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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20240321 DOCKET: C70538

Feldman, Miller and Coroza JJ.A.

BETWEEN

His Majesty the King Respondent

and

S.P. Appellant

Counsel: Cassandra DeMelo and Jolene Hansell, for the appellant Andrew Hotke, for the respondent

Heard: November 27, 2023

On appeal from the conviction entered by Justice Thomas A. Heeney of the Superior Court of Justice, sitting with a jury, on December 3, 2021 and from the sentence imposed on March 18, 2022.

Coroza J.A.:

I. OVERVIEW

[1] The appellant appeals his conviction for sexual assault after trial by judge and jury. He also seeks leave to appeal his sentence of three years’ imprisonment.

[2] The 15-year-old complainant and a friend came to the appellant’s house for a gathering. The complainant drank alcohol and became extremely intoxicated. Eventually, the appellant and complainant were alone in a bedroom with the door closed. According to the complainant’s friend, at one point, she could hear grunting noises consistent with sexual activity coming from the room.

[3] The complainant testified that while in the room the appellant forced her to perform fellatio, penetrated her vagina with a condom and then penetrated her anally and vaginally without a condom. The complainant testified that she could not remember if the appellant touched her breasts but that he did take a picture of his face beside her naked chest.

[4] DNA matching the appellant was found on the complainant’s breasts and small bruises were observed on her left breast along with bruises on her knees. The complainant self-reported several areas of tenderness, including the back of her head and her vagina. However, no DNA was found on swabs taken of the complainant’s mouth, vagina, or rectum. An examination that was later performed by a nurse revealed no signs of blunt force trauma in those areas. The nurse also testified that in very few cases of sexual assault is blunt force trauma seen on the areas of the body that are in question. A toxicologist report estimated the complainant’s blood alcohol content at the time of the incident was between 103 to 238 milligrams.

[5] The appellant did not testify.

[6] During the sentencing proceedings, the Crown argued that it followed from the jury’s verdict that it had accepted the complainant’s account of the sexual assault. For his part, the appellant argued that he should be sentenced as if a sexual assault based on the touching of the breasts had been proven beyond a reasonable doubt. The trial judge opined that the jury could not have convicted the appellant of sexual assault based on touching of the breasts alone because the complainant did not testify that her breasts had been directly touched and because the presence of DNA on her breasts was insufficient to ground a conviction for sexual assault by itself. In his view, the jury could only have convicted on the basis of accepting the complainant’s account. He therefore made independent findings of fact and concluded that he believed the complainant’s account of the sexual assault for the purpose of sentencing. [1]

[7] The appellant raises two issues on this appeal. First, the appellant submits that the conviction was unreasonable. He argues that the results of the forensic testing contradict the complainant’s evidence about forced fellatio and penetration and that there was no evidence that the appellant touched the complainant’s breasts intentionally. Therefore, the verdict of sexual assault was not supportable on any reasonable view of the evidence.

[8] Second, the appellant submits that the trial judge erred in trying to follow the jury’s path to conviction when sentencing the appellant, in violation of R. v. Ferguson, 2008 SCC 6; and that in finding the assault had occurred as the complainant had testified, he gave insufficient reasons. He also asks this court to set aside the sentence of three years’ imprisonment and vary the sentence to 12 months.

[9] In my view, the appellant’s conviction for sexual assault was not unreasonable. I also do not agree that the trial judge erred in sentencing the appellant by following the jury’s path to conviction, and I find that his reasons were sufficient. Accordingly, I would dismiss the appeal.

II. BACKGROUND FACTS

[10] At the time of the offence, the appellant was nineteen years old, and the complainant was fifteen years old. They were acquaintances. After communicating on social media and through a phone call, they decided to meet up in-person.

[11] On July 28, 2018, the complainant made plans to go to the appellant’s house to spend time with him and his friends. She brought her friend, M.H. The complainant testified that she brought M.H. because she was planning to get drunk and wanted a sober friend to keep an eye out for her. The complainant was not interested in anything more than friendship with the appellant.

[12] The complainant and M.H. met up with the appellant and went back to his house, arriving there at around 11:10 p.m. Three of the appellant’s friends were also there. The complainant drank a large quantity of vodka and smoked some hookah during a short period of time. She testified that she was “feeling very dizzy … like, floating on a cloud.” M.H. testified that she believed the complainant was intoxicated because she “started dancing and throwing herself on guys.”

[13] At one point, the appellant came over to the complainant. He showed her a text from one of his friends, which read “I would so love to get head from her.” The complainant testified that she found the text funny due to her intoxication. The appellant asked the complainant why she would not participate in such activity. He then expressed surprise that her breasts were real. He asked her to show them to him. She refused.

[14] The appellant’s friends left by around 12:15 a.m., leaving the complainant, the appellant, and M.H. at the home. The appellant offered to send the complainant home in an Uber. She declined because she did not have enough money for the ride and she “wanted to stay.”

[15] The complainant asked the appellant to show her his house. At this point, she testified that she was extremely intoxicated and felt like a “rag doll.” She testified that she crawled up the stairs on her hands and knees. She described her vision as extremely blurry, as if someone has smeared Vaseline over her eyes.

[16] The appellant and complainant entered a bedroom. At the complainant’s request, the appellant brought her more vodka, which she drank.

[17] The complainant testified that at this point, the appellant got her to her knees somehow and forced her to perform fellatio on him. She unsuccessfully tried to push his penis out of her mouth with her tongue. The appellant then placed her on the bed and vaginally penetrated her with a condom. The complainant had a tampon inside her during this penetration. She repeatedly said “no.”

[18] About five to ten minutes after the complainant and appellant went upstairs, M.H. came up too. She heard noises coming from a bedroom. She said she was leaving soon. The complainant testified that she heard M.H. say “I know you guys are fucking. I didn’t come here to listen to people fuck.” At the appellant’s direction, the complainant replied that she would be five more minutes.

[19] The vaginal penetration continued. At one point, the complainant testified that the appellant’s condom slipped off. The appellant continued to penetrate her without a condom. She testified that he penetrated her anally. She yelled “no” and expressed he was causing her pain. The complainant tried to move away, testifying she was trying to “escape,” and fell off the bed. The appellant put her back on the bed and penetrated her vaginally again, without a condom.

[20] M.H. shouted that she was leaving, and the sexual activity ended. The complainant testified that using his cell phone, the appellant took a picture of him smiling next to her bare chest. [2]

[21] The complainant testified that she went downstairs, then back upstairs, and then blacked out. M.H. testified that the appellant came downstairs to tell her that the complainant had passed out. Eventually, the complainant’s father and paramedics arrived. The complainant’s father found her, passed out, in a pool of vomit. He initially thought she was dead. The complainant was taken to hospital and later a sexual assault assessment center.

[22] Swabs were taken of the complainant’s mouth, vagina, anus, and breasts. DNA consistent with the appellant’s was found on the complainant’s breasts only – no foreign DNA was found on the complainant’s oral, vaginal, or anal swabs. There were no signs of blunt force trauma. There were small bruises on her left breast and bruises on her knees.

III. ISSUES ON APPEAL

[23] The appellant raises two grounds of appeal: (i) the verdict was unreasonable, and (ii) the trial judge erred on sentencing in his fact finding exercise by attempting to reconstruct the logical process of the jury and providing insufficient reasons to support his conclusion that a penetrative assault had taken place. He submits the trial judge should have sentenced him to 12 months imprisonment only on the basis that a sexual assault on the complainant’s breasts had been proven.

[24] For its part, the Crown submits that the verdict is reasonable. The Crown submits the jury was given instructions (not challenged on appeal) that assisted it to properly understand the evidence and decide whether the Crown had proven a sexual assault beyond a reasonable doubt. As to sentence, the Crown acknowledges that the jury verdict is ambiguous as to what facts it must have accepted as proven beyond a reasonable doubt. However, the Crown argues that the trial judge made his own determination that the aggravating factor of a penetrative assault been made out and there is no basis to interfere with the sentence. In the alternative, if there was an error and this court is not satisfied that forced penetration had occurred, the Crown argues that the appropriate sentence is one of 18 to 24 months imprisonment.

IV. ANALYSIS

A. Conviction Appeal

[25] The appellant argues that the conviction for sexual assault is unreasonable under s. 686(1)(a)(i) of the Criminal Code, R.S.C. 1985, c. C-46. [3]

[26] When faced with a claim that a verdict is unreasonable, the reviewing court must give due weight to the advantages of the jury as the trier of fact who saw and heard the evidence as it unfolded. This court must review, analyze and, within the limits of appellate disadvantage, weigh the evidence in order to consider whether judicial fact-finding precludes the jury’s verdict.

[27] In evaluating the reasonableness of the jury’s verdict in a case that turns on findings of credibility, the reviewing court must ask whether the jury’s verdict is supportable on any reasonable view of the evidence: see R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180, at paras. 30-34, and R. v. Grant, 2022 ONCA 337, 413 C.C.C. (3d) 491, at para. 108.

[28] The appellant submits that there were significant issues with respect to the reliability of the complainant’s evidence. In his submission it was clear that the complainant was intoxicated to the point that she could not provide a reliable account of the events that took place in the bedroom. While the appellant acknowledges that the jury could accept the complainant’s evidence despite reliability concerns, the jury verdict is unreasonable because it was plainly contradicted by the forensic evidence. Nor could the jury reasonably conclude that the appellant had committed a sexual assault on the complainant’s breasts because there was no evidence that he had intentionally touched the complainant’s breasts. Therefore, the appellant argues, if the jury had assessed the evidence in its totality, giving it due weight, an acquittal should have followed.

[29] I do not accept the appellant’s submissions. I am satisfied that a properly instructed jury acting judicially could reasonably have rendered a guilty verdict. To begin, there is no challenge to the jury charge. The trial judge clearly explained what was required for the Crown to prove a sexual assault.

[30] The trial judge told the jury the following:

To decide whether the touching was intentional, consider all of the evidence, including the nature of the touching in question. If you accept the evidence of the complainant, that the accused forced his penis into her mouth and had vaginal and anal intercourse with her, it is difficult to imagine how those acts could be anything but intentional.

If you find that the accused touched the breasts of the complainant, you should consider the evidence from the physical examination and the DNA evidence, as well as the evidence of the complainant, that the accused took a picture of his head beside her naked chest, and consider whether her breasts would have been naked at the time of the touching or covered by her bra. And whether it is reasonable to infer that the accused's DNA could have been left through accidental or incidental contact, as opposed to an intentional touch.

[31] In my view, the jury could have reasonably accepted the complainant’s testimony of being forced to perform fellatio, and then forced into vaginal and anal intercourse with and without a condom.

[32] To be sure, the trial judge told the jury about the inconsistencies in the complainant’s evidence, and the lack of support from the forensic evidence. However, the jury was entitled to accept all, some, or none of her evidence. The jury was well aware that the complainant was highly intoxicated. In his charge, the trial judge explicitly told the jury that: the complainant drank nearly an entire bottle of vodka; when the complainant asked for a tour of the house, she described herself as “extremely intoxicated” and as having crawled up the stairs; and she described herself as intoxicated to the point she did not have control over her body. None of this precluded the jury or the trial judge from accepting her evidence that she had been sexually assaulted.

[33] It was also open to the jury to accept that fellatio, vaginal, and anal intercourse had taken place even if the appellant’s DNA was not found in the complainant’s mouth, vagina, or rectum. Based on the evidence of the forensic scientist, the expectation that DNA would be detected in those areas was grounded on the assumption that no condom was used, and that internal ejaculation had taken place. Yet, the complainant had testified that for at least some of the assault, the appellant did wear a condom and that she was unsure if he had ejaculated. There was also an admission in the form of a text message in evidence where the appellant denied ejaculating. And while the appellant maintains that the forensic evidence plainly contradicts the complainant’s account of being penetrated, in response to a question as to whether the absence of DNA was conclusive of whether there was sexual contact in those areas, the forensic scientist testified “not necessarily” but that the most likely explanation was that there was no contact. I repeat that this expert’s evidence assumed no condom use and internal ejaculation. Therefore, the forensic evidence did not necessarily undermine the complainant’s evidence about being penetrated.

[34] The trial judge was careful to ensure that the jury was aware of this. He specifically corrected a submission made by defence counsel in his closing address to the jury to the effect that, if the complainant’s story was true, the forensic scientist “would expect to find some DNA” on the swabs of the complainant’s vagina, rectum, and/or mouth. The trial judge rightly found it necessary to correct this statement based on the evidence that the accused may not, in fact, have ejaculated while the forensic scientist’s testimony was based on the assumption that he had. The trial judge said:

I am instructing you to disregard the submission made in the closing address of the defence counsel, that [the forensic scientist] would have expected to find [the appellant’s] DNA, because that opinion was based on the premise that the [appellant] ejaculated internally, which does not accord with the evidence. All that can be said is that, if the [appellant] had ejaculated, [the forensic scientist] would have expected to find his DNA. But we do not know for certain whether he did or not. [Emphasis added.]

[35] The appellant also submits that the jury could not have concluded from the DNA evidence that the appellant sexually touched the complainant’s breasts in some manner without her consent and/or while she was not capable of consenting. I disagree. The foundation for a conviction based an intentional touching of the breasts would have rested on the following pieces of evidence:

• The complainant testified that the appellant was interested in her breasts by making comments about them earlier in the evening to the effect that he wanted to “suck” on the complainant’s “nipples”.
• DNA matching the appellant was found on both the complainant’s breasts. There was bruising on the complainant’s breasts, colloquially referred to as a hickey by one of the counsel.
• The complainant testified that the appellant took a picture of his head beside her naked chest.
• The complainant had been wearing layers of clothing that had to be removed in order for the DNA to be deposited on her breasts.

[36] To determine whether a verdict is unreasonable, this court “must ask itself whether the jury’s verdict is supportable on any reasonable view of the evidence and whether proper judicial fact-finding applied to the evidence precludes the conclusion reached by the jury”: W.H., at para. 2 (emphasis in original). A review of the evidence, including the complainant’s testimony, demonstrates that there were sufficient grounds upon which a jury could have convicted. In my view, the verdict is reasonable and I reject this ground of appeal.

B. Sentence Appeal

[37] It is uncontroversial that when it comes time to sentence an accused after a jury trial, the trial judge must determine the facts necessary for sentencing. The trial judge is bound by the express and implied factual implications of a jury’s verdict: R. v. Brown, [1991] 2 S.C.R. 518, at p. 523; Ferguson, at para. 17. The trial judge “shall accept as proven all facts, express or implied, that are essential to the jury’s verdict”: Criminal Code, s. 724(2)(a).

[38] When executing this task, the law does not require the trial judge to take the view of the evidence most favourable to the accused: see R. v. Roncaioli, 2011 ONCA 378, 271 C.C.C. (3d) 385, at para. 59; R. v. Nelson, 2014 ONCA 853, 318 C.C.C. (3d) 476, at para. 56, citing Ferguson.

[39] During the sentencing proceedings, the trial Crown argued that the verdict of guilty meant that the jury had accepted the whole of the complainant’s account of events. The Crown sought three years’ incarceration.

[40] Defence counsel sought a sentence of 12 months’ imprisonment and argued that since the jury may have found the appellant guilty simply for having touched the complainant’s breasts, the appellant should be sentenced for a sexual assault on the appellant’s breasts. Put another way, defence counsel urged the trial judge to make findings of fact that were favourable to the appellant.

[41] The trial judge recognized and stated that “to the extent that the evidence creates some ambiguity, I will make an independent determination of the facts”. He then proceeded to explain why he rejected the appellant’s submission that he should be sentenced for a sexual assault in the form of having touched in some manner the complainant’s breasts.

[42] The trial judge reasoned that since the complainant did not give any evidence about a sexual assault involving her breasts, there was a lack of evidence to satisfy a sexual assault involving the touching of them. He stated:

[T]he presence of DNA on [the complainant’s] breasts could prove some contact by the accused with her breasts … [H]owever, it could not prove the other elements of sexual assault, i.e. that the touching was intentional and that it was knowingly done without the consent of the complainant. Since the complainant did not give any evidence about a sexual assault involving her breasts, there was no evidence to satisfy those other elements of sexual assault involving the touching of the complainant's breasts. [Emphasis added.]

[43] The trial judge accepted the complainant’s testimony and concluded that the assault took place in the manner she had described.

[44] On the sentence appeal, the appellant submits that the trial judge erred in trying to follow the jury’s path to conviction when sentencing the appellant, in violation of Ferguson; and that in making a factual finding that the assault had occurred as the complainant had testified, he gave insufficient reasons.

[45] I do not accept the submission that the trial judge attempted to reconstruct the logical process of the jury in finding facts under s. 724(2). I accept that there are aspects of the trial judge’s reasons that, read in isolation, might support that interpretation. However, when the reasons are read as a whole, it is clear that the trial judge understood his obligation to make an independent determination on the facts, and that he did so. He concluded his fact-finding exercise by stating:

I therefore find that the only factual findings available to me that are consistent with the guilty verdict of the jury is that the accused applied force of a sexual nature to the complainant without her consent, essentially as she described in her testimony, which included forcibly inserting his penis into her mouth and having vaginal and anal intercourse with her. And on the evidence I would have arrived at the same independent conclusion. [Emphasis added.]

[46] In my view, the trial judge did not attempt to follow the logical process of the jury, but came to his own independent findings for sentencing.

[47] Nor do I accept the submission that the trial judge gave insufficient reasons for finding that the Crown had proven that a penetrative assault had occurred.

[48] The bar for insufficiency of reasons is high, as explained by the Supreme Court of Canada in R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 13:

Finding an error of law due to insufficient reasons requires two stages of analysis: (1) are the reasons inadequate; (2) if so, do they prevent appellate review? … [E]ven if the reasons are objectively inadequate, they sometimes do not prevent appellate review because the basis for the verdict is obvious on the face of the record. But if the reasons are both inadequate and inscrutable, a new trial is required.

[49] I find the trial judge’s reasons are adequate and that they permit appellate review. As I read his reasons, the trial judge was well aware that the complainant was extremely intoxicated. However, he found that the complainant’s testimony about what happened in the bedroom involving sexual acts to be credible, compelling, and consistent. As the trial judge explained, the complainant “vividly described the sequence of events in the bedroom that night involving a number of sexual acts. What was done, how it felt and so on.” Further, he concluded that the absence of DNA on certain of the complainant’s body parts did not undermine her account of a forced penetrative assault. The trial judge believed the complainant and found that the jury must have as well – otherwise, in his view, it could not have convicted. The trial judge stated that there was no path to conviction if the complainant was not believed – in his words, this was “inconceivable”.

[50] It goes without saying this court must apply the functional and contextual approach to review of the trial judge’s findings of credibility and reliability as outlined by the Supreme Court of Canada in R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 82:

[U]nder a functional and contextual reading of trial reasons, appellate courts should consider not whether the trial judge specifically used the words “credibility” and “reliability” but whether the trial judge turned their mind to the relevant factors that go to the believability of the evidence in the factual context of the case, including truthfulness and accuracy concerns. A trial judge’s determination to accept or believe inculpatory witness evidence includes an implicit assessment of truthfulness or sincerity and accuracy or reliability: [R. v. Vuradin, 2013 SCC 38] at para. 16. Often, the term “credibility” is used in this broader sense to mean the believability of the evidence and it necessarily includes both truthfulness and accuracy. [Emphasis added.]

[51] It is clear that the trial judge turned his mind to the relevant factors that went to the believability of the complainant’s evidence. In his words, the complainant’s account was either “fiction” or truth. He found it was the latter, and the reasons for this conclusion are clear on the record.

[52] I acknowledge that some parts of the trial judge’s reasons may be confusing, for example on one occasion he said: “[t]his was not a question of reliability of [the complainant’s] evidence”. But the issue is whether the trial judge, who had the advantage of seeing and hearing from the complainant, made a palpable and overriding error in his conclusion that the incident in the bedroom took place in the manner the complainant described. Our task is not to engage in a forensic examination of lines or words, but to look at the reasons as a whole. In my view, there is no basis to interfere with his findings of fact under s. 724(2). While the trial judge could not speculate about how the jury reached its verdict, he resolved any ambiguity surrounding the basis of its verdict by stating that he believed the complainant. Consequently, there was no error in sentencing the appellant on the basis that a forceful, intrusive sexual assault had occurred involving penetration.

[53] Furthermore, having regard to the aggravating and mitigating factors the sentencing judge identified in his reasons, the three-year sentence imposed by the trial judge is fit and there is no basis for appellate intervention: see R. v. A.J.K., 2022 ONCA 487, 162 O.R. (3d) 721, at para. 77.

V. DISPOSITION

[54] I would dismiss the appeal from conviction. While I would grant leave to appeal the sentence, I would dismiss the sentence appeal.

Released: March 21, 2024 “K.F.” “S. Coroza J.A.” “I agree. K. Feldman J.A.” “I agree. B.W. Miller J.A.”

[1] On March 18, 2022, the trial judge gave his findings of fact in oral reasons prior to hearing sentencing submissions and delivering his sentence.

[2] Given that this picture was allegedly taken on the appellant’s phone and it was not disclosed to the police, the alleged picture was not put forth as evidence.

[3] On appeal, Mr. Hotke for the Crown, in very fair submissions, pointed out that the trial judge did not instruct the jury on the mens rea element of sexual assault: see R. v. H.W., 2022 ONCA 15, 160 O.R. (3d) 81. The appellant does not argue that this was an error. I agree with the parties that the mental element of sexual assault was not an issue at trial. On the evidence, if the jury concluded beyond a reasonable doubt that the actus reus of sexual assault was met on either path to conviction, then a finding of at least recklessness as to non-consent would inexorably follow. I therefore agree with the Crown that it was not a reversible error in this case, on these facts, to not instruct the jury on mens rea.