WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4 or 486.6 of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order;

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

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

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order;

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

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

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

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

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

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

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

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

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

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

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

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

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

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

486.6 (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

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

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

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

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

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order.

Court of Appeal for Ontario

Date: 2024-05-02 Docket: COA-23-CR-0804

Judges: MacPherson, Copeland and Gomery JJ.A.

Between: His Majesty the King Respondent

And Robert Cremasco Appellant

Counsel: Dan Stein, for the appellant Scott Clarke, for the respondent

Heard: May 1, 2024

On appeal from the conviction entered on December 14, 2022, and the sentence imposed on June 21, 2023, by Justice Roger Chown of the Superior Court of Justice.

Reasons for Decision

[1] Following an eight-day trial, Justice Roger Chown of the Superior Court of Justice convicted the appellant of choking in committing a sexual assault and sexual assault. The conviction for the second offence was stayed by the operation of the principle in R. v. Kienapple, [1975] 1 S.C.R. 729. The trial judge imposed a sentence of two years in prison. The appellant appeals from the conviction.

[2] On the evening of February 22-23, the complainant consumed a substantial amount of alcohol while with friends, first in her father’s apartment and later in a local bar. At around 3 a.m., the complainant’s friends delivered her back to her father’s apartment. She stayed there briefly and, contrary to her father’s entreaties, went outside again without her coat, purse, or phone.

[3] In her trial testimony, the complainant said that she had “screenshot” like memories of encountering a man with a white shirt on the street, of being on a couch in the man’s apartment, of being given some food and a glass of water, of the man standing in front of the apartment door to stop her from leaving, and of grabbing the man’s arm as he choked her unconscious.

[4] The complainant next recalled being in the man’s bedroom with the man being on top of her with the bed rocking. She remembered the man kissing her breasts, saying “no” and telling him to get off her, and being unconscious a second time. She recalled waking up later in the appellant’s bed, no longer wearing her pants.

[5] The appellant lived a short distance from the complainant’s father’s apartment but was a stranger to her. As already noted, the complainant had a limited recollection of the events in the appellant’s apartment. However, the appellant’s DNA from saliva was found inside the cup of the complainant’s bra and in the crotch area of her underwear. Additionally, photographs of bruising on both sides of the complainant’s neck were filed as exhibits at trial.

[6] The trial judge identified the key issue at trial with respect to the offences of sexual assault as whether the Crown had proven that the complainant did not consent to the sexual activity. In this trial, both capacity to consent and actual consent were in issue.

[7] The trial judge found that the Crown had met its burden of establishing that the complainant did not have an operating mind during the sexual encounter with the accused prior to the point at which the complainant “woke up” and was shocked to find herself in bed with him beside her and staring at her. The trial judge concluded that, although the complainant had fragmentary memories of the events involving the appellant prior to that time, she lacked the capacity to consent to the sexual activity that took place.

[8] The trial judge also stated that the Crown had to prove that the accused knew that the complainant did not consent. He recorded that the accused did not advance the defence of honest but mistaken belief in consent.

[9] On the W. (D.) analysis (R. v. W. (D.), [1991] 1 S.C.R. 742), the trial judge said that he did not believe or have a reasonable doubt about the accused’s evidence, namely that the complainant was only lightly intoxicated or that she was a willing partner in the sexual activity.

[10] In the result, the trial judge was convinced beyond a reasonable doubt by the evidence that the accused was guilty of the two offences.

[11] The appellant appeals the conviction on three grounds.

[12] First, the appellant contends that the trial judge erred in finding that the appellant lacked capacity to consent. He says that the trial judge erred in failing to appreciate that the facts he relied on to prove incapacity showed the presence of an operating mind, relied on ungrounded assumptions, or did not prove incapacity one way or the other. The trial judge also failed to advert to evidence that was relevant to the inquiry into capacity and could have changed the outcome.

[13] We do not accept this submission. The evidence of the complainant’s exceptionally drunk condition by 2 a.m. and 3 a.m. was comprehensive and overwhelming, especially the evidence of the complainant’s two friends who were with her throughout the evening and the observations of her behaviour by her father at 3 a.m.

[14] The trial judge explicitly engaged in the analysis mandated by R. v. G.F., 2021 SCC 20, and concluded:

In this case, the Crown has met its burden to establish beyond a reasonable doubt that the complainant did not have an operating mind during the sexual encounter with he accused prior to the point at which the complainant “woke up”. That is, prior to the point in time described by the complainant that she woke up and was shocked to find herself in (sic) the accused in bed with him beside her and staring at her. Although she has fragmentary memories of the events involving the accused prior to that time, I find that she lacked the capacity to consent during the sexual activity that occurred prior to then. She was too intoxicated to be capable of understanding the physical acts that she was engaging in.

[15] We also do not accept the submission that the trial judge relied on ungrounded assumptions in his assessment of the complainant’s capacity to consent. During the hearing of the appeal, counsel for the appellant focused this argument on a portion of the reasons where the trial judge was discussing evidence about the complainant’s level of intoxication. In our view, in this portion of the reasons, the trial judge made findings based on the trial evidence and did not rely on assumptions. Thus, this argument fails on the first branch of the analysis recently enunciated by the Supreme Court in R. v. Kruk, 2024 SCC 7, at para. 94.

[16] Second, the appellant makes a two-pronged challenge to the trial judge’s assessment of the appellant’s credibility – first, the trial judge erred in failing to address and appreciate evidence that was relevant to the appellant’s credibility, and second, the trial judge erred in failing to address the appellant’s mens rea.

[17] We are not persuaded by this submission.

[18] The trial judge directly addressed the appellant’s credibility. He carefully considered the appellant’s testimony and rejected it, as he was entitled to do. The appellant testified that the complainant was a “little drunk”. Based on all the evidence, and especially the evidence of the complainant’s two friends who were with her throughout the night, the trial judge was entitled to conclude that the complainant was “too intoxicated to be capable of understanding the physical acts she was engaging in.”

[19] The mens rea of sexual assault requires that the accused intend the sexual touching in question and know of, or be reckless about or wilfully blind to, the complainant’s lack of consent: R. v. Ewanchuk, [1999] 1 S.C.R. 330, at paras. 23 and 42. The trial judge essentially focused on this issue throughout his reasons, especially in the section under the heading “Knowledge”.

[20] Third, the appellant submits that the trial judge erred in failing to provide sufficient reasons for the conviction on the choking offence.

[21] We disagree. After reviewing the evidence on this issue, the trial judge concluded:

The Crown has established beyond a reasonable doubt that the accused choked the complainant using his hands on her neck. I believe the fragmentary memory of the complainant on this point, which is strongly supported by the bruising on the complainant’s neck. Given that the accused says choking did not occur, there is nothing to suggest that consensual choking occurred.

[22] In our view, the trial judge was entitled to make this conclusion.

[23] The conviction appeal is dismissed. The contingent sentence appeal does not arise.

“J.C. MacPherson J.A.”

“J. Copeland J.A.”

“S. Gomery J.A.”