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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20240124 Docket: C69994 Lauwers, Paciocco and Zarnett JJ.A.

BETWEEN

His Majesty the King Respondent

and

E.D.J.-C. Appellant

Counsel: E.D.J.-C., acting in person Breana Vandebeek, appearing as duty counsel Erica Whitford, for the respondent

Heard: January 10, 2024

On appeal from the conviction entered on July 13, 2021, by Justice Suhail A.Q. Akhtar of the Superior Court of Justice, sitting without a jury.

REASONS FOR DECISION

OVERVIEW

[1] The appellant, E.D.J.-C., was convicted of sexually assaulting a co-worker, the complainant, at approximately 10:00 p.m. on December 2015. The incident was found to have occurred in a parked car on the side of a public street close to the appellant’s place of residence as the complainant was dropping him off on her way home from the bar where they worked.

[2] The appellant is appealing that conviction with the assistance of duty counsel. We find it necessary to allow his appeal, set aside his conviction and direct a new trial, because the trial judge relied materially on stereotypical inferences in finding that the appellant’s evidence was not plausible, and in rejecting his exculpatory testimony on this basis.

THE GOVERNING LEGAL PRINCIPLES

[3] The relevant law is not in dispute. The “rule against ungrounded common-sense assumptions” requires judges to avoid speculative reasoning by invoking “common-sense” assumptions, including about human behaviour, that are not grounded in the evidence or appropriately supported by judicial notice: R. v. J.C., 2021 ONCA 131, 401 C.C.C. (3d) 433, at paras. 58, 61.

[4] The overlapping “rule against stereotypical inferences” prohibits credibility reasoning based on stereotypical inferences or “prejudicial generalizations” about human behaviour: J.C., at paras 63, 65. This rule prohibits inferences and not the admission of kinds of evidence. It is not an error to admit evidence that could be used to draw stereotypical inferences where that evidence is offered in support of permissible inferences: J.C., at paras. 68-69.

[5] Drawing common sense inferences not grounded in the evidence or stereotypical inferences will not constitute a reversible error unless the impugned inference plays a material or important role in reaching a material conclusion: J.C., at para. 71.

THE MATERIAL FACTS

[6] The complainant’s version of events was that when she dropped the appellant off, he asked her for a kiss, to which she ultimately agreed in order to placate him. She said that she obliged him again when he asked for a “real kiss”, so that he would be satisfied and leave her vehicle. She testified that he pulled her towards him and then, for several minutes, forcibly penetrated her vagina with his finger despite her objection and resistance.

[7] She said the appellant had been flirtatious before, but that she had rejected his efforts because she did not want a relationship with a co-worker.

[8] The trial judge found that, on the evening in question, the appellant never asked the complainant before the digital penetration happened if she would come to his nearby residence. She was not asked whether she would have had any objection to going to his residence.

[9] The appellant provided a diametrically opposed account. He testified that the complainant, who was in a more senior position than him at the bar, kissed him consensually in the parked car. He said he then asked her if he could touch her before he did so. He said he “play[ed] it safe” in this way because she was “a power figure” at the bar, and he did not want to jeopardize his employment. He also testified that when he asked the complainant if he could touch her, she initially told him she was on her period, but she ultimately agreed to allow him to touch her clitoris and that she took off her seat belt and opened her pants to facilitate this. He then masturbated her to climax.

[10] During her testimony, the complainant was confronted about being on her period at the time of the incident and about having this conversation. She said she could not recall whether she was on her period, but allowed for the possibility that she and the appellant had a conversation about her period. She could not remember.

[11] The trial judge rejected the appellant’s version, finding it to be implausible, and he ultimately accepted the complainant’s account.

[12] The appellant takes issue with two aspects of the trial judge’s reasoning in rejecting his testimony.

[13] First, the trial judge said that the appellant’s testimony “becomes somewhat incredible” against the background of his testimony that the complainant was “a power figure” at the bar. He then explained:

I do not accept that [the complainant], an established employee at the bar was willing to engage in high-risk sexual activity in a car on a busy street in full view of the public. It would make no sense for [the complainant] to engage in this activity and risk being seen by the public or worse, law enforcement, particularly when any consensual sex could be safely conducted in the privacy [of the appellant’s] residence which was only three houses away.

[14] The complainant was not asked during her testimony about her willingness to engage in high-risk sexual activity. Nor was evidence provided as to the risk to the complainant’s career prospects if found engaging in a public sex act with the appellant.

[15] The appellant argues that this implausibility finding was not grounded in the evidence and was based on impermissible stereotypical reasoning about what kinds of sexual activity individuals are prepared to engage in and what kind of sexual risks they will take.

[16] Second, in further explaining his implausibility finding the trial judge said:

Nor do I find it credible that [the complainant] would agree to any type of sex in the confines of a car when she was having her period. This, in my view, defies logic.

[17] Once again, the appellant argues that this inference is not grounded in the evidence and is also based on stereotypical inferences about the kind of sexual activity that women would engage in when on their periods.

[18] The appellant argues that the fact that the trial judge was engaging in stereotypical reasoning is reflected in his colloquies with counsel. In the course of confronting the appellant’s trial counsel with the implausibility of the appellant’s evidence the trial judge said:

“Why would [the complainant] ask [the appellant] to masturbate her in a car on the side of a busy road when she’s on her period? I mean, she could have just said, Let’s go to your house and do this.

... how does this make any sense?...

She’s doing it – and she’s doing it in a car, which is hardly the most convenient place to do it.

And she’s on her period. This is what you’re expecting me to believe that this woman who’s in an authoritative position would actually say, Hey, listen, do it to me in the car when three houses down, it’s his house. She could say, Hey, let’s just go back and, and have sex in your house.

[19] Defence counsel gently suggested that the trial judge was engaging in myth-based or stereotypical reasoning when raising these points. The trial judge responded:

This is not a myth-type situation. This is a situation where – you’re right, I’m not saying that it can’t have happened, but when you’re looking in terms of the credibility of, of your client’s account, I’m having to look at this subjectively and think, well, why would she do that?

Like, she didn’t look like she was some, you know, fetish freak or some person who got her kicks out of having sex in public. She looked like this very, you know, modest, humble type of person who is basically very uncomfortable even testifying. She’s uncomfortable testifying; she’s very comfortable about having sex in public when, you know, with an employee that – anyway, that, that’s what the Crown’s going to say. I’m just pointing that out to you for, for your response (emphasis added).

[20] The trial Crown did not rely on the testimony about the complainant being on her period. But the trial judge brought this consideration up again in support of the Crown’s implausibility submissions. Specifically, after the Crown suggested that the appellant’s testimony that the complainant went “through the difficult exercise of taking off her belt of one inch thick that was broken and undoing her pants in the car” was implausible the trial judge interjected, “[w]hilst she’s on her period.”

ISSUES

[21] As indicated, the issue relating to each line of reasoning is whether the trial judge committed a reversible error by drawing material common sense inferences not grounded in evidence, or material stereotypical inferences.

ANALYSIS

[22] Contrary to the appellant’s submissions, the inference that the complainant would not have engaged in the sexual act described by the appellant in a public vehicle is grounded in the evidence. This inference is based on the complainant’s testimony that she did not want a relationship with a co-worker, coupled with evidence that the appellant’s residence was nearby.

[23] An inference that the complainant would not engage in such “high-risk” sexual activity in the car given her employment concerns would not have been predicated on myth or stereotype. However, the trial judge appears to have gone beyond this line of reasoning, based on related comments he made in the colloquy with defence counsel that reveal his belief that only a “fetish freak” would engage in public sexual activity. This is unquestionably stereotypical reasoning. The trial judge’s description of his thinking is made even more concerning by his comments that the complainant is not the type of person who would engage in such conduct - there is simply no other way to understand his remarks about how the complainant presented, or his evident assumption that a woman who would engage in such conduct would not have been uncomfortable testifying, as the complainant was. If this reasoning contributed to the trial judge’s conclusion that the complainant would not have engaged in consensual sexual activity in a vehicle parked on a public street, it not only violated the rule against stereotypical inferences, but it was also impermissible character reasoning. The law rightly guards against determining whether a complainant would consent to sexual activity based on their character. There is no room for such thinking.

[24] The Crown argues that because the trial judge did not repeat in his reasons for conviction his “fetish freak” comment, or his comments about what the demeanour shows about the complainant’s character, we should not assume that these comments coloured his decision, particularly given his explanation that it is his practice to put his concerns to the parties during argument, before making a decision, to give them a fair chance to answer.

[25] We reject this argument. The impermissible lines of reasoning that the trial judge put to defence counsel were flatly impermissible and should not have been of any concern to the trial judge. The safest way to proceed where such thinking is expressed during trial and is not explicitly disavowed in the judgment is to assume that it improperly influenced his thinking.

[26] In any event, the trial judge’s related line of reasoning that it “defies logic” that the complainant would have agreed to any type of sex in the confines of a car when she was having her period manifestly breached the rule against stereotypical inferences and, as the Crown concedes, this erroneous reasoning was material in making the implausibility determination.

[27] The appeal Crown suggested that perhaps the trial judge was not drawing the stereotypical inference when reaching this conclusion but was instead using evidence capable of supporting a stereotype to engage in a permissible line of reasoning. Specifically, the appeal Crown suggested that the trial judge may have based his reasoning in the biological reality that sex is “potentially more messy” when menstruation is occurring. But even this reasoning ultimately depends on generalizations about the circumstances in which women would engage in such “messy” sexual activity. And as duty counsel pointed out, the business of getting into the biological realities of menstruation to draw inferences about what sexual behaviour women would engage in is perilous business. Attempting to predict sexual behaviour for specific individuals based on generalizations about how women behave sexually during menstruation is too fraught with the risk of prejudicial judgment and too uncertain to yield appropriate inferences.

[28] The Crown was right not to rely on menstruation in its submissions. The trial judge erred by doing so. And it played an important part in his reasoning, being raised repeatedly during the colloquies by the trial judge even though not raised by either counsel.

[29] The Crown asked us to support the conviction even if we were to find the error we have just identified, based on the other lines of reasoning the trial judge engaged in when rejecting the appellant’s testimony. The only way to do so given that the stereotypical reasoning he engaged in was material to the conviction would be through the use of the curative proviso, but in the circumstances of this case, the curative proviso cannot be successfully deployed. The evidence is not “so overwhelming that a reasonable and properly instructed jury would inevitably have convicted”: R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, at para. 36, citing R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 31. This was a credibility case without objective supporting evidence. Conviction is not inevitable.

CONLUSION

[30] The appeal is allowed, the conviction is set aside, and a new trial is ordered.

“P. Lauwers J.A.”

“David M. Paciocco J.A.”

“B. Zarnett J.A.”