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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152,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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2023-02-07 Docket: C69616

Judges: Lauwers, Trotter and George JJ.A.

Between: His Majesty the King, Respondent And: Andrew Myles, Appellant

Counsel: Stephanie Brown, for the appellant Kevin Pitt, for the respondent

Heard: January 30, 2023

On appeal from the conviction entered by Justice Jennifer Woollcombe of the Superior Court of Justice on May 27, 2021, with reasons reported at 2021 ONSC 3808.

Reasons for Decision

[1] The appellant was convicted of sexual assault on the complainant. There was sexual intercourse. The sole issue was consent. The case turned on the trial judge’s assessment of credibility and reliability, which are factual findings. The law is clear that such findings should only be displaced on appeal where they “cannot be supported on any reasonable view of the evidence”: R. v. R.P., 2012 SCC 22, 344 D.L.R. (4th) 408, at para. 10; R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at paras. 81-82. Appellate deference is afforded due to “the advantageous position of the trial judge who actually saw and heard the witnesses”: R. v. C.R., 2010 ONCA 176, at para. 31.

[2] We dismiss the appeal for the following reasons.

A. The Two Versions of the Facts

[3] The complainant and the appellant had a prior relationship. The complainant, who was 29 at the time of the assault, and the appellant, who was 41, met each other through the appellant’s niece. The complainant and the appellant were close friends: they had met members of each other’s family and used to go out dancing together. The complainant and the appellant both testified that their relationship was not of an intimate or romantic nature.

[4] The complainant and the appellant went to a club together on October 27, 2017. They returned to the appellant’s home early on October 28, 2017 and fell asleep on the appellant’s couch. What happened later is disputed.

[5] The complainant testified that she was not interested in a romantic or sexual relationship with the appellant. She viewed him as her friend’s uncle and respected him in that way. The complainant testified that she never consented to having sex with him and had not wanted to have sex with him. When she awoke to him having sexual intercourse with her, she told him to stop. He did not get off her willingly and she had to use her voice and physical force to get him off her.

[6] The appellant testified that after leaving the club, he drove them to his home rather than to her home, which was only a two-minute drive away. He agreed that this was the first time that the complainant had come to his home at this hour, but said he was not trying to have sex with her.

[7] The appellant testified that when they arrived at his home, they went to sleep, clothed, on the couch in his living room, in a “spooning” position. He says that he awoke later in the morning to the complainant rubbing against him, with her pants and underwear down. They then had sexual intercourse, to which he believed she consented because she was the instigator. He characterized her as a willing and engaged participant throughout. His position is that she was neither asleep nor unconscious, that her eyes were open and that she had moaned his name.

[8] The evidence is clear that after the intercourse stopped, the complainant immediately called 911 to report that she had been sexually assaulted. The officers who responded to the 911 call found the complainant “crying, hysterical and intoxicated”.

[9] The trial judge was satisfied beyond a reasonable doubt that the appellant knew that the complainant did not consent to having sexual intercourse with him. The trial judge found that the complainant lacked the capacity to consent to any sexual activity while she was asleep. She found that there was no air of reality to the appellant’s claim that he honestly believed that the complainant had communicated consent to sexual activity. The trial judge also rejected the appellant’s version of events in which the complainant, while awake, initiated the sexual activity.

B. The Issues

[10] The appellant does not dispute the correctness of the trial judge’s explanations of the applicable principles of law. He challenges the application of those principles under three rubrics: the use of stereotypical reasoning; finding the appellant fabricated evidence; and, finding the appellant tailored his evidence.

C. Analysis

[11] We address each of these rubrics.

(1) Stereotypical reasoning

[12] It is an error of law for a trial judge to use stereotypical thinking in order to cross an evidentiary gap, as this court found in R. v. JC, 2021 ONCA 131, 401 C.C.C. (3d) 433, at para. 63. The appellant argues that the trial judge used the stereotype that men are interested in sex and more aggressive in pursuing it, in order to find that, by sleeping on the couch with the complainant, the appellant showed his interest in having sex with her. The appellant cites JC, para 70, in support of this argument. This authority does not support the appellant. In JC, at para. 70, Paciocco J.A. held:

[I]t is not an error to arrive at a factual conclusion that may logically reflect a stereotype where that factual conclusion is not drawn from a stereotypical inference but is, instead, based on the evidence. For example, although it is a stereotype that men are interested in sex, it was not an error to infer that the accused male was interested in sex at the time of the alleged assault where that inference was based on evidence.

[13] Indeed, the trial judge’s finding is rooted in the evidence, as she explains in para. 130 of her reasons:

Mr. Myles’ explanation as to how and why the complainant came to be at his home for the night was, for me, illogical and contrived. On N.C.’s evidence, she had not been feeling well. Mr. Myles seemed to agree that she was feeling poorly as they left the club. She told him she had vomited in the car, although he seemed to have been at pains in his evidence to distance himself from knowing that she had been sick. Their plan had been for him to drive her home. She lived two minutes away. He had an early morning with his son the next day. She had never before slept over at his home. Yet, for reasons that were very unclear to me, on the drive home, he asked her whether she was alright and whether she wanted to go home or go to his place. He agreed that he wanted her to come over even though she was not feeling well. I cannot accept that he would have asked her to come to his home for the night unless he wanted to pursue his sexual interest in her. I conclude that he used this opportunity to take her to his home for the night with the intention of pursuing some sexual activity with her.

[14] We do not agree that the trial judge impermissibly relied on myths and stereotypes about human sexual behaviour in concluding that the appellant would not have slept on the couch unless he wanted to engage in sexual activity with the complainant. Her reasoning was rooted in the evidence, which was noted in para. 130, and elsewhere in her reasons.

(2) Fabricated Evidence

[15] The problematic “fabrication” came out of the appellant’s statement to Officer King. This is recounted in the trial judge’s reasons, at para. 113:

I am satisfied, on a balance of probabilities, that while he was explaining to the officer that the complainant had consented to the sexual activity, Mr. Myles told Officer King that the complainant had said “put it in”. This was recorded in quotation marks shortly after. I accept that this was said.

[16] The trial judge addressed the implications of this finding, at para. 134:

Under cross-examination, Mr. Myles denied having told the police that the complainant said “put it in”. After a voir dire, as I have explained already, I was satisfied that Mr. Myles did say this to the police. In my view, this is a significant inconsistency in Mr. Myles’ evidence. Mr. Myles told the police, in what can only be understood as an effort to persuade them that what had occurred was consensual, that the complainant had told him to “put it in”. Yet, he denied this at trial. No explanation has been provided for what I find to be a material inconsistency.

[17] The appellant argues that the trial judge treated the appellant’s statement to the officer that the complainant told him to “put it in”, and his denial, at trial, of having made this statement, as fabrication. The appellant argues that the trial judge treated this fabrication as post-offence conduct from which she imputed intent to the appellant, without attending to the appropriate conditions for the admission of such evidence, citing R. v. Al-Enzi, 2021 ONCA 81, 401 C.C.C. (3d) 277, at para. 38.

[18] We disagree. The trial judge’s finding on the appellant’s credibility, at para. 127 of her reasons, was that the appellant “fabricated a version of events that was implausible and unbelievable” in order to “create the impression that the complainant was the instigator of sexual activity”. The trial judge, at paras. 133-137, set out the reasons why she found his testimony to be incredible, of which the statement to the police was only one among many examples of evidence that she found unbelievable, unreliable, illogical, and contrived.

(3) Tailored Evidence

[19] The appellant asserts that the trial judge erred in concluding that the appellant tailored his evidence, although she did not use that term in her reasons. This court has noted that any such implication by the trial judge would be improper. In R. v. G.V. 2020 ONCA 291, Feldman J.A. noted, at para 25:

In order to give full effect to these entitlements and obligations, as well as an accused's Charter right under s. 7 to a fair trial, this court has held in a number of cases that it is an error of law for the Crown or the trial judge to impugn the credibility of the accused on the basis that he tailored his evidence to the disclosure or the testimony heard in court.

See more generally Nordheimer J.A.’s discussion and the authorities collected by in R. v. Hayles-Wilson, 2022 ONCA 790 at paras. 14-19.

[20] The appellant took aim especially at para. 128, where the trial judge set out six examples in which she found his “testimony, particularly in respect of his relationship with the complainant and any interest he had in her, can fairly be characterized as having been evasive and self-serving.” This evidence seemed to be intended to bolster the appellant’s assertion that the complainant, not he, was the sexual instigator. Perhaps this is what the appellant means by using the term “tailored”. We do not see the trial judge’s approach in this case as implicitly and improperly focused on tailoring.

[21] The pattern in this evidence was that the appellant would put out a vaguely exculpatory comment and then fail to endorse it or fully explain it in cross-examination. For example, “[r]epeatedly, when asked whether he had been interested in the complainant, Mr. Myles said things like that that they went out and partied, declining to respond directly to this important question.” Another example given by the trial judge was Mr. Myles’ evidence “that ‘every time they went out [the complainant] had been ‘all over’ him”. Despite saying this, the trial judge notes that “he would not agree that she had been leading him on, preferring to cryptically respond to questions about what he had been thinking and to revert to his position that they were friends who partied and that he was not looking to be involved with her.”

[22] The trial judge found this evidence not to be credible. This is deeply within the trial judge’s bailiwick and we see no basis to interfere.

[23] The appellant also asserts that the trial judge implicitly used the rule in Browne v. Dunn (1893), 6 R. 67 (H.L.), against him. In three of the examples of evidence given by the appellant she analyzed in para. 128, the trial judge noted that the evidence was not put to the complainant. Some of the examples emerged from the Crown’s cross-examination of the appellant, so they could not have been put to the complainant, who had already testified. We do not see these comments as an implicit use of the rule in Browne v. Dunn to the appellant’s prejudice. After one such comment, the trial judge added: “Setting that issue aside, it is my view that Mr. Myles was trying to create the impression, once again, that the complainant had an interest in him beyond friendship.”

[24] We see this to be her approach in all the examples and comments. The trial judge was explaining why she did not accept any of the appellant’s late-breaking and somewhat equivocal narrative on the complainant’s behaviour in support of her being the sexual instigator.

[25] Finally, while we do not intervene on this ground, we suggest that use of the pejorative term “self-serving” in characterizing the appellant’s evidence is not helpful. Parties usually testify in their own self-interest and their testimony could always be characterized as “self-serving”. But that description does no analytical work and is best avoided by trial judges.

(4) Disposition

[26] The appeal is dismissed.

“P. Lauwers J.A.”

“Gary Trotter J.A.”

“J. George J.A.”