ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 42/12
DATE: 2013-12-04

BETWEEN:

HER MAJESTY THE QUEEN

Prosecutor/Respondent

– and –

S.B.

Accused/Appellant

Cameron Peters, for the Crown

Craig Parry, for the Appellant

HEARD: November 15, 2013 at Woodstock

Information contained herein that may identify the complainants shall not be published in any document or broadcast or transmitted in any way, pursuant to s. 486.4(1) of the Criminal Code of Canada

Appeal by the accused from the conviction entered on September 12, 2012 by Marietta L. D. Roberts J. of the Ontario Court of Justice, and from the sentence imposed on December 5, 2012

HEENEY R.S.J.:

[1] The accused appeals from his conviction on three counts of sexual assault, contrary to s. 271 of the Criminal Code. On the first count, he was found by the trial judge to have had forcible sexual intercourse with his girlfriend, C.K., in early November, 2010. They continued to date thereafter until their breakup in early January, 2011, after the accused failed to assure Ms. K. that he still loved her. The allegations were reported to the police in May of 2011.

[2] Counts two and three involve another complainant, L.M., with whom the accused also had a relationship. They had both played basketball in high school, and began seeing each other during the second semester of the 2010/2011 school year. On the first occasion, shortly before March Break of 2011, the accused was found by the trial judge to have anally penetrated the complainant without her consent while they were parked near the Woodstock Dam, following an episode of consensual fellatio. They continued to see each other thereafter. In May of 2011 she visited the accused in his bedroom at his parents’ home. After voluntarily removing her own pants, she “spooned” with the accused on his bunk bed, such that his penis was against her buttocks, which were clothed only in a thong. The accused was found by the trial judge to have again had anal intercourse with this complainant shortly thereafter without her consent. She went to the police after having made contact with the other complainant, Ms. K.

[3] The accused freely admitted having engaged in the sexual acts described by both complainants, but testified that they were consensual.

[4] The accused was sentenced to 12 months incarceration on count one, plus 8 months and 7 months incarceration respectively on counts two and three. These sentences were ordered to run consecutively, resulting in a total sentence of 27 months. Mr. Parry, for the accused, did not pursue the sentence appeal, and conceded that if the convictions stand, the sentence was within the appropriate range.

[5] Mr. Parry also conceded at the outset that he is not arguing that the verdicts are unreasonable and cannot be supported by the evidence, notwithstanding references to that ground of appeal in his factum. He concedes, in other words, that there is evidence upon which a properly instructed trier of fact could convict. Rather, he bases this appeal on two grounds: misapprehension of the evidence by the trial judge, and the failure to give reasons that are amenable to appellate review.

[6] To her credit, the trial judge extensively reviewed the evidence over the course of 25 pages of transcript. Her review of the applicable legal principles was appropriate and she fully canvassed the submissions of counsel. However, it is the analysis leading to the three verdicts of guilty that, the accused submits, is fatally flawed.

[7] With respect to the first count involving the complainant C.K., she and the accused had been dating for close to two years. On the night in question, they had been to a party, where she drank three beers. She testified that she was intoxicated. The accused was driving and did not drink. The complainant said she fell asleep on the drive home. When she awoke, the vehicle was parked in one of the driveways at her rural residence, and the accused was trying to take off her pants. She testified that he proceeded to have sexual intercourse with her against her will. The accused agreed that they had had sexual intercourse, but testified that it was entirely consensual.

[8] The trial judge’s reasons concerning count one consist entirely of the following, at p. 46 of the Appeal Book:

My findings are as follows: with respect to the charge dealing with Ms. K., I find that the defendant’s explanation is not believable. His evidence does not raise in my mind a reasonable doubt and that, indeed, he he (sic) agrees that his recollection is not as good as it could be. He indicated, as well, that he knew she had been drinking, he knew she was tipsy, that indeed, her comments to him at the time his evidence was, he asked her and she’s the one who got the condom out and opened it up, I find that it is clear that she was upset. Her evidence is that she tried to stop him, that she slept on the way home and that she was drunk. He knew of her state of mind and I find that she could not have been (sic) operating mind to give the appropriate consent and indeed, his post offense conduct, even following her to the house, and the various text messages makes it clear that he did not have an honest but mistaken belief in that consent and the defendant will be found guilty on that charge.

[9] In R. v. Morrissey, 1995 3498 (ON CA), [1995] O.J. No. 639 (C.A.), Doherty J.A. explained what the phrase “misapprehension of the evidence” means, at para. 83:

A misapprehension of the 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.

[10] At para. 93 he explained when a misapprehension of the evidence will result in a miscarriage of justice:

When will a misapprehension of the evidence render a trial unfair and result in a miscarriage of justice? The nature and extent of the misapprehension and its significance to the trial judge's verdict must be considered in light of the fundamental requirement that a verdict must be based exclusively on the evidence adduced at trial. Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction then, in my view, the accused's conviction is not based exclusively on the evidence and is not a "true" verdict. Convictions resting on a misapprehension of the substance of the evidence adduced at trial sit on no firmer foundation than those based on information derived from sources extraneous to the trial. If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice. This is so even if the evidence, as actually adduced at trial, was capable of supporting a conviction.

[11] The Supreme Court of Canada in R. v. Harper (1982), 1982 11 (SCC), 65 C.C.C. (2d) 193 at 210 stated the same principle in the following terms:

An appellate tribunal has neither the duty nor the right to reassess evidence at trial for the purpose of determining guilt or innocence. The duty of the appellate tribunal does, however, include a review of the record below in order to determine whether the trial court has properly directed itself to all the evidence bearing on the relevant issues. Where the record, including the reasons for judgment, discloses a lack of appreciation of relevant evidence and more particularly the complete disregard of such evidence, then it falls upon the reviewing tribunal to intercede.

[12] The central issue at trial was consent. It is apparent from the reasons of the trial judge that she dealt with that issue by finding that the complainant lacked the capacity to consent, and therefore there was no consent. This would appear to explain why, in her review of the law, she extensively quoted from the decision of the Supreme Court of Canada in R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440. That case involved a complainant who was, with her consent, choked into unconsciousness by the accused, as a means of enhancing their mutual sexual experience. In short, the court held that an unconscious person cannot consent to sexual activity.

[13] In this case, the complainant testified that she had consumed three beers over 2 ½ hours, and was feeling intoxicated and very tipsy. As already noted, she fell asleep on the ride home, and awoke to find the accused trying to undo her pants.

[14] However, she went on to describe in detail everything that transpired afterward. She described how the accused removed her clothing and his own. She said “no, I don’t want to. No, please stop” over and over. She started crying really loudly and was screaming, and was worried that the neighbours would hear. She physically resisted by attempting to press her knees together, but described how the accused used his knee to force her legs apart. She described how, after he was finished, he left the car and disposed of the condom across the road. At no time did she testify that she was unable, by reason of her consumption of alcohol, to consent or withhold consent to the sexual act. To the contrary, her testimony can lead to no other conclusion than that she was fully capable of making the decision not to consent, and that she expressed that lack of consent loudly and clearly both in words and through her physical actions.

[15] This case is indistinguishable from R. v. Jenson, 1996 1237 (ON CA), [1996] O.J. No. 1514 (C.A.). At paras. 13 to 15, Rosenberg J.A., in allowing the appeal from conviction, said the following:

On the record in this case, no jury acting judicially could reasonably find that the complainant was so intoxicated by the combination of alcohol and drugs that she lacked the minimal capacity required to consent (or withhold her consent) to the sexual activity. I do not see this issue as one turning on the trial judge's assessment of credibility so as to require special deference to the findings of credibility. To the contrary, it is the complainant's own evidence that negatives any reasonable basis for a finding of lack of capacity. The complainant made it clear that although she was drunk or "stoned" she was alert and in her own words knew what was going on. The complainant testified to a recollection of the events and even though the trial was some five years after the incident she provided details both as to the actual assault and the surrounding circumstances.

The only other evidence on this issue was the appellant's statement to the police some two and half years after the offence where the appellant described the complainant as being "too drunk", so "he didn't finish" and the complainant's testimony that she thought she might have imagined the assault until the appellant confirmed it several days later when he told her that they "made love".

Where consent is in issue the actual state of mind of the complainant is determinative. The approach is subjective. The appellant's statement to the police cannot, in the circumstances of this case, serve as a reasonable foundation for a finding that the complainant lacked the requisite capacity. The appellant's statement was brief, equivocal and made several years after the events. Even if the statement could be read as an assertion that the complainant lacked the requisite capacity, it was at best an assertion of a "belief" in lack of capacity to consent. Consent, and capacity to consent, are mental states experienced only by the complainant and against the appellant's equivocal statement stood the complainant's uncontradicted evidence as to her own state of mind.

[16] To the same effect is R. v. B.B., [1997] O.J. No. 2688 (C.A.), where the court said the following, at paras. 1 – 3:

The trial judge convicted the appellant on the basis of his conclusion that the complainant lacked the capacity to consent. In coming to this conclusion, it is apparent that the trial judge misconstrued the complainant's evidence.

The complainant did not testify that she was rendered incapable of consenting by reason of her alcohol consumption. Rather, she described in some detail how the appellant removed her clothing against her will and despite her repeated protestations, he proceeded to have intercourse with her. In other words, according to the complainant, she was fully aware of the appellant's conduct and she made it known to him that she was not consenting. Contrary to the complainant's version, the appellant testified that the complainant fully consented to the sexual activity.

It follows, in our view, that the central issue in the case was not whether the complainant lacked the capacity to consent, but whether she in fact consented. Having regard to the reasons for judgment, we cannot be certain that the trial judge directed his mind to this issue. Accordingly, the verdict cannot stand.

[17] I arrive at the same conclusion. No reasonable jury, acting judicially, could reasonably find that the complainant was so intoxicated by the combination of alcohol that she lacked the minimal capacity to consent. The central issue was not capacity but consent. I cannot be certain that the trial judge directed her mind to this issue.

[18] The reasons reflect a rather conclusory adverse credibility finding against the accused, based on one isolated admission that he had a terrible memory, and expressly rejected his claim that he honestly believed that the complainant was consenting. Significantly, however, the trial judge made no finding that there was no consent, which is, of course, an essential element of the offence. This is not surprising, since the conviction was based upon a lack of capacity to consent, rather than a lack of consent itself. Had the trial judge turned her mind to the issue of consent, she would have had to make a finding as to the credibility of the complainant. Had she done so, several key pieces of evidence would have had to be addressed.

[19] The first of those is her evidence, given in examination-in-chief at pg. 73 of the transcript of May 24, 2012, where she said the following:

I remember telling him if he was nice to me and paid attention to me at the party, then he would have sex afterwards.

[20] This is highly relevant evidence that relates to her willingness to engage in consensual sex with the accused later that same evening. While it would be open to the trial judge to have considered it and concluded that the complainant had changed her mind during the course of the evening, or to have otherwise minimized the impact of this evidence, the fact remains that it cried out for judicial consideration and analysis in the decision-making process.

[21] Furthermore, it is highly relevant to the assertion of the accused that he honestly believed she was consenting, yet it was not considered by the trial judge on that issue. The only evidence expressly relied upon by the trial judge in rejecting that defence was his post-offence conduct in following the complainant to her house in his car after the incident, and “various text messages”.

[22] To understand what is meant by following the complainant to her house, some background is required. She lives at a rural property which has two driveways, one of which leads to the house and the other, 50 metres away, which leads to the workshop (“the second driveway”). She testified in cross-examination that when she and the accused would arrive home after a date, she would normally suggest that they pull into the second driveway so they “could fool around” before she went into the house.

[23] On the night in question, the accused pulled the car into this second driveway, which is where they had sexual intercourse. The complainant testified that after the accused disposed of the condom and returned to the car, she got out of the car and walked the short distance to her house. The accused followed her in his car. She arrived at her house, went in, and the accused drove away.

[24] It is unclear why the trial judge found this to be post-offence conduct from which an inference of guilt could be drawn. She did not articulate a reason and none is apparent. The complainant did not suggest that she was being chased to the house or pursued or threatened in any way. To the contrary, she admitted on cross-examination that she told the police officer that the reason he followed her was that he was concerned about her getting in, considering how much she had had to drink.

[25] As Mr. Peters, for the Crown, correctly observes, the Supreme Court of Canada in R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433 at para. 31 clarified that post-offence conduct should be treated like any other type of circumstantial evidence. However, this means that if the trier of fact is relying on circumstantial evidence to convict, she must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty: R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42 at par. 33.

[26] Here, it is difficult or impossible to articulate a rational inference from this circumstantial evidence that points to guilt. The most obvious rational inference to be drawn from this evidence is similar to the one offered by the complainant herself: that, given the fact that it was late at night and dark out, and that the complainant had been drinking, the accused followed her to her house to ensure that she got safely inside. I conclude that the trial judge’s reliance on this evidence as circumstantial evidence of guilt amounts to a misapprehension of the evidence.

[27] The other item of circumstantial evidence relied upon by the trial judge as post-offence conduct is the “various text messages”. Again, it is difficult to be certain as to what evidence she was referring to, because several text messages were spoken about during the evidence. Counsel have referred to only two that have apparent relevance.

[28] The first was a text conversation with Ms. K.’s. best friend, C.R. After the accused became aware that Ms. K. was making allegations of sexual assault against him and spoke about going to the police to lay charges, the accused paid an unexpected visit to C.R. When asked why he came, he explained that he wasn’t going to see her for a long time and asked for a hug. Within half an hour of his departure, he had a text conversation with Ms. R., in which he asked whether she knew Ms. K. was bringing him up on charges. She said she did. He then explained that he had wanted a hug because he knew he was going to jail. During the course of that same conversation, he also asked “Well, who do you think they’ll believe, me or C.?”

[29] Presumably, the trial judge drew the inference that the accused thought he was about to go to jail because he knew he was guilty of sexual assault. Howev