R. v Y. (M.A.)

COURT FILE NO.: 18/16 (Woodstock) DATE: 20170502 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Her Majesty The Queen Respondent – and – M.A.Y. Appellant

COUNSEL: Simon J. McNaughton, for the Respondent Philip Campbell, for the Appellant

HEARD: March 30, 2017

RESTRICTION on publication By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the persons described in this judgment as a complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published

On appeal from the conviction entered by Justice M.E. Graham of the Ontario Court of Justice at Woodstock, Ontario, on April 18, 2016.

JUSTICE C. M. BONDY:

A. Introduction

1) Background

[1] The appellant, M.A.Y. was tried before M. E. Graham J. on a charge that he sexually assaulted L.V. (“L.V. or “the complainant”) on April 17, 2014. The appellant was found guilty on April 18, 2016 and sentenced on May 18, 2016. He was granted a conditional discharge with six months of probation and was subject to other ancillary orders, including a 10-year registration as a sex offender under the Sex Offender Information Registration Act, S.C. 2004, c. 10. The appellant appeals from that conviction.

[2] M.A.Y., who at trial was 57 years of age, and L.V., who at trial was 48 years of age, had been acquainted since 2010. They were both involved with a group called A.C. in the town of T. There is consensus that they became romantically involved in early February 2014, first through playful text messaging and then through “more sexual texting”. The first “sexual touching” occurred on February 17, 2014, during a drive to a secluded area. The two did not go on typical dates. According to L.V., they would find “little snippets of time for meeting, driving around, having coffee, things like that.”

[3] According to L.V.'s testimony at trial, the relationship remained intimate until the end of March or the first part of April 2014. She says that at that point in time, “everything just kind of went by the wayside” and they agreed “just to remain as friends”.

2) The incident that resulted in the conviction

[4] On Thursday evening, April 17, 2014, the complainant and appellant were attending a training night at A.C. According to the evidence of the complainant, at one point during the evening the appellant reached out and cupped “both of my breasts in his hands and rubbed the nipples with his thumbs”. She says that while he did so, M.A.Y. was staring at her breasts.

[5] According to the complainant, the incident lasted about five seconds. The encounter ended when “all of a sudden he took a step back and threw his hands in the air” with a facial expression she interpreted as “more of a kind of shock.” L.V. testified that she did not consent to the touching, did not invite the touching, and did not make any gesture that could have been interpreted as an invitation for the touching. She also testified that at no point had there been any “sexual overtones” to their interaction in the office and that the incident had happened very quickly.

B. Analysis

1) Introduction

[6] Section 822(1) of the Criminal Code, R.S.C. 1985, c. C-46, provides that in a summary conviction appeal brought pursuant to s. 813, the provisions of s. 686(1)(a) apply. Section 686(1)(a) provides that on the hearing of an appeal against a conviction, the appellate court may allow the appeal where it is of the opinion that,

i. the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,

ii. the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or

iii. on any ground there was a miscarriage of justice.

[7] In this case, the appellant argues that the judgment of the trial court should be set aside on the grounds that M.E. Graham J. made a wrong decision on a question of law and that the decision is unreasonable and cannot be supported by the evidence.

[8] Prior to considering the grounds of appeal, I observe that the trial judge’s decision begins with a recitation of the facts, which no one strenuously objected to. He then proceeds to conduct a very insightful review of the law as it applies to sexual assault offences. It is not until the trial judge considers a short series of text messages that the issues relevant to this appeal arise.

2) The central issues

[9] The grounds of appeal relate, for the most part, to the trial judge’s use of the text messages sent between the appellant and the complainant on April 19, 2014. Those text messages were sent two days after the events in question.

[10] At the heart of his appeal, the appellant argues that the trial judge used the text messages sent by the complainant for prohibited purposes; specifically, he used the messages for the truth of their contents, contrary to the hearsay rule, and to corroborate the complainant’s otherwise very frail evidence as to consent, contrary to the rule against prior consistent statements.

[11] Appellant’s counsel also asserts that the trial judge failed to consider an alternate plausible inference as to the meaning of the appellant’s responding text messages.

[12] The Crown maintains that the trial judge was entitled to use the complainant’s text messages for the truth of their contents in order to corroborate the complainant’s evidence relating to a lack of consent. The Crown also maintains that the trial judge’s actual use of the text messages, when viewed in the context of the decision as a whole, was appropriate.

[13] Consistent with that assertion, I agree that the law is well settled that an appellate court is not to consider, in isolation, individual words of the trial judge’s decision which cause concern. Any language that may appear to be a judicial misstep or ambiguity must be considered in the context of the whole of the reasons and the entirety of the proceedings: see R. v. Zou, 2017 ONCA 90, at para. 42; R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at paras. 13-14; R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 19; and R. v. B.A., 2008 ONCA 556, 238 O.A.C. 198, at paras. 33-34, leave to appeal refused, [2008] S.C.C.A. No. 415.

[14] Notwithstanding, for the reasons which follow, I agree with the defence position as to the trial judge’s actual use of the text messages of both the complainant and the appellant.

[15] In fairness to the trial judge, when the Crown introduced the text messages at trial, it did not seek to limit their use. Further, the Crown did not suggest to the trial judge that the requisite voir dire be held. To the contrary, in submissions Crown counsel invited the trial judge to accept the text messages for the truth of their contents. He said, “If you want to find out the truth of the case, I would suggest you have to look to the evidence and, in particular, you have to look at those text messages.”

[16] Similarly, defence counsel did not object to the text messages being introduced or to the judge considering them without any limitation on their use.

[17] In other words, the trial judge was confronted with the same situation as was described at para. 26 of the Court of Appeal’s decision in Zou.

[18] The absence of an objection of course cannot rescue an error of law. However, I find it important to make that observation. Trial judges, and in particular trial judges of the Ontario Court of Justice, who preside in very busy courts, rely very heavily on counsel to fairly and fully apprise them of the law. That duty on counsel is at the heart of the adversary system.

[19] I will review the grounds of appeal as against those observations.

3) Did the trial judge make wrong decisions on questions of law?

a) Introduction to L.V.’s text messages

[20] I conclude that the trial judge relied upon L.V.’s April 19 text messages for both the truth of their contents and to corroborate or “bootstrap” the testimony of the complainant. To do so was a wrong decision on a question of law, and so I answer this question in the affirmative. I find that this error had far-reaching consequences and that it impacted several of the essential lines of reasoning relied upon by the trial judge in reaching his ultimate conclusion as to the essential element of consent and, accordingly, as to the conviction.

[21] By way of background, the trial judge quoted the following text messages sent between the appellant and the complainant on April 19, 2014:

• At 8:05 a.m. the complainant says, “Why did you reach out and touch my breasts Thursday night? It has been made perfectly clear that there is no relationship”.
• At 9:14 a.m. the appellant replied, “I don’t know kw I also stopped”.
• At 9:27 a.m. the complainant replied, “After you had already done it”.
• At 9:43 a.m. she added, “You wonder why I am so confused. You touch me sexually, you say you will call and you never do, you aren’t straight up with me”.

[22] The trial judge correctly proceeds by discussing the complainant’s three text messages of April 19 separately from that of M.A.Y. There are, however, two central errors which follow.

[23] The first is that there is no indication in the trial judge’s reasons that he makes any distinction between the uses to which he puts the text messages sent by the complainant as opposed to that sent by the appellant. As is more fully considered below, the permissible uses for each are fundamentally different.

[24] The second error occurs later in his reasons when the trial judge considers the impact of the texts sent by L.V. and M.A.Y. together. As a result, it is not entirely clear what weight he gave to M.A.Y.’s text messages in reaching the ultimate conclusion that L.V. did not consent to the touching. That said, it seems likely from the language chosen by the trial judge that he relied for the most part on those sent by L.V.

[25] The complainant’s text messages amounted to prior out-of-court consistent statements. Admission of a prior consistent statement is governed by both the hearsay rule and the rule against prior consistent statements: see R. v. Khan, 2017 ONCA 114, at para. 13. This is because any such statement necessarily has two components – the hearsay component and the declaration component: see Khan, at para. 26; R. v. C. (M.), 2014 ONCA 611, 325 O.A.C. 1, at para. 59; David M. Paciocco, “The Perils and Potential of Prior Consistent Statements: Let's Get It Right” (2013) 17 Can. Crim. L. Rev. 181.

[26] The hearsay component of a prior consistent statement is engaged when the statement is being adduced for the truth of its contents. As was stated by Charron J. in R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 36, prior consistent statements “constitute hearsay when adduced for the truth of their contents.” As such, the hearsay component is inadmissible unless it falls into one of the traditional common law exceptions to the hearsay rule or the proponent establishes the requisite indicia of necessity and reliability under the principled exception: see R. v. Khelawon, 2006 SCC 7, [2006] 2 S.C.R. 787, at para. 42; R. v. C. (M.), at para. 53. If it satisfies any of these exceptions to the hearsay rule, the statement can be used for the truth of its contents.

[27] The rule against prior consistent statements comes into play when the statement is being adduced for its declaration component, i.e., it is being adduced as proof that the statement was in fact made, not as proof of the truth of what was said. The rule against prior consistent statements is merely a manifestation of the general rule that evidence must be relevant to a material issue. In other words, proof that the prior statement was in fact made must be relevant to an issue at trial: see Khan, at para. 59, per Doherty J.A. concurring in the result.

[28] According to this rule, the simple proof that the witness made the same statement on a prior occasion is not relevant to the issue of that witness’s credibility as such proof makes it no more or less likely that the witness is telling the truth on the stand; it is equally plausible that he or she was telling the truth both times or lying both times: see R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at paras. 5-7; Khan, at para. 25. As such, a prior consistent statement cannot be used merely to corroborate a witness’ in-court testimony: see Dinardo, at para. 40; Zou, at paras. 40-41.

[29] If the court finds that a prior consistent statement is relevant to an issue at trial, use of the statement is restricted to its area of relevance: see R. v. C. (M.), at para. 61. Prior cases have recognized the relevance of prior consistent statements as (i) circumstantial evidence, (ii) pure narrative evidence, and (iii) narrative as circumstantial evidence: see R. v. C. (M.), at para. 62; Khan, at para. 29; Paciocco, at p. 182.

[30] A prior consistent statement may be relevant as circumstantial evidence going to an issue at trial, for example, a witness’ state of mind where his or her state of mind is a relevant: see R. v. Edgar, 2010 ONCA 529, 101 O.R. (3d) 161; R. v. Zou, 2017 ONCA 90, at para. 48. In such circumstances, the declaration component of the prior consistent statement is adduced as circumstantial evidence going to the relevant issue, not to the issue of the credibility of the witness’s in-court testimony.

[31] As pure narrative evidence, the prior consistent statement is admissible to help the trier of fact to understand the case and to make the material facts more comprehensible. This exception is typically used to offer proof of how the complaint came before the court or to provide context for an admissible statement: see, e.g., R. v. F. (J.E.), 1993 ONCA 3384; R. v. George, 1985 BCCA 657. Statements that come in as part of the narrative have no weight; they cannot be used as proof of their contents or to bolster the credibility of a witness: see Khan, at para. 30; R. v. C. (M.), at para. 65; R. v. A.E.R., 2001 ONCA 11579.

[32] Finally, in some cases a prior consistent statement will be admissible as “narrative as circumstantial evidence” supporting the witness’s credibility. This will be the case if there are any circumstances surrounding the making of the prior statement that can assist the trier in assessing the credibility or reliability of the witness’s in-court statement: see Khan, at para. 31, Dinardo, at para. 39; R. v. Evans, 1993 SCC 102, [1993] 2 S.C.R. 629, at para. 32. In such a case, the permitted inference is not that the witness is more credible simply by virtue of the consistency of his or her statements: see Khan, at para. 31; Paciocco, at p. 199. Rather, the trier is permitted to consider the context in which the initial complaint arose in order to assist in the assessment of the witness’s in-court testimony: see Khan, at para. 43.

[33] The threshold admissibility question that ought to have been asked was, “for what purpose is the evidence offered?” Once that purpose was established, it was incumbent upon the Crown to show that the messages were admissible for that purpose: see R. v. Khan, 2017 ONCA 114, at paras. 61-62, per Doherty J.A., concurring in the result.

b) The uses to which the trial judge could have and actually did put L.V.’s text messages

Use as “pure narrative”

[34] For reasons which are more fully explored below, I find that L.V. text messages were properly considered by the trial judge as part of the narrative. As an example, those texts were necessary for a proper understanding of the replies that M.A.Y. had made to those texts.

Potential use as principled exception to the hearsay rule

[35] After quoting the text messages, the trial judge made the following comments:

In these texts she clearly accused him of touching her breasts. This is evidence of the intentional application of force. In the context of these texts it is clear that her sexual integrity was violated. It is obvious by her question that she did not consent.

[36] I find that language consistent with only one conclusion. That is that the trial judge impermissibly relied upon those text messages for the truth of their contents and that he relied very heavily on those texts in reaching his ultimate conclusion as to whether the complainant had consented to the touching: see Zou, at para. 41.

[37] Consistent with that conclusion, the trial judge also stated “the April 19 texts are compelling and revealing snapshot of what took place that night”.

[38] The defining features of hearsay evidence are as follows: (i) the statement is adduced to prove the truth of what was said; and (ii) the absence of a contemporaneous opportunity to cross examine the declarant: see R. v. C. (M.), at para. 50; Khelawon, at para. 56. As mentioned above, prior consistent statements are hearsay when they are being adduced for the truth of their contents: see Dinardo, at para. 36.

[39] The traditional exceptions to hearsay rule allow permit the introduction of evidence of a declarant’s spontaneous statements about his or her current physical condition, mental state or sensory impression, as well as excited utterances: see R. v. C. (M.), at para. 55.

[40] The principled exception to hearsay allows for the admission of an out-of-court statement if the requirements of necessity and reliability are met: see Khan, at para. 18; R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720, at para. 21. Although the necessity requirement is often not satisfied if the witness is available to testify, a hearsay statement may still be admissible “where the witness is unable to give a full and frank account of the events, or where the witness has difficulty recalling significant details of the event”: Khan, at para. 21; R. v. C. (M.), at para. 56. However, as Hourigan J.A. outlined at para. 22 of the court’s decision in Khan, “While lapses in memory can, in some circumstances, satisfy the necessity requirement under the principled approach, an attack on a witness's credibility generally does not satisfy the necessity requirement of the principled approach.” In this case, there was no suggestion of a memory lapse or any other meaningful indicia of necessity. Accordingly, I conclude the evidence was not admissible based upon the principled approach.

[41] The Crown maintained that this language is not necessarily consistent with the trial judge having used those texts for the truth of their contents. I respectfully disagree. The trial judge concluded on the basis of those texts that “it is clear that her sexual integrity was violated” and that “it is obvious by her question that she did not consent”. I find that language clear and reasonably capable of only one interpretation.

[42] Further, it is clear from the trial judge’s reasons that he also relied heavily upon the text messages to rescue the evidence of L.V., whose credibility he otherwise questioned and who he found had considerable motive to lie. L.V.’s credibility and motive to lie is more fully considered below.

Potential use as Circumstantial evidence

[43] The Crown submitted that the trial judge relied upon the text messages as circumstantial evidence to assist in ascertaining the complainant’s state of mind: see R. v. Mathisen, 2008 ONCA 747, 242 O.A.C. 139, para. 104. I agree that would have been a permissible use.

[44] However, I reject the proposition that the trial judge used L.V.’s text messages for that purpose for several reasons.

[45] The first is that the judge made no mention of such a use, nor is his analysis consistent with such a use.

[46] The second is that the trial judge recognized that L.V.’s feelings for M.A.Y. were evolving over time. The text messages relied upon were sent two days after the events in question. Even if the trial judge used those texts as an aid to understanding L.V.’s state of mind, the state of mind which is expressed in her text messages was potentially different than her state of mind two days earlier. As such, use of the declaration component of the complainant’s text messages as circumstantial evidence of her subjective state of mind regarding consent on the night in question would have required a double inference. In other words, the text messages provided circumstantial evidence of the complainant’s state of mind on April 19, which would amount to circumstantial evidence of the complainant’s state of mind on April 17. The strength of that second inference would have been seriously undermined, given the trial judge’s findings that the complainant’s feelings were evolving with time.

[47] The third is that the use of the text messages as circumstantial evidence as to the complainant’s state of mind would have required the trial judge to be satisfied beyond a reasonable doubt that the only rational inference that could be drawn from the circumstantial evidence was that the accused is guilty: see R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42, para. 33; and R. v. Fleet (1997), 1997 ONCA 867, 36 O.R. (3d) 542 (C.A.), at p. 549; R. v. Guiboche, 2004 MBCA 16, 183 C.C.C. (3d) 361, at paras. 108-10; R. v. Tombran (2000), 2000 ONCA 2688, 142 C.C.C. (3d) 380 (Ont. C.A.), at para. 29.

[48] As was pointed out by defence counsel at trial, and again by appellant’s counsel on the appeal, there are often multiple plausible interpretations of particular language. Accordingly, when language is subject to scrutiny, it must be considered in the context of all of the proceedings at trial.

[49] In this case, the particular language chosen by L.V. in her 8:05 a.m. text does not explicitly express a state of mind that she was assaulted or that she did not consent. Notwithstanding, I do agree that it could be interpreted in that manner. That said, her language is also consistent with the defence theory that the language implies a state of mind of disappointment that M.A.Y. had chosen to end the relationship and curiosity or confusion as to whether the touching of her breasts on April 17 was intended to indicate that the relationship was back on.

[50] That interpretation finds support in the possibility that when L.V. said “it has been made perfectly clear that there is no relationship” she was speaking of M.A.Y. having made that perfectly clear and not herself. In other words, appellant’s counsel suggested that the complainant was asking why he had touched her breasts if he did not want a relationship. The existence of two plausible inferences as to what L.V. was thinking at the time is important. That is because it is the Crown who must prove consent beyond a reasonable doubt. A plausible innocent explanation will raise a reasonable doubt. A trial judge has a duty to consider an alternate plausible innocent explanation for the meaning of words. The failure to do so is a legal error. This issue is more fully considered below in the context of M.A.Y.’s text messages.

[51] Consistent with that potential explanation, on April 19 L.V. texted M.A.Y. and said, “You wonder why I am so confused. You touch me sexually, you say you will call and never do, and you aren’t straight up with me”. While that language may be consistent with a touching that had not been consented to, it is also consistent with L.V. having consented to the touching only to become confused afterwards because M.A.Y. did not call her. The trial judge specifically found that, through the text messages, L.V. was attempting to determine M.A.Y.’s state of mind, which is consistent with this particular defence theory.

Potential use as “narrative as circumstantial evidence”

[52] I reiterate that another potentially permissible issue is “narrative as circumstantial evidence”. Pursuant to this exception, if the circumstances surrounding the making of the prior statement provide strong indicators of reliability, the trier of fact may give facts properly admitted as part of the “pure narrative” a more substantial use. That is consideration of those facts as circumstantial evidence going to the credibility of the witness’ in-court testimony. See: Khan, at para 31; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 39; R. v. Evans, 1993 SCC 102, [1993] 2 S.C.R. 629, at para. 32.

[53] For the reasons which follow, I find this exception was not available in this particular fact situation because there was good reason to doubt the reliability of those text messages.

[54] There was evidence at trial that there were text messages missing on L.V.’s phone. L.V. candidly admitted in cross-examination that she had deliberately filtered the text messages prior to turning them over to the police. L.V. testified that she had limited her disclosure of text messages to “the ones that I felt where he had said what he had done”. In other words, she had chosen to disclose only the text messages which most clearly demonstrated her position at trial.

[55] L.V. testified that the other text messages from the relevant timeframe were missing for two reasons. The first was that she had not saved some of them. The second was that some of the text messages within the same thread as those turned over to the police had been erased when the phone fell into a toilet.

[56] The trial judge does not seem to have given any consideration to two potential issues raised by that evidence.

[57] The first is the probability of an accidental dunk in the toilet deleting some text messages in their entirety, but leaving others in the same thread completely unscathed. Even if that proposition is possible, and the water had completely eliminated some texts but not others, it seems logical the dunking may also have impacted the integrity of those that remained and were put into evidence. That, of course, goes directly to the reliability of those text messages.

[58] The second issue relates to what may have been said in the excluded text messages and whether or not the excluded text messages may have given context to those that were disclosed. The missing text messages may have put the text messages that were disclosed in a different light. Any communication put in evidence that has been edited in that fashion, or only partially overheard, must be approached with caution: see R. v. Ferris, 1994 ABCA 20, 149 A.R. 1, at para. 24, aff’d 1994 SCC 31, [1994] 3 S.C.R. 756. In that case, a partial statement with the words, "... I killed David ..." was overheard. The Court held those that words, on their own, were not enough to allow for the proper understanding and appreciation of the meaning of the statement.

[59] For all of these reasons, I conclude that the trial judge erred in law when he relied upon the complainant’s text messages for the truth of their contents, and to corroborate the complainant’s in-court testimony. I also conclude that there is no indication that he used the complainant’s text messages for any permissible use suggested by the Crown on appeal. Finally, I conclude that even if he had relied upon the text messages for the permissible uses suggested by the Crown, those uses would not have assisted the Crown in proving the essential element of the absence of consent beyond a reasonable doubt. This last finding is important in the analysis which follows regarding whether the trial judge’s decision should be set aside.

c) The use of the entire text message exchange

Introduction

[60] Notwithstanding the above comments, I do find that it was open to the trial judge to consider the complainant’s text messages to understand the narrative and to provide context for the related texts of M.A.Y. Pursuant to such a use, however, he could not give the messages any weight or use them for the truth of their contents or to bolster the complainant’s credibility: see Khan, at para. 30.

[61] M.A.Y.’s responding text messages were also out-of-court prior statements. However, these messages were admissible for the truth of their contents as they amounted to an admission by the accused: see R. v. Evans, [1993] 3 S.C.R. 629; R. v. D.D., 2015 ONCA 3667. As I mentioned above, it is not clear what weight the trial judge gave to M.A.Y.’s text messages in reaching his ultimate conclusion as to consent. However, I find that even if he did base his conclusion on the admissible evidence, or if he was entitled to consider the complainant’s text messages for the truth of their contents, he would still have erred in coming to his ultimate conclusion for failing to have considered whether there was a plausible innocent explanation.

[62] At p. 20 of the transcript of the trial judge’s reasons, he states “I don’t look at those texts in the context of some other narrative explanation of what those can be, such as, you know, it could be a brush, it could be something else. I have to look at it in the context of the actual evidence I have.” Based on this language, it appears that the trial judge is rejecting any potential innocent explanation because such an explanation was not put into evidence. If that is correct, the trial judge was placing an onus upon the accused to testify. The law is well settled that an accused does not have to prove anything. It is the Crown that has the onus of proof in a criminal trial.

[63] In any event, it is clear from the trial judge’s reasons that he gave serious consideration to only one plausible inference to be taken from the language of the conversation. That is, that “his response is an admission that he did touch her and the fact that he stopped almost immediately is an acknowledgement that she did not consent.” I find the judge did not consider an alternate plausible inference as to the meaning of the accused’s comments, which was put to him by defence counsel at trial. His failure to do so was an error in law.

The use of M.A.Y.’s text message response

[64] I reiterate that in her text messages, L.V. does not explicitly allege that she was assaulted or that she did not consent to the touching. However, that is one plausible explanation. The trial judge placed significant weight on the appellant’s 9:14 a.m. reply to the complainant’s initial text message. There, I reiterate the appellant said, “I don’t know kw I also stopped”.

[65] I agree that the first component of the text message “I don’t know”, when considered in the context of the question asked in L.V.’s text message, is clearly an admission of an essential element of the offence, that is that the touching took place and was intentional. The law is well settled that, assuming relevance and materiality, a prior admission by an accused is “presumptively admissible”: see R. v. D.D., at para. 18. Accordingly, I conclude that it was open to the trial judge to find that this was an admission by M.A.Y. that the touching took place.

[66] I was told that the letters “kw” were a typo and, accordingly, I did not consider them.

[67] I reiterate that the second component of the subject text is the words, “I also stopped”.

[68] The trial judge concludes that “the fact the he stopped almost immediately is an acknowledgement by M.A.Y. that she did not consent.” The trial judge accepted those words as an acknowledgement there was no consent. There was, however, no apparent consideration of the potential frailties accompanying that conclusion.

Other possible explanations for the meaning of the text message conversation

[69] I reiterate there were at least two possible interpretations for those words in the context of the entire conversation before the trial judge.

[70] The first explanation was what the trial judge ultimately concluded: the complainant did not consent and the appellant’s responding text was an admission that he knew the complainant did not consent. In the context of L.V.’s text messages, I agree with the Crown’s submission on appeal that this is clearly a plausible interpretation.

[71] The second possible interpretation is the interpretation put forth by the defence in argument. That was to the effect that “I stopped” is not the same as saying, “You know what, sorry I never should’ve done that. I was out of line.” During argument, defence counsel maintained that there were “many possible and innocuous explanations for his short worded response”. He also maintained that some of those possible explanations are consistent with the accused’s belief that the complainant had consented and also plausible in the context of the language used on the complainant.

[72] The trial judge, however, did not consider those text messages in the context of any other potential explanation. To the contrary, and as said above, toward the end of defence counsel’s submission, the trial judge specifically stated that he was not going to look at the texts in the context of some other potential explanation; he was only going to consider them in the context of the evidence available at trial. Accordingly, he did not consider the potential alternate innocent inference offered by defence counsel.

[73] I find that the trial judge’s failure to do so was an error in law. I find that it was incumbent upon the trial judge to consider the other plausible inferences and to state whether he accepted or rejected them and, if he rejected them, to give some explanation as to why.

[74] When a judge is considering circumstantial evidence, it is not unusual to have a range of reasonable inferences which can be drawn from it. The trial judge should consider “other plausible theories” and “other reasonable possibilities” that are inconsistent with the guilt of the accused: see R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 35-37; R. v. Comba, 1938 ONCA 14, [1938] O.R. 200 (C.A.), at pp. 205 and 211, per Middleton J.A., aff'd 1938 SCC 7, [1938] S.C.R. 396; R. v. Baigent, 2013 BCCA 28, 335 B.C.A.C. 11, at para. 20; R. v. Mitchell, [2008] QCA 394 (AustLII), at para. 35.

[75] Such inferences need not arise from proven facts, as was suggested by the trial judge: see Villaroman, at para. 35; R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 58; R. v. Defaveri, 2014 BCCA 370, 361 B.C.A.C. 301, at para. 10; R. v. Bui, 2014 ONCA 614, 14 C.R. (7th) 149, at para. 28. To do so would put an onus on the accused to prove facts: see Villaroman, at para. 35. There is no obligation for the accused to prove anything. It is the Crown who has the obligation of proving each element of the offence beyond a reasonable doubt.

[76] As to the language used by L.V., the defence suggested it be considered with her attempting to rekindle the relationship and that she had in the moment consented to the touching in an effort to obtain that result.

[77] In support of that proposition, defence counsel maintains that L.V. had immediately prior to the touching failed to tell M.A.Y. that an injury to her wrist was not a suicide attempt but rather a workplace injury. Defence counsel proposes that her purpose in doing so was to arouse emotion in M.A.Y. The defence argued that the strategy was both deceitful and successful. That is because, in reaction to what M.A.Y. apparently believed to be a suicide attempt, he had approached L.V. and put his arms on her shoulders and asked, “Why did you do this?” L.V. did not object to that touching. She also did not attempt to correct M.A.Y.’s obvious erroneous belief. According to L.V., M.A.Y. then grabbed her by the chin and turned her head toward him and said, “Don’t do this to me.” He then kissed her on the top of the head. Again, L.V. acknowledges that she did not object to this conduct. Clearly, L.V.’s conduct had elicited a very strong emotional response from the appellant. In response to M.A.Y.’s conduct, L.V. reacted by putting her own arms around the appellant.

[78] Appellant’s counsel suggested that this chain of events is consistent with a “tender romantic emotional moment” and that, as a result, the touching was welcome. In the context of the evidence at trial as to that chain of events, I find the suggestion that it was a “tender romantic emotional moment” a reasonable characterization. I also find the defence position that L.V. was seeking that very result reasonably plausible in the context of all of the evidence at trial.

[79] Appellant’s counsel also suggested that when M.A.Y. touched her on April 17, the complainant had consented in the hope that he was still attracted to her and that he wanted to continue seeing her. Defence counsel submits that when considered in that context, the language used by M.A.Y. is consistent with his immediately preceding show of affection. Defence counsel also maintains that it is consistent with the theory that he had been taken up in that tender romantic emotional moment, but had stopped the sexual touching when he appreciated where things were going. I reiterate that it was M.A.Y. who was attempting to bring the relationship to an end. Defence counsel argued that when M.A.Y. appreciated how the moment had evolved he had stopped so as not to lead her on.

[80] That defence proposition finds support in L.V.’s description of M.A.Y.’s response at the time. She said that he “threw his hands in the air” and that his facial expression was “kind of shock”. That language is consistent with M.A.Y. having been caught up in the moment but having stopped when he realized that the moment had evolved in a manner which would ultimately hurt L.V.’s feelings. Consistent with that proposition, in his texts of April 21, there is no suggestion that the appellant is apologizing for a sexual touching that was not consented to. Rather, he says that he is apologizing for L.V.’s hurt feelings.

[81] That defence-proposed inference also finds support in the trial judge’s finding that L.V. may have told her friend in person that “she liked the way he responded to her situation by being very caring and she was glad she got his attention”.

[82] There was also evidence that L.V. had left some chocolates on the seat of M.A.Y.’s motorcycle prior to the encounter of April 17. Further she had not taken the chocolates off of the seat of his motorcycle when she left that night following the incident. If that had been the end of the issue, there would have been nothing to consider. That is because, as was observed by the trial judge, the complainant may have left them there that night for a whole host of reasons.

[83] However, the following day L.V. texted M.A.Y. saying, “Michael, don’t eat all your chocolate at once, those kisses pack a lot of calories…LOL”. When asked in cross-examination why she had used that particular language, L.V.’s response was something to the effect of she deals with things in all different ways.

[84] I am not suggesting that L.V.’s text regarding the chocolates is evidence relating to consent. It is, however, an important consideration. The fact that she instigated that exchange of words and her choice of words on the day after the events in question is consistent with the defence theory that she was at that time still interested in pursuing a relationship with M.A.Y. It is also consistent with the defence theory that, during the moment defence counsel characterized as tender, romantic, and emotional, the complainant had consented to the touching because in that moment she believed that the relationship was being resurrected by M.A.Y.

[85] Again, I would like to make it clear that I am not suggesting that the existence of a relationship equals consent. There is never a default position to consent in any relationship. Consent must be given to every sexual act and may be withdrawn at any time without reason. That is not the issue I am addressing. Rather, I am simply saying that that evidence is consistent with the plausible inference to be drawn from M.A.Y.’s words “I also stopped”.

[86] I reiterate that at 9:43 a.m. on April 19, the complainant texted M.A.Y. and said, “You wonder why I am so confused. You touch me sexually, you say you will call and never do, you aren’t straight up with me”.

[87] I agree with the submission of defence counsel that there is nothing in that text to suggest a lack of consent. To the contrary, it is consistent with a complaint by L.V. that M.A.Y. had not called her after the sexual touching. Again, L.V. complaining about M.A.Y. not calling her after the touching is consistent with the defence theory that the touching was in the moment consented to by L.V. That is also consistent with the defence theory that she fabricated the allegation after the fact, when she realized that the relationship was truly over. It is also consistent with the defence theory that M.A.Y. had caught himself being re-engaged in the relationship but had stopped once he realized what was happening in order to spare L.V.’s feelings.

[88] For all of these reasons, even if the trial judge the evidence relied upon by the trial judge in coming to his conclusion on the issue of consent had been properly admissible, I find that it was incumbent upon the trial judge to consider the defence proposition that there was a plausible alternate inference to be drawn from the language chosen by M.A.Y. in that pivotal text conversation. I reiterate that his failure to do so was an error in law.

d) Conclusions as to whether the trial judge made wrong decisions on questions of law

[89] In conclusion, I find that the trial judge made wrong decisions on questions of law in relation to his use of the text messages of L.V. and also the text messages of M.A.Y.

4) Should the trial judge’s decision be set aside on a question of law?

a) The Test

[90] Upon finding an error of law, an appellate court must decide whether to set aside the decision of the trial judge.

[91] Section 686(1)(b)(iii) of the Criminal Code provides that on the hearing of an appeal against a conviction, the appellate court may dismiss the appeal where notwithstanding that the court is of the opinion that the appeal might be decided in favour of the appellant on the ground of a wrong decision on the question of law, if it is of the opinion that no substantial wrong or miscarriage of justice has occurred.

[92] "The application of the proviso must be considered in the context of the evidence heard by the jury, not the evidence it might have heard had the trial judge made different rulings": see R. v. James, 2011 ONCA 839, 287 O.A.C. 18, at para. 56.

[93] Two classes of errors have been identified by the courts. The first are called "harmless errors", i.e., minor errors having no impact on the ultimate decision. The second category relates to "serious errors". These are errors "which would justify a new trial, but for the fact that the evidence adduced was seen as so overwhelming that the reviewing court concludes that there was no substantial wrong or miscarriage of justice": see R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 26; R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, at paras. 34-36.

[94] The test for determining whether there has been no substantial wrong or miscarriage of justice as a result of the judge’s error has been expressed in two ways. The first seeks to determine whether "the verdict would necessarily have been the same if such error had not occurred": see R. v. Bevan, 1993 SCC 101, [1993] 2 S.C.R. 599, at p. 616; Colpitts v. The Queen, 1965 SCC 2, [1965] S.C.R. 739, per Cartwright J. (as he then was), at p. 744; Wildman v. The Queen, 1984 SCC 82, [1984] 2 S.C.R. 311, at pp. 328-29. The second expression of the test seeks to determine whether “there is any possibility that if the error had not been committed, a judge or properly instructed jury would have acquitted the accused”: see Bevan, at pp. 616-17; Colpitts, per Spence J., at p. 756; R. v. S. (P.L.), 1991 SCC 103, [1991] 1 S.C.R. 909, per Sopinka J., at p. 919; R. v. Broyles, 1991 SCC 15, [1991] 3 S.C.R. 595, at p. 620; R. v. B. (F.F.), 1993 SCC 167, [1993] 1 S.C.R. 697, per Iacobucci J., at pp. 736-37.

b) Is there any reasonable possibility that the finding that L.V. did not consent would have been different had the errors not been made?

[95] When viewed in the context of the totality of the trial judge’s decision, I find that his conclusions regarding the central issue of whether or not the complainant consented are based almost entirely on the impermissible use of the text messages sent by the complainant.

[96] There are two central aspects to my conclusion in that regard.

[97] One aspect is that the trial judge himself begins his assessment of the credibility of the complainant with the observation that his judgment would depend “almost entirely on an assessment of the credibility and reliability of the complainant as a witness.” This language is consistent with the conclusion that the trial judge relied almost entirely upon the evidence of L.V. in reaching his ultimate conclusion. In other words, without the evidence of the complainant, there would be no conviction.

[98] The other aspect is that, as said above, the trial judge makes two negative overarching observations as to the evidence of the complainant other than the text messages. One relates an observation that she had a potential motive to fabricate the lack of consent, and the other relates to very negative comments as to her credibility.

[99] The following are examples of the trial judge’s observations regarding the complainant’s credibility and potential motive to lie.

[100] The first is when he says, “A person can have many motives for pursuing criminal charges. L.V. seems to have been fuelled by almost all of them.” He also goes on to say, “I have no doubt that [the complainant] told Mr. Onyshuk that she was going to exact her revenge” and that this accurately portrays her mental state by the summer of 2014.

[101] The second is that the trial Judge found that the complainant had deliberately distorted the appellant’s offhanded remark about dating members of A.C. who were minors and also their mothers into a “venomous and destructive narrative that he posed a risk to children including her own.”

[102] The third is that the trial judge concluded that L.V. knew the allegations that she was making against M.A.Y. would attract media attention and that “she seemed excited at the prospect.”

[103] The fourth is the trial judge’s findings that the complainant had “clearly financial motivations”, in that she was potentially pursuing the criminal proceeding as a launching point for a civil action.

[104] The fifth is that the trial judge essentially summed up his thoughts as to the complainant’s potential motives when he described her as being “angry and jealous” and also “vindictive and vengeful”.

[105] The sixth is that the trial judge stated that there was simply no evidence to support the complainant’s assertion that prior to his arrest M.A.Y. had been evading the police.

[106] The seventh is that L.V. testified that after the night in question she was “scared” of M.A.Y. To the contrary, the trial judge specifically found that “whatever her feelings were at the time, fear does not emerge as one of them.”

[107] The eighth is that L.V. testified that she probably would have still reported the appellant to the police had he texted her on April 19 and said that he had touched her because he found her attractive. The trial judge stated, “I have no doubt that should he have tried to rekindle the relationship she would have not have reported the incident while the relationship continued.” This finding is important for two reasons. The first is that the trial judge did not believe the complainant. The second is that the trial judge concluded that L.V. was attempting to rekindle the relationship both before and after the events complained of. I am aware that there is no default position as to consent even when people are in a relationship. That is not the point being made. The point is that the trial judge’s findings of fact support the proposition put forth by the defence as to an alternate innocent plausible inference to be taken M.A.Y.’s reply text.

[108] I conclude that if the very significant reliance placed upon the complainant’s text messages is removed from the trial judge’s reasoning process, there is nothing left to support a finding beyond a reasonable doubt that the complainant did not consent. In other words, had the trial judge considered the evidence at trial as to consent, not in the impermissible context of the text messages but rather in the context of his permissible observations as to her motive to lie and credibility, he could not have reasonably come to the same conclusion regarding that evidence. To do so would have amounted to a palpable and overriding error, which would allow me to intervene in the trial judge's credibility conclusions: see Waxman v. Waxman, 2004 ONCA 39040, at paras. 296-297, leave to appeal dismissed, [2006] S.C.C.A. No. 486; and R. v. D.T., 2014 ONCA 44, 314 O.A.C. 174, at para. 80. Therefore, the trial judge’s decision should be set aside on the basis of this error alone.

5) Should a new trial be ordered or an acquittal entered?

[109] Whether or not a new trial should be ordered or the decision quashed does not depend on whether the case for the Crown is strong once the impermissible evidence is excluded from the reasoning process; rather, it depends on whether there is any admissible evidence which could support a conviction: see R. v. Woodward (1975), 1975 ONCA 1471, 23 C.C.C. (2d) 508 (Ont. C.A.), at para. 6.

[110] In conclusion, I find that once the evidence of the complainant is removed as a basis for proving the essential element of consent, what was left of the Crown’s case could not support a finding that the Crown had proven the absence of consent beyond a reasonable doubt.

[111] It follows that an acquittal ought to be entered.

6) Should the verdict be set aside on the ground that it is unreasonable or cannot be supported by the evidence?

[112] The appropriate test for whether or not a verdict is unreasonable is “whether the verdict is one that a properly instructed jury acting judicially, could have reasonably rendered”: see R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36; R. v. Yebes, 1987 SCC 17, [1987] 2 S.C.R. 168, at p. 185; Corbett v. The Queen, 1973 SCC 199, [1975] 2 S.C.R. 275, at p. 282, per Pigeon J. A verdict is unreasonable when the reasons of the trial judge reveal that she or he was either not alive to an applicable legal principle or entered a verdict inconsistent with the factual conclusions reached: see Biniaris, at para. 37.

[113] The test requires both an objective assessment and to some extent a subjective assessment. It includes a subjective exercise which requires the appeal court to examine the weight of the evidence as opposed to its bare sufficiency: see Biniaris, at para. 36.

[114] The judicial process requires clarity and transparency in addition to sufficiency of legal reasoning of the reviewing court. Accordingly, the reviewing court must articulate as explicitly and precisely as possible the grounds for its intervention: see Biniaris, at para. 42.

[115] As said above, when the impermissible reliance placed upon the complainant’s text messages is removed from the trial judge’s reasoning process, there is nothing left to support a finding beyond a reasonable doubt that the complainant did not consent to the touching. For the reasons above, the result is that the decision cannot be supported by the evidence.

[116] It follows that if I am wrong in my analysis of the impact of the error of law above, I would acquit in any event on the basis of unreasonable verdict.

C. Judgment

[117] For all of these reasons, the judgment of the trial judge shall be set aside and an acquittal entered.

“original signed and released” Justice Christopher M. Bondy Released: May 2, 2017 Re-released: May 10, 2017 – corrected citation #