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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

Date: 20240517 Docket: COA-23-CR-0196

van Rensburg, Thorburn and Dawe JJ.A.

Between

His Majesty the King Respondent

and

Justin Watson Appellant

Counsel: Andrew Burgess, for the appellant Samuel Mazzuca, for the respondent

Heard: April 25, 2024

On appeal from the conviction entered on October 12, 2022 by Justice J. Elliott Allen of the Ontario Court of Justice.

Dawe J.A.:

Endorsement

[1] The appellant was tried on charges of sexual assault and assault with choking. The trial judge found him guilty and sentenced him to 3.5 years in prison.

[2] The appellant appeals against his convictions only. His main ground of appeal is that the trial judge gave inadequate reasons for rejecting his main defence and accepting the complainant’s evidence.

[3] The appellant and the complainant were former co-workers. On the night in question, they had both been part of a group of people who had been drinking together at a bar. When the bar closed at 2:00 a.m., the complainant and the appellant went to the appellant’s apartment. She remained there until shortly before 6:00 a.m., when the appellant called an Uber to take the complainant back to her own residence. The complainant maintained that during the time they were together at the appellant’s residence he sexually assaulted and choked her.

[4] The appellant did not testify. His main defence at trial was that the complainant had fabricated her allegations to hide what had been a consensual sexual encounter with him from her boyfriend.

[5] This defence theory had five main evidentiary planks. First, the complainant testified that she shared location data on her phone with her boyfriend, and thought that he “probably” would have checked her whereabouts and realized that she had spent the night somewhere other than her own residence. Her boyfriend denied that he actually checked her location that night, but agreed that the complainant would have no way to tell whether or not he had done so.

[6] Second, after the complainant left the appellant’s apartment, they exchanged a series of seemingly friendly text messages, during which the complainant texted: “Just got home! Please don’t say anything to anyone [heart emoji]”. The appellant responded: “Never will glad you got home safe [heart emoji]”, and then texted: “ If you figure some things out we should get some drinks tho. I had a great time tonight”, adding “Mainly the great view of Guelph [winking emoji]”. The complainant replied, “Thank you, much appreciated. Me as well, Sorry I lost my cool so many times!” The complainant deleted these texts from her phone before she made her police complaint.

[7] Third, the complainant testified about why she sent this first text to the appellant, stating, “I didn’t want him bragging, about telling people about it so I was really hoping that he in fact wouldn’t”. While this explanation did not contradict her evidence that her sexual activity with the appellant had been non-consensual, it was at least consistent with the defence’s theory that it had been consensual.

[8] Fourth, the complainant agreed with the suggestion that when her boyfriend came over to her apartment after she got home that morning, he had been “trying to pull … out of [her]” what had happened that night. The defence theory was that the complainant, believing that her boyfriend knew from tracking her location that she had been out most of the night, made up the allegation that her sexual activity with the appellant had been non-consensual to address her boyfriend’s suspicions.

[9] Fifth, the complainant initially testified in cross-examination that she thought that if her boyfriend had learned about her having a consensual sexual encounter with another man, “[h]e wouldn’t have been happy about it”. She then added, “[h] owever, we had been through quite a lot in our relationship, and I don’t know how he would’ve reacted.” A short while later, in response to a suggestion by defence counsel that she had interpreted her boyfriend’s reaction when they first spoke as “completely consistent with the fear that you had hooked up with someone else”, she replied:

If I’m being completely honest, given our history, he would’ve been relieved had I hooked up with someone else. He felt very guilty for how our relationship started out …

The trial judge then interjected and expressed concern that “we’re getting into something that’s not an appropriate area for inquiry”, and the complainant did not finish her explanation.

[10] In his brief reasons for judgment, delivered orally several months after he heard final submissions, the trial judge perfunctorily dismissed the defence theory that the complainant had a motive to conceal a consensual sexual encounter from her boyfriend, stating:

The boyfriend is not the controlling person defence attempted to make him out to be. None of his answers was evasive, he was genuinely concerned for her welfare. He would have been upset if she had had a consensual sexual encounter that evening but it is her perception on that issue and not his that matters.

She says towards the end of her cross-examination that it might have been easier for him if it had been consensual given his own prior infidelity. That particular utterance has the capacity to rebut the allegation of motive.

Several paragraphs later in the transcript, he added:

I particularly found [the complainant’s] response to questioning about the possible response of her boyfriend to her having a consensual encounter, that it might be easier for him due to his past infidelity, to be spontaneous and compelling. In my view it took the issue of motive to fabricate off the table.

[11] The trial judge concluded:

The shame victims of sexual assault feel is as much a motive to want to keep things hidden as the wish of those cheating on a lover to do.

Finally, the various discrepancies and omissions from one statement to the next do not give any reservation in accepting her core evidence that she did not consent and that she let him know. The quality of her evidence is such as to resolve the questions arising from her evidence in favour of the prosecution and to put any concerns about her veracity on the crucial issues thereof to rest.

[12] It is well-settled that the adequacy of judicial reasons must be assessed functionally: see e.g., R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869; R. v. Braich, 2002 SCC 27, [2002] 1 S.C.R. 903; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788. As stated in R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 15, “reasons must be sufficient to fulfill their functions of explaining why the accused was convicted or acquitted, providing public accountability and permitting effective appellate review.”

[13] In R.E.M., McLachlin C.J.C. explained further, at para. 17:

These purposes are fulfilled if the reasons, read in context, show why the judge decided as he or she did. The object is not to show how the judge arrived at his or her conclusion, in a “watch me think” fashion. It is rather to show why the judge made that decision. [Emphasis in original.]

Quoting from this court’s decision in R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), she added:

[T]he description in Morrissey of the object of a trial judge’s reasons is apt. Doherty J.A. in Morrissey, at p. 525, puts it this way: “In giving reasons for judgment, the trial judge is attempting to tell the parties what he or she has decided and why he or she made that decision” (emphasis added). What is required is a logical connection between the “what” — the verdict — and the “why” — the basis for the verdict. The foundations of the judge’s decision must be discernable, when looked at in the context of the evidence, the submissions of counsel and the history of how the trial unfolded.

Later in her reasons, McLachlin C.J.C. observed that “a trial judge is not obliged to discuss all of the evidence on any given point, provided the reasons show that he or she grappled with the substance of the live issues on the trial”: R.E.M., at para. 64.

[14] The trial judge’s reasons in this case do not demonstrate that he meaningfully grappled with the evidence that was relied on by the defence in support of its theory that the complainant’s allegations were fabricated.

[15] First, the trial judge made no mention of the complainant’s evidence that she had believed that her boyfriend had probably been tracking her location that night. This evidence was central to the defence’s theory that the complainant had fabricated her allegations in order to conceal from her boyfriend what had actually been a consensual sexual encounter with the appellant. Since the trial judge’s reasons make no mention of this evidence, I cannot determine whether he properly considered it before rejecting the defence theory of fabrication, or whether he simply overlooked it. The concern that the trial judge might have simply forgotten about this evidence is heightened by the several months that had passed between when he heard the evidence and submissions, and when he delivered his oral reasons.

[16] For the Crown, Mr. Mazzuca argues that the trial judge could have decided that even if the complainant’s boyfriend had tracked her movements that night, he would not have recognized the place where she went after she left the bar as being the appellant’s residence. The complainant had raised this possibility during cross‑examination, but had not suggested that it was something she had thought of at the time. More importantly, the trial judge’s reasons give no indication that this was why he discounted the significance of the tracking evidence. Rather, he made no mention of this evidence at all.

[17] It is sometimes possible for a reviewing court to fill in gaps in a trial judge’s reasons by looking to the trial record (Sheppard, at para. 55). However, when a trial judge finds a witness to be credible without referring to important evidence that bears on this issue, a reviewing court cannot simply assume that this evidence must have been tacitly considered: see e.g., Dinardo, at para. 34; R. v. J.C., 2023 ONCA 101, at para. 13; R. v. J.L., 2024 ONCA 36, at paras. 40-41.

[18] The trial judge’s treatment of the text message evidence was also perfunctory. At several different points in his reasons, he adverted to the importance of this evidence, noting that the complainant’s texts to the appellant were “arguably inconsistent with her assertion of lack of consent”, and describing the text messages as “the most challenging part of the evidence from the prosecution point of view”. After characterizing the complainant’s decision to delete the text messages from her phone as “understandable”, the trial judge stated:

Whether the texts have the capacity to raise a reasonable doubt or are persuasively explained by her can only be determined in the context of the consideration of all the evidence.

However, the balance of his reasons make no further mention of the text messages, other than passages in which he accepted the complainant’s testimony that the appellant had sent the first text message in the exchange – the word “Daddy” – to himself using the complainant’s phone.

[19] I accept that it can be concluded from the trial judge’s reasons as a whole that he ultimately accepted the complainant’s explanation both for why she sent these text messages, and why she then deleted them. However, to the extent that he explained how he reached this conclusion, his reasons raise other concerns.

[20] For instance, the trial judge stated that in the text messages:

[The complainant] apologizes for breaking down and [the appellant] accepts that apology. Breaking down in that context can only mean distress, the crying and troubled breathing that she refers to in her evidence.

In short, the trial judge seems to have concluded that the complainant’s text messages were not merely consistent with her allegations, but actively confirmed her trial evidence that she had been crying and having difficulty breathing while the appellant sexually assaulted her.

[21] The first problem with this reasoning is that the complainant did not actually use the term “breaking down” in any of her text messages. The words that she actually did use – “ Sorry I lost my cool so many times!” – were not ones that could “only mean distress, the crying and troubled breathing that she refers to in her evidence”, as the trial judge concluded.

[22] I do not agree with Mr. Mazzuca that defence counsel at trial had conceded that the expressions “lost my cool” and “breaking down” are necessarily synonymous, when the trial judge had suggested this to her in a colloquy during her final submissions. In any event, however, the overall content of the complainant’s text message, including her response to the appellant’s statement that he “had a great time tonight” by saying “Me as well”, did not uniquely indicate that she must have been in “distress”. While it was open to the trial judge to conclude that he accepted the complainant’s account about what had happened at the appellant’s residence notwithstanding her subsequent seemingly friendly text messages, it was not reasonably open to him to treat her text messages as expressly confirming her trial evidence, to the exclusion of all other possibilities.

[23] The approach the trial judge took to this evidence also raises a second concern. A witness’s prior consistent statements generally cannot be used to corroborate that witness’s own in-court testimony: see e.g., R. v. S.C., 2023 ONCA 832, at para. 14. There are exceptions to this general prohibition, some of which were potentially engaged here: see S.C., at para. 15. However, the trial judge’s reasons give no indication that he turned his mind to these legal limits.

[24] The trial judge also made no mention in his reasons of the complainant’s explanation for including a heart emoji in the first text that she sent to the appellant after she got home (“Just got home! Please don’t say anything to anyone [heart emoji]”). She explained at trial:

I recognize it was not a good excuse. I only use the heart emoji when something is extremely wrong. My partner again he can attest to that. Obviously I should not have included that emoji.

However, the complainant’s boyfriend contradicted her testimony that she routinely used the heart emoji in this idiosyncratic way, testifying that he would have interpreted a heart emoji from her as meaning “an expression of warmth or love”. Since the trial judge did not address or even mention any of this evidence in his reasons, I cannot tell if he properly factored it into his credibility assessment.

[25] The trial judge’s stated reason for dismissing the defence’s theory of motive to fabricate is also problematic, particularly when viewed in conjunction with his failure to address the evidence that was being relied on by the defence in support of its theory. Over the course of a few questions in cross-examination, the complainant went from testifying that her boyfriend would not have been happy if she had “a consensual sexual encounter” with another man, to saying that she didn’t know how he would have reacted, to saying that she actually thought he would have been relieved that she “hooked up with someone else”, apparently because of his own history of infidelity. The trial judge declared this latter evidence to be so credible and believable that it “took the issue of motive to fabricate off the table”.

[26] While it was open to the trial judge to find that the complainant’s allegations were not fabricated, he could only properly reach this conclusion after considering the evidence as a whole. His reasons raise the possibility that he may have considered the complainant’s testimony that she had no motive to fabricate to be so “spontaneous and compelling” that he did not need to give the possibility of fabrication any further consideration, or take into account the evidence that the appellant maintained supported his position on this issue, including the at least somewhat contradictory evidence on this very point that the complainant had given only minutes earlier.

[27] In summary, the trial judge’s reasons in the case at bar did not adequately achieve two of the key purposes that the duty to give judicial reasons is meant to serve. First, I cannot be certain that the trial judge properly considered all of the evidence that was relevant to a proper assessment of the complainant’s credibility and her alleged motive to fabricate, some important aspects of which he did not address anywhere in his reasons. This precludes meaningful appellate review of his reasoning process.

[28] Second, viewed from the appellant’s perspective, the trial judge’s reasons make it clear that he found the appellant guilty because he unreservedly accepted the complainant’s evidence, but they do not adequately explain why he rejected the defence’s arguments that the evidence as a whole raised a reasonable doubt about the appellant’s guilt.

[29] I would accordingly allow the appeal and order a new trial.

Released: May 17, 2024 “K.M.v.R.” “J. Dawe J.A.” “I agree. K. van Rensburg J.A.” “I agree. Thorburn J.A.”