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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences: (i) an offence under section 151, 152,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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

COURT OF APPEAL FOR ONTARIO

DATE: 20240117 DOCKET: C70637

van Rensburg, Sossin and Favreau JJ.A.

BETWEEN

His Majesty the King Respondent

and

A. J. Appellant

Counsel: Gavin Johnston, for the appellant Étienne Lacombe, for the respondent

Heard: December 22, 2023

On appeal from the conviction entered on October 13, 2020 by Justice Ronald M. Laliberté of the Superior Court of Justice.

Reasons for Decision

[1] The appellant A.J. was convicted of sexual assault and sentenced to 18 months in jail followed by three years of probation. He appeals his conviction.

[2] The offence was alleged to have occurred on December 4, 2016. The appellant and the complainant R. L. had known each other for several years. They were friends who had engaged in sexual activity in the past. On the day in question, the complainant learned from her cousin “N”, that N and the appellant were engaged in a sexual relationship. This was of concern to the complainant who believed that the appellant was using N. The complainant texted the appellant so they could meet to discuss his relationship with N.

[3] The appellant picked up the complainant and they went to a small, sparsely furnished apartment where they had been before. They began by sitting on a mattress in the living room and discussing the appellant’s relationship with N. Some sexual contact occurred when they were on the mattress, with the complainant’s head in the appellant’s lap. Further sexual contact took place in a bathroom and in a bedroom.

[4] The issue at trial was consent. The complainant was adamant that she had not consented to the majority of the sexual contact. She testified that, while they were on the mattress, with her head in the appellant’s lap, the appellant had tried to kiss her, which she refused, and he started touching her over her clothes. She got up and went to the bathroom. The appellant followed her, forcing open the door to the bathroom, and pulling down the straps of her jumpsuit and bra, while she told him “no” and “stop”. The appellant pushed her into the bedroom and onto a bed, where he engaged in digital penetration and attempted fellatio, and then vaginal penetration, all without her consent. She repeatedly told him to stop and that she did not want it. She was shoving the appellant and yelling until she finally pushed him away, causing his penis to fall out of her vagina. He then started to masturbate. The complainant got up and the appellant went to the bathroom while crying.

[5] The appellant maintained that the complainant was an active and willing participant who had initiated many of the sexual acts, including the sexual intercourse. He testified that, after they spoke about his relationship with N, the complainant took his hand and he offered to give her a foot massage, but she refused. He kissed her on the forehead, face and lips, and she kissed him back. They continued talking for 20 to 30 minutes, with the complainant’s head on his lap, and he was touching her, playing with her breasts, and digitally penetrating her vagina. She was wearing a coat which she refused to take off. After five or six minutes of kissing, the complainant said they should not continue because of her boyfriend, D. The appellant responded by asking the complainant to tell him to stop if she did not want to continue. The encounter continued with more digital penetration. The appellant told the complainant to get on her knees with him and she said no, asked him to fix her bra, and got up. He followed her to the bathroom, where she asked if he was horny, and he responded in the affirmative, entering the washroom, and putting his hand on her waist The sexual encounter continued with kissing, the appellant touching the complainant’s breasts and vagina, and the complainant removing her jumpsuit to her waist and the appellant removing her bra. The complainant led the way into the bedroom, and she lay down on the bed. The appellant said that the complainant did not say “no” or “stop”, and that after asking her at least three times if she wanted to engage in sexual intercourse and her saying “yes”, he inserted his penis into her vagina. After 10 or 15 minutes of intercourse, the complainant said she had not texted her boyfriend D for a while. The appellant responded by telling her he would speed up a little to finish faster, so she could text D. After 20 to 30 seconds of speeding up, the complainant said that he was hurting her, so he stopped right away, removed his penis from her vagina, and masturbated until he ejaculated.

[6] Later that night, after the appellant had driven her home, the complainant and appellant exchanged text messages as follows:

Complainant: Allright so here’s the thing I think it’d be best for the both of us to stay away from each other cuz of wat went down today…the more I think about it the shittier I feel cuz having sex tonight is really not something tht I wanted…and I think u were too caught up to realize tht I really didn’t wnt it [AJ] hence I kept saying no nd fighting with u…I don’t hate u but today will prolyl b the last time we talk.

Appellant: My intention wasn’t to have sex with you to. I didn’t want it tonight. That’s what I keep on saying. You’re leading me into things. I thought your no was just “kapris” [1] . Like why would you lay your head on my legs, then take my hand and touched it some ways. Why did you kiss me back, why took off your jacket. Why did you play with my D when I gave it to you, why why why? Why do you always play me like that? Don’t you do me bad enough? Don’t I have enough pain already?

[7] The trial judge provided lengthy reasons for judgment, in which he reviewed the evidence at the trial, set out the relevant legal principles, and explained why the appellant’s evidence was rejected and did not leave him with a reasonable doubt, and why he accepted the complainant’s evidence that she had not consented to the sexual acts, and in particular the sexual intercourse. After confirming that the complainant’s text message could not be used to bolster her credibility as a prior consistent statement, he concluded that the message was circumstantial evidence going to the complainant’s state of mind soon after the events. He also characterized the appellant’s responding text message as corroborative of the complainant’s evidence. (No objection is taken on appeal to the trial judge’s use of the text messages in the assessment of the complainant’s credibility.)

[8] The appellant raises two grounds of appeal. First, he submits that the trial judge erred by engaging in prohibited stereotypical reasoning. Second, he contends that the trial judge erred by engaging in uneven scrutiny of the appellant’s and the complainant’s evidence.

[9] We do not give effect to either ground of appeal.

The Trial Judge did not Engage in Prohibited Stereotypical Reasoning

[10] Triers of fact are entitled to draw common sense inferences from the evidence, and to interpret the evidence by relying on their own experience. This form of reasoning can be used to assess the plausibility of human behaviour without offending the rules against stereotypical inferences and ungrounded common-sense assumptions. Prohibited reasoning is limited to “assumptions that are not grounded in the evidence or appropriately supported by judicial notice” and “inferences that are based on stereotype or ‘prejudicial generalizations’”: R. v. J.C., 2021 ONCA 131, 401 C.C.C. (3d) 433, at paras. 58, 59, 61, 65.

[11] The appellant contends that, although the trial judge referred to the relevant principles, he failed to apply them. He points to para. 135 of the reasons where, in assessing the appellant’s evidence, the trial judge found his account to be “implausible”, and stated that it was “somewhat unusual that [the appellant] would have asked [the complainant] many times, at least 3 times, whether she was consenting to the intercourse if she was such an openly, willing participant”, and that “it is also unusual that the complainant would raise the fact that she had not communicated with her boyfriend for a while in the midst of having sexual intercourse with the [appellant] for some 10-15 minutes”.

[12] The appellant asserts that the use of the words “implausible” and “unusual” suggests that the trial judge relied on stereotypical generalizations about the “usual” way a sexual encounter should unfold and how the parties should behave. He improperly used those generalizations to repeatedly undermine the appellant’s credibility rather than relying on the evidence before the court. The appellant relies on R. v. Cepic, 2019 ONCA 541, 376 C.C.C. (3d) 286, at para. 23, where this court found that the trial judge’s repeated use of words like “implausible” and “nonsensical” to characterize various aspects of the appellant’s testimony reflected stereotypical reasoning, and R. v. Kodwat, 2017 YKCA 11, where the Yukon Court of Appeal characterized the trial judge’s statement that it was “inconceivable” that any 17 year old woman would have engaged in consensual sex with an unfamiliar man of the appellant’s age, as a stereotypical assumption or generalization.

[13] We do not give effect to this ground of appeal. The trial judge, in using the terms “implausible” and “unusual” was not engaging in prohibited reasoning based on stereotypes or unsupported generalizations. Rather, he properly assessed the credibility and reliability of the appellant’s account based on the entirety of his evidence. This is unlike Cepic, where the trial judge’s statements about the appellant’s evidence being implausible and nonsensical was “untethered to an evidentiary base”, and Kodwat, where the trial judge’s characterization of the appellant’s evidence as “inconceivable” was “lacking in an evidentiary foundation”.

[14] In the present case, by contrast, the trial judge’s observations about the implausibility of key aspects of the appellant’s account were firmly rooted in the evidence. Indeed, he instructed himself on the need to avoid improper stereotypical inferences based on expected human behaviour, and he referred to relevant authorities, including Cepic. He explained that “in the present matter, the concerns raised by the [appellant’s] testimony are found to be grounded on his own evidence and not general assumptions of human behaviour in a given situation”, and that it was “the cumulative effect of all these factual indicators which renders his version implausible”.

[15] The trial judge then identified nine suspicious indicators that he stated collectively rendered the appellant’s version implausible, including that, on his account, the complainant had declined a foot massage, refused to take off her jacket, and had left the living room to re-strap her bra before having consensual sexual intercourse. It was in this context that the trial judge described aspects of the appellant’s account as “unusual”.

[16] The appellant contends that, as in J.C., the trial judge engaged in stereotypical reasoning when he rejected the appellant’s evidence that he asked the complainant several times whether she was consenting to sexual intercourse. As Paciocco J.A. said in that case, “the behaviour the trial judge rejected as too perfect to be true is to be encouraged, not disbelieved ab initio”: at para. 98.

[17] In J.C. the trial judge had rejected the appellant’s evidence about asking for consent at each stage of the sexual encounter as “too perfect, too mechanical, too rehearsed, and too politically correct”. This court concluded that, rather than being an observation that was grounded in the evidence, it was a generalization that invoked a stereotype: it purported to be a universal truth that presupposed that no-one would be that careful about consent.

[18] By contrast in this case, the trial judge found the appellant’s evidence about repeatedly seeking the complainant’s consent to be incompatible with other aspects of his account about the sexual intercourse. He observed that “it [was] somewhat unusual that [the appellant] would have asked [the complainant] many times, at least 3 times, whether she was consenting to the intercourse if she was such an openly, willing participant” and that “his explanation that he did so because this was their second time at having intercourse [was] not compelling if his true belief was that she was consenting and, in fact, initiated this part of the sexual encounter by asking if he was horny, removing her clothes, bending over and going to the bedroom where [she] laid down on the bed”. The trial judge was engaging with, and evaluating the appellant’s overall account of what took place, not relying on generalized assumptions about how people would act when engaging in sexual intercourse.

[19] The appellant also asserts that the trial judge used prohibited stereotypical reasoning when he characterized as “unusual” the appellant’s testimony that, during the sexual intercourse, the complainant brought up how long it had been since she had texted her boyfriend. The appellant contends that, as in Cepic, the trial judge relied on the generalized assumption that a woman would not say she had a boyfriend in the middle of sex, to undermine his credibility.

[20] We disagree. According to the appellant, the complainant did not simply say she had a boyfriend (which the appellant already knew); rather, after having sexual intercourse for 10 or 15 minutes, the only thing she said was that it had been a while since she texted her boyfriend, as a result of which the appellant sped up. In characterizing this as “unusual”, the trial judge was evaluating the logical consistency of the appellant’s evidence. The evidence about what the complainant said was at odds with the appellant’s testimony that the complainant was an active participant who had initiated the sexual intercourse. Similarly, the trial judge’s characterization as “somewhat unusual” that the appellant claimed that he was not at least slightly upset when the complainant brought up texting her boyfriend does not reflect stereotypical reasoning. The appellant’s evidence on this point was inconsistent with his testimony that he wanted to be the complainant’s boyfriend.

[21] These instances where the trial judge referred to the appellant’s account as “implausible” and aspects of his evidence as “unusual” were not indicative of the trial judge applying a stereotype to assess the plausibility of human behaviour. Rather, the concerns raised by the appellant’s testimony were, as the trial judge noted, “grounded on his own evidence, and not general assumptions of human behaviour in a given situation.” As such, there is no merit to this ground of appeal.

The Trial Judge did not Engage in Uneven Scrutiny of the Crown and Defence Evidence

[22] It is an error of law for a trial judge to use a higher degree of scrutiny in assessing the credibility or reliability of the defence evidence relative to the Crown’s evidence. Uneven scrutiny however is a “notoriously difficult argument to prove”, as it engages the trial judge’s credibility findings, which are owed significant deference: R. v. G.F., 2021 SCC 20, 163 O.R. (3d) 480, at para. 99. To succeed in this argument, the appellant must point to something in the reasons of the trial judge or perhaps elsewhere in the record that make it clear that the trial judge had applied different standards in assessing the evidence of the appellant and the complainant”: R. v. Howe (2005), 192 C.C.C. (3d) 480, at para. 59 (Ont.C.A.).

[23] The appellant submits that there were three areas where the trial judge applied uneven scrutiny to his evidence and the evidence of the complainant.

[24] First, the appellant points to the fact that both testified that he masturbated at the end of the sexual encounter. While their evidence was consistent, the trial judge found that the complainant’s evidence made sense and had a logical flow, while he found that the appellant’s evidence was implausible and unusual.

[25] We agree with the Crown that the trial judge’s acceptance of one witness’s evidence and the rejection of the other’s even though both converged on one point is not an example of uneven scrutiny. In over ten pages of his reasons, the trial judge acknowledged and addressed the defence submissions about the complainant’s credibility, and he explained why he accepted her evidence. He conducted a similarly detailed review of the appellant’s evidence and credibility, explaining by reference to the damaging text messages and the internal frailties of the evidence, why he rejected the appellant’s account and why the appellant’s evidence did not leave him with a reasonable doubt. Finding the complainant credible even though she also testified that the sexual encounter ended with masturbation does not amount to uneven scrutiny.

[26] Second, the appellant contends that the trial judge “glossed over” a material contradiction in the complainant’s testimony about whether she gave her cell phone to the police and the extent to which she disclosed her text message conversations with the appellant. The evidence was that the complainant did not give her cell phone to the police, although she testified that she had done so. She also stated in cross-examination that she thought she provided text messages from both before and after the incident, when she had only provided a limited sampling of her text messages with the appellant from after the incident. The appellant says that the uneven scrutiny lies in the fact that the trial judge treated the text message evidence as critical in finding that the appellant was not a credible witness, while summarily dismissing the complainant’s contradictions stemming from the disclosure of the text messages.

[27] We disagree. The trial judge did not ignore or “summarily dismiss” material evidence bearing on the complainant’s credibility. The appellant’s argument at trial was that the complainant had intentionally withheld information and misled the court such that it was left with an incomplete picture. The trial judge acknowledged the contradiction between the evidence the complainant had never dropped off her cell phone and her testimony that she had given her cell phone to the police. He noted that the real issue was the effect of this evidence on her credibility and reliability. After considering the evidence on the issue, including that the police did not follow up with the complainant and counsel did not put to her that she had not complied with the request, the trial judge rejected the defence argument that it undermined her credibility. A trial judge’s reasoned rejection of a challenge to credibility does not constitute uneven scrutiny.

[28] The appellant’s third example of alleged uneven scrutiny is in relation to the evidence about the relationships the appellant and the complainant had with other people, namely N and D. He contends that the trial judge did not grapple with the evidence regarding the complainant being upset about the appellant’s relationship with N, when he rejected the contention that this constituted a motive to fabricate. He contrasts this with the trial judge’s rejection as implausible of the appellant’s evidence that he was not upset when the complainant, during sexual intercourse, said she had not texted her boyfriend D in a while.

[29] Contrary to the appellant’s submission, the trial judge’s treatment of the specific evidence in this example does not reveal an uneven scrutiny of the Crown and defence evidence.

[30] The trial judge acknowledged the defence submission that the complainant’s allegations against the appellant were motivated by the fact that she was upset that he had been intimate with N. He explained why he rejected the alleged motive to fabricate. First, he noted that the complainant had confronted the appellant by text message within a few hours of the incident, asserting that the sexual contact was non-consensual. Second, he found that the defence argument of animus and motive to fabricate was undermined by the complainant’s hesitancy in coming forward – with her telling the police she did not want to get the appellant in trouble, that she did not want him to go to jail, and that all she wanted at the start was for the appellant to apologize.

[31] As for the trial judge’s finding that it would be “unusual” for the appellant to be indifferent if the complainant brought up her boyfriend during intercourse, this was one of many factors that, according to the trial judge, served to undermine his credibility. It was supported by the appellant’s repetition throughout his evidence that he had wanted to be the complainant’s boyfriend.

[32] We agree with the Crown’s submission that the trial judge’s rejection of the motive to fabricate argument and his assessment of the appellant’s credibility were both carefully considered and explained.

[33] For these reasons, we dismiss the appeal.

“K. van Rensburg J.A.”

“L. Sossin J.A.”

“L. Favreau J.A.”