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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20240403 Docket: COA-23-CR-0132

Nordheimer, Coroza and George JJ.A.

Between:

His Majesty the King Respondent

and

N.C. Appellant

Counsel:

Megan Savard and Ava Armand, for the appellant Lilly Gates, for the respondent

Heard: March 6, 2024

On appeal from the conviction entered on May 26, 2022 by Justice Hugh Fraser of the Ontario Court of Justice.

Reasons for Decision

[1] N.C. appeals his conviction for sexual assault. At the conclusion of the hearing, we allowed the appeal with reasons to follow. We now provide our reasons.

[2] The complainant, E.K., visited Ottawa with her friend, A.Z., in February 2017. On the evening of February 4, 2017, the pair were staying together at a hostel, in a room with five bunk beds. E.K. and A.Z. were assigned to two different bunk beds. Two other women were occupying bunk beds in the room, while the appellant was staying in the fifth bed.

[3] That evening, E.K. and A.Z. got ready in the hostel room to go dancing. They engaged in some casual conversation with the appellant. They left the hostel just after midnight for a nightclub, where the complainant consumed about seven alcoholic drinks. After leaving the nightclub at 2:00 or 2:30 a.m., the pair got food at a nearby restaurant before returning to the hostel. Once in the shared bedroom, the appellant whispered “come here” to E.K. She went towards the appellant and, once at the rails of his bunk bed, their lips touched for a “brief moment.” E.K. then went to her own bunk bed, where she went to sleep fully clothed.

[4] The appellant then left his own bed and joined E.K. in her bed. Shortly after, one of the other women staying in the bedroom, M.L., got out of her bed to go to the washroom. She observed the pair in the same bed. After this, the appellant penetrated E.K. without using a condom. During sexual intercourse, the appellant testified that he asked E.K. if her friend A.Z. wanted to join them. The appellant left the complainant’s bed and returned to his own bed before M.L. left the washroom. The appellant testified that he was trying to be discreet and wanted to get back into his own bed soon after M.L. had observed them, but that he was not embarrassed to ask the complainant for a threesome. E.K. reported the incident to the police the next day.

[5] The primary issue litigated at trial was whether the complainant consented to sexual intercourse with the appellant. The trial judge provided oral reasons for judgment. He concluded that the complainant was a clear, consistent and credible witness. However, when assessing the appellant’s evidence, he stated:

I do not accept the accused's evidence that the complainant moved over in her bed for the purpose of inviting him into it. I do not accept the accused's belief that such an act would have suggested that the complainant was consenting to him getting into bed with her. I do not accept the accused's evidence that the question, “what are you doing” was asked in a playful or flirtatious manner by the complainant. I do not accept his evidence that the complainant gave her consent to the act of sexual intercourse. The accused's testimony about getting back into his own bed, soon after [M.L.] had observed him in the complainant's bed, in order to avoid another embarrassing moment, seems inconsistent with his statement to the effect, “do you think your friend would like to join us?”

[6] The trial judge did not provide any explanation as to why he found these aspects of the appellant’s testimony to be inconsistent.

[7] The appellant makes the following submissions on appeal. First, the trial judge erred in his credibility assessments and by misapprehending the evidence. Second, the trial judge never addressed the issue of whether the Crown had proven beyond a reasonable doubt that the appellant had the requisite mental state for the offence of sexual assault. The crux of the appellant’s submissions is that the reasons of the trial judge are insufficient on both points.

[8] Turning to the first submission, we agree with counsel for the appellant that the trial judge, in rejecting the appellant’s evidence, did not provide sufficient reasons for his credibility findings. Instead, the trial judge’s reasons are conclusory. He gave only one reason for refusing to accept the appellant’s evidence: he found the appellant’s testimony about getting back into his own bed to avoid embarrassment, soon after M.L. had observed him, to be inconsistent with having asked the complainant: “do you think your friend would like to join us?” In cross-examination, the appellant stated that he was not embarrassed to ask the complainant if A.Z. wanted to join them. However, he indicated that was different than being embarrassed about M.L. finding him and the complainant in bed when they were trying to be discreet.

[9] In the circumstances, the trial judge had to provide some explanation as to why he found the appellant’s embarrassment in one situation and not the other to be inconsistent. This is particularly so given that the trial Crown did not expressly argue in closing submissions that this was an inherent inconsistency and defence counsel never had an opportunity to respond to the trial judge’s concern that the evidence was inconsistent. If the trial judge was going to reject the appellant’s evidence because of this inconsistency alone, he was required to raise it, explain why he thought it was inconsistent, and give the appellant an opportunity to respond.

[10] We also agree with the appellant’s second submission that the trial judge erred by failing to turn his mind to the mens rea requirement of the offence. At no point in his reasons did the trial judge make any finding that the Crown had proven mens rea beyond a reasonable doubt. Instead, the trial judge stated the following at the end of his reasons:

In accordance with the law that I recited earlier, the court's acceptance of the complainant's testimony on this point, means that the actus reus of a sexual assault has been made out. The Crown has proven beyond a reasonable doubt that the accused, [N.C.], committed a sexual assault against [E.K.]. He is found guilty of the offence of sexual assault, contrary to section 271 of the Criminal Code. [Emphasis added.]

[11] Having concluded that the actus reus of the offence had been committed, the trial judge was required to turn his mind to whether the necessary mental state – knowing of or being wilfully blind or reckless as to lack of consent – had been proven beyond a reasonable doubt. While we acknowledge that a trial judge is under no obligation, in reasons for judgment, to expound on basic criminal law principles, that does not mean that trial judges are relieved from their obligation to provide reasons that permit appellate review. We are of the view that these reasons do not meet that standard. As we read the record, although defence counsel acknowledged the case was about the complainant’s “consent”, he did not expressly concede that the appellant had knowledge of a lack of consent. Respectfully, the trial judge did not grapple with the entirety of the appellant’s evidence nor did he make an explicit finding that there was no air of reality to a mistake of fact defence. The reasons do not review important aspects of what the appellant stated he did to ascertain consent from the complainant, including asking her questions, nor do the reasons deal with the evidence of what the appellant testified was behaviour and communication that he perceived to be consent.

[12] In sum, the entirety of the trial judge’s reasons for convicting the appellant offer nothing beyond conclusory comments about his credibility. In these circumstances, the decision cannot stand.

[13] For these reasons, the appeal was allowed, the conviction set aside, and a new trial ordered.

“I.V.B. Nordheimer J.A.”

“S. Coroza J.A.”

“J. George J.A.”