Court of Appeal for Ontario

Date: 2025-05-29
Docket: COA-22-CR-0077
Coram: Sarah E. Pepall, Steve Coroza, Jonathon Dawe JJ.A.

Between:
His Majesty the King (Respondent)
and
Igor Kononenko (Appellant)

Appearances:
Jon Doody, for the appellant
Andrew Hotke, for the respondent

Heard: April 30, 2025

On appeal from the conviction entered on September 10, 2021, by Justice Deborah A. Kinsella of the Ontario Court of Justice.

Reasons for Decision

Introduction

[1] The appellant appeals his conviction for sexual assault.

Background

[2] He and the complainant met on an internet dating site and communicated via text message. She invited him to come to her residence so they could watch a movie together. The complainant told the appellant that she did not want any “funny business”, but that they could “cuddle”.

[3] According to the complainant, while she and the appellant lay on her bed together watching the movie, she fell asleep. She awoke to find the appellant touching her sexually. Her evidence was that she had been asleep, and thus had not consented to this touching. She also testified that she said as much to the appellant, who replied that he had not known she was asleep.

[4] For his part, the appellant testified that the complainant said she was tired and was going to sleep, but that she invited him to sleep beside her and cuddle. The appellant testified that as they lay together on the bed, the complainant pressed her buttocks into his groin. He put his hand under her pajamas, and after she made a sound that he interpreted as a “sexual moan”, he put his finger into her vagina. The complainant suddenly sat up and said: “What are you doing”. The appellant replied that he thought she was enjoying it, to which she said: “How can I like this? I was sleeping”.

Trial Judge’s Findings

[5] The trial judge had reservations about certain aspects of the complainant’s account, and stated that she was “only able to accept those portions of [her] evidence which are corroborated by other evidence.” Among other things, the trial judge did not accept the complainant’s testimony that the appellant had put his penis in her vagina, or that he had threatened to hurt her if she told anyone what had happened.

[6] Conversely, the trial judge largely accepted, or at least did not reject, the appellant’s version of events. However, she found that the complainant had not consented to the vaginal touching, and concluded that “the evidence establishes that at the very least, [the appellant] was willfully blind or reckless regarding that lack of consent.” The trial judge found further that the appellant had not taken reasonable steps to ascertain whether the complainant was consenting.

Grounds of Appeal

[7] The appellant contends that the trial judge improperly used the evidence about what the complainant said to the appellant after he touched her to bolster her trial evidence that she had been asleep. He argues that this violated both the hearsay rule and the rule that prior consistent statements are presumptively inadmissible.

Prior Consistent Statements

[8] A witness’s prior consistent statements are presumptively inadmissible, both because they are hearsay and because “the mere fact of the consistency cannot be used to infer that the witness’s in-court evidence is more likely to be true”: R. v. Morin, 2024 ONCA 562, at para. 20; see also R. v. Stirling, 2008 SCC 10, para. 5. However, this rule “is subject to multiple exceptions”: Morin, at para. 21; see also Stirling, at paras. 5-7; R. v. Khan, 2017 ONCA 114, paras. 27-29, leave to appeal refused, [2017] S.C.C.A. No. 139.

[9] In this case, the complainant and the appellant both testified without objection about the complainant having told the appellant she had been asleep. The lack of any objection is unsurprising, since the complainant’s out-of-court statement plainly engaged more than one of the exceptions to the general rule that prior consistent statements are inadmissible. At a minimum, her utterance was an important part of both her and the appellant’s narratives about how the events unfolded: see Khan, at para. 30. More substantively, the undisputed fact that the complainant made this utterance was admissible as circumstantial evidence of her state of mind at the time, without assuming the truth of its contents: see e.g., R. v. M.C., 2014 ONCA 611, para. 63.

Use of the Complainant’s Utterance

[10] The appellant’s real complaint is not that the trial judge admitted into evidence his own and the complainant’s testimony about her utterance, but that the trial judge misused the utterance for its truth. In essence, the appellant’s argument is that since the trial judge said that she would only accept the complainant’s testimony when it was “corroborated by other evidence”, she must have improperly used the complainant’s out-of-court statement that she had been asleep for the truth of its contents, to corroborate the complainant’s in-court testimony that she did not consent to the appellant touching her vagina because she had been asleep.

[11] We are not persuaded that the trial judge used the out-of-court statement in this way. The trial judge found as fact that the complainant had not consented to the vaginal touching. Contrary to the appellant’s submission, she did not make any specific finding that the complainant had not consented because she was asleep, nor was she required to do so. It was the absence of subjective consent – an essential element of the offence of sexual assault – that had to be proved beyond a reasonable doubt, not the underlying reason why the complainant did not consent.

[12] The trial judge’s reasons indicate that she treated the complainant’s utterance simply as one part of the larger body of undisputed evidence about how the complainant reacted to the appellant touching her vagina. It was open to the trial judge to reason that the complainant would not have reacted as she did, with surprise and expressions of dismay, if she had been consenting to the touching in her own mind. This did not require the trial judge to assume that the complainant’s statement about having been asleep was true, and her reasons do not indicate that she made or relied on any such assumption.

Sufficiency of Reasons

[13] We also do not accept the appellant’s alternative submission that the trial judge gave insufficient reasons on this issue. Although the trial judge was only prepared to accept the complainant’s testimony when it was “corroborated by other evidence”, it was up to the trial judge to decide what evidence restored her faith in particular aspects of the complainant’s account: see R. v. Kehler, 2004 SCC 11, para. 15. In her reasons, the trial judge listed the independent evidence that persuaded her that she could “accept [the complainant’s] testimony that she did not consent to any sexual touching by [the appellant], other than cuddling”, including his putting his fingers in her vagina. She was not required to say more to explain herself.

[14] We would add that it would have been preferable if trial counsel had addressed the admissibility and permissible uses of the complainant’s out-of-court statement before the trial judge: see e.g., R. v. R.A., 2024 ONCA 696, para. 35. However, in the circumstances here we are not persuaded that their failure to properly raise these issues led to the trial judge misusing the evidence.

Application of W.(D.)

[15] The appellant’s second argument, which he advanced only in writing, is that the trial judge did not properly apply the principles in R. v. W.(D.), [1991] 1 S.C.R. 742, to his testimony. According to the appellant, the trial judge was obliged to explain “why she did not accept [his] evidence that the complainant consented to the sexual activity”.

Subjective Consent and Mens Rea

[16] When deciding whether the actus reus of the offence of sexual assault has been established, the question of whether the complainant did not consent is “subjective and determined by reference to the complainant’s subjective internal state of mind towards the touching, at the time it occurred”: R. v. Ewanchuk, para. 26. The appellant could not provide direct evidence about the complainant’s subjective thoughts.

[17] In any event, the trial judge essentially accepted the appellant’s account of the complainant’s words and actions before, during and after he touched her vagina. This evidence did not compel the trial judge to have a reasonable doubt about whether the complainant had subjectively consented to this touching.

[18] On the issue of mens rea, the trial judge was satisfied that the appellant had been “at the very least … reckless”. This required her to find that he was subjectively aware of the risk that the complainant might not be consenting to his touching her vagina, and that he had proceeded in the face of this known risk: see Sansregret v. The Queen, [1985] 1 S.C.R. 570, at p. 582. It was open to the trial judge to draw this conclusion on the evidence as a whole, including the appellant’s own account of what had happened. The complainant had previously told the appellant that she did not want “any funny business”, and shortly before he touched her vagina she had said that she was going to sleep. The trial judge was entitled to find in these circumstances that the appellant was subjectively aware that there was a risk that he might be misinterpreting the complainant’s subsequent actions – which he described as pressing her buttocks against him, and making a moaning sound – as communicated consent to vaginal touching, and that he had proceeded recklessly in the face of this known risk.

[19] The trial judge also found, in the alternative, that even if the appellant had subjectively believed that the complainant was consenting, he could not rely on the defence of honest but mistaken belief in consent because he had not taken reasonable steps to verify that the complainant was indeed communicating her consent to vaginal touching. This was also a conclusion the trial judge was fully entitled to draw on the record before her, including the appellant’s own testimony.

Disposition

[20] The appeal is accordingly dismissed.

“Sarah E. Pepall J.A.”
“Steve Coroza J.A.”
“Jonathon Dawe J.A.”

Publication Ban

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