Court of Appeal for Ontario

Date: 2025-04-11
Docket: M55837 (COA-22-CR-0466)
Judge: Patrick J. Monahan

Between:
His Majesty the King (Respondent)
and
Charles Kennedy (Appellant)

Appearances:

• Charles Kennedy, acting in person
• Erin Dann and Brandon Chung, duty counsel
• Nicholas Hay, for the respondent

Heard: 2025-04-07

On appeal from the conviction entered on December 7, 2022 by Justice Gary W. Tranmer of the Superior Court of Justice.

Reasons for Decision

Background

[1] The appellant appeals his conviction for unlawful confinement, assault causing bodily harm, and sexual assault. He seeks an order under s. 684 of the Criminal Code, R.S.C., 1985, c. C-46 appointing counsel to represent him on his appeal.

[2] The complainant was the appellant’s girlfriend “to some extent.” They had not seen each other for a month before they got together on the evening of September 28, 2015.

[3] The complainant’s evidence was that on September 29, 2015, the appellant got a text or phone call informing him that his brother-in-law had been murdered and he was concerned the police would consider him a suspect. The appellant “freaked out” and grabbed the complainant by her hair, throwing her across the kitchen, kicking her in the stomach, in her ribs and in the middle of her back, and punching her in her face. He did this over and over again. He then tied her hands behind the back of a kitchen chair and put duct tape across her mouth, saying he was going to kill her. Headlights of a car then came into the driveway and the appellant removed the rope and duct tape. The appellant’s female friend from work came into the home and the complainant behaved like nothing had happened.

[4] The complainant further testified that on October 1, 2015, the appellant told her he wanted intercourse. She said she did not want to and he told her “it is not always about you – you could suck it up.” The complainant then removed her pants and got onto the appellant’s lap, and they had penetrative intercourse. Afterwards, she left his house and never saw him again.

[5] The trial judge found the testimony of the complainant to be largely straightforward and responsive. She gave a detailed account of the assaultive behaviour on September 29, 2015 and the core of her allegations was consistent throughout.

[6] With respect to the sexual assault count, the trial judge found that the complainant did not consent to the sexual activity on October 1 or, even if she did consent, that consent was vitiated by her fear that if she did not participate in the sexual activity she would be subjected to further application of force.

[7] In considering whether the Crown had proven beyond a reasonable doubt that the defence of honest but mistaken belief in communicated consent did not apply, the trial judge found that the appellant did not take reasonable steps to ascertain that the complainant was consenting. The appellant’s observations of the complainant removing her clothing and sitting on his lap did not constitute reasonable steps since “her actions…were silence and ambiguous.” The trial judge found that, given that the complainant had said she did not want to have sex, the appellant should have made certain that the complainant had truly changed her mind before proceeding with sexual activity.

Principles Governing Section 684 Applications

[8] Section 684(1) provides that this court may assign counsel to act on appellant’s behalf if, in its opinion:

(i) it is desirable in the interests of justice that the appellant should have legal assistance; and
(ii) the appellant does not have sufficient means to obtain that assistance.

[9] As part of the analysis of the “interests of justice” component of the test, the appellant must satisfy the court that the proposed grounds of appeal are arguable: R. v. Bernardo, 121 C.C.C. (3d) 123 (Ont. C.A.). Given that the record is often incomplete at the time of the application, this is not a probing examination of the merits: R. v. Adams, 2016 ONCA 413, 350 O.A.C. 110. Nevertheless, while modest, the requirement of arguable grounds is a real and meaningful standard.

[10] Where an appellant advances arguable grounds, the next component of the interests of justice analysis is whether the appellant can effectively advance the grounds of appeal without the assistance of counsel. As part of this inquiry, the court examines the complexities of the arguments to be advanced and the appellant’s ability to make legal argument in support of the grounds of appeal: Bernardo, at para. 24.

Application of the Principles

[11] Duty counsel raises two grounds of appeal which, in her submissions, are arguable.

[12] First, the Crown in closing submissions had conceded that there was an air of reality to the defence of honest but mistaken belief in consent. Given this concession, the Crown had to prove beyond a reasonable doubt that the appellant did not take reasonable steps to ascertain that the complainant was consenting. In determining what reasonable steps were required, the trial judge failed to consider certain factors that would support this defence, namely that the violence alleged to have vitiated consent by fear occurred days prior and that the complainant appeared to have accepted the appellant’s apology for the violent conduct.

[13] Second, duty counsel argues that the trial judge erred in finding that the complainant’s delayed disclosure did not have any relevance to his assessment of her credibility and reliability.

[14] Duty counsel argues that given that these are legal arguments, the appellant is not in a position to advance these grounds of appeal without the assistance of counsel, and he lacks the financial means to retain counsel.

[15] The Crown concedes that the applicant lacks the financial means to retain counsel but argues that the grounds advanced do not satisfy the “arguability” standard or, even if they do surpass that standard, they are not legally complex and do not require the assistance of counsel.

[16] While I acknowledge the able submissions of duty counsel, in my view the grounds of appeal she advances on the appellant’s behalf do not surpass the “arguability” threshold.

[17] With respect to the first ground of appeal, the complainant had indicated to the appellant that she did not want to have sex as she was not feeling well. His response was that “it is not always about you – you could suck it up.” The fact that the complainant then complied with his direction cannot be taken as a basis upon which he could reasonably conclude that she was freely agreeing to sexual activity. Even assuming that the appellant believed that the complainant could voluntarily consent despite his prior violent conduct towards her, the complainant clearly communicated a lack of consent at the outset of the sexual activity. The appellant should have made certain that she had truly changed her mind rather than relying on her silent compliance when he told her to “suck it up”: R. v. Ewanchuk, [1999] 1 S.C.R. 330.

[18] Nor in my view is there any merit to the second ground of appeal. It is well established that delayed reporting of a sexual assault does not generally give rise to any concerns over the credibility of the complainant: R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 65. I see no arguable basis upon which the trial judge should have departed from that general principle in the circumstances of this case, particularly given the complainant’s explanation that she delayed reporting the assault because she feared this would prompt a further assault.

[19] I therefore conclude that the appellant has failed to satisfy the requirements of s. 684, and the application is dismissed.

“P.J. Monahan J.A.”

Publication Ban

[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.