Court of Appeal for Ontario

Date: 2025-03-11
Docket: COA-24-CR-0109
Coram: Miller, Paciocco and Copeland JJ.A.

Between:
His Majesty the King (Respondent)
and
A.K.H. (Appellant)

Appearances:
Michelle Biddulph, for the appellant
Martin Heslop, for the respondent

Heard: 2025-02-18

On appeal from the conviction entered on September 7, 2023 by Justice David Rose of the Ontario Court of Justice.

Copeland J.A.:

Introduction

[1] The appellant appeals from conviction on one count of sexual assault, contrary to s. 271 of the Criminal Code, R.S.C. 1985, c. C-46.

[2] The appellant raises two grounds of appeal:

1. The trial judge misapprehended the evidence in two material areas that were essential to his reasoning resulting in conviction; and
2. The trial judge erred in his assessment of the complainant’s motive to fabricate.

[3] For the reasons that follow, I would allow the appeal on the first ground and order a new trial.

A. Factual Background

[4] A summary of the evidence of the complainant and the appellant about the central allegation provides sufficient context for the grounds of appeal.

[5] The complainant and the appellant were in a relationship. The complainant testified that on the evening of June 6, 2021, she was at the appellant’s apartment. She had been suntanning the day before and was severely sunburned. She told the appellant that she did not want to be sexually intimate because she was in a lot of pain from the sunburns.

[6] The complainant testified that she and the appellant were on his bed. They had ordered food for dinner. The appellant tried to touch her on her vagina and breasts. This happened several times. Each time, the complainant moved his hand away and told him she did not want to have sex. Each time, the appellant said words to the effect of “okay, fine”. They had been talking about books and movies, including the book Fifty Shades of Grey, which the complainant testified she was reading on the recommendation of the appellant.

[7] The complainant testified that the appellant grabbed her and turned her over onto her stomach. She was wearing a bodysuit, which he opened. He penetrated her vaginally with his penis. She testified that the vaginal sex lasted for 15 minutes. The complainant testified that during this time she was screaming and pleading for him to stop. She testified that the appellant slapped her approximately thirty times on the buttocks and that he punched and slapped her on the right side of her face and head three or four times. There was some photographic evidence of bruising to the complainant’s buttocks. I discuss this further below because it is the subject of one of the misapprehensions of evidence. The complainant testified that the sexual assault ended when the appellant ejaculated and went to the bathroom to shower.

[8] The appellant ended the relationship four weeks later, via text. Two weeks after that, the complainant discovered that someone had posted intimate photos of her online. She suspected the appellant, and went to the police. Over the course of reporting the posting of the intimate photos, the complainant reported the sexual assault and that the appellant had threatened her.

[9] The charge of publishing an intimate image without consent was stayed at the request of the Crown prior to trial. The trial judge acquitted the appellant of the count of uttering threats to cause bodily harm. I return to that point in the analysis below as it relates to the impact of the misapprehensions of evidence.

[10] The appellant testified and denied the offences. I focus on his evidence on the sexual assault, as that is what is under appeal. He testified that the complainant initiated sex that evening. The complainant was at his apartment. They had ordered food and were talking. The complainant began talking about the book Fifty Shades of Grey, which he was not familiar with. The complainant then played a pornographic movie on her phone and projected it to the TV near the bed. She told the appellant to “do whatever the guy in the video is doing.” The appellant testified that the video was from a porn website and that it included rough sex with spanking and slapping. The complainant wanted the appellant to do the same. The appellant performed the spanking, but testified that he refused to do other acts depicted in the movie because “it was too much”. The appellant testified that he had vaginal intercourse with the complainant from behind, while slapping her on the right buttock with his right and left hand. It lasted about 15 minutes before he ejaculated. He denied punching or slapping her in the head. He denied that the complainant was screaming or telling him to stop.

[11] In his reasons for judgment, the trial judge recognized that the only issue in dispute was whether the sexual contact was consensual. That issue turned on his assessment of the credibility of the evidence of the appellant and the complainant in the context of the Crown’s burden to prove the charge beyond a reasonable doubt and the principles from R. v. W.(D.), [1991] 1 S.C.R. 742. The trial judge rejected the appellant’s evidence and found it did not leave him with a reasonable doubt. He accepted the complainant’s evidence and was satisfied that the Crown had met its burden to prove non-consent beyond a reasonable doubt. The trial judge gave numerous reasons based in the trial evidence for his rejection of the appellant’s evidence and for his acceptance beyond a reasonable doubt of the complainant’s evidence.

B. Analysis

(1) The Trial Judge Misapprehended the Evidence on Two Material Issues That Were Essential to His Reasoning Resulting in Conviction

[12] The appellant argues that the trial judge misapprehended the evidence on two material issues that played an essential role in his reasons leading to conviction. The first area relates to photos of injuries to the complainant’s buttocks. The second area relates to statements by the appellant in a conversation with the complainant the day after the sexual contact at issue.

[13] The test for misapprehension of evidence sufficient to warrant appellate intervention is stringent. “A misapprehension of evidence may refer to a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to evidence”: R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 221. The misapprehension must be of substance rather than detail; it must be material, rather than peripheral, in the reasoning of the trial judge. In addition, it must not merely be part of the narrative of the judgement, but an essential part of the reasoning process resulting in conviction: Morrissey, at p. 221; R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2.

[14] I agree with the appellant that the trial judge misapprehended the evidence on two material issues and that the misapprehensions were essential to his reasoning leading to conviction. I address each issue in turn.

(i) The Misapprehension About the Photos of Injuries to the Complainant’s Buttocks

[15] The appellant argues that the trial judge misapprehended photographic evidence of bruising on the complainant’s right buttock. The trial judge wrongly proceeded on the basis that two photos filed as exhibits 2B and 2C depicted bruising on the complainant’s left and right buttocks, respectively. In fact, both photos depict bruising of the complainant’s right buttock because exhibit 2B is a photo taken in the mirror.

[16] The appellant argues that the misapprehension was on a matter of substance, was material, and played an essential role in the trial judge’s reasoning leading to conviction. In particular, the appellant argues that the trial judge relied on the misapprehension that the photos showed bruising on both of the complainant’s buttocks to make strong adverse credibility findings against the appellant, in light of his evidence that he only slapped the complainant’s right buttock. In addition, the trial judge relied on the misapprehended evidence to bolster his findings that the complainant’s evidence was credible.

[17] Crown counsel, quite fairly, concedes that the trial judge misapprehended the evidence of the photos. The Crown accepts that the two photos both depict bruising on the complainant’s right buttock – with exhibit 2B being taken in the mirror.

[18] However, the Crown argues that the misapprehension was not material and was not essential to the trial judge’s reasoning leading to conviction. The Crown’s primary argument is that the trial judge gave multiple reasons for rejecting the appellant’s evidence and accepting the complainant’s evidence beyond a reasonable doubt. The Crown argues that the misapprehension did not play a central role in the trial judge’s reasoning resulting in conviction.

[19] There is no dispute that the trial judge misapprehended the evidence in relation to exhibit 2B. That the photo in exhibit 2B was taken in the mirror is clear from the fact that the phone taking the photo is visible in the photo and also from the fact that when exhibit 2B is compared to exhibit 2C, the bed and a bedside table with a striped bag on it are flipped to a mirror image in exhibit 2B. If one did not realize that exhibit 2B was taken in the mirror, the photo would appear to depict the complainant’s left buttock instead of the right. Exhibits 2B and 2C both show bruising only on the complainant’s right buttock and her left buttock is not visible in either photo.

[20] In fairness to the trial judge, the complainant testified that exhibit 2B showed her left buttock and exhibit 2C showed her right buttock and no one at trial appreciated the mistake.

[21] The trial judge made strong adverse credibility findings against the appellant, who testified to only having struck the complainant on the right buttock, based on the misapprehension that the photos showed bruising to both of the complainant’s buttocks. After earlier noting that the photos showed bruising on “both of [the complainant’s] buttocks”, the trial judge found:

[The appellant] was confronted with the pictorial evidence of bruising to [the complainant’s] rear buttocks. The images display similar bruising in colour and shape on each of her buttocks. The bruising is so visible it is uncomfortable to look at. I have no difficulty in finding that the pictures show that [the complainant] endured some form of whipping. [The appellant’s] testimony acknowledged his hand in inflicting the bruising on [the complainant’s] right buttock but denied the bruising on her left buttock. This made no sense and is a clear external inconsistency. The bruising on each of the buttocks is clearly the work of one person. For [the appellant] to deny causing the bruising on the left side is his attempt to minimize his role in the bruising, which I reject. This is a serious external inconsistency. [Emphasis added]

[22] I flag one additional issue, which relates to trial fairness. Crown counsel at trial cross-examined the appellant using exhibit 2B, suggesting to the appellant that it was a photo showing bruising on the complainant’s left buttock and was inconsistent with the appellant’s evidence that he only slapped her right buttock. Since the photo does not, in fact, depict the complainant’s left buttock, this was improper and unfair cross-examination of the appellant. I acknowledge this was unintentional by Crown counsel at trial, as they clearly understood that the photo depicted the complainant’s left buttock. But that does not mitigate the unfairness to the appellant.

[23] After considering the second misapprehension of evidence, I explain further below my conclusion that taken together, the misapprehensions were material and were essential to the trial judge’s reasoning leading to conviction.

(ii) The Misapprehension About the Appellant’s Statement in the Conversation with the Complainant the Day After the Sexual Contact

[24] The appellant argues that the trial judge also misapprehended the appellant’s evidence regarding a conversation between the appellant and the complainant in a park the day after the alleged sexual contact. The appellant argues that this misapprehension was prejudicial because on the trial judge’s reasoning the appellant’s side of the conversation effectively became an admission of rape.

[25] The Crown argues that the trial judge did not misapprehend the appellant’s evidence about the park conversation. Rather, he made findings of fact and credibility that were open to him and do not disclose palpable and overriding error. As with the first misapprehension, the Crown also argues that the trial judge gave many other reasons for rejecting the appellant’s evidence. If there was a misapprehension, it did not play a central role in the trial judge’s reasoning resulting in conviction. Further, the Crown argues that the trial judge did not treat the appellant’s statement in the park conversation as an admission, but only used it for credibility purposes.

[26] The complainant and the appellant both testified about a conversation the day after the sexual contact. As context, I note that the complainant testified that later on the night of the sexual assault, they had had a conversation in which she told the appellant that she never consented to having sex and the appellant apologized. The appellant denied this conversation.

[27] The complainant testified that the next day, she and the appellant had a discussion in a park in Yorkville where he apologized again, meaningfully. She testified that the appellant explained to her that he understood that what he had done was wrong and that he has a sister. She testified that the appellant said he would understand if she went to police.

[28] The appellant’s evidence about this conversation was different. He testified that in the conversation in the park he told the complainant that he was not comfortable with what had happened the night before (on his account, rough sex with hitting/slapping of the complainant’s buttock). In examination-in-chief, he testified that in explaining to the complainant that he did not want to have sex involving slapping again, he said, “I have a sister”, and if someone slapped his sister he “would act”. He then said to the complainant, “So, please tell me we are not doing this again.”

[29] In cross-examination, the appellant said that he would not want his sister to have sex that involved pain or injury.

[30] The trial judge made the following finding about the park conversation and the appellant’s reference to his sister:

[The appellant] was steadfast in his evidence that the sexual encounter with [the complainant] was consensual, if rough. Nonetheless, he admitted that [the complainant] wanted to talk about the evening in a Yorkville park the next day. That led to, in his evidence, that he told [the complainant], “Please tell me we are not doing this again. I have a sister.”

This is internally inconsistent. It is unclear why consensual sex would have to do with his sister on his evidence, which was that he was only doing what he was told. What the sister reference does lead to is an inference that he would not permit his sister to be raped, therefore, the reference to his sister is consistent with the discussion about non-consensual sex, rather than consensual sex. [Emphasis added]

[31] Respectfully, the finding that the appellant’s version of this conversation suffered from internal inconsistency simply does not follow. The trial judge reasoned that the only way the reference to the appellant’s sister in the park conversation made sense was if the appellant was referring to non-consensual sex/rape. The appellant’s evidence was that the reference to his sister was that he would not want his sister having rough sex that involved slapping to the point of pain or injury. On his evidence, he was not speaking about the issue of consent or non-consent. His evidence was consistent that when he referred to his sister, he was referring to the use of physical force, slapping. There is nothing internally inconsistent in his explanation of the conversation.

[32] To be clear, my conclusion that the trial judge misapprehended the evidence about the conversation in the park is not finding that it was not open to the trial judge to reject the appellant’s version of the conversation. But he could not do so based on a misapprehension of the evidence, which occurred in this case given that the trial judge did not give proper effect to the evidence. The trial judge’s finding that the appellant’s evidence about the conversation was internally inconsistent was based on a misapprehension of his evidence.

[33] I turn now to why the two misapprehensions of evidence were material and essential to the trial judge’s reasoning and, thus, require a new trial.

(iii) The Impact of the Misapprehensions

[34] The two misapprehensions meet the requirements that they were material and essential to the trial judge’s reasoning resulting in conviction. Although the trial judge gave multiple reasons for rejecting the appellant’s evidence and for accepting the complainant’s evidence, both areas of misapprehension played a significant role in his assessment of each of their credibility. This was a case where there were live issues about the credibility of both the appellant and the complainant. In particular, as noted above, the trial judge acquitted the appellant on the count of uttering a threat to cause bodily harm to the complainant. On that count, the trial judge found that the complainant’s evidence was “less compelling” and that it would be “unsafe to convict”.

[35] I will explain the aspects of the trial judge’s reasons that lead me to conclude that the misapprehensions were material and were essential to his reasoning process leading to conviction.

[36] With respect to the misapprehension that the photos showed injuries to both of the complainant’s buttocks, rather than just the right side, I note four points. First, the trial judge’s findings on this issue were made in very strong terms adverse to the appellant’s credibility. He found that the appellant’s evidence that he did not strike the complainant’s left buttock “made no sense and [was] a clear external inconsistency” as compared to the photos (which the trial judge wrongly believed depicted injuries to both buttocks). He found that for the appellant to deny causing bruising on the left side was “his attempt to minimize his role in the bruising”. He found that the discrepancy between the appellant’s evidence about not striking the complainant’s left buttock and the photos that he misapprehended showed bruising on both buttocks was “a serious external inconsistency”. In fact, there was no inconsistency. Because exhibits 2B and 2C only showed the complainant’s right buttock, there was no inconsistency between the photos and the appellant’s evidence that he only slapped her right buttock.

[37] Second, and closely tied to the last point above, the trial judge believed, based on the misapprehension, that the appellant’s evidence of only striking the complainant’s right buttock was inconsistent with objective evidence in a photograph (exhibit 2B, wrongly understood to be of the complainant’s left buttock). This was a very damaging credibility finding against the appellant.

[38] Third, the trial judge used the misapprehension that the photos showed bruising on both of the complainant’s buttocks not only to make credibility findings adverse to the appellant, but also to make positive credibility findings about the complainant. One of the challenges raised to the complainant’s credibility at trial was that although she testified that the appellant punched her in the head during the sexual assault, there were no photos of bruising to independently confirm this. The trial judge reasoned that the photographs of “both of her buttocks” were “clearly confirmatory of the assault she testified to”, and on this basis found that the absence of photos of bruising on her head did not detract from her credibility.

[39] Fourth, although unfair cross-examination is not raised as a separate ground of appeal, the fact that the appellant was extensively cross-examined by Crown counsel suggesting that the photos were objective evidence of bruising on both of the complainant’s buttocks, when that was in fact not the case, is a factor that supports the need for a new trial. As noted above, I do not suggest that Crown counsel at trial did so intentionally. Both counsel at trial as well as the trial judge were under the misapprehension that exhibit 2B depicted bruising to the complainant’s left buttock. But the effect of the misapprehension of counsel and the trial judge was that the appellant was cross-examined suggesting that photo 2B was objective evidence of bruising on the complainant’s left buttock and that this objective evidence was inconsistent with his testimony. This was unfair cross-examination, given that the photo did not depict bruising of her left buttock.

[40] In oral submissions, the Crown pointed to another photo which he argued showed bruising of the complainant’s left buttock. This photo was entered in evidence during the appellant’s re-examination. It was never shown to the complainant. It is not clear from my review of the photo, in the absence of evidence from the complainant explaining what it depicts, that it depicts bruising on her left buttock.

[41] With respect to the conversation in the park the next day, the trial judge’s misapprehension that the discussion about the appellant’s sister must have been a reference to non-consensual sex resulted in the appellant’s statement about his sister effectively becoming an admission of rape. In fairness to the trial judge, his reasons do not expressly say he used the statement as an admission of rape by the appellant. Rather, his focus was on the inconsistency he saw between the appellant’s evidence and his misapprehended view of the statement about the sister – i.e., a credibility use. But it is difficult to see how, without an express self-instruction, the trial judge could disabuse himself of his understanding that the statements by the appellant about his sister amounted to a statement “that he would not permit his sister to be raped, therefore, the reference to his sister is consistent with the discussion about non-consensual sex, rather than consensual sex” – effectively an admission of rape.

[42] In my view, these misapprehensions of the evidence were material and played an essential and significant role in the trial judge’s credibility assessments. A new trial is required.

(2) The Trial Judge Did Not Err in His Assessment of Motive to Fabricate

[43] The appellant argues that the trial judge erred in his assessment of evidence bearing on the complainant’s motive to fabricate. The appellant argues that there was evidence of three motives for the complainant to fabricate the allegation of sexual assault and the trial judge only addressed one of the three. The three motives proffered on appeal are: (i) that the complainant was angry about the appellant breaking up with her – and doing so by text message; (ii) that the complainant was angry because, after the break-up, she overheard the appellant having sex with another woman (her apartment was adjacent to the appellant’s); and (iii) that the complainant believed that the appellant had shared an intimate image of her without her consent.

[44] I do not accept that the trial judge erred in his consideration of motive to fabricate.

[45] In his reasons, the trial judge considered as a motive to fabricate whether the complainant acted due to “animus” against the appellant caused by her being “a jilted lover”. In my view, the trial judge’s consideration of the jilted lover theory of animus – another word for motive to fabricate – was broad enough that it encompassed both the break-up itself and the complainant overhearing the appellant have sex with another woman after the break-up. I see no legal error or palpable and overriding factual error in the trial judge’s finding that the events surrounding the break-up did not detract from the complainant’s credibility and did not support a finding of animus.

[46] With respect to the third proffered motive to fabricate – that the complainant believed the appellant had sent an intimate image of her without her consent – this motive to fabricate was not argued by the defence at trial, nor was the complainant cross-examined on it. In light of this possible motive to fabricate not being raised at trial, the trial judge did not err in not considering it.

[47] Further, the appellant’s defence at trial to some extent challenged whether the complainant actually believed that the appellant had sent an intimate image of her. The theory raised on appeal that the complainant had a motive to fabricate based on believing the appellant had sent an intimate image of her without her consent is inconsistent with the defence position at trial that she did not really believe he had sent the image.

Disposition

[48] I would allow the appeal, set aside the conviction, and order a new trial on the sexual assault count.

Released: March 11, 2025

“B.W.M.”

“J. Copeland J.A.”

“I agree. B.W. Miller J.A.”

“I agree. David M. Paciocco J.A.”

[1] This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C‑46.

[2] The appellant abandoned his appeal against sentence in his factum.