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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

Court of Appeal for Ontario

Date: 20221028 Docket: C69212

Doherty, Hoy and Paciocco JJ.A.

Between:

His Majesty the King Respondent

and

B.C. Appellant

Counsel: Colleen McKeown, for the appellant Rebecca Schwartz, for the respondent

Heard: October 26, 2022

On appeal from the conviction entered on April 23, 2020 by Justice Brenda M. Green of the Ontario Court of Justice.

Reasons for Decision

[1] B.C. was convicted of sexually assaulting his then girlfriend after a night of drinking. When they left the bar together, the complainant was intoxicated and feeling ill. Upon arriving at their apartment, she laid on the bed with a pail placed beside her. B.C. laid next to her, and they lay silently, cuddling, for 5 to 10 minutes. The parties agree that intercourse subsequently occurred both before and after the complainant vomited into the pail. The live issues at trial were whether the complainant had consented, and if not, whether B.C. is entitled to the defence of honest, mistaken belief in communicated consent both before and after she threw up.

[2] B.C. appeals his conviction. One of the errors he alleges relates to the trial judge’s finding that the complainant had not consented. He argues that the trial judge failed to consider the entirety of the evidence when assessing the credibility of the complainant’s testimony that, subjectively, she had not consented. In support of this submission, B.C. relies upon the order in which the trial judge approached the issues in the case, finding that the complainant had not consented before assessing B.C.’s evidence. He also contends that she “siloed” the evidence by excluding information from consideration.

[3] We are not persuaded by these submissions. The trial judge’s conclusion that the complainant did not consent is unassailable. She stated the law relating to the actus reus of consent correctly, found the complainant to be a “credible, thoughtful and cautious witness”, and identified compelling reasons arising from the evidence that she did accept that supported her finding of non-consent. Moreover, she was explicit that she arrived at her conclusion that the complainant fell asleep before the sexual intercourse began “after reviewing the whole of the evidence”. We see no basis for concluding that the trial judge, clearly cognizant that evidence must be reviewed as a whole, failed to do so and “siloed” the evidence when going on to find that the complainant did not consent to sexual activity after she awoke.

[4] We are unpersuaded that the trial judge’s order of analysis shows otherwise, particularly given that the trial judge provided an overview of B.C.’s evidence in the narrative that preceded her finding of non-consent. None of the findings the trial judge expressed later in her reasons compromise the trial judge’s non-consent finding. She was not obliged to address any of this evidence explicitly in articulating her non-consent finding.

[5] We therefore dismiss this ground of appeal.

[6] The balance of the alleged errors that B.C. relies upon in this appeal relate to the manner in which the trial judge resolved contested facts, and to the manner in which she determined whether B.C. honestly believed that the complainant had communicated consent. Specifically, B.C. argues that the trial judge erred: (1) in her application of the burden of proof by applying the ultimate standard of proof beyond a reasonable doubt to individual items of evidence, thereby failing to consider the evidence as a whole, and failing to consider whether evidence that is not accepted can contribute to or raise a reasonable doubt; (2) by mistakenly requiring the accused to meet an evidentiary burden of raising a reasonable doubt about honest and mistaken belief in communicated consent; and (3) by relying on a partial and inadmissible statement made by B.C. in his testimony to find that B.C. believed that she was consenting on this occasion because she had consented before.

[7] We need not decide whether there is merit to any of these grounds of appeal because none of the alleged errors can possibly have affected the verdict the trial judge arrived at. An honest but mistaken belief in communicated consent cannot succeed if there is no reasoned basis upon which to ground a reasonable doubt about whether the accused took reasonable steps to ascertain whether the complainant was consenting to the sexual activity in question. Here, the complainant was intoxicated, feeling ill and had retreated to her bed with a pail immediately beside her, and B.C. initiated the sexual activity. In this context, it would be difficult enough for B.C. to argue that his interpretation of the complainant’s body language constituted reasonable steps to ascertain whether she was communicating consent. But certainly, once she vomited, even on B.C.’s version of events any suggestion that he had taken reasonable steps was manifestly untenable. He based his belief that the complainant was communicating her consent on his claim that she shifted back into bed after vomiting and got “back in position” on her stomach with her knees under her chest. On any measure, much more was required of him to meet the reasonable steps requirement, even if fully consensual sex had been occurring beforehand. Simply put, any errors the trial judge may have made relating to the resolution of contested questions of fact, or the assessment of whether B.C. honestly believed the complainant consented, could have had no bearing on her finding that B.C. failed to take reasonable steps to ascertain whether the complainant had communicated consent. His belief in consent defence was therefore destined to fail.

[8] The appeal is dismissed.

“Doherty J.A.”

“Alexandra Hoy J.A.”

“David M. Paciocco J.A.”