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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20240506 DOCKET: C70423

MacPherson, Copeland and Gomery JJ.A.

BETWEEN

His Majesty the King Respondent

and

Darryl Rusaw Appellant

Counsel: Thomas Balka, for the appellant Joanne Stuart, for the respondent

Heard: May 1, 2024

On appeal from the conviction entered on August 8, 2019 by Justice James C. Crawford of the Ontario Court of Justice.

REASONS FOR DECISION

[1] The appellant was charged with sexually assaulting two different complainants on two different dates. The trial relating to both offences took place in Peterborough before Justice Crawford of the Ontario Court of Justice. The trial judge acquitted the appellant on the charge relating to the complainant J.G. and convicted him on the charge relating to the complainant S.S. The appellant was sentenced to 30 months in jail, which he has since served.

[2] The appellant appeals the conviction relating to the complainant S.S.

[3] On the May long weekend in 2017 there was a party at the appellant’s and his wife’s cottage. There were quite a few people at the cottage, including the appellant’s son and daughter, the son’s girlfriend, and several of the son’s friends, including the complainant S.S. and her boyfriend J.W.

[4] A great deal of alcohol was consumed by everybody during the afternoon and evening of May 22, 2017. Many of the attendees became intoxicated. The appellant’s very intoxicated wife went to bed. Around the same time, S.S. and her boyfriend, J.W., went to their assigned bedroom. After a few minutes, J.W. left the bedroom and rejoined the party. S.S. stayed in the room and fell asleep.

[5] About an hour later, the appellant went to the bedroom where S.S. was sleeping. S.S. testified that she awoke to someone performing oral sex on her. She was only partially awake, rating her alertness as 2 on a 10 point scale. According to S.S., the appellant then got on top of her and started to have sexual intercourse with her. Thinking it was her boyfriend, she said J.W.’s name once or twice. The appellant then said, “it’s not [J.W.]”. S.S. touched the appellant’s chest and realized it was not her boyfriend. She snapped awake, pushed the appellant off her, and ran into the closet in the same room. She was screaming and crying loud enough that she was heard by the other party attendees over the music.

[6] J.W. responded to S.S.’s screams. When he tried to enter the bedroom, the door was locked. He banged on the door. He was about to knock it down when the appellant unlocked it. J.W. found S.S. curled up in the closet, terrified and crying. The appellant was on the other bunkbed with his head in his hands. He said to J.W., “[w]e need to talk”.

[7] R.M., one of the other guests, escorted the appellant outside to de‑escalate the situation. He testified that they had a conversation in which the appellant admitted he knew S.S. was sleeping in the room, he knew what he did was wrong, he knew that S.S. at first did not know it was him penetrating her, and he feared he would be going to jail. In his testimony, R. M. said that when he told the appellant that he had sexually assaulted S.S., the appellant called her a “slut” and that she “wanted it”.

[8] The appellant testified at the trial. He said that S.S. initiated the sexual encounter and was an active participant. The trial judge described the core of the appellant’s testimony in this fashion:

The [appellant] confirmed putting his wife to bed and then entering the bedroom where [S.S.] was laying on her back. He said that he did this to invite her to come back to the party and to invite [J.W.], if he was there, to come for a drink of whiskey. At this point he described himself as squatting by the bed where upon the complainant jumped up, dragged him back, began kissing him knocking off his glasses, grabbing his buttock and stroking his penis. He described the complainant removing her pants where upon she moaned “I want you, I want you”. Then he described … removing his clothes whereupon the complainant grabbed his penis and they had intercourse. As they were having intercourse the [appellant] described [S.S.] as saying “[J.W.]” whereupon he said he wasn’t [J.W.]. Then the complainant slapped him in the face and ran into the closet screaming.

[9] The trial judge did not believe the appellant’s testimony. He said:

I find that the [appellant]’s indication that the complainant initiated the sexual contact with him is false.

I totally reject the [appellant’s] evidence that the complainant initiated the sex and became a knowing and willing participant. I find again that the [appellant] took no steps to determine that state of consciousness of the complainant before he initiated the sexual contact as noted with her.

[10] The appellant advances two grounds of appeal.

[11] First, the appellant contends that the trial judge misapprehended the evidence about his conversation with R.M. right after the incident. According to the appellant, the trial judge mistakenly found that he had in effect confessed to R.M. that he initiated sex with the complainant when she was asleep. The appellant asserts that he never wavered from his position that the complainant had initiated the sexual activity and he believed her to be consenting at the time.

[12] We do not accept this submission. The trial judge candidly stated in his reasons that, with respect to R.M.’s evidence, “[t]he only difficult area of evidence was with respect to what the [appellant] told him on their walk regarding his perception of the complainant’s awareness that it was he who was having sexual contact with her.” The trial judge reviewed R.M.’s evidence about the complainant’s awareness of who was involved with her in a sexual way and said:

I conclude on this point that the [appellant] likely told [R.M.] both versions during the walk although the first and last versions were that the complainant did not know it was him. I was left with no cautions regarding the truthfulness of [R.M.’s] evidence but with a minor caution as to accuracy in this one area noting that it likely came from contradictory statements given by the [appellant] and heard by [R.M.] in the highly charged environment of the walk.

[13] Against this candid backdrop, we cannot find any fault with the trial judge’s conclusion on this issue:

[The appellant] was taken from the property by [R.M.] for a walk in the darkened road in front of the cottage. During that walk with Mr. [M], a friendly individual from the [appellant’s] point of view, the [appellant] revealed to him details of what happened including that, in part, that he had initiated sex with [S.S.] while she slept.

In this case I am left with no reasonable doubt. The complainant did not subjectively consent to sexual contact initiated by the [appellant].

[14] Second, the appellant submits that the trial judge erred by rejecting the defence of honest but mistaken belief in consent.

[15] The appellant says that he described the complainant as a willing participant in the sexual activity that occurred. He testified that she initiated the physical contact between them, removing her pants and inserting his penis into her. His position is that he believed her to be a consenting party.

[16] Relying on his application of this court’s decision in R. v. Crespo, 2016 ONCA 454, the trial judge said:

On the facts as I have found them the [appellant’s] assertion is a bare one as described in paragraph 11 of Crespo. As noted the findings of fact indicate that the [appellant] took no reasonable steps to ascertain the complainant’s consent before commencing sex on the sleeping complainant. Paragraph 20 of Crespo indicates that this precludes the defence from advancing the defence of honest but mistaken belief. The [appellant] was aware that the complainant had been drinking alcohol, was aware that she had gone to bed, was aware that she was a 21 year old girlfriend of his son’s best friend and was aware that she was sleeping in a darkened bedroom. I totally reject the [appellant’s] evidence that the complainant initiated the sex and became a knowing and willing participant. I find again that the [appellant] took no steps to determine that state of consciousness of the complainant before he initiated the sexual contact as noted with her.

[17] In our view, this was an impeccable analysis and application of Crespo.

[18] The appeal is dismissed.

“J.C. MacPherson J.A.”

“J. Copeland J.A.”

“S. Gomery J.A.”