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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 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, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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.

486.6(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 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.

Court of Appeal for Ontario

Date: 2023-05-01 Docket: C68818

Nordheimer, Sossin and Copeland JJ.A.

Between

His Majesty the King Respondent

and

J.W. Appellant

Counsel: James Lockyer and Emmett Brownscombe, for the appellant Emily Bala, for the respondent

Heard: March 31, 2023

On appeal from the conviction entered by Justice Susan E. Healey of the Superior Court of Justice on February 5, 2020.

Nordheimer J.A.:

[1] J.W. appeals his conviction for sexual assault after a judge-alone trial. Prior to the hearing, the appellant abandoned his sentence appeal. For the following reasons, I would allow the appeal, set aside the conviction, and order a new trial.

[2] For the purposes of the appeal, given the grounds raised, the background facts can be stated briefly.

Background

[3] On Saturday, December 31, 2016, the appellant attended a New Year’s Eve party at a home outside of Thornton, Ontario. The complainant attended the same party with her boyfriend. There were between 20 and 25 people at the party. At approximately 1:00 a.m., the complainant and her boyfriend went to a spare bedroom upstairs, where a host prepared a bed for the complainant and her boyfriend. Her boyfriend remained with the complainant until she fell asleep and then returned to the party. Approximately an hour and a half later, the appellant, who had been confusingly told that he could sleep in the same bedroom, went to the bedroom.

[4] The appellant and the complainant provided different accounts of what occurred once the appellant arrived in the bedroom. The complainant testified that she woke up and found herself resting on her forearms and knees. Someone was spreading her buttocks and licking her anus. She then fell unconscious. When she came to, her underwear had been removed and she was being digitally penetrated. She fell unconscious again. When she awoke again, the person was having intercourse with her. Now fully awake, she jumped up, said, “[y]ou’re not my boyfriend, you’re not who I thought you were” and ran downstairs.

[5] The appellant testified that he went into the bedroom and realized there was another person under the covers of the bed. He got into the bed and laid on top of the covers on the other side of the bed. The complainant backed into him as if to want to cuddle. The appellant got under the covers and, after cuddling in a spooning position, the complainant turned over to kiss him. He then moved his hand onto the complainant’s hip and moved it up and down her leg. She removed her underwear, and he digitally penetrated her. He then removed his underwear and the complainant touched his penis and they had sex for approximately five minutes. Then the appellant told the complainant to get on top of him. At this point, the complainant moved away from him, asked who he was, and left the bedroom.

[6] The appellant gave a statement to the police following his arrest. The statement was never admitted as evidence at the trial in the form of an exhibit or otherwise. The Crown put parts of the statement to the appellant in cross‑examination. During the cross-examination, the trial judge requested a transcript of the police statement so she could follow along while passages from it were put to the appellant by the Crown. The transcript was provided to the trial judge. The trial record shows that the trial judge did not return the transcript until the outset of giving her reasons for convicting the appellant. At that time, she said:

I have a copy of the transcript of [J.W.]’s statement to give back to you. I do not need it anymore, thank you.

[7] The appellant brought a motion to admit his statement to the police, both the videotape and transcript of it, as fresh evidence on the appeal. The respondent consented to the motion.

Grounds of Appeal

[8] The appellant raises two of grounds of appeal. First, he says that the trial judge relied on portions of his police statement that were not in evidence in rejecting the appellant’s evidence of the complainant’s conduct prior to the alleged sexual touching. Second, the appellant says that the trial judge found that the appellant concocted his evidence without independent evidence of fabrication. In my view, both grounds of appeal are made out.

A. Reliance on the Police Statement

[9] As earlier noted, the appellant’s police statement was not put into evidence at the trial. Rather, the Crown used a limited number of excerpts from it during the cross-examination of the appellant. Nevertheless, it is apparent that the trial judge relied on other portions of the statement in reaching her conclusions, especially as they related to the appellant’s credibility.

[10] For example, one of the central issues was whether, and when, the complainant engaged in kissing the appellant. It related directly to the appellant’s defence of honest but mistaken belief in consent. There was a similar issue regarding if, and when, the complainant touched the appellant’s penis. On these points, in her reasons, the trial judge said:

This is different from [J.W.]’s statement to the police. When he was first asked by the investigating officer what happened, he did not mention any kissing to have occurred before he started to rub up and down her leg and buttocks. It was only later in the interview that he added that detail. Nor did he mention that she touched his penis at any point.

[11] At trial, the appellant had said that, prior to the sexual touching, the complainant kissed him and touched his penis. The trial judge rejected that evidence and she did so, as noted above, because the appellant had not mentioned the kissing initially in his police statement. In fact, the appellant had mentioned the kissing in his statement to the police, but not when he was first asked to recount the events. He mentioned the kissing in response to questions from the interviewing officer.

[12] The difficulty with all of this is that the Crown had not put that issue to the appellant during her cross-examination of him. The appellant did not, therefore, have the opportunity to explain why he did not first mention the kissing to the police. However, the failure of the appellant to mention the kissing during his initial recitation of the events to the police was latched onto by the trial judge as a basis for disbelieving the appellant’s version of the events. The trial judge could only have reached that conclusion by contrasting that evidence with other portions of the appellant’s statement that were not put to him, either during his evidence, or otherwise.

[13] Similarly, the trial judge relied on the fact that the appellant had not mentioned the complainant touching his penis during his police statement. Again, that issue was not put to the appellant during his evidence nor was it otherwise in evidence.

[14] It is apparent from exchanges that the trial judge had with Crown counsel during her closing submissions, that the trial judge was fully aware that the appellant’s police statement was not in evidence, and that only small portions of it had been put to the appellant during his cross-examination. This is not, therefore, a case where the trial judge was mistaken about the limited purpose for which the appellant’s police statement had been used during the trial.

[15] The respondent attempts to remedy this problem by pointing out that a portion of the appellant’s statement was put to the appellant at trial and that portion of the statement did not mention kissing. Thus, the respondent says, the difference between the appellant’s police statement and his evidence at trial was apparent on the record without any need to rely on the portions of the statement that were not in evidence.

[16] The failings in that attempt are two-fold. First, the trial judge’s adverse finding was based on the appellant not having initially told the police about the kissing. The fact that he later mentioned it to the police was not put to the appellant nor was he provided with an opportunity to explain. Second, when the Crown cross-examined the appellant on that portion of the police statement and suggested that all that the complainant had done was press into him, the appellant immediately responded “[a]nd she was kissing me as well Ma’am.” Notwithstanding that response, the timing issue was still not put to the appellant.

[17] The respondent acknowledges that the appellant’s later mentions of the complainant kissing him were not put to him in cross-examination and were not in evidence. However, the respondent contends that “this detail was not material to the trial judge’s finding.” With respect, that contention does not accord with the reasons of the trial judge. The trial judge expressly relied on the appellant’s failure to initially mention the kissing in rejecting the appellant’s version of the events prior to the sexual touching.

[18] In addition, the failure to put this proposition to the appellant meant that he did not have any opportunity to address it. There may well have been reasons why the appellant did not first mention the kissing and did so only in response to the interviewing officer’s questions. However, the appellant was not provided with the chance to offer those explanations.

[19] The respondent also acknowledges that the portions of the appellant’s police statement that differed from his trial evidence regarding the complainant touching his penis were not put to the appellant. Again, the respondent contends that that issue was not material to the trial judge’s conclusions. However, the same rejoinder applies. The issue with the appellant not mentioning the touching of his penis in his statement to the police was relied on by the trial judge in her reasons for rejecting the appellant’s evidence. Indeed, the trial judge very strongly rejected the appellant’s version of the events prior to the sexual touching, as I shall come to when I address the second ground of appeal.

[20] The significance of these errors directly relates to one of the defences that the appellant was advancing, that is, an honest but mistaken belief in consent. The trial judge rejected that defence in part based on issues that were not properly in evidence before her. In my view, those errors are the functional equivalent of an error involving a misapprehension of the evidence. Whether a trial judge misapprehends what the evidence is, or relies on matters that are not in evidence, the result is the same. Either is fatal to a conviction, if material and an essential part of the trial judge’s reasoning process, because they deprive the accused person of a fair trial. As Doherty J.A. said in R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at p. 541:

If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice. This is so even if the evidence, as actually adduced at trial, was capable of supporting a conviction.

[21] Had the trial judge appreciated that she was relying on matters that were not in evidence, and thus could not use those matters to provide the basis for the findings that she made, her view of the appellant’s credibility might well have been different. If so, the defence of honest but mistaken belief might well have carried the day. Certainly, it might have been capable of raising a reasonable doubt. None of those possibilities came into play, however, because of the erroneous findings of the trial judge.

B. Fabrication

[22] I earlier mentioned that the trial judge very strongly rejected the appellant’s evidence. Indeed, in rejecting the appellant’s evidence about the kissing and the touching of his penis, the trial judge said:

I find, as a fact, that neither thing is true but rather have been invented after the fact to support the notion that the woman in the bed was fully participating.

[23] The trial judge’s statement amounts to a finding that the appellant fabricated his evidence. It is not a matter of simply disbelieving the appellant but, rather, goes the extra step of finding that his evidence was concocted in an effort to escape liability.

[24] It is well-established that a trier of fact may not use the disbelief of an accused person’s evidence as capable of supporting an inference of guilt, unless there is independent evidence of fabrication to avoid culpability: R. v. Iqbal, 2021 ONCA 416, at paras 52-58.

[25] There was no such independent evidence in this case, nor does the trial judge refer to any. The respondent submits that the trial judge simply disbelieved the appellant and did not use her rejection of his evidence as supporting an inference of guilt. I do not agree. The trial judge referred in the course of her reasons to the appellant raising a “victim-blaming argument”. She also found that the appellant was both reckless and wilfully blind to whether the complainant was consenting to the sexual contact. A plain reading of the trial judge’s reasons reveals that her view that the appellant had concocted his version of the events factored heavily into these conclusions which, in turn, led to her finding that the defence of honest but mistaken belief was not available to the appellant.

[26] Finally, the respondent asks that, if this court finds that the trial judge’s statement amounts to an error, the curative proviso in s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46 be applied on the basis that the trial judge’s error was harmless. Again, I do not agree. Given the nature of the evidence, and the defence of honest but mistaken belief in consent, I cannot conclude that the trial judge’s views of the appellant’s evidence did not lead to a substantial wrong or miscarriage of justice, especially on the issue of whether his version of the events, if not conclusive of an honest but mistaken belief, could have raised a reasonable doubt.

[27] In any event, the curative proviso would not cure the first error which, by itself, would require a new trial. The respondent does not suggest otherwise.

Conclusion

[28] I would allow the appeal, set aside the conviction, and order a new trial before a judge and jury as the appellant requested pursuant to s. 686(5)(a) of the Criminal Code.

Released: May 1, 2023 “I.N.” “I.V.B. Nordheimer J.A.” “I agree. L. Sossin J.A.” “I agree. J. Copeland J.A.”