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 or 486.6 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 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) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order;

(b) on application made by the victim, the prosecutor or any such witness, make the order; and

(c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.

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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

(b) on application of the victim or the prosecutor, make the order; and

(c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.

(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.

(3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall

(a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order;

(b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and

(c) in any event, advise the prosecutor of their duty under subsection (3.2).

(3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have

(a) informed the witnesses and the victim who are the subject of the order of its existence;

(b) determined whether they wish to be the subject of the order; and

(4) An order made under this section does not apply in either of the following circumstances:

(a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or

(b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person.

(5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness.

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.

(1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor,

(a) the person knowingly failed to comply with the order;

(b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and

(c) a warning to the individual is not appropriate.

(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: 2024-02-22 Docket: C70534

Before: Feldman, Miller and Coroza JJ.A.

Between: His Majesty the King, Respondent And: S.W., Appellant

Counsel: Mark Halfyard and James Bray, for the appellant Emily Bala, for the respondent

Heard: December 1, 2023

On appeal from the conviction entered on August 27, 2021 by Justice Heather E. Perkins-McVey of the Ontario Court of Justice.

Coroza J.A.:

I Overview

[1] The appellant appeals his conviction for sexual assault.

[2] The appellant and his girlfriend/co-accused were charged for allegations arising out of two sexual encounters on the night of March 6, 2018. The first encounter involved the appellant, his girlfriend, and the complainant. The second encounter only involved the appellant and the complainant. The complainant, who had been drinking heavily, had no memory of the second encounter. The trial judge acquitted the co-accused and convicted the appellant for the second encounter only.

[3] As part of its case, the Crown led evidence of Facebook messages exchanged after the sexual encounters between the appellant and the complainant’s boyfriend, who was impersonating the complainant. In these messages, the appellant provided a narrative of the second sexual encounter. The messages incriminated the appellant because he asserted that “he didn’t take no for an answer” and stated that he overcame resistance from the complainant.

[4] At trial, the appellant testified that he wrote the messages while impaired by marijuana, and that he exaggerated their contents because he believed the complainant was attempting to relive the experience and he was trying to be “sexy” and “macho” in response. The trial judge rejected the appellant’s explanation; instead, she relied on the messages to disbelieve his in-court testimony, to conclude that the complainant did not subjectively consent to the second sexual encounter, and to find that the appellant knew of or was reckless as to her non-consent.

[5] The appellant advances two grounds of appeal. First, he argues that the trial judge erred in her assessment of the appellant’s credibility, by relying on improper assumptions and misapprehending the evidence. Second, he submits that the trial judge erred in relying on the messages in finding that the complainant did not subjectively consent to the second sexual encounter.

[6] I do not accept the appellant’s submissions. Accordingly, and for the reasons that follow, I would dismiss the appeal.

II Facts

(1) The Sexual Activity

[7] On March 6, 2018 the complainant and the appellant’s girlfriend drank a quantity of alcohol in the complainant’s apartment. Eventually, the appellant also arrived at the apartment. The appellant testified that he was invited by his girlfriend and the complainant to have a “threesome” with them.

[8] The complainant testified that she was very intoxicated by the time the appellant arrived. She testified that she could recall very little, except for waking up in a bathtub, still fully clothed. When she got out of the bathtub, she fell multiple times, hurting herself, because she was still intoxicated.

[9] The complainant’s boyfriend testified that he received multiple calls from the complainant throughout the afternoon of March 6. In two of these calls, the complainant asked her boyfriend to come over for a “threesome” with her and the appellant’s girlfriend. Later, the complainant called to say she was in a bathtub with her clothes on, covered in vomit.

[10] The appellant testified that when he arrived, both his girlfriend and the complainant insisted they were serious about having a “threesome,” although the complainant was reluctant since she had called her boyfriend for permission, which he had denied. The appellant testified that neither were exhibiting overt signs of intoxication.

[11] The appellant testified that he engaged in sexual activity with his girlfriend and the complainant. He testified that he asked permission continuously throughout the activity, and that the complainant never appeared intoxicated, forced, or manipulated.

[12] At some point, the complainant paused the sexual activity to go to the bathroom. After the complainant returned from the bathroom, the appellant testified that he and the complainant resumed sexual activity. His girlfriend did not participate again.

[13] The appellant testified that after the sexual activity ended, everyone seemed happy and exhausted. Half an hour later, the complainant returned to the bathroom to vomit. The appellant’s girlfriend went to help her take a bath.

[14] When the complainant got out of the bathtub, the appellant was no longer in the apartment. The complainant’s boyfriend arrived. The complainant walked the appellant’s girlfriend part of the way home and stated to her “I guess I slept with three people now.”

[15] The complainant’s boyfriend testified that when the complainant returned home, she seemed a little out of it, but was easier to understand than when she was on the phone. He observed a large amount of vomit on the floor. He also took her phone to examine it.

(2) The Facebook Messages

[16] Using the complainant’s phone, the complainant’s boyfriend impersonated her and exchanged Facebook messages with the appellant inquiring about the encounters. The appellant responded with a narrative of both sexual encounters.

[17] The Facebook messages were central to the Crown’s case. The trial judge relied heavily on the messages in her decision to convict, including the following:

… after a little while of having fun with [the appellant’s girlfriend] we hear you on the phone talking to someone and right after your phone call we went outside to see you. you were a bit worried about your nose ring and didnt want to do much else because you already came twice and was bleeding a bit from your pussy. but then i said no you told me you will do anything i want you to do no matter what and well im not done with you ... you were still telling me that youre good but i dont take no as an answer and went down on you .... [Emphasis added.]

[18] The appellant testified that at the time he was messaging with the complainant he did not believe that she had been so intoxicated that she would not remember what had happened. He believed that she wanted to relive the experience and so he wrote the messages to sound “macho” and “dominant.” The appellant also testified that he had been smoking marijuana and was extremely impaired and close to sleep while writing the messages.

(3) The Trial Judge’s Reasons

[19] The trial judge instructed herself on the elements of sexual assault, as summarized in R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579. She also instructed herself on the law of intoxication and the capacity to consent, as clarified in R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375.

[20] After a thorough analysis, the trial judge concluded that the complainant had the capacity to consent to the sexual activity. The trial judge also found that the only evidence that the complainant did not consent to the first instance of sexual activity was her memory, first recalled 11 months after the events in question. The trial judge concluded that this was insufficient to prove non-consent beyond a reasonable doubt. The Crown has not challenged these findings on appeal.

[21] The trial judge reached a different conclusion on the second encounter.

[22] The trial judge rejected the appellant’s claim that his Facebook messages did not represent the truth. She found that the appellant’s explanations that he was extremely impaired, falling asleep, and limited by English not being his first language did not make sense.

[23] The trial judge also noted that the content of the messages belied the appellant’s explanation that he was putting on an act to be “macho” or “sexy.” She found that the appellant was not responding to flirtatious messages. On the contrary, he was responding to a direct request by the complainant to describe what happened and the appellant tried to first “suss out what she recalls and who he is talking to.” Further, there were aspects of the messages that the appellant agreed on cross-examination were accurate.

[24] The trial judge thus concluded that “what we saw in those messages is the closest we have to an accurate reconstruction of what occurred that evening.”

[25] The trial judge reasoned that the messages showed that the appellant knew that the complainant did not want to engage in the second instance of sexual activity, but he did not care. The trial judge thus rejected the appellant’s in-court testimony, and found it did not leave her with any doubt. She further held that the appellant knew or was reckless as to the complainant’s non-consent.

[26] The trial judge acquitted the appellant’s girlfriend and convicted the appellant of sexual assault with regards to the second sexual encounter only.

III Analysis

(1) No Reversible Error in Rejecting the Appellant’s Credibility

[27] The appellant’s primary ground of appeal is that the trial judge made improper assumptions and misapprehended the evidence in assessing his credibility. Under this overarching ground of appeal, he advances the following submissions:

1. The trial judge relied on improper assumptions in rejecting the appellant’s explanation that he was trying to be “sexy” and “macho;”
2. The trial judge misapprehended the evidence of the appellant’s language barrier, intoxication, and sleep status; and
3. The trial judge misapprehended the evidence regarding the appellant’s knowledge of the complainant’s alcohol consumption.

[28] The appellant asserts that these errors were material because they were fundamental to the trial judge’s rejection of his testimony.

[29] A trial judge is entitled to draw inferences from the evidence based on common sense and human experience. However, it is an error of law for a trial judge to make conclusions that are not based in evidence or proper judicial notice. Judges must not make findings of fact that are grounded in speculation or stereotyping: R. v. J.C., 2021 ONCA 131, 401 C.C.C. (3d) 433, at para. 58; R. v. Steele, 2021 ONCA 186, 154 O.R. (3d) 721, at para. 19.

[30] A misapprehension of evidence will warrant appellate intervention only where it is material, goes to substance rather than detail, and plays an essential role in the reasoning process: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 1-2, quoting R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at p. 221. “[A]n error in the assessment of the evidence will amount to a miscarriage of justice only if striking it from the judgment would leave the trial judge’s reasoning on which the conviction is based on unsteady ground”: R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at para. 56.

[31] I disagree with the appellant that the trial judge made ungrounded assumptions and misapprehended the evidence in a material way.

(i) The Trial Judge Did Not Rely on Assumptions in Rejecting the Appellant’s Evidence of Trying to Be “Sexy” and “Macho”

[32] The appellant grounds this submission in the following passage of the trial judge’s reasons:

[The appellant] is not being macho or sexy there. He, in fact, is being careful to try and suss out what she recalls and who he is talking to. [The complainant] is not being flirtatious or asking for sexy talk but asking direct questions. [The appellant] agreed she never asked him to be sexy or dominant.

[33] The appellant argues that in rejecting the appellant’s explanation for the messages, the trial judge improperly relied on an unfounded “common-sense” assumption that people do not engage in sexualized talk without an invitation to do so. He argues the trial judge impermissibly used this assumption to conclude that that he was not telling the truth when he testified that his Facebook messages were lies intended to be “sexy,” “macho,” and “dominant.”

[34] In my view, the trial judge made no such assumption.

[35] Placed in context, the trial judge was simply observing that the appellant acknowledged that his alleged “dominant,” “sexy,” and “macho” talk commenced without an invitation from the complainant. Read fairly, the trial judge was not impermissibly assuming that people do not engage in flirtatious talk without being prompted. Rather, she was emphasizing the nature of the complainant’s messages. The trial judge assessed the messages and noted that they were in response to direct questions about what happened during the sexual encounters and that there was nothing flirtatious about the exchange. It was open on the evidence for the trial judge to infer that the appellant responded to a direct question with a truthful answer, instead of an attempt to look “macho,” or “sexy.”

(ii) The Trial Judge Did Not Commit Reversible Error in Her Analysis of the Appellant’s Language Barrier, Intoxication, or Sleep Status

[36] In addition to testifying that his Facebook messages were an attempt to intentionally relay a fictious narrative, the appellant also testified that the messages could not be taken literally because he wrote them while impaired and on the verge of falling asleep. In cross-examination, the appellant also acknowledged that French, not English, was his first language. The appellant argues that the trial judge misapprehended this evidence and erred in her treatment of it.

[37] First, the appellant argues that the trial judge erroneously found that the appellant “explained his first language is French, to explain the content of the messages.” The appellant notes it was only during cross-examination that the appellant accepted a Crown suggestion that his first language is French. However, the appellant never asserted that a lack of English-language fluency explained the content of the messages.

[38] The Crown concedes on appeal that the trial judge did misapprehend the evidence about the appellant’s fluency in English. However, it argues that this misapprehension was not material. I agree.

[39] I conclude that the misapprehension did not play an essential role in the trial judge’s determination that the appellant was not credible and it did not lead to a miscarriage of justice. Put another way, even if the erroneous comment about the appellant’s evidence regarding his fluency in English were removed from the trial judge’s reasons, it is abundantly clear that the trial judge would have reached the same decision. The primary reason the trial judge rejected the appellant’s testimony was because the Facebook messages described a markedly different narrative. The trial judge rejected the appellant’s explanations, and viewed the messages as an admission of the offence. As the trial judge put it:

These exchanges suggest that he knew that she was “meh” or unsure about the threesome or initial activity; and, in fact, regarding the second that she did not want to do much else as she had come twice and was bleeding. He then decides despite this that she had agreed to do anything he wanted and he was not done with her.

[40] As she put it, his testimony that the complainant consented “flies in the face of his own words contained in those Facebook messages.” In sum, I do not read the trial judge as using her disbelief of the appellant’s supposed lack of English fluency as a reason for disbelieving his overall testimony. The misapprehension does not warrant appellate intervention.

[41] Second, the appellant submits that the trial judge incorrectly held that the messages showed no evidence of poor spelling, which would have been expected of an impaired writer. The appellant emphasizes that the messages involve run-on sentences, improper capitalizations, and punctuation errors.

[42] I reject this submission. The trial judge was clearly familiar with the Facebook messages. Her reasons, read fairly, do not suggest that the messages were a model of perfect English. Rather, her point was that the messages narrate a coherent narrative and were responsive to the questions posed. The trial judge was entitled to reason that if the appellant were truly highly intoxicated and close to sleep as he testified, his messages would have been incoherent, or nonsensical.

[43] Finally, the appellant argues that the trial judge assumed that the lack of “slowing of responses” by the appellant was evidence of non-impairment. The trial judge reasoned that since the appellant responded quickly to the complainant’s messages, he was not falling asleep, as he testified. The appellant argues that the trial judge assumed a benchmark of how slow a person who is falling asleep would respond to a message, and then used that benchmark to disbelieve the appellant. The appellant also argues that the trial judge misapprehended the evidence, since the appellant was in fact slow to respond in part of the exchange.

[44] I am not persuaded by either submission. While the appellant did take several minutes between some messages, this increase in time was concomitant with the increase in the length of his messages. Longer messages take more time to write. When the appellant returned to sending shorter messages at the end of the conversation, his pace sped up again. The trial judge was thus entitled to find that the appellant did not slow in his responses.

[45] As to whether it was invalid for the trial judge to reason that a person close to sleep would slow in their responses, I consider this inference to be the sort of basic, innocuous inference about human experience that a trial judge is entitled to draw: J.C., at paras. 59-61.

(iii) The Trial Judge Did Not Misapprehend the Evidence Regarding the Appellant’s Knowledge of the Complainant’s Alcohol Consumption

[46] The appellant argues that the trial judge incorrectly found that he contradicted himself on his knowledge of how much the complainant drank, and then used this non-existent inconsistency to undermine his credibility.

[47] The trial judge found that “[t]here were a number of internal inconsistencies in the accused’s evidence about what he knew about [the complainant’s] consumption of alcohol.” At first, the appellant testified that he did not know how much the complainant drank. This eventually changed into agreement that the complainant drank to the point of vomiting. The trial judge also noted that in his Facebook messages, the appellant stated that the complainant had drunk “a ridiculous amount.”

[48] The appellant argues that he never testified as to how much alcohol the complainant drank that night. I do not agree.

[49] In examination-in-chief, the appellant testified that he had no concerns that the complainant was too intoxicated to participate in sex. In cross-examination, he initially testified that the complainant had drunk vodka, but he did not know how much. Later, he stated that when he arrived at the apartment, he did not know that the complainant had been drinking, but that there was a bottle of vodka and cups out. In the apartment, he saw the complainant drink only one shot of vodka.

[50] Still later, the complainant testified that he considered himself pretty good at judging someone’s impairment. He agreed that he saw the complainant vomit, and that he believed it was due to “all the physical activity and the alcohol in the stomach.” He then testified that he believed that his girlfriend and the complainant drank the same amount, which was enough to make them both “giggly and happy and loud” and “under the influence.”

[51] Given this testimony, it was open for the trial judge to find that the appellant’s in-court testimony on how much alcohol the complainant drank that night shifted over time, from being minimal and not a concern to being a significant cause of her vomiting. It was also open for the trial judge to find that the appellant’s testimony on this matter contradicted his Facebook messages, although, contrary to the appellant’s submissions, I am not convinced that the trial judge actually used this latter inconsistency against him in her credibility analysis. [1]

(2) The Facebook Messages Were Sufficient for the Trial Judge to Reasonably Conclude that the Complainant Did Not Consent

[52] The trial judge relied on the Facebook messages in concluding beyond a reasonable doubt that the complainant subjectively did not consent to the second sexual encounter. The appellant concedes that the Facebook messages – where the appellant describes having sex with the complainant while she states she does not want to – are also capable of supporting an inference that the complainant did not consent. Nonetheless, the appellant argues that this is not the only available inference arising from the messages, and that the trial judge violated the principles from R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000 in holding otherwise.

[53] I do not agree.

[54] While the trial judge did not cite Villaroman, she is presumed to have known and applied the law. After giving reasons for rejecting the appellant’s explanation for why he wrote the Facebook messages, she went on to give a compelling, affirmative reason for ruling out the innocent inference that they were a fantasy, and to conclude that they truthfully demonstrated the complainant’s non-consent:

As indicated, I find those messages the closest account we have of what occurred on March the 6th, 2018. They were prepared for [the complainant] only. They were not prepared for a police investigation. They were written shortly after the events occurred. Even if parts were slightly embellished, the portions where she did not want to do much else because she’d come twice and was bleeding, et cetera do not suggest anything flirty or macho. He agreed that he had said those things.

[55] Under Villaroman, triers of fact are only required to rule out plausible theories inconsistent with guilt: at para. 37. This trial judge did so. Her factual findings as to the complainant’s non-consent are entitled to deference. I see no reversible error in her conclusion.

IV Conclusion

[56] For these reasons, I would dismiss the appeal.

Released: February 22, 2024 “K.F.” “S. Coroza J.A.” “I agree. K. Feldman J.A.” “I agree. B.W. Miller J.A.”

[1] While the trial judge explicitly listed the appellant’s internally inconsistent testimony on the complainant’s alcohol consumption as a reason for not believing him, she did not list the inconsistency between his testimony on alcohol consumption and his Facebook message on alcohol consumption.