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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

(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

(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: 20240326 Docket: C70490 Feldman, Miller and Coroza JJ.A.

BETWEEN

His Majesty the King Respondent

and

Z.P. Appellant

Counsel: Howard Krongold and Michelle Psutka, for the appellant Benita Wassenaar, for the respondent

Heard: November 29, 2023

On appeal from the conviction entered on September 22, 2021 by Justice John M. Johnston of the Superior Court of Justice, sitting with a jury.

Feldman J.A.:

[1] The appellant appeals his conviction following a jury trial of one count of sexual assault. The appeal is based on two alleged errors in the charge to the jury, one relating to the charge on consent, and the other relating to an instruction not to speculate on the lack of evidence regarding injury to the complainant.

[2] I would not give effect to either of these grounds. For the reasons that follow, I would dismiss the appeal.

Background Facts

[3] The complainant and the appellant were 17 and 18 years old respectively, and lived in a small town in Ontario. They met on the Tinder dating application, where users arrange dates or arrange for sex. The complainant created a profile of herself as an 18 year old girl who wanted to lose her virginity. The complainant and appellant agreed to meet at an apartment where the appellant lived with his father.

The Complainant’s Testimony

[4] When the complainant arrived, she and the appellant had consensual sex for about ten minutes, which the complainant believed was vaginal. She did not believe there was anal penetration but because it was her first time, she could not tell. The appellant then said he was going to take a shower and the complainant got dressed and went home.

[5] On the way home, when she realized she had not seen the appellant put on a condom after she requested he wear one, she messaged him to ask about it and whether she needed to take “Plan B”. The appellant responded that he wanted her to come back for “round 2” and that she did not need Plan B. She first said no but he was insistent. He texted: “all pussy this time.” She said she needed to buy condoms, to which he responded that she did not need them, then said: “suck my dick right away”. When she said she had never done that before, he responded that he would show her.

[6] In further messages, while she was on her way back to the appellant’s apartment, the appellant asked: “do u like it in ass or puss”, to which she responded: “no ass please and thanks” and he replied: “kk.” His last message before telling her to come into the apartment was: “on your knees right when u get here.”

[7] She testified that when she arrived, they went to his bedroom where he pushed her down on her knees in front of him and she performed oral sex for about two minutes. Then he pushed her to her hands and knees, a lot more roughly, removed her leggings and underwear, got on his knees behind her and began to have vaginal sex. He tried to penetrate her anus with his penis and she said no but he did not listen. He would not stop even though she continued to say no about ten times. He would occasionally pull out then start again. He grabbed her hips and thrusted so hard she fell forward. She was scared.

[8] The anal penetration was extremely painful. No lubrication was used and it lasted for about ten minutes with him pushing her along the floor. It felt like her knees were getting rug burn, though she testified that they actually did not. Without realizing it, the complainant defecated on the floor.

[9] When the appellant finished, he lay on the bed, and the complainant saw that he was not wearing a condom. He said he took it off. She got dressed as fast as she could and went to leave. As she was leaving, he told her to clean up the feces and that she could not throw it out at his house and had to take it with her.

[10] The appellant later texted that it was embarrassing for both sides, they should forget it happened, and she should delete their text messages. She texted: “Literally don’t duck me in the ass when I say no” and “You literally ducked me when I said no. That’s actually rape”. She testified that the texts were autocorrected and she had intended to write “fuck”. The complainant went to the hospital the next day because she was concerned about STIs (sexually transmitted infections). She was examined by a nurse and a doctor. There was no evidence led regarding the results of those examinations. The next day she went to the police. The officer asked her if she had any pain or injury and she replied she had a little bit in her butt but not severe.

The Appellant’s Testimony

[11] The appellant’s story changed over time. However, at trial he testified that on their first encounter, the complainant was at the end of the bed and he was on his knees behind her. She guided his penis “to a hole” and they had sex. She told him it was anal. There was no vaginal sex and no ejaculation. After she left, they messaged to arrange a second meeting. He testified that the reason he messaged “all pussy this time” was because the first time it was anal.

[12] He said that when she arrived the second time the complainant performed oral sex on him, then she got on her knees at the end of the bed and he positioned himself behind her. She again reached behind and guided his penis to her anus. They had sex for a short period of time during which she said: “Fuck me in the ass. That feels good.” There was no forced anal sex and she never said no. A piece of feces had fallen on the rug. The complainant was embarrassed, and he gave her a cloth to pick it up. He said he told her to delete the text messages because it was a one-time embarrassing hook up and that it was standard for him to ask to delete the messages after hookups.

[13] At trial, the complainant denied directing the appellant’s penis to her anus during either the first or the second encounter. She denied saying “fuck me in the ass, that feels good”, and she denied that the anal sex was consensual.

Analysis

Issue 1: Did the trial judge err in his formulation of the W.(D.) instruction?

[14] Because it was agreed that the first sexual encounter was consensual, and the second one was anal intercourse, the only issue for the jury was whether the second encounter was consensual or non-consensual anal intercourse.

[15] In the pre-charge discussion, defence counsel originally wanted the trial judge to charge the jury on the two defences of consent and honest but mistaken belief in consent. Defence counsel’s concern was that the jury could accept the appellant’s version of what the complainant did and said, but still find that subjectively she did not consent, and that required that the alternative defence be put. However, it was the trial judge’s position that if the jury believed or had a reasonable doubt that the complainant guided the appellant’s penis to her anus and told the appellant to “fuck her in the ass” and that it “feels good”, then that was consent, and he would so instruct the jury. There was no need to address honest but mistaken belief in consent. Defence counsel agreed on that basis.

[16] In his charge to the jury, the trial judge gave four versions of the instruction on the presumption of innocence and the Crown’s obligation to prove guilt beyond a reasonable doubt, including three repetitions of the W.(D.) instruction, which sets out the three step test for determining whether the Crown has proved guilt beyond a reasonable doubt: R. v. W.(D.), [1991] 1 S.C.R. 742. The appellant’s submission is that the third version of the W.(D.) instruction was an error and left open the possibility that the jury would be misled, as foreseen by defence counsel.

[17] The first time the trial judge explained the burden of proof, he used the following formulation:

Two rules flow from presumption of innocence:

[The] Crown bears what’s called the “burden of proving guilt” or the “onus of proving guilt”. The other is that guilt must be proven beyond a reasonable doubt. These rules are linked with the presumption of innocence to ensure that no innocent person is convicted. The burden of proof rests with the Crown. It does not shift. There’s no burden on [the appellant] to prove that he is innocent. He does not have to prove anything.

Now, you ask: What does the expression “beyond a reasonable doubt” mean? A reasonable doubt is not an imaginary or frivolous doubt. It is not based on sympathy for or prejudice against anyone involved in the proceeding. Rather, it’s based on reason and common sense. It’s a doubt that arises logically from the evidence or absence of evidence. It’s virtually impossible to prove anything to an absolute certainty, and Crown is not required to do so. Such a standard would be un – impossibly high. However, the standard of proof beyond a reasonable doubt falls much closer to absolute certainty [than] to probabl[e] guilt. You must not find [the appellant] guilty unless you are sure he is guilty. Even if you believe that [the appellant] is probably guilty, or likely guilty, that is not sufficient. In those circumstances, you must give the benefit of the doubt to [the appellant] and find him not guilty because Crown counsel, in those circumstances, would have failed to satisfy you of his guilt beyond a reasonable doubt.

In a few minutes, I will explain to you the essential elements that the Crown must prove beyond a reasonable doubt in order to establish [the appellant’s] guilt. For the moment, the important point for you to understand is that the requirement of proof beyond a reasonable doubt applies to each of the essential elements. It does not though apply to individual items of evidence. You must decide, looking at the evidence as a whole, whether the Crown has prove – proved [the appellant’s] guilt beyond a reasonable doubt. If you have a reasonable doubt about [the appellant’s] guilt arising from the evidence, the absence of evidence, or the credibility, or reliability of one or more of the witnesses, then you must find him not guilty.

In short, the presumption of innocence applies at the beginning and continues throughout this trial, unless you are satisfied after considering the whole of the evidence that the Crown has displaced – has displaced the presumption of innocence by proof [of] guilt beyond a reasonable doubt.

If, based upon the evidence, you are sure that [the appellant] is guilty of the offence of sexual assault, which is what he’s charged with, that demonstrates that you are satisfied of his guilt beyond a reasonable doubt and you must find him guilty of that offence.

If you have a reasonable doubt whether [the appellant] is guilty of the sexual assault, for which he is charged, you must give him the benefit of the doubt and find him not guilty.

[18] The second explanation came under the heading “Reasonable Doubt and Credibility” followed immediately by “Testimony of [the appellant]”:

Reasonable Doubt and Credibility

I’m going to speak to you for a moment about reasonable doubt and credibility. Reasonable doubt applies to the issue of credibility. On any given point, you may believe a witness, disbelieve a witness, or not be able to decide. You need not fully believe or disbelieve one witness or a group of witness – witnesses. If you have a reasonable doubt about [the appellant’s] guilt arising from the credibility of witnesses, then you must find him not guilty.

Testimony of [the Appellant]

You heard the evidence of [the appellant] in this trial. When a person charged with an offence testifies, you must assess that evidence as you would assess the testimony of other witnesses, keeping in mind my instructions to you earlier about the credibility of witnesses. You may accept all, part, or none of [the appellant’s] evidence.

Of course, if you believe the testimony of [the appellant] that he and [the complainant] engaged in consensual anal sex on the second encounter at his father’s apartment, and did not commit sexual assault, you must find him not guilty.

[The appellant] testified that on the second encounter with [the complainant], she grabbed his penis and guided it to her hole, which was her anus, and said – sorry to use the language, but it’s the language that was given in this trial, “Fuck me in the ass. It feels good.” He testified that he and [the complainant] engaged in consensual anal sex.

However, even if you do not believe the testimony of [the appellant], if it leaves you with a reasonable doubt about his guilt or about an essential element of the offence charge[d], you must find him not guilty.

If you don’t know who to believe, after consideration of all of the evidence, it means you have a reasonable doubt and you must find [the appellant] not guilty.

Even if the testimony of [the appellant] does not raise a reasonable doubt about his guilt or about an essential element of the offence charge[d], if after considering all of the evidence you are not satisfied beyond a reasonable doubt of his guilt, you must acquit.

[19] The third recitation was in the context of the discussion of the appellant’s statement to police where he denied that he had engaged in anal sex without the complainant’s consent:

As I said to you earlier, you must find [the appellant] not guilty if you believe his statement that he did not commit the offence charge[d]. Even if you do not believe [the appellant], you must find him not guilty if his statement leaves you with a reasonable doubt about his guilt. Even if [the appellant’s] statement does not raise a reasonable doubt about his guilt or about an essential element of the offence charge[d], you still must acquit after considering all of the evidence if you’re not satisfied beyond a reasonable doubt of his guilt.

[20] When the trial judge discussed the elements of the offence, he explained to the jury that the only elements in question were “whether the Crown has proven beyond a reasonable doubt that there was no consent to anal sex on the second encounter by [the complainant], and that [the appellant] knew there was no consent.” He told them to consider the whole of the evidence on the issue in order to determine the issue of consent and whether the appellant knew there was no consent.

[21] The trial judge then reviewed the evidence on the issue, including the appellant’s testimony that the complainant guided his penis to her anus and the complainant’s testimony that she did not consent and said so more than once. The trial judge told the jury that consent or the absence of consent is the state of mind of the complainant towards the appellant’s conduct and her voluntary agreement to take part in the sexual activity, and that it had nothing to do with the appellant’s state of mind. The trial judge then explained how to decide whether the Crown had proved lack of consent beyond a reasonable doubt:

If you find that [the complainant] guided [the appellant’s] penis to her anus, and/or encouraged him to continue with anal sex, and said, “Fuck me in the ass. It feels good”, you may, in those circumstances, find, as a matter of law, that there was consent by [the complainant] to engage in the complained of sexual activity, namely the anal sex.

Similarly, if you are left in a state of reasonable doubt on this point, you may, in those circumstances, find the Crown has not discharged its onus of proving beyond a reasonable doubt that [the complainant] did not consent.

If you find that [the complainant] did not guide [the appellant’s] penis to her anus, and/or did not say, “Fuck me the ass. It feels good”, you must consider the totality of the evidence in the trial that you do accept in determining whether or not [the complainant] did not consent to the anal sex described.

If you conclude that [the complainant] did not consent to anal sex, and that she told [the appellant] she did not consent, you may conclude, on all of the evidence, Crown counsel has proven beyond a reasonable doubt that [the complainant] did not consent to anal sex.

[22] The appellant’s objection is with this third articulation of W.(D.) describing the onus on the Crown to prove lack of consent, and in particular, with the trial judge’s use of the word “may” rather than “must”. The appellant submits that the effect of this instruction could have been to suggest to the jury that even if they accepted the evidence of the appellant about what the complainant did and said, they could still find that the complainant did not subjectively consent and convict the appellant. They were not told that if they believed the appellant or had a reasonable doubt that the complainant guided his penis and told him that she liked it, then that was consent and they were obliged to acquit.

[23] The appellant submits that this case is analogous to this court’s decision in R. v. Reid, 65 O.R. (3d) 723 (C.A.), where a W.(D.) instruction was given using the phrase “may acquit”. In that case, Moldaver J.A., as he then was, found the language potentially confusing, but when considered in the context of the entire charge, he was satisfied that the jury “would not have been misled into thinking that they could convict even though they otherwise believed or had a reasonable doubt that the appellant was acting in self-defence at the time of the killing”: at para. 73.

[24] The appellant argues that, unlike in Reid, in this case, reading the charge as a whole does not assuage the danger here, because the third iteration of the W.(D.) instruction was the only one that dealt with consent, the only live issue in the case.

[25] I do not agree with the appellant. It is clear from the trial judge’s wording that he was explaining to the jury that the actions and words that the appellant said the complainant used amounted, in law, to consent, even though the words “I consent” or “yes” were not used. He used the word “may” in the sense that having found that the complainant took that action and said those words, they amount in law to consent, permitting the jury to follow the W.(D.) instruction, already clearly set out on three previous occasions in the charge, and acquit.

[26] The jury would have understood that the judge was not changing his instructions on the law from what he had already explained, and that he was not saying that they may acquit, but they may not. The jury would have understood, having heard the previous formulations, that they must acquit if they believed or had a reasonable doubt that the complainant consented.

[27] In my view, the conclusion by Moldaver J.A. in Reid applies equally in the circumstances of this case. While not determinative, it is also of significance that defence counsel, who was very particular in his submissions regarding the charge on mens rea, received two drafts as well as the final version of the charge and did not object. We can take this as an indication that he did not believe the jury would be misled about the requirement to acquit if they found or had a reasonable doubt that the complainant consented: R. v. Abdullahi, 2023 SCC 19, 483 D.L.R. (4th) 1, at paras. 66-67.

Issue 2: Did the trial judge err by instructing the jury that they could not consider the absence of injury to conclude that the sexual assault did not occur?

[28] In his closing address to the jury, in challenging the complainant’s credibility, defence counsel suggested that the physical effect that the alleged assault had on the complainant lacked corroboration. He referred to the fact that she went to the hospital but there was no medical evidence regarding injuries despite her description of a ten-minute rough anal penetrative sexual assault and the pain she described.

[29] Crown counsel objected to this portion of the closing address and asked the trial judge to correct it in his charge. The trial judge agreed with the Crown and included toward the end of his charge the following:

All right. Next, I want to address an issue from yesterday. There was a suggestion made yesterday that there was a lack of medical evidence of injury to [the complainant]. It was agreed that on May 17th, 2019, [the complainant] was examined at the hospital. Victims of sexual assault often are examined at hospitals. The inference, unintentionally, may be that there was an expectation of injury to [the complainant], and therefore that the absence of evidence of injury should be concerning. As a matter of law, I tell you, no corroboration is required in cases of sexual assault. This means [the appellant] could be convicted without independent confirmatory evidence.

[The complainant] testified that on the occasion of the second encounter involving anal sex with[out] her consent that no lubrication was used. She testified she was in excruciating pain when [the appellant’s] penis was inserted into her anus. However, she did not allege an injury. It follows that no evidence of injury was led at trial by the Crown. The absence of injury cannot be used by you to conclude that the sexual assault did not occur. You should not speculate. You must base your decision on the evidence in this trial.

[30] The appellant submits that the trial judge erred in this instruction by wrongfully removing from the jury’s consideration of the complainant’s credibility, the possible contradiction between her description of experiencing excruciating pain from the rough, forced anal penetration, and the lack of evidence showing any consequent injury.

[31] The appellant made the same submission to the trial judge. The trial judge reasoned that if it had been alleged that the accused hit the complainant over the head with a baseball bat and she was bleeding, but then at the hospital there was no evidence of injury, that would have been relevant to her credibility because one would expect to see an injury.

[32] I agree with the trial judge. In this case, the complainant did not say she was injured. Therefore, the fact that there was no evidence of injury did not constitute a contradiction on the evidence.

[33] Counsel for the appellant also submitted in oral argument that by correcting defence counsel’s closing address in his charge, the trial judge wrongly removed from the jury’s consideration the inference that there would have been injury to the complainant based on the pain she described. I also reject this argument. The trial judge was entitled to correct defence counsel’s submission to the jury. That submission amounted to an assertion that it was a matter of common sense that because anal penetration was painful, it would have caused injury. The trial judge was entitled to reject that submission and find that it was wrong [1]. Accordingly, his decision to provide a correction in the charge did not constitute misdirection.

[34] In summary, the trial judge did not err by instructing the jury not to rely on the absence of evidence of injury, first because the complainant did not say she was injured, and second because there is no common sense inference that there would be injury just because the complainant experienced significant pain from the anal penetration.