Court File and Parties

COURT FILE NO.: 79/14 DATE: 2016-05-09

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N :

HER MAJESTY THE QUEEN Respondent – and – CHRISTOPHER HUSBANDS Appellant

Counsel: Rob Wright, for the Crown Dirk Dirstine, for the Appellant

HEARD: November 19, 2015

TROTTER J.

INTRODUCTION

1The appellant, Christopher Husbands, was charged with one count of sexual assault against his girlfriend. After a trial before the Honourable Justice Libman of the Ontario Court of Justice, he was found guilty. The appellant contends that the trial judge made several errors in his reasons for judgment. For the reasons that follow, the appeal is dismissed.

SUMMARY OF THE FACTS

2The complainant, who was 23 at the time, and the appellant, 21, had been in a relationship dating back to 2005. They had a 3-year-old child and lived together “on and off.”

3They both described a tumultuous relationship. They argued a lot about the appellant’s alleged infidelities. These arguments became physical, according to the complainant. The appellant agreed that there was a lot of yelling.

4It was common ground that, on the night of the incident, the appellant and the complainant had sexual intercourse. However, their evidence diverged on the issue of consent. Moreover, the appellant contended that he honestly believed that the complainant consented.

(a) The Complainant’s Version of Events

5The complainant testified that the incident happened towards the end of October 2010. The appellant was at the complainant’s apartment. She testified that, around bedtime, the appellant received a call and a text message from a female. The complainant and the appellant got into a “little argument” over this. The complainant decided she did not wish to talk any further. She was upset and went to bed, wearing a t-shirt and underwear. She did not fall asleep because she was lying there, crying.

6The appellant came to bed shortly afterwards and tried to speak to her. She did not respond. As the complainant said: “He tried to touch me. He tried talking to me, and I don’t recall what had happened, but all I knew was my clothes were coming off, and yeah.” She said that the “whole sex piece was just uncomfortable for me.”

7The appellant lifted the complainant up to pull her underwear off. She said nothing. He called her name a number of times, saying that he knew she was awake. He performed oral sex on her and then penetrated her with his penis. Asked if the appellant could tell that she was crying, the complainant said: “It was dark, and I am pretty sure he didn’t see me crying.” She said she was not making noises while crying. The appellant ejaculated outside of her. He also gave her two hickeys on her neck/chest area. The complainant said, “He tried to kiss me and I would turn my head away from him.” Asked if she was consenting, the complainant said, “By me saying nothing at all, I don’t think that’s consenting to sex.”

8Returning to her state of upset when she went to bed, the complainant said:

I am pretty sure with or without a night light on the only way he would be able to tell if I was crying was if he heard me make – with snot in my nose or something. I don’t know…I don't recall making any noise….I am pretty sure he knew because I was emotionally wrecked based on the argument we had and seeing the message on his phone.

Ultimately, the complainant did not know if the appellant could see her face.

9The next day, the appellant and the complainant went for dinner and spoke their relationship. The complainant told the appellant that he had violated her body because he did not ask her if she wanted to have sex. He said, “Oh, I’m sorry, I didn’t know that.” After refreshing her memory from a prior statement, the complainant claimed that the appellant also said, “I shouldn’t have done that.”

10The complainant reported the incident to the police two weeks later after having a much more serious argument with the appellant. She left the apartment with their child, met with a friend and called the police. She was afraid to go home. She did not immediately mention the sexual assault to the police.

11In cross-examination the complainant agreed that the appellant came and went as he pleased at her apartment. This bothered her. She often checked his phone to see if he was communicating with other women. She was also concerned that he was having unprotected sex with other women and was thereby disrespecting her.

12The complainant said that she was ashamed of the two hickeys the appellant had given her. She was confronted with a photo that was taken of her at the Metro Toronto Convention Centre, shortly after the incident. The complainant was sitting on a motorcycle with a hickey showing on her chest. She denied that the photo had been taken shortly after the incident. She denied that she was showing off or “posing” the hickey itself.

13The complainant said that they had sexual intercourse 3 to 4 times after the incident. The appellant asked for permission on these occasions, whereas he did not generally do so in the past.

(b) The Appellant’s Version of Events

14The appellant testified that he met the complainant in 2005 and they started a relationship in 2007. They had a child together. The appellant told the police that complainant was not fit to have a child at the time because of the way she was living her life. After the child was born, he moved in with them. The appellant and the complainant had an “on-and-off” relationship “because we were not too stable.” The complainant was a “jealous person” who searched his phone, suspicious that he was communicating with other women.

15The appellant acknowledged that most of their arguments were about alleged infidelity. Having been unfaithful to the complainant in the past, he acknowledged that her concerns had some basis. He also agreed that their arguments sometimes became physical, with the two pushing each other. The appellant denied hitting the complainant, although he said he had “tapped” her on the chin in a gentle manner.

16The appellant was precise about the timing of the incident. He said it occurred on Halloween 2010, between 10:30 to 11:00 p.m. After they returned home from “trick or treating” with their daughter, they were resting on the bed. The appellant fell asleep. He woke up to the complainant telling him that a girl kept calling and texting him. The complainant told him to pay attention to the phone or turn it off. As the appellant got up to get the phone, it rang again. He answered it. The caller was his friend “Nicki.” This upset the complainant. He continued to talk to Nicki. In the meantime, the complainant got into bed.

17The appellant got into bed with the complainant. He tried to assure her that Nicki was just a friend. The complainant was on her back. Her head was turned towards the TV. The appellant testified that he kissed the complainant’s ear and neck and then kissed her on the mouth. She kissed him back. The appellant then described a scenario of kissing the complainant’s breasts and vagina and then having vaginal intercourse after removing her underwear. The appellant testified that the complainant did not resist at all. He said that she was moving her body “in a receiving sexual way like she was participating – that’s how I would explain it.” As they were having intercourse, he looked at the complainant and thought she was looking past him. He then noticed tears in her eyes. He asked if she was okay. She said she was, but she kept turning her face away from him. She eventually covered her face. The appellant testified that he removed his penis from the complainant when she did not explain why she was crying. The appellant lay on the bed next to the complainant. He denied ejaculating.

18The appellant explained that the two of them never asked each other if they wanted to have sex. That night, he inferred consent from the manner in which she was behaving – kissing him back and moving in a sexual manner.

19On the night he was arrested, the appellant and the complainant had a loud argument, involving yelling and name-calling. The complainant said she was going to call the police. The appellant told her to go ahead, because he had nothing to fear. She left the apartment with their child. A few hours later, the police arrived and arrested the appellant for sexual assault.

20The appellant testified that, on nights when the two had minor arguments, the two still had sex, once the complainant calmed down. On nights where they had major arguments – like the night he was arrested – there would be no possibility of intimacy.

21The appellant agreed that they went for dinner after the night of the incident. He denied that the complainant accused him of violating her. He denied ever acknowledging that he did or apologizing to her.

22In cross-examination, the appellant agreed that he lived with the complainant, in violation of a bail order, because his sureties did not want him staying with them. It was suggested to him that the complainant did not like him being out beyond his curfew. The appellant said: “Yes that’s understandable, but the one thing in my eyes her threatening to call the police on me because I’m out past my curfew was not an issue for her. The fact is, she’s not my surety, she had nothing to lose.” The complainant had previously threatened to call the police on him.

23The appellant was vigorously cross-examined on his statement to the police, in which he said that he did not reside with the complainant. He downplayed his relationship with her. He had difficulty remembering the incident at the time. However, when asked if he had ever sexually the complainant, the appellant denied that he had ever done so, but then referred to a time when they were having sex and the complainant started crying.

THE TRIAL JUDGE’S REASONS

24The trial judge commenced his reasons by reviewing the law of sexual assault and the key requirement of lack of consent, as described in R. v. Ewanchuk. He then reviewed the evidence of the complainant and the appellant in considerable detail. For the purposes of the ground of appeal relating to mistaken belief in consent (addressed below), I note that the trial judge reviewed the appellant’s evidence in the following passage:

He did not realize at that moment that she was crying. However, he did notice as the sex act came to an end she appeared to be looking past him as he stated with tears in her eyes. He asked her if she was okay. Although she replied that she was fine, you could see that she was not and she covered her face with her arms. Mr. Husbands was surprised as he explained they were having sex and yet she was crying. He then got off and left the bed.

25The trial judge found that the appellant had sexual intercourse with the complainant, knowing or being reckless as to her consent. As the trial judge said:

I have arrived at this conclusion noting that, even on the accused’s own version, namely getting into bed with [the complainant] when she was obviously upset, participating in a sexual act while she was crying is the antithesis of consent.

26The trial judge reviewed the appellant’s evidence and noted how it was discrepant with his police statement. He found that the appellant had attempted to mislead the police about the nature of his relationship with the complainant and where he lived. This, the trial judge acknowledged, may have been motivated by his bail situation. The trial judge also observed that the appellant purported not to remember the event when speaking with the police, noting:

His not being able to even remember when such an incident occurred to describe it in any detail stands in marked contrast to his testimony before me which involved acts of foreplay consisting of a French kiss, oral sex, administering hickeys to her. I find that this version is implausible for an individual who is lying in bed crying throughout.

By way of summary, the conduct of [the complainant] is the antithesis of consent; Mr. Husbands was aware of that; he was reckless in engaging in sexual activity. In the face of that, accordingly I find him not guilty.

ANALYSIS

27The appellant raises four grounds of appeal: (1) the trial judge misapprehended a critical piece of evidence; (2) the trial judge failed to consider the defence of mistaken belief in consent; (3) the trial judge failed to provide sufficient reasons for rejecting the evidence of the accused; and (4) the trial judge held the appellant’s evidence to higher standard of scrutiny.

(a) Misapprehension of Evidence

28The appellant contends that the trial judge erred by concluding that the appellant was aware that the complainant was crying throughout the entire incident. The appellant points to the passage set out in paragraph 25, above.

29In approaching this ground of appeal, it is important to properly locate the evidence of the complainant’s crying in the analytical framework of sexual assault. The touchstone of this offence is a lack of consent, coupled with the accused’s knowledge of that lack of consent. On the facts of this case, it is important not to get side-tracked by focusing singularly on the complainant’s tears. In terms of the appellant’s awareness, the complainant’s tears and her lack of consent are not one and the same. The former was evidence of the latter. Importantly, on the facts of this case, it was but one aspect of the evidence. The complainant also testified that she was very upset after their argument and it was apparent to the appellant that this was the case. The complainant testified that, as the appellant tried to kiss her on her mouth, she moved her head from side to side.

30In contrast, the appellant said that they shared a passionate kiss and that she participated throughout the incident. But the trial judge completely rejected this evidence.

31I accept that the trial judge could have been more precise in describing the appellant’s awareness as it related to the complainant’s crying. However, there was ample evidence upon which the trial judge could safely reach the conclusion that the appellant knew that the complainant was not consenting. I also note that the appellant testified that, even after he noticed she was crying, he left his penis inside of the complainant’s vagina while he inquired into her state of upset. As the appellant said, “She covered her face and what not. I got out of her.” This evidence was rejected. But even had it not been, it would not have assisted the appellant.

32I would not give effect to this ground of appeal.

(b) Failure to Consider the Defence of Mistaken Belief in Consent

33The appellant argues that the trial judge erred in failing to consider the application of mistaken belief in consent.

34As noted above (in paragraph 24), the trial judge was alive to this issue. Moreover, in reviewing the Crown’s submissions, the trial judge said that, even on his own testimony, “he clearly did not take reasonable steps to ensure that his conduct occurred in a consensual way.”

35Having rejected the appellant’s evidence, there was no air of reality to a mistaken belief in consent because there was nothing in the complainant’s evidence to support this defence. In explaining the parameters of a mistaken belief in consent, in Ewanchuk, Major J. said the following at p. 501: “…a belief that silence, passivity or ambiguous conduct constitutes consent is a mistake of law, and provides no defence: see R. v. M. (M.L.).”

36On the basis of the evidence that was accepted, the complainant may have been silent, but she was neither passive, nor was her conduct ambiguous. She kept turning her head away from the appellant as he tried to kiss her. That the complainant did not say “no” and did not “fight back” more vigorously did not give rise to an air of reality, irrespective of how they approached each other sexually in the past. They had just had an argument that left the complainant upset (“emotionally wrecked”). She refused to even speak to the appellant. But he decided to push ahead, trying to be playful by repeating, “I know you’re awake.” Any claimed belief that the complainant was consenting must fall within the realm of conduct that is reckless or willfully blind: see Criminal Code, s. 273.2(a)(ii). The overall circumstances required cried out for the need to take reasonable steps to ascertain that the complainant was consenting: s. 273.2(b). On his own evidence, the appellant took steps when he saw the complainant’s tears. On the evidence that was accepted by the trial judge, he took none.

37This ground of appeal fails.

(c) The Sufficiency of the Trial Judge’s Reasons

38The appellant complains that the trial judge “failed to give reasons for his conclusion on the second branch of the W.(D.) test that although he did not believe the testimony of the appellant, the appellant’s testimony also raised no reasonable doubt.” I disagree.

39The trial judge discussed the principles in R. v. W.(D.). In tracking the submissions of defence counsel, the trial judge said, “The accused’s testimony, according to the defence, is such that it should give rise to a reasonable doubt, even if not believed.” Later in his reasons, the trial judge said, “It is now my task to apply the W.D. test first to the testimony of the defendant and to determine whether or not I believe his testimony or even if I do not believe it to find that I am left in a reasonable doubt by it.” Ultimately, the trial judge rejected the appellant’s evidence outright.

40The trial judge was not required to walk through the analytical framework in W.(D.) step-by-step. In R. v. Thomas, 2012 ONSC 6653, my colleague, Code J., considered a similar argument, whereby it was contended that W.(D.) must be approached literally and trial judges must engage in 3 sequential steps. Rejecting this argument, Code J. held at para. 23-24:

That case does not describe three sequential analytical steps that a trier of fact must pass through, one at a time. Rather, it describes three distinct findings of fact that a trier of fact can arrive at, when considering all the evidence at the end of the case, namely, complete acceptance of the accused's exculpatory account ("step 1"), complete acceptance of the Crown witnesses' inculpatory account ("step 3"), or uncertainty as to which account to believe ("step 2"). See: R. v. Edwards, 2012 ONSC 3373 at paras. 13-25 (S.C.J.), where the authorities on this point are discussed at some length.

…A trier of fact must look at all the evidence, when deciding whether to accept the accused's evidence and when deciding whether it raises a reasonable doubt. It is at that same point in time that the trier of fact will also determine whether the Crown's witnesses prove guilt beyond reasonable doubt and whether the accused's contrary exculpatory account must necessarily be rejected. In other words, these decisions are all made at the same time on the basis of the same total body of evidence. The so-called "three steps" in W.D. are simply different results, or alternative findings of fact, arrived at by the trier of fact at the end of the case when considering the totality of the evidence.

41The trial judge gave sufficient reasons for why he rejected the appellant’s evidence. It was based primarily on the discrepancies between his evidence and the statement that he gave to the police. In the circumstances, this was a sufficient basis upon which to address all live issues raised at trial in a manner that was fair and which permits meaningful appellate review.

(d) Uneven Scrutiny of the Evidence

42The appellant argues that the trial judge subjected the appellant’s evidence to higher level of scrutiny, criticizing him for the types of shortcomings for which the complainant received a “pass.” This ground of appeal was recently addressed in R. v. Gravesande, 2015 ONCA 774. Writing for the Court, Pardu J.A. said at p. 502:

This court has repeatedly stated that it is an error of law for a trial judge to apply a higher or stricter level of scrutiny to the evidence of the defence than to the evidence of the Crown: R. v. Owen, at para. 3; R. v. C. (H.), 2009 ONCA 56, at para. 62; R. v. Phan, 2013 ONCA 787, at para. 30. However, as noted by Laskin J.A. in R. v. Aird, 2013 ONCA 447, at para. 39:

The "different standards of scrutiny" argument is a difficult argument to succeed on in an appellate court. It is difficult for two related reasons: credibility findings are the province of the trial judge and attract a very high degree of deference on appeal; and appellate courts invariably view this argument with skepticism, seeing it as a veiled invitation to reassess the trial judge's credibility determinations.

For an appellant to successfully advance this ground of appeal, she must identify something clear in the trial judge's reasons or the record indicating that a different standard of scrutiny was applied and something sufficiently significant to displace the deference due to a trial judge's credibility assessments: R. v. H. (J.), at para. 59; R. v. Rhayel, 2015 ONCA 377, at para. 98.

43While this ground of appeal succeeded in Gravesande, I would not give effect to it in this case. In his lengthy reasons, the learned trial judge thoroughly reviewed the problematic aspects of the evidence of both the complainant and the appellant. He was alive to the inconsistencies in the complainant’s account, her refusal to acknowledge the authenticity of the photo and the gradual manner in which the sexual assault complaint emerged after she contacted the police.

44The trial judge was more concerned about the serious inconsistencies between the appellant’s vague police statement and his very detailed testimony at trial. Allowing for the fact that the appellant was tired, frustrated and perhaps under the influence of marijuana when he gave his statement, the trial judge was taken by the vast discrepancies between it and his evidence at trial. He found the explanations for the inconsistencies to be unconvincing.

45It is not an error for a trial judge to make differential findings of credibility between a complainant and an accused person, as long as the same standard of scrutiny is applied. In the absence of something more, the result is not necessarily indicative of a problematic process. Having observed the two witnesses over many days, both having been subjected to unduly lengthy cross-examinations, the trial judge was best placed to make this determination. He gave detailed reasons for doing so, reasons that are entitled to deference.

CONCLUSION

46The appeal is dismissed.

TROTTER J. RELEASED: May 9, 2016

COURT FILE NO.: 79/14 DATE: 2016-05-09 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN Respondent – and – CHRISTOPHER HUSBANDS Appellant

REASONS FOR JUDGMENT TROTTER J. RELEASED: May 9, 2016