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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20221114 DOCKET: C69044

Gillese, Nordheimer and Sossin JJ.A.

BETWEEN

His Majesty the King Respondent

and

Gioacchino Jack Ricchio Appellant

Counsel: Chris Rudnicki, for the appellant Emily Bala, for the respondent

Heard: October 25, 2022

On appeal from the conviction entered by Justice Robert F. Goldstein of the Superior Court of Justice on December 10, 2020, with reasons reported at 2020 ONSC 7633.

REASONS FOR DECISION

[1] The appellant appeals his conviction for sexually assaulting the complainant contrary to s. 271(1) of the Criminal Code, R.S.C. 1985, c. C-46.

[2] The appellant argues that the trial judge erred by failing to consider the impact of possible inadvertent tainting on the complainant’s evidence, by rejecting the appellant’s testimony based on an unreasonable inference, and in refusing to consider the appellant’s mental disability in assessing his testimony.

[3] For the reasons that follow, we dismiss the appeal.

BACKGROUND

[4] On Saturday, March 10, 2018, the teenage complainant (“D.J.”) and her female friend (“A.S.”) met up with two older boys, the appellant and his friend (“I.B.”), in downtown Toronto. A.S. and I.B. had been romantically involved. The group consumed cannabis and later alcohol in the appellant’s car and decided to drive to a hotel in Etobicoke or Mississauga to continue drinking.

[5] D.J. testified that when the group stopped along the way, the appellant reached for his bag in the back seat and touched her leg on approximately three occasions. Each time, she moved her leg to the side and ignored him. The appellant testified that he and the complainant had been getting along well that night and had exchanged phone numbers, which he interpreted as her expressing interest in him.

[6] In the car, I.B. offered both young women pills of flubromazolam, a recreational benzodiazepine. The complainant took at least one pill but A.S. did not take any. The trial judge accepted the complainant’s evidence that she was already highly intoxicated by this point and could not remember any events of the night after she took the pill.

[7] When the group reached the hotel, the appellant booked a room and escorted D.J. inside. A.S. and I.B. remained in the car for approximately five minutes before following after them. There was a conflict between the evidence of A.S. and the appellant over the complainant’s level of intoxication and what happened in the hotel room. A.S. testified that the complainant was so intoxicated she did not know where she was, was falling over and laughing, and had to be escorted through the side door of the hotel. The appellant testified that the complainant was walking and speaking normally and that he took her in through the front door of the hotel.

[8] The appellant testified that in the hotel room, he and the complainant engaged in mutual kissing and petting on the bed before A.S. and I.B. arrived. This included touching her breasts, wetting his fingers with saliva, and touching her vagina through her underwear. He believed she was consenting as she was reciprocating the activity. After they were interrupted by the arrival of A.S. and I.B., the group listened to music, smoked cannabis, and continued drinking.

[9] According to A.S., when she entered the hotel room the appellant and the complainant went into the washroom. A.S. heard the complainant saying she did not want to have sex with the appellant. When the appellant came out of the washroom, he was pulling up his pants and fixing his chains. I.B. then went into the washroom with the complainant for some time until A.S. asked to use it. She found the complainant lying on the floor in her bra and underwear, giggling and asking what was going on and if the boys had sex with her. A.S. brought her out of the washroom and helped her dress.

[10] The appellant testified that around an hour after they arrived, the complainant said she was feeling sick and went into the washroom alone. I.B. then followed her inside. Sometime later, A.S. went after them. She and I.B. began arguing, and A.S. escorted the complainant, who was in her underwear, out of the bathroom. At this point, she was “pretty out of it” and “totally different” from her condition during the earlier kissing and petting. On the appellant’s account, he was never alone with the complainant in the washroom.

[11] Sometime after the complainant was dressed, the group left the hotel but stopped at a park because she said she was going to be sick. The complainant disappeared from a park bench and the boys drove off while A.S. went looking for her. A.S. found her at a nearby apartment complex and called 911.

[12] Police found the complainant leaning against the apartment entrance with A.S., unable to stand on her own, wearing a jacket and bra but no shirt, slurring her speech, and unaware of where she was. The officer called an ambulance. When paramedics arrived, she was incoherent, confused, still slurring, unable to answer basic questions, had a hard time walking and standing on her own, and had urinated on herself. She was taken to hospital.

[13] The next morning at the hospital, A.S. told D.J. that the appellant had sexually assaulted her in the washroom. A.S. insisted that I.B. had nothing to do with it and had even come to her rescue in the washroom.

[14] A.S. and D.J. each gave two statements to police. It eventually became clear that A.S. had lied to both her friend and police about the events of that evening in order to protect I.B. The complainant underwent a sexual assault examination kit which found the appellant’s saliva on her neck, cheek, and breast, and his bodily fluid in her underwear along with I.B.’s semen. The forensic analysis did not determine whether the appellant’s fluid was saliva or semen.

[15] Both the appellant and I.B. were charged with sexual assault of the complainant, to which I.B. pled guilty.

DECISION BELOW

[16] The trial judge convicted the appellant of sexual assault. He found there was no question that sexual activity took place between the appellant and complainant, given both the appellant’s testimony of some sexual contact and the presence of his DNA on the complainant’s body and underwear. The key issues concerned the events in the hotel room and the complainant’s level of intoxication.

[17] The trial judge rejected the appellant’s testimony and held it did not leave him with a reasonable doubt. The appellant’s memory was too convenient and suffered from various internal and external inconsistencies. The trial judge reasoned that if D.J. and the appellant had really exchanged contact information, she “surely” would have shared this fact with police after they asked her to “scour her phone” for information. “Most importantly”, the appellant’s testimony about the complainant’s capacity at the hotel was not believable on its face, given the intoxicants she had consumed and the appellant’s statement that not long after their admitted sexual touching, she was “out of it”.

[18] Though the trial judge agreed that he had to treat A.S.’s evidence with caution, he was satisfied she was telling the truth about the complainant’s level of intoxication in the hotel room and about the appellant going into the washroom alone with her. Parts of her account were also confirmed by external evidence.

[19] The trial judge found the complainant lacked the capacity to consent to sexual activity. He also accepted A.S.’s evidence that the complainant told the appellant she did not want to have sex with him. Even if he was wrong on that point, the appellant did not take any steps to determine if she was consenting despite her signs of intoxication. Accordingly, the defence of honest but mistaken belief in consent had no air of reality. Guilt was the only reasonable inference in this case.

ISSUES

[20] The issues on appeal can be framed as follows:

1. Did the trial judge err in failing to consider the impact of possible inadvertent tainting on the reliability of the complainant’s evidence about the events she did remember?

2. Did the trial judge err in rejecting the appellant’s testimony based on an unreasonable inference that was not grounded in the evidence?

3. Did the trial judge err in refusing to consider the appellant’s mental disability in assessing his testimony?

ANALYSIS

(1) The trial judge did not fail to consider possible inadvertent tainting of the complainant’s evidence

[21] Inadvertent tainting occurs where a witness’ testimony is influenced by hearing evidence from other witnesses. However, the fact that one witness has heard what another witness will say, or has discussed what another person’s recollections were, does not mean that either witness is not telling the truth or that their evidence has been tainted. Indeed, even where the evidence of one of the parties to the discussion is inadvertently affected by what another person has said, the account of that other person may not change: R. v. C.G., 2021 ONCA 809, 158 O.R. (3d) 721, at para. 32.

[22] In this case, the appellant contends that D.J.’s recollection of events from earlier in the evening was influenced by the story A.S. later told to her. The appellant states that she had been told, and believed, that by the time she arrived at the hotel, she was highly intoxicated. She had been told that she was taken into the bathroom and sexually assaulted by the appellant. She had been told that the assault only ended when I.B. pulled him off. She did not learn differently with respect to I.B.’s role until roughly six weeks after the hotel incident.

[23] According to the appellant, the trial judge was obliged to consider the effect that this tainting might have had on D.J.’s evidence and did not do so.

[24] As this court confirmed in R. v. E.M.M., 2021 ONCA 436, at para. 18, the fact that a trial judge’s reasons do not discuss the potential for inadvertent tainting does not mean the issue was not considered.

[25] In this case, it is clear that the trial judge was alive to the potential of inadvertent tainting. The defence argument at trial was that D.J.’s memory of the evening had to be considered in light of what she was told by A.S. The trial judge stated during closing submissions, however, that D.J. was “quite able to distinguish between what she remembers and what she was told.”

[26] We reject the appellant’s argument that the trial judge failed to consider possible inadvertent tainting.

(2) The trial judge did not reject the appellant’s testimony based on an unreasonable inference

[27] The trial judge found that the appellant was untruthful when he testified that he and the complainant exchanged phone numbers the night they met. The appellant submits that the trial judge erred in making the inference that D.J. searched her phone for the appellant’s contact information and did not find it.

[28] The appellant, under cross-examination, stated that his belief that D.J. was sexually interested in him was based on their exchange of phone numbers. The trial judge did not believe the appellant on this point. One of the reasons he gave was that there was no indication the complainant had a social media address or phone number for the appellant “and she surely would have provided it as the police asked her to scour her phone for information.”

[29] The Crown concedes there was no evidence at trial about whether or how the complainant searched her phone after her first statement as requested by police, and that the comment she “surely” would have provided the appellant’s contact information to police if it was in her phone was speculative.

[30] The Crown also concedes that the trial judge was mistaken on a separate point in his discussion of whether the complainant and the appellant exchanged phone numbers. He stated that, as of her second police statement, the complainant was aware that the appellant’s street name was “G.K.” It was A.S., not the complainant, who said this in her second statement.

[31] The Crown argues that notwithstanding these issues, the trial judge’s inference that the appellant and the complainant did not exchange phone numbers in the car was still reasonable. As the trial judge noted, the problem with the appellant’s account was that the complainant told the police in her first statement that she did not know the appellant’s identity. The trial judge also noted that D.J.’s phone died at some point early in the evening. He recognized that this did not eliminate the possibility that the appellant and the complainant exchanged phone numbers, but did cast doubt on the appellant’s account.

[32] The Crown also submits that this issue did not affect the verdict, as the trial judge relied on a number of factors in rejecting the appellant’s testimony, and this factor was expressly not the most important one.

[33] We agree.

[34] The trial judge’s speculative reference to what would surely have occurred if D.J. scoured her phone, and the mistaken reference to D.J. instead of A.S. regarding the second police statement, were harmless errors. They did not affect the trial judge’s rejection of the appellant’s evidence or the reasonableness of the trial judge’s inferences and findings on credibility, and had no bearing on the verdict.

(3) The trial judge did not err in refusing to consider the appellant’s mental disability

[35] The appellant argues that the trial judge refused to consider evidence that the appellant has an intellectual disability in assessing his credibility.

[36] According to the Crown, the trial judge did not refuse to consider such evidence. Defence counsel filed expert evidence about the accused’s mental disability on an application for testimonial accommodation, which was granted in part. She did not bring an application to have the evidence admitted at trial for the purpose of assessing credibility, despite the trial judge directly stating that she could do so.

[37] The Crown consented to the expert report for purposes of the application for testimonial accommodation and did not seek to cross-examine the expert. The Crown submitted that it reasonably expected that consent to extend only to the application for testimonial accommodations.

[38] The appellant’s trial counsel argued that the issues of testimonial accommodation and credibility generally were closely related. In particular, the appellant maintains that this evidence of intellectual disability may explain some of the appellant’s responses in his testimony about his lack of recollection that the trial judge referred to as “too convenient.” The trial judge declined to consider this evidence as part of his credibility and reliability findings.

[39] The Crown emphasizes that the trial judge did not reject the appellant’s evidence “solely or even largely because of problems with the details.”

[40] In our view, the trial judge dealt with the appellant’s evidence of an intellectual disability for purposes of testimonial accommodation appropriately. There is no basis for intervention with his decision not to consider this evidence as part of the assessment of the appellant’s credibility and reliability.

DISPOSITION

[41] For these reasons, the appeal is dismissed.

“E.E. Gillese J.A.”

“I.V.B. Nordheimer J.A.”

“L. Sossin J.A.”