WARNING The chair of the committee hearing the appeal orders that the following order be appended to the record:

An order limiting publication in this proceeding under subsection 486.4 (1) , (2) , (2.1) , (2.2) , (3) or (4) or subsection 486.6 (1) or (2) of the Criminal Code is maintained. These provisions of the Criminal Code provide as follows:

486.4(1) Subject to subsection (2), a presiding judge or justice of the peace may make an order prohibiting the publication or dissemination in any manner of any information that would establish the identity of the victim or a witness in proceedings relating to,

(a) any of the following offences:

(i)an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347,

(ii)an offence under this Act, as it read immediately before the day on which this subparagraph comes into force, if the alleged act would constitute an offence under subparagraph (i) if committed on or after that date;

(b)two or more offences in the same proceedings, one of which is an offence referred to in paragraph (a).

(2) In proceedings relating to offences under paragraph (1)(a) or (b), the presiding judge or justice of the peace shall:

(a) notify witnesses under the age of eighteen and the victim of their right to apply for the order as soon as possible;

(b) to make the order if requested to do so by the prosecutor, the victim or one of those witnesses.

(2.1) Subject to subsection ( 2.2), the presiding judge or justice of the peace may make an order prohibiting the publication or dissemination in any manner of any information that would establish the identity of the victim under eighteen years of age in proceedings relating to any offence other than those referred to in subsection (1).

(2.2) In proceedings relating to any offence other than an offence referred to in subsection (1), the presiding judge or justice of the peace shall, if the victim is under eighteen years of age,

(a) promptly notify the victim of his or her right to apply for the order;

(b) make the order, if requested to do so by the prosecutor or the victim.

(3) In proceedings relating to an offence under section 163.1, the judge or justice of the peace shall make an order prohibiting the publication or dissemination in any manner whatsoever of any information that would establish the identity of a witness under eighteen years of age or of a person who is the subject of a representation, writing or recording that constitutes child pornography within the meaning of that section.

(4) Orders made under this section do not apply to the disclosure of information in the course of the administration of justice if the disclosure is not intended to inform the community.

486.6(1) Every person who contravenes an order made under subsection 486.4(1) to (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, the orders referred to in subsection (1) also prohibit the dissemination or publication in any manner whatsoever of any information that would establish the identity of the victim, witness or person involved in the justice system whom the order is intended to protect.

COURT OF APPEAL FOR ONTARIO DATE: 20230405 DOCKET: C69413

Roberts, Nordheimer and Thorburn JJ.A.

BETWEEN

His Majesty the King Respondent

and

Joseph Donnelly Appellant

Counsel: Uma Kancharla, for the appellant Kristen Pollock, for the respondent

Heard: March 13, 2023

On appeal from the conviction entered by Justice Kevin B. Phillips of the Superior Court of Justice on February 19, 2021.

Roberts J.A.:

A. Introduction

[1] The appellant was convicted of sexually assaulting the complainant because: 1) contrary to the terms of the complainant’s consent, he failed to wear a condom and had unprotected sexual intercourse with her; and 2) he penetrated her vaginally with a strap-on plastic dildo without her consent. This was his second trial. His first trial was overturned on appeal because of errors in the jury instructions and a new trial was ordered: R. v. Donnelly, 2018 ONCA 575. The appellant elected to have his second trial before a judge alone.

[2] At the end of the appellant’s submissions, the appeal was dismissed with reasons to follow. These are those reasons.

B. Factual Overview

[3] At the time of their meeting on May 18, 2012, unknown to the appellant, the complainant was 17 years old and had been coerced into the sex trade by others who were later convicted of human trafficking. The appellant was the complainant’s first client. She presented as 19 years of age. It was agreed that the complainant consented to engage in certain sexual acts with the appellant in exchange for $180, provided that he wore a condom.

[4] Their initial sexual intercourse was consensual. However, the appellant then asked the complainant if she was willing to let him have sexual intercourse with her using a plastic strap-on dildo. She said “No”. He persisted. She finally gave in, saying “Okay”. He then vaginally penetrated her with the strap-on dildo. After this, the appellant again engaged in sexual intercourse with the complainant, wearing a condom. However, he then removed his condom over the complainant’s objections and had rough unprotected sexual intercourse with her.

[5] The trial judge rejected the appellant’s denial of removing his condom or of using a strap-on plastic dildo, finding his testimony to be “constantly shifting, often inconsistent, and at times preposterous” and that he “shaded his evidence to cast himself in good light”. He found the complainant to have been “at all times a truthful witness.” He held that the complainant’s assertion of rough sexual intercourse was corroborated somewhat by the sexual assault examination kit (“SAEK”) nurse who detected tenderness on the complainant’s body consistent with having been subject to rough intercourse. He found that the forensic evidence that the appellant’s sperm was detected on the complainant’s external genitalia and that there was biological material on both the complainant’s upper inner thighs and over her pubic bone supported her account. However, he stated that the forensic evidence played only “a tiny role” in his analysis.

[6] In light of the complainant’s young age and vulnerability; the imbalance between them because they were in the appellant’s apartment and the appellant was twice the complainant’s age; and the complainant’s testimony that the appellant would not take no for an answer, the trial judge did not view the complainant’s “okay” as consent or acquiescence to the appellant’s use of the strap-on dildo, but rather as her submission to the inevitable. Further, he found that the appellant subjected the complainant to intercourse without a condom when condom use was a condition precedent to the consent she had provided. Accordingly, he found the appellant guilty of sexual assault.

C. Issues

[7] The appellant submits that the trial judge made several interrelated reversible errors. I would summarize them as follows:

i. The trial judge erred in his February 11, 2021 ruling arising out of the Crown’s further disclosure of additional forensic evidence. The appellant seeks to file fresh evidence on this issue concerning the added stress and anxiety he felt while he testified because of the additional forensic evidence.

ii. The trial judge erred in dismissing the appellant’s s. 11(b) Charter application to stay the charge based on a total delay he calculated as 32 months and 13 days of delay.

iii. The trial judge’s conduct gave rise to a reasonable apprehension of bias.

iv. The trial judge erred in his assessment of the evidence.

D. Analysis

(i) Did the trial judge err in his February 11, 2021 ruling arising out of the Crown’s further disclosure of additional forensic evidence?

[8] Prior to trial, the Crown had disclosed to the appellant the forensic evidence, that was ultimately called at trial, that his semen was found on the complainant’s external genitalia and biological material was found on her thighs and pubic bone. After the Crown’s three main witnesses had testified (the complainant, her mother and the SAEK nurse), on January 14, 2020, the appellant brought an application for a mistrial because of a late disclosed witness statement, seeking an adjournment in the alternative. The trial judge dismissed the mistrial application and granted the adjournment. [1]

[9] At the time of the adjournment, the appellant expressed an interest in having some of the SAEK samples tested by a private lab. Misunderstanding that the appellant wanted the Crown to have the further forensic testing completed, the Crown arranged for the testing to be done on an expedited basis so that the trial would not be delayed. On April 21, 2020, a new forensic report was delivered to the defence, followed on June 26, 2020 by two additional forensic reports, including an amendment of the April 21, 2020 report (“the additional forensic evidence”). The reports disclosed forensic evidence that detected the appellant’s semen on a swab from the complainant’s left inner thigh and on her underwear.

[10] The Crown’s disclosure of the additional forensic evidence formed the basis for the appellant’s second mistrial application. In the alternative, the appellant sought its exclusion. In his February 11, 2021 ruling, the trial judge denied the mistrial application and excluded the additional forensic evidence, finding that the probative value of the additional forensic evidence was lessened because the evidence was somewhat “redundant and repetitive” and that there was prejudicial effect particularly in respect of cross-examinations that had already taken place. He found that the risk of prejudice to the appellant could be properly dealt with by exclusion of the evidence as requested.

[11] The trial judge excluded the additional forensic evidence but with the caveat that the Crown was at liberty to renew its application to call this evidence in reply to the defence evidence, “should the circumstances change during this trial”. Specifically, he noted that “should the Defence call evidence, including testimony of the accused, that bears on my calculus relating to probative value versus prejudicial effect”, then this might affect his decision to permit the Crown to call the additional forensic evidence in reply “to the extent that the evidence he proffered runs inconsistent to other evidence.”

[12] The appellant testified at trial that he wore a condom at all times. The Crown renewed its application to call the additional forensic evidence in reply. Its application was dismissed by the trial judge in his ruling dated February 17, 2021 because he found that while the potential probative value of the evidence had increased, it was still outweighed by prejudice to the appellant.

[13] While the appellant argues that the further disclosure of the additional forensic evidence was so prejudicial that the trial judge should have declared a mistrial, the main focus of counsel’s oral submission on this issue was that the trial judge’s ruling that the Crown could renew its application to call this evidence in reply unnerved the appellant during his testimony, because he was afraid of saying something that would open the door for the Crown to call the evidence in reply. This, counsel submitted, impacted the appellant’s demeanour while testifying, and the trial judge thus made findings about his lack of credibility that may have been based on this anxiety, which led to trial unfairness. The appellant seeks to file fresh evidence that he felt “nervous and anxious while testifying.”

[14] I see no error in the trial judge’s February 11, 2021 ruling.

[15] It is well established that a mistrial is the remedy of last resort that should only be declared in the clearest of cases and where no remedy short of that relief will adequately redress the actual harm occasioned. The applicant bears the burden of demonstrating on a balance of probabilities that the right to make full answer and defence has been violated: R. v. Barra, 2021 ONCA 568, 157 O.R. (3d) 196, at paras. 138, 147; R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651, at paras. 20-21, 23.

[16] The court must consider whether other less drastic steps could remediate the issues that threaten trial fairness. The decision of whether to declare a mistrial falls within the discretion of the trial judge, who must assess whether there is a real danger that trial fairness has been compromised. Although the discretion is not absolute, the corrective measure chosen by the judge is subject to appellate deference: see e.g., R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at paras. 79-80; R. v. Toutissani, 2007 ONCA 773, at para. 9; R. v. Chiasson, 2009 ONCA 789, 258 O.A.C. 50, at para. 14. Appellate intervention is warranted only where there is material misdirection or the decision is so clearly wrong that an injustice has occurred: Bjelland, at para. 15.

[17] There was no basis here to declare a mistrial. The further forensic evidence was not materially more inculpatory than the forensic evidence relied upon by the Crown at trial, particularly since the existing forensic evidence already showed the appellant’s sperm on the complainant’s external genitalia. The trial judge’s granting of the adjournment, as alternatively requested by the appellant, was a reasonable means to address the issue. Appellate intervention is not warranted.

[18] Moreover, the trial judge made no error in stating the well-established rule that the Crown may be permitted to call evidence in reply after completion of the defence case where: 1) the defence has raised some new matter or defence with which the Crown had no opportunity to deal and that the Crown could not reasonably have anticipated; or 2) some matter that emerged during the Crown’s case has taken on added significance as a result of evidence adduced in the defence case: R. v. K.T., 2013 ONCA 257, 295 C.C.C. (3d) 283, at para. 43; R. v. R.D., 2014 ONCA 302, 120 O.R. (3d) 260, at para. 17. This entitlement to call reply evidence is not absolute but is subject to the trial judge’s discretion: R. v. Sanderson, 2017 ONCA 470, 349 C.C.C. (3d) 129, at para. 35; R. v. Dussiaume, 98 C.C.C (3d) 217 (Ont. C.A.), at para. 6, leave to appeal refused, [1995] S.C.C.A. No. 272. Further, trial evidentiary rulings are often made subject to being revisited if the unfolding of the evidence requires it. This is to be expected given the fluid nature of a trial proceeding. There is nothing unusual in that approach. It helps ensure fairness to both sides.

[19] That the Crown could seek to call the additional forensic evidence in reply to the defence evidence did not reverse the burden of proof that remained squarely on the Crown throughout these proceedings. That the appellant was feeling anxious in testifying is to be expected in the face of such serious charges. Further, while his affidavit states that he felt nervous and anxious while testifying, he did not depose that it made any difference to the manner in which he testified or the contents of his testimony. Accordingly, I would not admit the fresh evidence as it would have no effect on the outcome: Palmer v. The Queen, [1980] 1 S.C.R. 759, at p. 775.

[20] I would therefore reject this ground of appeal.

(ii) Did the trial judge err in dismissing the appellant’s s. 11(b) Charter application on February 8, 2021?

[21] The trial judge dismissed the appellant’s s. 11(b) Charter application finding that when defence delay, waiver and discrete events were deducted from the overall delay, the remaining delay, which the trial judge calculated at 13 months and 9 days [2], was reasonable.

[22] The appellant submits that the trial judge erred in his analysis of three discrete periods of time: first, the time between January 15 and March 30, 2020, which he attributed to defence delay, but was occasioned due to the mid-trial adjournment; second, the period between March and July 2020, which should be attributed to the Crown because of the additional forensic testing the Crown undertook during this period; and the period between July 2020 (after the courts reopened following the Covid-19 closure) and February 8, 2021 (the first available trial date), which should not be included in the excused delay due to the pandemic, because the trial should have been scheduled earlier. When these periods are not deducted from the total delay, the net delay in this case exceeds 18 months, which, the appellant argues, represents inexcusable delay for a retrial.

[23] Other than the January to March 2020 period of delay that the Crown concedes was mistakenly attributed to the defence, I see no error in the trial judge’s characterization of the periods of delay. The Crown did not cause any delay but efficiently used the adjournment of the proceedings to obtain more forensic evidence. And there is no evidence that the trial could have been heard earlier than the date scheduled. The backlogs caused by the Covid-19 closures were notorious and represent, as the motion judge rightly noted, exactly the kind of exceptional circumstance envisaged in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at paras. 69-76, 81.

[24] The Supreme Court in R. v. J.F., 2022 SCC 17, has recently confirmed that while retrials must be prioritized in scheduling hearings, the same ceilings set in Jordan apply to retrial delay: at para. 4.

[25] In this case, the net delay was 11 months and 22 days, calculated as follows:

Total delay: 32 months (June 20, 2018 – February 19, 2021), less:

Covid delay (discrete event): 10 months 9 days (March 30, 2020 – December 8, 2021);

Defence waiver: 3 months 9 days (September 30, 2019 – January 8, 2020);

Defence delay: 1 month 5 days + 5 months 15 days (August 20, 2018 – September 25, 2018; April 15, 2019 - September 30, 2019) = 6 months 20 days

Total net delay = 11 months, 22 days.

[26] The net delay in the present case is well below the presumptive 30-month Jordan ceiling for cases tried in the Superior Court (Jordan, at para. 105) and is not unreasonable for the retrial of this case.

[27] I would dismiss this ground of appeal.

(iii) Did the trial judge’s actions give rise to a reasonable apprehension of bias?

[28] The appellant submits that there was a reasonable apprehension of bias arising from certain of the trial judge’s actions: he intervened inappropriately in the Crown’s closing submissions, and he demonstrated a moral repugnance and bias against the appellant in his rulings and decision on conviction.

[29] I see nothing in the record that would meet the high threshold necessary to displace the presumption of judicial impartiality or lead “a reasonable person, properly informed and viewing the matter realistically and practically” to conclude that the trial judge could not decide the case fairly: R. v. Ibrahim, 2019 ONCA 631, 147 O.R. (3d) 272, at paras. 83-84.

[30] The trial judge did not “intervene” in the Crown’s closing argument but appropriately asked both counsel for assistance with remembering the evidence. I note the concession by appellant’s counsel that the trial judge was “polite” and never exhibited any animus or bias towards the appellant throughout the trial. None of the rulings or the decision on conviction reveal any bias against the appellant. The simple fact that the trial judge ruled against the appellant on some (but not all) of his applications, made adverse credibility assessments against him, and found him guilty of the offence as charged is not evidence of bias.

[31] I would not accede to this ground of appeal.

(iv) Did the trial judge err in his assessment of the evidence?

[32] The appellant submits that the trial judge erred in his assessment of the evidence by: a) subjecting the appellant’s evidence to a higher level of scrutiny; b) failing to address the numerous inconsistencies in the complainant’s testimony; c) enhancing her credibility because of her lack of embellishment; and d) improperly taking judicial notice of facts not in evidence under the guise of “common sense proposition” and ungrounded assumptions and stereotypes.

(a) Uneven Scrutiny

[33] Uneven scrutiny as a ground of appeal is a “notoriously difficult argument to prove”: R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at para. 99. To make out this ground of appeal, an appellant

must identify something clear in the trial judge’s reasons or the record indicating that a different standard of scrutiny was applied, as well as something sufficiently significant, such as rejecting the appellant’s testimony for speculative reasons, to displace the deference due to a trial judge’s credibility assessments:

R. v. B.T.D., 2022 ONCA 732, at para. 55; R. v. Gravesande, 2015 ONCA 774, 128 O.R. (3d) 111, at para. 19.

[34] The appellant has failed to point to anything in the record that supports his argument of uneven scrutiny. The trial judge expressly adverted to the correct legal principles that he must “not simply approach the evidence by choosing which narrative” he preferred, rehearsing the W.D. analytical framework, and that he had to “direct the same level of scrutiny to the complainant’s evidence” as he did to the appellant’s evidence. There is nothing in the record that suggests he did not correctly apply those principles.

(b) Review of Inconsistencies

[35] The trial judge was not obliged to review every inconsistency in the complainant’s evidence; he recognized the frailties in the complainant’s testimony and adverted to the most important problems. For example, he addressed “the fact that she made her disclosure in an incremental and delayed way”. Specifically, he considered that her police statement, made when her mother called the police after the complainant arrived home inconsolable, did not include the appellant removing his condom or his use of the strap-on dildo, which she did not disclose until later in the investigation and court proceedings. As he was entitled to do, the trial judge accepted the complainant’s explanation that she felt “fear, guilt and embarrassment” and “was very overwhelmed and that it was all a lot to handle” in the context that she was only 17 and in a very difficult situation.

(c) Lack of Embellishment

[36] Nor do I agree that the trial judge impermissibly relied on the complainant’s lack of embellishment of her evidence to bolster her credibility. I see nothing in the trial judge’s reasons to indicate that he inappropriately reasoned that because the complainant’s allegations could have been worse, they are more likely to be true: R. v. Kiss, 2018 ONCA 184, at para. 52. Rather, the trial judge was entitled to note that the appellant was being fair in her testimony and that her fairness supported his finding that she was credible: R. v. E.A.P., 2022 ONCA 134, at paras. 18-19.

(d) Common sense propositions versus stereotypes

[37] I turn finally to the submission that the trial judge improperly relied on unfounded assumptions and stereotypes in his assessment of the evidence.

[38] That the trial judge had recourse to “a common sense proposition” is not, by itself, an error. Triers of fact are permitted to rely on “logic, common sense, and experience” in making credibility assessments: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 112; R. v. Delmas, 2020 ABCA 152, 452 D.L.R. (4th) 375, at para. 31, aff’d 2020 SCC 39, 452 D.L.R. (4th) 371; R. v. Safieh, 2021 ONCA 644, at para. 7; R. v. Cowan, 2021 ONCA 729, at para. 15; R. v. S. (R.D.), [1997] 3 S.C.R. 484, at paras. 39, 129. What constitutes common sense and how common sense applies are determinations for the trier of fact: R. v. Radita, 2019 ABCA 77, 374 C.C.C. (3d) 223, at para. 52, leave to appeal refused, [2019] S.C.C.A. No. 407.

[39] Error arises where common sense and human experience become a substitute for evidence: United States of America v. Huynh (2005), 200 C.C.C. (3d) 305 (Ont. C.A.), at para. 7; and where common sense inferences are “pulled out of thin air at the whim of the trier of fact” and lack “a reliable factual foundation”: Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, at para. 56. As a result, trial judges must “avoid speculative reasoning that invokes ‘common sense’ assumptions not grounded in the evidence: R. v. Roth, 2020 BCCA 240, 66 C.R. (7th) 107, at para. 65, relying on R. v. Cepic, 2019 ONCA 541, 57 C.R. (7th) 166), at paras. 19-27, and R. v. Perkins, 2007 ONCA 585, 51 C.R. (6th) 116, at paras. 30-42.

[40] While not all assumptions about ordinary human behaviour rest on impermissible stereotypes, caution must be exercised lest the “common sense approach” that purports to rely on common sense assumptions “mask[s] reliance on stereotypical assumptions”: R. v. Steele, 2021 ONCA 186, 154 O.R. (3d) 721, at para. 19; R. v. A.R.D., 2017 ABCA 237, 353 C.C.C. (3d) 1, at paras. 8-9, aff’d 2018 SCC 6.

[41] On appellate review, courts must “carefully scrutinize reasons to ensure that findings said to be based on ‘common sense or logic’ are reliably just that, and are not, in fact, unfair and inaccurate external viewpoints that find no foundation in the record”: A.R.D., at para. 71.

[42] In R.D.S., at para. 129, in concurring reasons, Cory J. contrasted the difference between the permissible common sense approach and the impermissible speculative approach:

On one hand, the judge is obviously permitted to use common sense and wisdom gained from personal experience in observing and judging the trustworthiness of a particular witness on the basis of factors such as testimony and demeanour. On the other hand, the judge must avoid judging the credibility of the witness on the basis of generalizations or upon matters that were not in evidence.

[43] With these principles in mind, I consider the trial judge’s impugned comment.

[44] The trial judge stated: “it’s a common-sense proposition that a woman would prefer not to have a strange man ejaculate on her face”. Read in isolation, the trial judge’s comment could be interpreted as being a stereotypical inference about women’s sexual preferences. However, this statement must be read in the context of the entirety of the trial judge’s reasons, specifically in the context of his assessment of the credibility of the evidence given by the appellant and the complainant.

[45] The impugned statement was made while the trial judge was providing reasons for why he did not believe the appellant’s evidence about the nature of the sexual encounter, and why he did believe the complainant’s evidence. One example he discussed was the appellant’s evidence that it was a joint decision for him to ejaculate on the complainant’s face, while the complainant had testified she did not participate in making this decision.

[46] Read in this context, the trial judge’s impugned comment is not a generalization based on stereotypes about human behaviour but is rooted in and arises out of the complainant’s evidence that the trial judge went on to address: Steele, at para. 59. I understand the trial judge’s comment as more of an assessment of the reasonableness of the complainant’s evidence rather than a lens through which he assessed her evidence.

[47] Accordingly, the trial judge did not impermissibly use common sense reasoning to mask stereotypical assumptions, but made a permissible inference drawn from the evidence proffered at trial. While it would have been preferable had the trial judge phrased his comment differently, it created no unfairness to the appellant and did not taint the trial judge’s evaluation of the complainant’s evidence.

[48] Accordingly, this ground of appeal fails.

E. Disposition

[49] It is for these reasons, that the appellant’s appeal from his conviction was dismissed.

Released: April 5, 2023. “L.B.R.”

“L.B. Roberts J.A.”

“I agree. I.V.B. Nordheimer J.A.”

“I agree. J.A. Thorburn J.A.”

Notes

[1] The appellant raised the refusal to grant a mistrial in January 2020 as a ground of appeal but did not pursue this ground in oral submissions.

[2] As the Crown concedes, this calculation was in error. Aside from the incorrect attribution of two months of delay as defence delay, the trial judge also made some mathematical errors arising out of his misstatement of the date the retrial was ordered and the length of the Covid delay. The correct calculation is set out below in paragraph 15. Nothing turns on these errors for the purposes of this appeal. The appellant did not take any issue with the mathematical errors raised by the Crown but focused on discrete periods of delay.