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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences: (i) an offence under section 151, 152,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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20240903 Docket: COA-23-CR-0319

Huscroft, George and Copeland JJ.A.

BETWEEN

His Majesty the King Respondent

and

W.M. Appellant

Counsel: James Foord, for the appellant Baaba Forson, for the respondent

Heard: August 28, 2024

On appeal from the conviction entered on March 15, 2022 by Justice Julie Bourgeois of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant appeals his conviction for one count of sexual assault. After hearing submissions, we dismissed the appeal with reasons to follow. These are our reasons.

[2] The appellant and the complainant had previously been boyfriend and girlfriend, but at the time of the offence were no longer in a romantic relationship. The night of the offence, the appellant slept over at the complainant’s house. There is no dispute there was sexual contact between them that night. The only issue at trial was whether the Crown had proven the complainant’s lack of consent beyond a reasonable doubt. This turned on the trial judge’s assessment of the credibility of the appellant and complainant against the reasonable doubt standard. Honest but mistaken belief in communicated consent was not a live issue given the divergences in the two accounts.

[3] The trial judge correctly instructed herself on the relevant law in relation to the elements of sexual assault, and, in particular, proof of non-consent; the presumption of innocence; the Crown’s burden of proof beyond a reasonable doubt; and the principles from R. v. W.(D.), [1991] 1 S.C.R. 742. The appellant does not suggest otherwise.

[4] The appellant raised one ground of appeal. [1]

[5] The appellant argued that the trial judge misapprehended his evidence about the complainant being awake at the start of the sexual contact by finding that his evidence on that issue was “internally incompatible and exaggerated”. The appellant argued that his evidence that the complainant was awake at the start of the sexual encounter was not internally incompatible or exaggerated; it simply differed from the complainant’s version of events. The appellant argued that the asserted misapprehension was material and caused a miscarriage of justice for two reasons. First, the trial judge described the issue of whether the complainant was awake at the start of the sexual contact as a “crucial detail”. Second, this was a case that turned on credibility, where there were live issues about the credibility of both the appellant and the complainant.

[6] We are not persuaded that the trial judge misapprehended the appellant’s evidence.

[7] As the trial judge explained, the issue of whether the complainant was awake at the start of the sexual contact was important because it was a significant point of divergence between the evidence of the complainant and the appellant. On the complainant’s account, she and the appellant went to sleep, and she awoke sometime later to find the appellant digitally penetrating her. By contrast, on the appellant’s account, the sexual contact began shortly after the two of them went to bed, and the complainant was awake when the sexual contact started (and throughout). The appellant testified that he knew the complainant was awake because they had slept in the same bed before, and the complainant would twitch when she was asleep.

[8] The trial judge gave two reasons for her conclusion that the appellant’s evidence that the complainant was awake when the sexual contact began was “internally incompatible and exaggerated”.

[9] The first reason was based on inconsistency between two aspects of the appellant’s evidence. The appellant had testified that it confused him, and he found it strange, that the complainant invited him to sleep in her bed, rather than on the couch, because they were no longer in a romantic relationship and were just friends. Yet in the face of his asserted confusion, the appellant initiated sexual contact without any attempt to check if the complainant was awake or interested in sexual contact. He purported to do so relying on his observation of the complainant not twitching as the basis for believing she was awake. The incongruity of saying he was confused, yet not checking if she was awake, or making any inquiry about her interest in sexual contact was the basis for the trial judge’s finding that the appellant’s evidence on the issue of the complainant being awake was “internally incompatible”.

[10] Second, the trial judge found the appellant’s account of knowing the complainant was awake because she was not twitching to be “exaggerated” because it contained an implicit assertion that every time the complainant was asleep, she would twitch. The trial judge found this proposition difficult to accept.

[11] Mr. Foord argued that a review of the appellant’s evidence on this issue shows that he did not say that the complainant “always” twitched when she was asleep, but that she “typically” twitched when she was asleep. In our view, the appellant’s use of the word “typically” in his testimony does not undermine the trial judge’s analysis. The appellant’s evidence was that he relied on the absence of twitching as the basis for believing the complainant was awake when he initiated the sexual contact. Implicit in this claim is the assertion that she always twitched when she fell asleep; otherwise, the appellant’s claim that he relied on the absence of twitching as the basis for his belief that the complainant was awake makes no sense.

[12] In addition, the trial judge’s finding that the appellant’s evidence on this issue was “internally incompatible and implausible” was not the only reason that she rejected his evidence that the complainant was awake at the start of the sexual contact. She also found that the appellant’s testimony on this issue was inconsistent with his prior statements in text messages to a friend about the sexual encounter with the complainant that were led as evidence at trial.

[13] It was open to the trial judge to reject the appellant’s evidence that the complainant was awake at the start of the sexual contact. We see no misapprehension by the trial judge of the appellant’s evidence on this issue.

[14] The appeal is dismissed.

“Grant Huscroft J.A.”

“J. George J.A.”

“J. Copeland J.A.”

Footnotes

[1] In oral submissions, counsel for the appellant abandoned grounds of appeal related to alleged inconsistencies in the complainant’s evidence about text messages with the appellant following the sexual contact.