COURT FILE NO.: 20/14

DATE: 20150703

ONTARIO
SUPERIOR COURT OF JUSTICE

RE: Her Majesty the Queen v. D.M.

BEFORE: K.L. Campbell J.

COUNSEL: Luke Schwalm, for the Crown, respondent
Joel Hechter, for the accused, appellant

HEARD: June 9, 2015

Subject to any further Order of a court of competent jurisdiction, an Order has been made in this proceeding, pursuant to s. 486.4 of the Criminal Code, directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast or transmitted in any way.

REASONS FOR DECISION

[Summary Conviction Appeal]

A. Introduction

[1] Did the passage of nearly two years, between the start of the criminal proceedings against the appellant and their ultimate conclusion with his sentencing, violate his right to be tried within a reasonable time, as guaranteed by s. 11(b) of the Canadian Charter of Rights and Freedoms? That is the single issue raised on this appeal.

B. Factual Overview

[2] The appellant, D.M., was charged with sexual assault and unlawfully entering a dwelling house with the intention of committing an indictable offence. Both offences were alleged to have been committed in Toronto on January 26, 2012. The Crown ultimately elected to proceed by way of summary conviction, and the appellant was tried by the Honourable Mr. Justice P. Harris of the Ontario Court of Justice.

[3] The female complainant and her two girlfriends lived on the second floor of a triplex. The appellant and his step-father lived on the ground floor of the same building. In the early morning hours of January 26, 2012, the complainant was awoken by a male in her bed, dressed only in his boxer shorts. He had his arm around her, and he was trying to put his fingers inside her underwear. After exclaiming her shock, the complainant told the male, in unmistakable terms, to leave her apartment immediately. The male complied with this demand. Later that night, the accused was arrested by the police asleep inside his own apartment.

[4] At trial, the Crown contended that the appellant was the male that unlawfully entered the complainant’s apartment and sexually assaulted her. The appellant advanced a two-fold defence. First, he challenged the evidence of identification suggesting that he was the perpetrator of these offences. Second, and alternatively, the appellant contended that, if he was in fact the male in the complainant’s apartment, he was in a state of automatism (i.e. somnambulism/sexsomnia). He testified that he had been drinking heavily that night, and claimed that he had no recollection of entering the complainant’s upstairs apartment. Both parties adduced expert evidence on this subject.

[5] On October 22, 2013, following a bifurcated trial in which both of these alternative defences were advanced by the appellant, the trial judge released reasons for judgment in which he found the appellant guilty of the offence of sexual assault, but not guilty of the unlawful entry offence. In finding the appellant guilty of the sexual assault offence, Harris J. concluded, essentially: (1) that the Crown had established beyond a reasonable doubt that the appellant was, in fact, the individual who entered the complainant’s apartment and sexually assaulted her while she slept; (2) that the appellant had not established on the balance of probabilities that he was in a state of automatism at the time of the sexual assault; and (3) the Crown had established beyond a reasonable doubt that the appellant acted voluntarily in his commission of this offence. See R. v. D.M., 2013 ONCJ 589, [2013] O.J. No. 5232, at paras. 2-3, 28, 31-33. More particularly, in his conclusions, the trial judge stated, at paras. 32-33:

In my view, a reasonable inference can be drawn from all the evidence that the [sexual] assault was the culmination of a series of conscious, purposeful, decisions. In terms of the classical indicia of automatism, what is lacking here is – a reliable, credible, factual foundation upon which to envision some element of externally-directed propulsion like parasomnia based on force of habit, basic human instinct or a mindless, uncontrollable, compulsion. Unfortunately for the [appellant], the evidence in this case leads irresistibly to the conclusion that the sexual assault took place because an intoxicated young man began to look at pornography and subsequently set off on a foolish, impulsive search of the bedrooms upstairs – in an attempt to find an outlet for his interests. His position with his penis in his hand in front of a pornographic image on the computer at the time of arrest speaks volumes.

One can readily understand the challenges that defendants have to meet in asserting this defence. Nevertheless, considering the legal requirements found in the above-noted case authorities, and having weighed all of the available evidence, I have concluded that it has not been proven on a balance of probabilities that [D.M.] acted involuntarily in the sexual assault on [the complainant], and further, that notwithstanding the defence of automatism raised by the [appellant], the Crown has, on all the evidence, proven voluntariness beyond a reasonable doubt and [D.M.] will be found guilty of the sexual assault on [the complainant].

[emphasis added]

[6] With respect to the alleged unlawfully entry offence, the trial judge concluded, at para. 35, that he had a reasonable doubt as to whether, when the appellant entered the complainant’s upstairs apartment, he intended to commit a sexual assault. Harris J. found that the appellant’s entry of the apartment was “completely consistent with his past practice of walking into the apartment unannounced, and he could well have been hoping for an encounter with a fully-awake female tenant of the premises.” As the trial judge observed, as a result of the appellant’s alcohol consumption, “he exercised very poor judgment in accosting the sleeping [complainant].” Ultimately, the trial judge concluded that he possessed a reasonable doubt as to whether the appellant, due to his self-induced intoxication, had the requisite specific intent to commit this offence.

[7] Thereafter, the appellant brought an application to stay the proceedings on the basis that there had been a violation of his right to be tried within a reasonable time, contrary to s. 11(b) of the Charter of Rights. On October 31, 2013, Harris J. released reasons for judgment dismissing that application. See R. v. D.M., 2013 ONCJ 590, [2013] O.J. No. 5233. The trial judge concluded that the total period of delay (at that time) of approximately 20 months was sufficient to merit further inquiry, but he ultimately concluded that there was no violation of s. 11(b) of the Charter in all of the circumstances.

[8] Subsequently, on January 16, 2014, the appellant was sentenced to a nine month conditional sentence, followed by a 12 month period of probation.

[9] The appellant now appeals against his conviction. He raises one ground of appeal. The appellant argues, more specifically, that the trial judge erred in failing to conclude that there had been a violation of his right to be tried within a reasonable time, as guaranteed by s. 11(b) of the Charter. Moreover, the appellant argues that, taking into account the nearly two year period of time between the date the charges were first initiated (January 26, 2012), and the date sentence was finally imposed (January 16, 2014), there has been a violation of s. 11(b) of the Charter, and the proceedings should be accordingly stayed.

[The remainder of the judgment continues verbatim in the same structure and wording as provided in the source, including sections C, D, E, F and the footnote, with no alterations to wording, order, or content.]