Court of Appeal for Ontario

Date: 2025-04-01
Docket: COA-24-CR-0519
Coram: Huscroft, Monahan and Gomery JJ.A.

Between:
His Majesty the King (Respondent)
and
P.R. (Appellant)

Appearances:
Dan Stein, for the appellant
Charmaine M. Wong, for the respondent

Heard: March 26, 2025

On appeal from the convictions entered by Justice Clyde Smith of the Superior Court of Justice on May 27, 2022.

Reasons for Decision

[1] The appellant appeals his convictions for sexually assaulting two 15-year-old complainants, LC and ML. The appellant, who was 22 years old at the relevant time, argues that the trial judge erred by: (i) misapprehending the appellant’s evidence regarding his sexual preferences; and, (ii) relying on unsupported generalizations, conjecture, or stereotypes about whether persons with the appellant’s sexual preferences could restrain their “natural impulses” to aggressively choke the complainants without their consent.

[2] At the conclusion of the appellant’s submissions we did not call on the Crown and the appeal was dismissed with reasons to follow. These are our reasons.

Background

[3] The appellant met one of the complainants, LC, on social media around February 2019. At one point LC asked the appellant about what he liked sexually. He told her that he was interested in “choking, slapping, BDSM, and things like that.”

[4] On August 1, 2019, LC was hanging out with her friend ML. After consuming some LSD and smoking marijuana, LC suggested to ML that they should both lose their virginity that night by having a threesome with the appellant. LC reached out to the appellant on social media, after which he picked them up from a meeting point and drove them to his home.

[5] The three of them engaged in sexual activity, including unprotected vaginal intercourse between the appellant and each of the complainants. LC and ML also testified that the appellant had choked them without their consent, which the appellant denied.

[6] The next morning, LC and ML went to the police and reported that the appellant had sexually assaulted them. The appellant was then arrested and charged with two counts of sexual assault, two counts of sexual interference, and two counts of invitation to sexual touching, as well as a breach of recognizance. [3]

Trial Judge’s Reasons

[7] The trial judge set out the governing legal principles, instructing himself that, because the appellant had testified, the evidence had to be considered in accordance with the three-step analysis set out by the Supreme Court in R. v. W.(D.), [1991] 1 S.C.R. 742. He also noted that s. 150.1(4) of the Criminal Code, RSC 1985, c C-46 provides that, in dealing with the offences at issue, it is not a defence that the accused believed a complainant was 16 years of age or more unless the accused took all reasonable steps to ascertain the complainants’ age.

[8] The trial judge found that there was an air of reality to the s. 150.1(4) defence, given the appellant’s evidence that he specifically asked the complainants about their age in his car on the way to his house, as well as his observations of their dress and use of makeup. The trial judge further pointed out that there were some “alarming inconsistencies” in LC’s evidence about what she told the appellant about her age and, by extension, about ML’s age.

[9] The trial judge went on to find that the Crown had failed to prove beyond a reasonable doubt that the appellant did not take all reasonable steps to ascertain the age of the complainants. On this basis, the appellant was acquitted of the charges of sexual interference and invitation to sexual touching.

[10] Turning to the sexual assault charges, the trial judge found that LC had consented to most of the sexual activity that had taken place on the night in question. In contrast, however, ML had merely acquiesced to the sexual activity, and acquiescence did not equal consent.

[11] The trial judge then considered whether the complainants had been choked without their consent.

[12] LC testified that the complainant had choked her so hard that she could not breathe, while ML had testified that the appellant had choked her with both hands so hard that the necklace she was wearing left a mark on her neck. Both complainants stated that they had not consented to this choking.

[13] The appellant’s evidence was that both complainants had agreed that he could choke them, at which point he had placed his thumb on one side of the neck and his fingers on the other side. The appellant denied that he had squeezed either of their necks but said he simply rested his hand in this position.

[14] The trial judge found that the appellant’s claim that he was merely “resting” his hand on the complainants’ necks was an attempt to “minimize his behaviour” and that this explanation “sounded contrived”. The trial judge accordingly rejected the appellant’s evidence regarding the choking of the complainants and found that it did not raise a reasonable doubt.

[15] The trial judge also determined that he was not left in a state of reasonable doubt by any of the other evidence on the choking issue. He pointed out that the appellant had testified that some of his preferred sexual activities included “choking, slapping, and BDSM, which involves giving and sharing pain.” The appellant had also testified to being “excited” about the prospect of having a sexual encounter with two teenage girls. In the trial judge’s view, “[t]he notion that a 22-year-old man with such sexual appetites would restrain his natural impulses in such circumstances to the extent suggested by Mr. Richardson strikes me as being highly unlikely and implausible.”

[16] In contrast, the trial judge found the complainants to be candid and forthright. Both admitted to what the trial judge described as embarrassing behaviour, which he regarded as bolstering their credibility in terms of their insistence that they did not consent to being choked.

[17] The trial judge accepted the complainants’ evidence regarding the choking, finding that it was done intentionally, in circumstances of a sexual nature, and without the complainants’ consent. Accordingly, he convicted the appellant of the two counts of sexual assault.

Grounds of Appeal

[18] The appellant argues that the trial judge erred in the following three respects:

(i) by misapprehending the appellant’s evidence regarding whether he had a sexual preference for giving and receiving pain, and whether he had a practice of asking for consent before engaging in sexual activity;

(ii) by relying on an unsupported generalization to conclude that someone with the appellant’s sexual preferences would not be able to restrain their natural impulses to choke the complainants without their consent; and

(iii) by relying on conjecture or stereotype to conclude that someone with the appellant’s sexual preferences would not be able to restrain their natural impulses to choke the complainants without their consent.

Analysis

(1) The trial judge did not misapprehend the appellant’s evidence about his sexual preferences

[19] The appellant argued that the trial judge had misapprehended his evidence in two respects.

[20] First, the trial judge erroneously found that he had a “sexual appetite” for giving and receiving pain when in fact his evidence was that he had “an interest” in such activity.

[21] Second, in finding that the appellant choked the complainants without the consent, the trial judge failed to take into account his evidence that he had a practice of seeking consent before engaging in sexual activity.

[22] There is no merit to either of these arguments.

[23] The first argument – that the trial judge found that the appellant had an appetite or sexual preference for giving and receiving pain when he merely had “an interest” in doing so – invites us to engage in precisely the kind of microscopic parsing of a trial judge’s reasons that the Supreme Court has consistently cautioned against: R. v. G.F., 2021 SCC 20, at para. 69.

[24] Turning to the second argument, the trial judge did not ignore or fail to take account of the appellant’s evidence that he had a practice of seeking consent before engaging in sexual activity. In fact, the trial judge relied on this very evidence in support of his conclusion that the appellant had taken reasonable steps to ensure the complainants were old enough to consent to sexual activity. It was not necessary for the trial judge to refer again to this evidence in his consideration of whether the appellant sought the complainants’ consent to being choked, because his reasons demonstrate that he understood and grappled with this evidence: R. v. Polemidiotis, 2024 ONCA 905, at para. 30, citing R. v. R.E.M., 2008 SCC 51, at paras. 55-57. Read in context and as a whole, the reasons demonstrate that the trial judge was simply not persuaded by the appellant’s claim that he sought and obtained the complainants’ consent, which was a finding open to him on the evidence.

(2) The trial judge did not rely on unsupported generalizations, conjecture, or stereotype in finding that the appellant choked the complainants without their consent

[25] The remaining two grounds of appeal both focus on alleged errors disclosed in para. 78 of the trial judge’s reasons, which consists of the following sentence:

The notion that a 22-year-old man with such sexual appetites would restrain his natural impulses in such circumstances to the extent suggested by [the appellant] strikes me as being highly unlikely and implausible.

[26] The appellant argues that this sentence involves reliance on an unsupported generalization, conjecture, or stereotype as the basis for the trial judge’s conclusion that someone with the appellant’s sexual preferences would not have restrained himself from aggressively choking the complainants without their consent.

[27] We see no such error on the part of the trial judge.

[28] A trial judge’s reasons are to be read in context and as a whole: G.F., at para. 69. Moreover, there is nothing objectionable about a trial judge assessing the plausibility of a narrative in light of generalized expectations about how people tend to behave in particular situations, provided that such an assessment is grounded in the evidence and the particular parties or circumstances before the court: R. v. Kruk, 2024 SCC 7, at paras. 86-88.

[29] Here, the appellant’s evidence was that he had an interest in “BDSM”, which he agreed involved giving and receiving pain. He also admitted that he choked the complainants, albeit, he claimed, with their consent. Given that sexual interest on the appellant’s part, and his admission that he choked the complainants, the trial judge had earlier found that the appellant’s claim that he merely “rested” his hand around the necks of the complainants without applying pressure was contrived and implausible. There is no suggestion that this finding was based on an unsupported generalization or stereotype about human behaviour.

[30] The impugned statement in para. 78 of the trial judge’s reasons is, in substance, a slightly reformulated expression of this same earlier conclusion. What the trial judge found to be “unlikely and implausible” is that a person with the appellant’s sexual appetites would restrain his natural impulses “in such circumstances [and] to the extent suggested by [the appellant]”.

[31] In particular, the trial judge’s reference to “such circumstances [and] to the extent suggested by [the appellant]” reflects his finding that it is inherently implausible for a person who has an interest in giving and receiving pain, and who agrees that he had choked the complainants, to have placed his hand around the complainants’ necks but deliberately refrained from applying pressure.

[32] Far from being an ungrounded generalization, or one based on stereotypical reasoning or conjecture, this finding is firmly grounded in the evidence. It was a finding that was open to the trial judge and does not give rise to any legal error.

[33] Accordingly, we reject the second and third grounds of appeal (both of which focus upon the alleged error in para. 78 of the reasons).

Disposition

[34] For these reasons, the appeal is dismissed.

“Grant Huscroft J.A.”
“P.J. Monahan J.A.”
“S. Gomery 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 appealed both conviction and sentence but abandoned his appeal against sentence.
[3] The breach of recognizance charge was dismissed at trial at the Crown's request.