge the jury on this additional theory of liability before counsel's final address to the jury.

[22] This case was argued by both sides on the issue whether the complainant had consented to the sexual touching. It was not argued that the complainant was incapable of consenting because of the history of her relationship with the appellant. As a result, that issue was not explored by counsel during the course of the trial. For example, Crown counsel acknowledges in her factum that the complainant was never asked what she thought might happen if she denied the appellant the opportunity to inspect her vagina.

[23] As I have said, it is fundamentally unfair to convict an accused person on a basis of which they are unaware and which they have not had an opportunity to respond. It denies the accused person their constitutional right to make full answer and defence: R. v. Mills, [1999] 3 S.C.R. 668, at para. 69. At the very least, when the trial judge became aware that he might convict on that basis, he ought to have alerted counsel to that possibility and asked for their submissions. That did not happen.

[24] The appellant was prejudiced by the trial judge’s adoption of a route to conviction of which he was unaware. The appellant was denied trial fairness. The conviction on the count of sexual assault must be set aside.

D. Conclusion

[25] The appeal is allowed and the conviction for sexual assault (count #2) is set aside. A new trial is ordered on that count alone.

Released: January 27, 2022 “David M. Paciocco J.A.” “I.V.B. Nordheimer J.A.” “I agree. David M. Paciocco J.A.” “I agree. Sossin J.A.”