COURT FILE NO.: CR-16-10000069-00AP DATE: 2017-07-20
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Respondent Danielle Carbonneau, for the Crown/Respondent
- and -
MUSTAFA URURYAR Appellant Mark Halfyard and Breana Vandebeek, for the Appellant Lance Beechener and Catriona Verner, for the Intervener Criminal Lawyers’ Association (Ontario) Joanna Birenbaum and Pam Hrick, for the Intervener Barbara Schlifer Commemorative Clinic
HEARD: March 14, 2017 M. Dambrot J.
Overview
1Mustafa Ururyar was convicted by Zuker J. in the Ontario Court of Justice of one count of sexual assault that was alleged to have taken place during the night of January 30-31, 2015, and sentenced to 18 months imprisonment and three years probation. He appeals from both conviction and sentence.
2Both the appellant and the complainant, Mandi Gray, were graduate students at York University. They had been in a casual sexual relationship for about two weeks prior to January 30. Both the appellant and the complainant were involved in the affairs of a local of the Canadian Union of Public Employees (“CUPE”) that represented teaching assistants. On January 30, CUPE had won a strike vote and a number of graduate students, including the complainant and the appellant, went to the Victory Café to socialize and celebrate. After a night of drinking, the appellant and the complainant went to the appellant’s apartment where, the complainant testified, the appellant sexually assaulted her. The appellant testified that the two of them did have sexual relations at his apartment but that the sexual activity was entirely consensual.
3Following the trial, which included five days of evidence, two of which ended at 11:30 a.m., and another of which included only one half-hour of evidence, the trial judge reserved judgment. On July 21, 2016 he delivered a 179-page written judgment in which he found the appellant guilty.
4Following the finding of guilt, upon the application of the Crown, and despite the fact that the appellant had been at liberty on an undertaking or a promise to appear throughout the proceedings to date, the trial judge revoked the appellant’s release and ordered that he be detained in custody. The matter was adjourned for sentencing submissions. In the interim, the appellant was ordered released pending appeal by a judge of this Court.
5On September 14, 2016, immediately following submissions on sentence, and without reviewing the sentencing materials filed by the defence, the trial judge released a 55-page written judgment sentencing the appellant to 18 months imprisonment and three years probation. He also ordered the appellant to pay $8,000 to the complainant in restitution to compensate her for legal costs incurred in preparing to testify at the trial, although this order is not found in the reasons for sentence.
The Grounds of Appeal
6On this appeal, the appellant raises six grounds of appeal with respect to conviction and one respecting sentence, namely:
- The trial judge displayed a reasonable apprehension of bias in favour of the complainant;
- The trial judge improperly took judicial notice of and relied on untested academic commentary that was not put to the parties for submissions;
- The trial judge applied different standards of scrutiny to the evidence;
- The verdict is unreasonable because the trial judge’s reasoning process is irrational and, at times, impossible to follow;
- The trial judge misapprehended the evidence related to text messages and public displays of affection;
- The trial judge erred in his assessment of the issue of consent; and
- The trial judge erred in imposing restitution for the complainant’s legal fees.
The Evidence
7After CUPE’s successful strike vote, the complainant and several other students went to the Victory Café to celebrate. The complainant texted the appellant and asked him to come over to the bar. Specifically, her text read, “I’m at victory come drink and then we can have hot sex.” He initially said that he was feeling ill, but then told her, in a subsequent text which was produced at trial, that he would come in a while. The complainant deleted these text messages and did not mention the “hot sex” text to the police. In addition, she initially testified that the appellant never told her that he was coming to the café, and just showed up, surprising her. She texted a friend the next morning and said that it just happened that she and the appellant were at the same bar the night before.
8The complainant testified that the appellant arrived at the Victory Café between 9 and 10 p.m. She said that when the appellant arrived, they didn’t talk that much and sat at separate tables. After a few hours, the complainant, her friend Lacey and the appellant went to another bar called Pauper’s. She said that she socialized with other people at Pauper’s and didn’t speak much to Lacey and the appellant.
9The complainant said that she remained at Pauper’s until 2:30 a.m. Because she had had a lot to drink, she asked the appellant if she could spend the night at his apartment. He lived within walking distance of Pauper’s. He told her that she could spend the night at his apartment but that he was not feeling well and would not have sex with her. She also testified that the appellant wanted Lacey to join them but that Lacey went home by taxi.
10After Lacey left, the complainant said that the appellant became angry. He told her that she did not meet his sexual needs and that he wanted three-way sex with her and Lacey. He called her needy and an embarrassing drunk. His anger kept escalating.
11Once they got to the apartment, the complainant said that that the appellant’s anger escalated further. She was sitting on the corner of his bed when he grabbed the back of her head and pushed his penis into her mouth. As a result of the risk of violence and her fear, she stopped caring and engaged in oral sex, but did not consent. The appellant then pushed her onto the bed and had intercourse with her until he ejaculated. She then fell asleep. When she awoke, she found the appellant masturbating. She became angry. He tried to force her to perform oral sex again, but she refused, got dressed and left.
12That same day, January 31, she told a number of friends what happened. They encouraged her to report the incident. The following day, February 1, she remained indecisive but went to a hospital to do a sexual assault kit. On February 2, she reported the incident to the police.
13The appellant testified that he had a girlfriend at the time named Alison Moore. She lived in Montreal. They had an open relationship and had relations, including sexual relations, with other people while they lived in separate cities. Ms. Moore testified and confirmed the nature of her and the appellant’s relationship. As I have already noted, the appellant testified that he had been seeing the complainant for a couple of weeks prior to the alleged assault and they had a casual sexual relationship.
14The appellant agreed that he came to the Victory Café after receiving text messages from the complainant. He was feeling a bit under the weather but thought that they might have sex later. He sat with her at the Victory Café and they spoke and flirted. She put her hand on his leg and rubbed it, but he didn’t think that this was appropriate behaviour and asked her to stop, which she did. He was not comfortable with public displays of affection. When they went to Pauper’s, they sat together again and continued to drink, talk and have a good time.
15The appellant agreed that when they left Pauper’s, he invited Lacey to come to his apartment with them to drink but that she declined. He denied that he had any conversation with the complainant or Lacey about having three-way sex that night. He said that as he and the complainant walked to his apartment, he put his arm around her and they talked and flirted. The complainant told him that she was looking forward to staying the night and having sex. There was no arguing, no berating, no raised voices and no anger. When they got to his apartment, they undressed and got into his bed. When she tried to kiss him, he moved away. He had been thinking about the complainant’s behaviour at the bar and wondered whether they were compatible. In addition, although he had an open relationship with his girlfriend, she was moving to Toronto and he felt uncomfortable about continuing his relationship with the complainant.
16When the appellant told the complainant about his feelings, she started to cry. He consoled her and apologized for making such a big deal about the touching at the bar. They kissed and he said that this should be the last time they slept together. She got on top of him, pulled his pants down and started to perform oral sex. He asked her if she wanted him inside her and she said yes. They had intercourse, cuddled and fell asleep.
17When they awoke the next day, the complainant was upset and angry. He thought that she felt used because they broke up but still had sex. He denied masturbating or forcing her onto his penis before she left.
Analysis
18The six grounds of appeal from conviction almost exclusively focus on the trial judge’s 179-page written reasons for judgment and call into question his reasoning process. In his reasons, the trial judge devoted approximately 130 pages to a recitation of the evidence, twelve pages to a recitation of the law, eleven pages to a summary of the positions of the Crown and defence, two pages to a brief recitation of the legal significance of evidence of a sexual history between an accused and a complainant, nine pages to a discussion of the topic of credibility, twelve pages to “Findings” and, finally, three pages to a topic entitled “I Know Why the Caged Bird Sings.”
19Throughout the last three sections, the trial judge places reliance on academic literature that was presented neither by nor to the parties, as well as numerous expressions of the trial judge’s own views about the nature of sexual assault and the way allegations of sexual assault should be dealt with in the legal system.
20I propose to begin my analysis of the grounds of appeal with a consideration of ground four.
Was the verdict unreasonable because the trial judge’s reasoning process was irrational, and, at times, impossible to follow?
i. The law
21A trial judge’s reasons for judgment serve three purposes: to explain to the losing party why they have lost; to satisfy the public that justice has been done – or not done; and to permit meaningful appellate review: R. v. Bent, 2016 ONCA 651, 342 C.C.C. (3d) 343, at para. 78. Reasons that explain to the parties and the public the result arrived at by the trial judge are crucial to maintaining the proper level of transparency and accountability essential to the maintenance of the integrity of the trial process and public confidence in that process: R. v. Sliwka, 2017 ONCA 426, [2017] O.J. No. 2661, at para. 24.
22Despite the importance of reasons for judgment, inadequacy of reasons is not a freestanding ground of appeal from conviction. A more contextual approach is required. An appellant in a criminal case must show not only that there is a deficiency in the reasons, but also that this deficiency has occasioned prejudice to the exercise of his or her legal right to an appeal in a criminal case: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 33.
23On an appeal based on the trial judge’s failure to give adequate reasons, the appellate court measures the adequacy of the reasons against the requirement that the reasons permit meaningful appellate review of the trial decision. If the reasons serve that function, any shortcomings from a due administration of justice perspective do not justify appellate intervention. However, reasons that frustrate meaningful appellate review constitute an error in law. That error requires the quashing of the verdict unless the trial record as a whole permits effective appellate review of the verdict: Sliwka, at para. 25.
24In R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, Charron J., writing for the Court, addressed how an appeal court should assess the sufficiency of a trial judge’s reasons where a case turns largely on credibility. She stated, at para. 26, that in such circumstances, the sufficiency of the reasons should be considered in light of the deference afforded to trial judges on credibility findings. According to Charron J., “[r]arely will the deficiencies in the trial judge’s credibility analysis, as expressed in the reasons for judgment, merit intervention on appeal.” This flows from the fact that assessing credibility is not a science and the basis for an assessment of credibility is difficult to express with precision. Nevertheless, where a trial judge must resolve conflicts in the evidence, the failure of the trial judge to provide some explanation for how the conflict was reconciled and to sufficiently articulate how credibility concerns were resolved may constitute reversible error. As stated by Charron J. in Dinardo, at para. 26, “the accused is entitled to know ‘why the trial judge is left with no reasonable doubt.’” See also R. v. Ezard, 2011 ONCA 545, 291 C.C.C. (3d) 78, at para. 15.
25The task then, in this case, is to determine whether the trial judge sufficiently articulated how he resolved the credibility concerns in this case and why he was left with no reasonable doubt as to the appellant’s guilt. In my view, he did not. It might be thought that in the course of a 179-page written judgment, the trial judge must inevitably have made his reasoning clear. However it is a mistake to equate the length of a judgment with clarity. On the contrary, as I will endeavour to show, the trial judge paid scant attention to explaining his resolution of the credibility concerns that arose in this case. The length of his judgment, and the topics discussed in it, served only to obscure and confuse. To explain why I reached this conclusion, it is necessary to summarize the judgment in greater detail.
ii. The reasons
26The trial judge’s 179-page written judgment begins with a 130-page recitation of the evidence. It begins abruptly, and without preamble, with a nine-page outline of the examination-in-chief of the complainant, which largely consists of long passages extracted from the transcript of the proceedings.
27The outline of the examination-in-chief of the complainant is immediately followed by an eight-page outline of the examination-in-chief of the appellant, similarly consisting largely of long passages extracted from the transcript of the proceedings. This unusual formula raises the suspicion that the reasons are proceeding as if the trial were a credibility contest.
28Next the trial judge summarizes the cross-examination of the complainant in 67 pages consisting almost entirely of extracts from the transcript. This is followed by a four-page summary of the complaint’s re-examination consisting exclusively of extracts from the transcript.
29The trial judge then “summarizes” the cross-examination of the appellant in 39 pages. This summary consists exclusively of extracts from the transcript and is followed by a similar two-page “summary” of the appellant’s re-examination.
30Finally, the trial judge turns to the examination-in-chief of Alison Moore, a defence witness. This section of the judgment reads, in its entirety, as follows:
Q. And where do you live? A. Vancouver, although I lived in Montreal for two years previously. Q. Okay. And when did you begin living in Montreal? A. August 2013. Q. Until when? A. June 2015.
31The trial judge makes no mention in this part of the judgment of the evidence of Phillip So, the appellant’s roommate, who provided evidence that could be considered as corroborative of a part of the testimony of the appellant.
32I describe this part of the judgment in some detail to dispel the possibility that in this lengthy discussion of the evidence the trial judge made credibility findings and provided some explanation for them. He did not.
33The trial judge then curiously, and abruptly, again without preamble, turns to the law.
34The trial judge begins his discussion of the law by reciting the charge, listing the essential elements of the alleged offence and providing a lengthy, generic review of the law in relation to these elements and, in particular, the issues of consent, the burden of proof and the assessment of credibility. Much of this excursion through the law deals with issues that had little or nothing to do with this case, including the treatment of exculpatory statements, when there is an air of reality to a defence of consent, the defence of mistake of fact and wilful blindness. None of this provides any comfort that the trial judge focussed on the real issues in this case.
35The trial judge then outlines the submissions of the defence (in two pages) and the Crown (in nine pages). Again, these outlines consist entirely of extracts from the transcript.
36The trial judge then continues with a topic entitled “History.” He begins this discussion with the statement that “Evidence of a victim’s sexual behaviour and sexual predisposition ordinarily is inadmissible.” I presume that he meant to use the word “complainant,” rather than “victim.” He then said:
The “hot sex” text falls short of making anything apparent. The “hot sex” text can be read in many ways. If anything, Mr. Ururyar’s made his alleged guilt more likely, as perhaps providing a stimulus for his later alleged assault.
The text messages do not prove that the complainant engaged in sexual behaviour or misbehaviour or prove Ms. Gray had a sexual predisposition.
Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action. If interaction occurred it was not an invitation to have sex with her without consent.
37This is a reference to the complainant’s text to the appellant inviting him to join her at the Victory Café, in which she said, “[C]ome drink and then we can have hot sex.”
38The trial judge then reviewed the limitations placed by the case law on drawing inferences of consent from the prior sexual history of a complainant, including the sexual history between a complainant and an accused.
39It seems to me that the trial judge misunderstood the import of the text message evidence. He was of course correct that the past sexual conduct or sexual predisposition of a complainant is evidence neither of the complainant’s predisposition to have sexual relations with the accused, nor of any belief by an accused that consent to sexual relations in the past means consent to further sexual relations. But the text message here was not evidence of past sexual conduct or past sexual predisposition. Instead it was part of the narrative of the present encounter. To the extent that it could be understood to be consent to some form of sexual activity, the trial judge would have been correct to note that the complainant was free to withdraw it, but otherwise, the trial judge’s discussion of the law in relation to past sexual conduct was irrelevant. Further, whatever value the evidence of the complainant’s text message might have had in this case, the trial judge’s use of it to somehow enhance the likelihood of the appellant’s guilt on the speculative basis that it “perhaps” provided a stimulus to a later sexual assault was clearly not open to him.
40In addition, the trial judge missed the real point of the appellant’s reliance on the text message. The appellant argued that the complainant’s deletion of the text message and her failure to mention it to the police or in her examination-in-chief, instead testifying that she was surprised when the appellant showed up, was selective disclosure that undermined her credibility and supported the defence position that the allegations were fabricated. The trial judge failed to advert to this argument, and his discussion of the law on drawing inferences of consent from past sexual history suggests that he misunderstood it.
41The trial then turned to a topic that he entitled “Credibility.” He dealt with this issue in nine pages. He began by noting that while we are all experts on human behaviour, some matters of behaviour fall outside common knowledge or “require correction of stereotypes.” He then proceeded to string together a series of references to case law and his own views about delayed disclosure (missing the point that the defence alleged incomplete disclosure); the risk of inordinate weight being given to expert evidence (there was no expert evidence in this case); informal judicial notice; the distinction between questions of law and questions of fact; what constitutes “common knowledge”; the demise of the marital exemption from rape; the principle that both men and women should enjoy the unchallenged right of sovereignty over their bodies; the principle that a victim does not need to struggle, fight or sustain injury to enjoy the protection of the law; the revolting nature of the former view that women are chattel; misguided conceptions of what constitutes “real” rape and how a “real” victim of sexual violence should behave and his view that however sophisticated the law is, any allegation that derogates from the stereotype is likely to be approached with a degree of suspicion – specifically the blaming of complainants for attacks where the complainant behaves foolishly or inappropriately; the truisms that sexual violence is an intolerable intrusion into the most personal and private rights of an individual and includes a continuum of conduct, that sexual assault includes intentional and unwelcome touching, and that consent must be informed, freely given and mutually understood; that when physical force is used there is no consent; that a victim’s non-conformance with behavioural stereotypes should not impact on the way we evaluate the complaint; that delayed reporting, the victim’s emotional state and lack of resistance, standing alone, are not dispositive of consent; and a discourse on the meaning of consent.
42The trial judge then said, “There are [sic] a host of complex issues involved with sexual and gender-based violence” and “There is a need to appreciate the interplay of power, gender, and sexuality.” After citing several books relating to these issues, he added to his list of complex issues “Why many people who experience domestic violence, choose not to report their abuser or choose not to cooperate with official efforts to hold abusers accountable, how domestic violence complainants can experience peer stigmatization and victim response to trauma,” and then referred to a journal article.
43The trial judge then said, “We are often faced with the dynamics of counter-intuitive victim responses to trauma, memory fragmentation and delayed recall, uncooperative victims, and the interplay of power/gender sexuality,” and referred to an additional journal article.
44He then defined consent once again, and referred to a training manual that treats violence as a form of control and rejects theories that focus on flaws in the abuser, the victim, the relationship, or all three. He went on to expound, without any source, on the following: that violence is a way of using power in a relationship; that the question “why didn’t she leave is an objectifying statement”; and that “[w]e need to challenge the coercion of choices, reveal the complexity of experience and struggle, and recast the entire discussion of separation in terms of the violent attempts at control.”
45The trial judge then made reference to this case and said that the complainant’s supposed failure to protest or stop the advances of the appellant reflected several failures of communication common to many cases involving disputed sexual interactions, and listed five such failures, specifically: (1) honest disagreement; (2) no direct explicit communication; (3) the male relying on indirect indications of interest; (4) the male relying on gradual escalation of intimacy, proceeding until a clear refusal is received; and (5) the complainant relying on non-verbal behaviour that could be misinterpreted as excitement rather than discomfort. He made reference to no source in compiling this list.
46The trial judge then proceeded to enumerate the difficulties he saw in determining when consent is given: initial communication of sexual desire often occurs through non-verbal cues; verbal requests to engage in sexual activity or for clarification or refusal of sexual advances are less common; sexual communication is complicated by the tendency to communicate refusal through indirect means; mutual alcohol consumption is not a sign of sexual intent or consent; when sexual assault is alleged, both parties are asked to recount a wealth of detail that may become important only in hindsight, or may not have been attended to at the time, and are therefore not encoded in memory; human memory is reconstructive in nature, and is fallible, malleable and susceptible to suggestions; some people engage in sex for fear of rape if they don’t participate voluntarily; many assaults are committed by a trusted person; there are many reasons for delay in or failure to report; alcohol makes people perfect targets because they may have difficulty remembering what happened; we have preconceptions and misconceptions about how people who have been sexually assaulted should behave; and often there are no witnesses to the sexual assault other than the accused and the complainant.
47The trial judge ended this discussion with some commonplace instructions about credibility.
48Next, at page 164 of his judgment, the trial judge turned to the topic of findings. He began with a four-page summary of the evidence of the complainant and the appellant. While this took the form of an objective recitation, the trial judge described the appellant’s evidence in sarcastic terms on occasion. For example, when referring to the appellant’s evidence that the complainant groped his leg at the Victory Café, rubbing her hand up and down the inside of his leg, the trial judge said:
As if to awaken him from anything that might dissuade him otherwise, Mr. Ururyar gave evidence that Ms. Gray personally assaulted him. Yes, assaulted him, groped him, in fact at the Victory Café.
49The trial judge then simply said, “It never happened.”
50After summarizing the evidence, the trial judge specifically rejected the evidence of the appellant. He said (underlining in the original):
456Such a story, scenario we heard from Mr. Ururyar from beginning to end begs credulity, a feeble, feeble attempt in hindsight that is unbelievable and incomprehensible.
457It never happened this way. None of it.
458The groping never happened. Did Ms. Gray grope him? No. That was not the nature of their relationship. That was not Ms. Gray.
459Groping incident number two at Paupers [sic]. Did it happen? Illogical, and why? Based on what? Ms. Gray couldn’t keep her hands off him? She couldn’t wait to grab him? She didn’t even spend much of the evening near him, let alone grope him at each bar. What a picture painted by the accused except a false picture and in between the groping, how about a threesome?
460Mandi and Gazem, Gazem and Mr. Ururyar, Mr. Ururyar, Mandi and presumably Lacey. Another obscene fabrication. Hot set [sic] never equated with a threesome to Ms. Gray. We don’t even know what the phrase “hot sex” means.
461Mandi approaching Gazem to speak to Mr. Ururyar. Why? Were not Gazem and Mr. Ururyar basically done as a couple? Mandi knows how to speak. Never happened. Speaking to Gazem after January 31 about the threesome, never happened.
462Lovey, dovey on the way home, never happened. Attacking Mr. Ururyar under the covers in bed, never happened, again a great illusion or delusion of Mr. Ururyar but also a joke. A fabrication, credible, never. I must and do reject his evidence.
463I do so without hesitation. To quote McLachlin, J. (as she then was) on the credibility of a witness in R. v. Marquard, [1993] 4 S.C.R. 223, at para. 49:
“Credibility is a matter within the competence of lay people. Ordinary people draw conclusions about whether someone is lying or telling the truth on a daily basis.”
51The trial judge then acknowledged, at paragraph 479, that even if he did not believe the testimony of the accused, he would still be obliged to acquit him if he was “left with reasonable doubt by it.” He concluded that he was not left with a reasonable doubt. He stated (underlining in the original):
481Mr. Ururyar denies he sexually assaulted Ms. Gray. Consent is therefore not an issue and more importantly Ms. Gray’s historical text, even if alleged by Mr. Ururyar, may well be irrelevant.
482Further since (it never took place) consent is a non-issue, there is no factual foundation, if argued, of any defence of honest, but mistaken belief in consent, although this defence was not advanced at trial. See supra, R. v. Ewanchuk, [1999] 1 S.C.R. 330, at paras. 41-49.
483Reference is made to Ms. Gray’s lack of memory at the initiation of sexual activity under the covers. It is argued that Ms. Gray has little memory of being under the covers, etc. with Mr. Ururyar on January 31, 2015. Therefore, how could she give evidence as to her not being an active and willing participant? His own evidence should be accepted since there was no one else there. His evidence, he submits, was therefore uncontradicted. Unanswerable testimony as an evidential submission is not the law. Consent again is a non-issue. According to the accused, Ms. Gray was the aggressor virtually throughout the evening and early morning. Ms. Gray has lapses in her memory, but her evidence, as I find, is credible and trustworthy. Ms. Gray specifically remembered what Mr. Ururyar did to her as soon as they returned to his place and when she sat on his bed. The interaction with Ms. Gray as he argues never occurred. He says he never sexually assaulted her.
484I reject Mr. Ururyar’s evidence. I cannot accept his evidence. His evidence about Ms. Gray’s behaviour the evening of January 30, 2015 and the early morning of January 31, 2015 does not raise any reasonable doubt in my mind. On all the evidence, I am satisfied that they went into his bedroom, Ms. Gray sat on his bed and he took advantage of her.
485I have assessed the significance of any inconsistences in Ms. Gray’s testimony. I believe Ms. Gray, notwithstanding any inconsistencies which I find are minor, and of no consequence in this court’s accepting her evidence. See R. v. Francois, [1994] 2 S.C.R. 827 at 836 and R. v. W. H., 2013 SCC 22, 2013 S.C.C. 22 at para. 32, [2013] 2 S.C.R. 180. The mere existence of internal inconsistencies in the testimony of a witness or inconsistencies between witnesses is not itself determinative of the credibility of the witness or the accuracy or reliability of their testimony.
486Mr. Ururyar was well into the idea of sex the evening of January 30, 2015 and January 31, 2015. If it could be a threesome that would be even better. Mandi Gray was the wounded one, intoxicated, alone and vulnerable. It was Mandi Gray the accused chose to rape. This was not a bad dream. And on top of that Mandi is blamed, blamed because there were no symbols that it had not just been a bad dream unless there was a reminder from the hospital in her drawer. The court was constantly reminded, told, as if to traumatize the helplessness [sic], the only one we can believe is Mr. Ururyar, because she, she Ms. Gray, cannot remember. What a job and a real bad one, trying to shape the evening. We must not create a culture that suggest [sic] we learn that rape is wrong through trial and error.
487How can you prove it? You don’t remember. He knows you don’t remember. He is going to write the script and he did. Testimony incomplete, memory loss, etc. etc. And, of course, typically, no dialogue in the story. One full sentence by Ms. Gray? What is it? No power, no voice, defenceless.
488To listen to Mr. Ururyar paint Ms. Gray as the seductive party animal is nothing short of incomprehensible. He went or tried to go to any length to discredit Ms. Gray, if not invalidate her. Such twisted logic.
489Despite considerable research and publications in professional and popular journals concerning rape, [rape] myths continue to persist in common law reasoning. See Sarah Ben-David & Ofra Schneider, Rape Perceptions, Gender Role Attitudes, and Victim-Perpetrator Acquaintance, 53 Sex Roles 385 (2005).
490There is no demographic profile that typifies a rapist. There is a danger of stereotyping rapists. When the accused is a friend of the victim and uses that relationship to gain, and then betray the complainant’s trust; there may be a need to be informed in order to recognize and understand the accused’s predatory behaviour.
491No other crime is looked upon with the degree of blameworthiness, suspicion, and doubt as a rape victim. Victim blaming [i]s unfortunately common and is one of the most significant barriers to justice and offender accountability. Victim blaming can be expressed in several ways: victim masochism (e.g., she enjoyed it, wanted it), victim precipitation (e.g., she asked for it or brought it on herself), or victim fabrication (e.g., she lied or exaggerated). See Sarah Ben-David & Ofra Schneider, Rape Perceptions, Gender Role Attitudes, and Victim-Perpetrator Acquaintance, 53 Sex Roles 385, 386 (2005).
492Without consent, “No” means “No”, no matter what the situation or circumstances. It doesn’t matter if the victim was drinking, out at night alone, sexually exploited, on a date with the perpetrator, or how the victim was dressed. No one asks to be raped. The responsibility and blame lie with the perpetrator who takes advantage of a vulnerable victim or violates the victim’s trust to commit the crime of sexual assault.
493Rape is an act of violence and aggression in which the perpetrator uses sex as a weapon to gain power and control over the victim. It is too common to redefine rape as sex and try to capitalize on the mistaken believe [sic] that rape is an act of passion that is primarily sexually motivated. It is important to draw the legal and common sense distinction between rape and sex.
494There is no situation in which an individual cannot control his/her sexual urges. See Barbara E. Johnson, Douglas L. Kuch & Patricia R. Schander, Rape Myth Acceptance and Sociodemographic Characteristics: A Multidimensional Analysis, 36 Sex Roles 693, 696 (1997). Sexual excitement does not justify forced sex and a victim who engages in kissing, hugging, or other sexual touching maintains the right to refuse sexual intercourse. Rapists do not rape because they want to have sex and many rapists also may have partners with whom they engage in consensual sex.
495We must not confuse sex with sexual violence and aggression. Most adult rape victims do not have any non-genital injuries from sexual assaults. See Callie Rennison, supra, Rape and Sexual Assault: Reporting to Police and Medical Attention, 1992-2000, Bureau of Just. Stat., U.S. Dept. of Just. (2002) (assuming that every rape victim suffers injury from the commission of the rape and referring to victims who suffered additional injuries in addition to the rape itself).
496Rape is a life-threatening event and victims make split-second decisions about how to react to sexual violence in order to survive. Some victims respond to the severe trauma of sexual violence through the psychological phenomenon of dissociation, which is sometimes described as “leaving one’s body,” while some others describe a state of “frozen fright,” in which they become powerless and completely passive. Physical resistance is unlikely in victims who experience dissociation or frozen fright or among victims who were drinking or using drugs before being assaulted. Kimberly Lonsway, Joanne Archmbault & David Lisak, False Reports: Moving Beyond the Issue to Successfully Investigate and Prosecute Non-Stranger Sexual Assault, 3 The Voice, Nat’l District Attorneys Ass’n Newsletter, 8 (2009) available at http://www.ndaa.org/publications/newsletters/the_voice_vol_3_no_1_2009.pdf.
497To a rape victim, a threat of violence or death is immediate regardless of whether the rapist uses a deadly weapon. The absence of injuries might suggest that the victim failed to resist and, therefore, must have consented. The fact that a victim ceased resistance to the assault for fear of greater harm or chose not to resist at all does not mean that the victim gave consent. Each rape victim does whatever is necessary to do at the time in order to survive.
498Victims of sexual assaults respond in various ways, including the manner in which they report incidents, if at all. Many victims choose not to report their victimization because they believe that it is a private or personal matter, fear the defendant, or believe the police are biased against them. Callie Rennison, Rape and Sexual Assault: Reporting to Police and Medical Attention, 1992-2000, Bureau of Just. Stat., U.S. Dept. of Just. (2002).
499As far back as the Magna Carta, it was recognized that judges should have a good knowledge of the law. This knowledge extends not only to substantive and procedural law, but to the real life impact of law. As one scholar put it, law is not just what it says; law is what it does. See Robert A. Samek, “A Case for Social Law Reform” (1977), 55 Can. Bar Rev. 409 at 411. Sustained efforts to maintain and enhance judging are important elements of judicial diligence.
500The cycle of violence conforms to the Walker “cycle theory of violence” named for clinical psychologist Dr. Lenore E. Walker, the pioneer researcher in the field of the battered wife syndrome. Dr. Walker first described the cycle in the book The Battered Woman, (New York: Harper Colophon Books, 1979). In her 1984 book, The Battered Woman Syndrome, 2nd ed. (New York: Springer Publishing Co., 2000). [sic] Dr. Walker reported the results of a study involving 400 battered women. Her research was designed to test empirically the theories expounded in her earlier book,
“The tension reduction theory states that there are three distinct phases associated in a recurring battering cycle: (1) tension building, (2) the acute battering incident, and (3) loving contrition. During the first phase, there is a gradual escalation of tension displayed by discrete acts causing increased friction such as name-calling, other mean intentional behaviours, and/or physical abuse. The batterer expresses dissatisfaction and hostility but not in an extreme or maximally explosive form. The woman attempts to placate the batterer, doing what she thinks might please him, calm him down, or at least, what will not further aggravate him. She tries not to respond to his hostile actions and uses general anger reduction techniques. Often she succeeds for a little while which reinforces her unrealistic belief that she can control this man . . .”
501The tension continues to escalate and eventually she is unable to continue controlling his angry response pattern. “Exhausted from the constant stress, she usually withdraws from the batterer, fearing she will inadvertently set off an explosion. He begins to move more oppressively toward her as he observes her withdrawal. . . . Tension between the two becomes unbearable” (Walker, 1979, page 59). The second phase, the acute battering incident, becomes inevitable without intervention. Sometimes, she precipitates the inevitable explosion so as to control where and when it occurs, allowing her to take better precautions to minimize her injuries and pain.
502“Phase two is characterized by the uncontrollable discharge of the tensions that have built up during phase one” (Walker, 1979, page 59). The batterer typically unleashes a barrage of verbal and physical aggression that can leave the woman severely shaken and injured. In fact, when injuries do occur, it usually happens during this second phase. It is also the time that police become involved, if they are called at all. The acute battering phase is concluded when the batterer stops, usually bringing with its cessation a sharp physiological reduction in tension. This in itself is naturally reinforcing. Violence often succeeds because it does work.
503Battered women do not enjoy abuse, do not provoke it and do not have psychopathology. Indeed, battered women have no psychological profile (at least before they are abused). Being female is what makes a woman vulnerable to being abused. There is no way to predict which women will become victims except by knowing the abusive history of their lovers.
504It is, of course, true that the assessment of the credibility of a witness is more of an “art than a science”. The task of assessing credibility can be particularly daunting where a judge must assess the credibility of two witnesses whose testimony is diametrically opposed. It has been held that “[t]he issue of credibility is one of fact and cannot be determined by following a set of rules.” See White v. The King, [1947] S.C.R. 268. It is the highly individualistic nature of a determination of credibility and its dependence on intangibles such as demeanour and the manner of testifying that leads to the well-established principle that appellate courts will generally defer to the trial judge’s factual findings, particularly those pertaining to credibility.
505Neither the parties nor the informed and reasonable observer should be led to believe by the comments of the judge that decisions are made based on generalizations. It is important that judges be aware of the social reality that support [sic] decisions based on an examination of the objectives of the legislation before him or her. One statement of the content and purpose of this doctrine is outlined in Varcoe v. Lee et al. (1919), 180 Cal. 338, 181 P. 223, at page 226:
“The three requirements . . . – that the matter be one of common and general knowledge, that it be well established and authoritatively settled, be practically indisputable, and that this common, general, and certain knowledge exist in the particular jurisdiction – all are requirements dictated by the reason and purpose of the rule, which is to obviate the formal necessity for proof when the matter does not require proof.”
506As Edmund M. Morgan noted in “Judicial Notice” (1944), 57 Harv. L. Rev. 269, at page 272:
“. . . the judge . . . must be assumed to have a fund of general information, consisting of both generalized knowledge and knowledge of specific facts, and the capacity to relate it to what he has perceived during the proceeding, as well as the ability to draw reasonable deductions from the combination by using the ordinary processes of thought. That fund of general information must be at least as great as that of all reasonably well-informed persons in the community. He cannot be assumed to be ignorant of what is so generally accepted as to be incapable of dispute among reasonable men.”
507Supra paragraphs 500-506, see Children’s Aid Society of Toronto v. C. (S.A.), 2005 ONCJ 274, Zuker, J., upheld on appeal at . In some cases one may be able to equate judicial experience with judicial notice.
52The trial judge completed his reasons with a section entitled “I Know Why the Caged Bird Sings.” He said (underlining in the original):
508Rape in the case of Maya Angelou, is used to reflect the suffering of her race, and to Maya Angelou a bird struggling to escape its cage, trying to understand and respect both her body and her words. Virginia Woolf suffered from what she called “looking-glass shame”, an aversion to seeing herself in mirrors. How do we understand our own sufferings, with what words and to what ends?
509Going to Women’s College Hospital, then Mount Sinai Hospital, waiting, 48 hours? 72 hours to go to the police? Is too long ever too long? Does pain have a time limit? With or without all the texts, Mr. Ururyar raped Ms. Gray. We don’t need the “missing” text to know this. Crying in those early morning hours of January 31, 2015 and being in a fetal position. This evidence I accept. Rape it surely was.
510The experience of rape invades not only the body but the mind of its victims. Dissociation kicks in, often with great efficiently [sic]. And often there is a desperate wish by the victim to please the rapist, a desperate hope that the rape will end and maybe just maybe, I will survive. Often rape victims become their own legal advocates, one opportunity perhaps for retribution. Call it what you want. But one thing very therapeutic is for us to find creative outlets for our pain.
511In Japanese, the word “trauma” is expressed with a combination of two characters: “outside” and “injury”. Trauma is a visible wound, suffering we can see, but it is also suffering made public.
512We are here to deal with realities. Victims of abuse, in fact often do not disclose it, and if they do, it may not be until a substantial length of time has passed. See R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275. Let us not stereotype victims of rape, particularly with the very much discounted doctrine of recent complaint.
513The Court has reviewed Ms. Gray’s police interview on Monday evening, February 2, 2015.
514For much of our history, the “good” rape victim, the “credible” rape victim has been a dead one. When someone takes control of you and pushes their penis into your mouth, what can you do? It is frightening and shocking. That was Mr. Ururyar. Mandi Gray was intoxicated on January 31, 2015 and typically could have been disassociated from herself as she stated. This I accept. Who can, who should remember the details of a rape?
515Is it wrong to cry if you were raped? Unlikely. Ms. Gray was very credible and trustworthy. Ms. Gray stated that she did not participate in anything from the time of sitting on Mr. Ururyar’s bed until leaving the next morning. I accept her evidence. Of this, there is no doubt. The possibility of being pregnant, plan B. Rape it was. No confusion. No uncertainty to this Court. Ms. Gray was raped by the accused.
516Mandi Gray remembered what was important on January 31, 2015 and she is right. Asking her to remember the details is ridiculous. The accused grabbed her hair, as she has vividly described. He pushed his penis into her mouth and then intercourse followed. That happened. A nightmare.
517Who do we often blame for being raped? We blame ourselves. Ms. Gray wanted an apology from the accused. She did not want to believe Mr. Ururyar had raped her. Who would? How could the accused possibly rape Ms. Gray? He was supposedly sick. How did he have the strength to rape her, we are asked? Was he not anticipating consensual sex? Yes, but Mr. Ururyar was so angry, so, so angry, that he took power and control over Ms. Gray and violently raped her.
518“BERRY: So, so as, as he, as he was yelling at you, and you sat on his, on his bed, what happened then?
GRAY: Um, I (Sighs) I know like, like I think that, woke up, but I know like, or like intercourse started, like when he like pushed my head on to his penis and made me give him a blow job. And I was like whatever, I’m just gonna comply with this because this person is really mad, and I am really intoxicated, and I don’t know – I don’t know – I didn’t know what to do and yeah.
BERRY: So, so were you – were you dressed at this point or?
GRAY: Um, I don’t remember. I woke up and I was just in a bra and a tank top, so maybe that’s what I was wearing, I don’t – I don’t remember for sure. Um, I don’t remember taking off my pants or my underwear.” (Pages 14 and 15 of Statement)
519And he knew he raped her with his vague subsequent apology. Text by Mandi (See Exhibit 1C) on January 31, 2015 at 1:27 p.m. “Last night was really fucked up”. Response by Mr. Ururyar at 1:53 p.m. “OK”. And then finally on the final text message sent by him on February 5, 2015 at 11:52 a.m., “I am sorry things went as they did. I shouldn’t have said and done some of the things I did. I was upset and felt wronged by you but that does not excuse my own mistakes.” (See Exhibit 1C)
520Ms. Gray was raped on January 31, 2015. It is not about verbalizing.
521Mr. Ururyar came to the bar(s) for “hot sex” but maybe, just maybe he would be too sick. He was the ultimate game player, pushing to Ms. Gray and then pulling away from Ms. Gray. Ms. Gray becomes the slut for the night because the angry, angry accused wanted to seize on the opportunity of having a threesome and Mandi Gray had ruined it. Ms. Gray did not encourage Lacey to come to his apartment on his pretext of having a drink. Ms. Gray could not meet his sexual needs. He told her that. I accept he told her that. She was vulnerable. She was scared. He pounced. Forget the condom. I am in power. I am in command. He said to her and I agree, “this is the last time I am going to fuck you, this is the last time... and you are going to like it”. Power, power, power. He was the boss and he loved it.
522The rape, the sleep, and the waking up. Enough was not enough for Mr. Ururyar. Ms. Gray sees him masturbating, his wanting sex again. This time, sober, less tired, Ms. Gray left his apartment. Not again. To quote Ms. Gray (see page 8 of her statement):
“said no, I’m not doing this again. And um I,I, [sic] I got up and I put on my clothes, and he like didn’t say anything to me, um, and I didn’t say anything to him, and I, I just – I left his apartment. And like I was talking to the officer that came to my, my apartment and I looked through my text messages because I texted my friend as soon as I left, who was waiting here, and I texted her at 9:45 in the morning. So I think that was like as soon as I got on the street car, so I left around like 9:40 uh, in the morning form [sic] his place and went home, so yeah.”
“Uh, in the morning, I remember I woke up because like I,I, [sic] I could feel him like masturbating and I’m like, like fuck, like I don’t – like I didn’t know like why he would do that. I didn’t know like – I didn’t have a good time, like I didn’t enjoy that. I, I went to sleep crying, like why. And then he noticed that I was awake, and then he looked at me, and then he took my hand and pushed me unto the penis and I just – and that’s when I said no, I’m not doing this. Um, I felt like I had like - when I was really drunk like before, I felt like I had no control over my body. Like I just like felt like, like I would just like I couldn’t um – I don’t even know the right word is. Like I just – I felt like I had no power like to move. Like I could just lie there and that’s all I could do within that moment. And I’m like no, I’m sober, I can get up and I can leave now because I – it’s daylight, I can go home. So I just said now I’m, I’m leave – I’m ready to leave there. I was leaving and I talk 0 I didn’t say anything to him. He didn’t say anything to me, which like I don’t – I don’t know. I – and just got up and I left and I, I took the TTC home.” (Pages 17 & 18, Statement of Mandi Gray, February 2, 2015)
523There is a context for Ms. Gray’s behaviour. The myths of rape should be dispelled once and for all. We cannot perpetuate the belief that niceness cannot coexist with violence, evil or deviance, and consequently the nice guy must not be guilty of the alleged offense. Nice people supposedly don’t rape. This is not society’s image. The accused knew Ms. Gray. And if you don’t remember and when you know you don’t remember, he, Mr. Ururyar, is going to get to write the script. Ms. Gray did remember. Everything, of course not. What happened to her, yes.
524The Crown has proven its case beyond a reasonable doubt.
iii. Analysis of this issue
53This was a simple trial. In order for the trial judge’s reasons to survive judicial scrutiny, they had only to explain to the appellant why he was convicted. In a case such as this one, the trial judge needed to do little more in his reasons than explain to the appellant why his evidence was not believed, why his evidence did not raise a reasonable doubt and why the complainant’s evidence was believed. Unfortunately, despite the length of the judgment, it fails this test.
54The trial judge made clear that he did not believe the evidence of the appellant. He did so in very strong language at paragraphs 456 to 463 of his judgment, which I have set out above. However, although he calls the appellant’s evidence feeble, unbelievable, incomprehensible and false, and asserts that the appellant’s version of events never happened and was a fabrication, an illusion or delusion, and a joke, the trial judge provides no explanation of why the appellant’s evidence attracted these characterizations and why it was not believed. Nor can I find elsewhere in the judgment any explanation for the trial judge’s disbelief of the appellant’s evidence, far less the angry language he used to reject it.
55The trial judge’s explanation for his further conclusion that the appellant’s evidence did not raise a reasonable doubt in his mind about the appellant’s guilt is far more problematic. To the best of my ability to understand the reasons, this issue is dealt with in paragraphs 481 to 507, also set out above.
56The trial judge began this part of his judgment with the baffling statement that since the appellant denied that he sexually assaulted the complainant, “[c]onsent is therefore not an issue and more importantly Ms. Gray’s historical text, even if alleged by Mr. Ururyar, may well be irrelevant.” To the contrary, the appellant agreed that he had sexual relations with the complainant but said that they were consensual. The trial judge’s failure to understand that consent was the central issue in this case, standing alone, casts doubt on the adequacy of his reasons. But there is more.
57The trial judge went on to say that the appellant’s evidence about the complainant’s behaviour on the evening of January 30, 2015 and the early morning of January 31, 2015 did not raise any reasonable doubt in his mind. But the apparent explanation for this conclusion, which follows, hardly seems to engage the issue at all. Instead, it very quickly descends into a virtually incomprehensible mixture of references to literature about rape and the trial judge’s own opinions on the subject. Far from explaining why he concluded that the appellant’s evidence did not raise a reasonable doubt, the trial judge raised the spectre that he rejected the appellant’s evidence by the simple expedient of applying rape literature and his own opinions about rape.
58I acknowledge that for the most part, what the trial judge drew from the literature, as Crown counsel put it, simply supported principles that may be found in the case law. But what troubles me is the way the trial judge used these principles. The trial judge quite properly warned against reliance on rape myths in the assessment of the credibility of the complainant. He rightly recognized that this has been a persistent problem in sexual assault prosecutions that has yet to be fully eradicated. But all witnesses, and not just rape complainants, are entitled to have their credibility assessed on the basis of the evidence in the case, rather than on assumptions about human behaviour derived from a trial judge’s personal reading of social science literature. In a case such as this, a trier of fact cannot reason backwards from literature about rape and how rapists behave to the identification of the accused as a rapist. But that appears to be what the trial judge did.
59For example, beginning at paragraph 483, the trial judge made reference to the appellant’s evidence that the complainant was the “aggressor” throughout the evening and early morning. Then, at paragraph 488, he stated that “[t]o listen to Mr. Ururyar paint Ms. Gray as the seductive party animal is nothing short of incomprehensible.” He explained why it is incomprehensible in the immediately following paragraphs. He said, at paragraph 489, that “[d]espite considerable research and publications in professional and popular journals concerning rape, [rape] myths continue to persist…” and then, at paragraph 490:
There is no demographic profile that typifies a rapist. There is a danger of stereotyping rapists. When the accused is a friend of the victim and uses that relationship to gain, and then betray the complainant’s trust; there may be a need to be informed in order to recognize and understand the accused’s predatory behaviour. [Emphasis added.]
60I understand the trial judge to be saying that the appellant’s evidence is not credible because it conforms to a pattern of behaviour that might not be seen as predatory by the uninformed, but can be recognized as predatory by those who are informed, presumably by rape literature. If this is his reasoning, it is not permissible. It is one thing for a trier of fact to recognize that a friend of a complainant may have raped her. It is another thing to reason backwards that friendship, or niceness, properly understood, can be a badge of rape. That appears to be what the trial judge did here. I agree with the trial judge that we must be vigilant to reject pernicious stereotypical thinking about the behavior of women. At the same time, we must not adopt pernicious assumptions about men and their tendency to rape.
61There are other examples in the reasons of the trial judge that may reflect similar backwards reasoning. For example, he seemed to reason that telling the complainant that he was too sick to have sex was game-playing by the appellant – making the complainant into “the slut for the night” and as a result vulnerable to his wielding of power.
62I acknowledge that I may be over-interpreting the judge’s reasons. But at the very least, the trial judge’s lengthy exercise of interspersing his analysis of the case with excerpts from the literature about the nature of rape and rapists leaves the path that the trial judge took through conflicting evidence very far from apparent. Indeed, I conclude that his reasoning is incomprehensible.
63Counsel for the respondent very fairly acknowledged that the trial judge’s discussion about common and specialized knowledge of human behaviour, the correction of stereotypes and the scope of judicial review went much further than necessary, apparently to set up the parameters for his credibility assessment and to alert others to the fact that stereotypes about victims of sexual assault would not be a part of his credibility assessment. She argued that this was harmless. I conclude otherwise.
64In the end, I am of the view that the deficiencies in the reasons for judgment in this case have occasioned prejudice to the appellant’s exercise of his legal right to an appeal. The reasons are in part conclusory and in part incomprehensible. As a result, they frustrate meaningful appellate review. The trial judge failed to provide an explanation for how the conflicts in the evidence were reconciled and to sufficiently articulate how credibility concerns were resolved. All of this amounts to reversible error.
65I would allow the appeal on this ground alone.
The Remaining Grounds of Appeal Against Conviction
66In view of my conclusion about the fourth ground of appeal, it is not necessary for me to reach a conclusion on the remaining five grounds of appeal against conviction. It should be apparent, however, from my reasons, that I would also give effect to the third, fifth and sixth grounds of appeal, that is: that the trial judge applied different standards of scrutiny to the evidence; that the trial judge misapprehended evidence related to text messages (and public displays of affection); and that the trial judge erred in his assessment of the issue of consent. I will not address the first two grounds of appeal.
The Trial Judge Erred in Imposing Restitution for the Complainant’s Legal Fees
67This ground of appeal raises an important issue of first impression. Having decided that the appeal against conviction must be allowed, a determination of this issue by me would be obiter and unappealable standing alone. In my view, despite the fact that the issue was fully argued before me, it would be prudent for me to exercise restraint and to decline to reach the issue. This should in no way be seen as an endorsement of the conclusion reached by the trial judge.
Disposition
68The appeal is allowed, and a new trial is ordered. I reach this conclusion with considerable regret. Requiring a new trial because of inadequacies and excesses in the reasons for judgment of the trial judge does no service to the complainant or the appellant. But it is necessary to preserve the integrity of the administration of justice. The appellant will appear in the Ontario Court of Justice on a date agreed upon by counsel, failing which a summons or warrant may issue to compel his appearance.
Postscript
69After concluding that this appeal must be allowed for the reasons set out above, I became aware of a further potential issue with the trial judge’s reasons for conviction that was not addressed by any of the parties to this appeal – namely, that portions of the trial judge’s reasons reproduce or otherwise draw on various academic and other sources without attribution. For example, the discussion at paragraph 398 of the reasons appears to use language from a law review article (Martha R. Mahoney, “Legal Images of Battered Women: Redefining the Issue of Separation” (1991) 90 Michigan L.R. 1, at p. 61); paragraphs 404-9 of the reasons appear to draw on portions of a book chapter (Guillermo Villalobos, Deborah Davis & Richard Leo, “His Story, Her Story: Sexual Miscommunication, Motivated Remembering, and Intoxication as Pathways to Honest False Testimony Regarding Sexual Consent” in Ros Burnett, ed., Vilified: Wrongful Allegations of Sexual and Child Abuse (Oxford: Oxford University Press, 2016), previously available as University of San Francisco Law Research Paper No. 2014-33); portions of paragraphs 508 and 510-11 appear to reproduce portions of a New York Times article and a New York Times book review; and, most disturbingly, paragraphs 486-88 of the reasons, which are framed as a discussion of the evidence in this case and the submissions of the defence, appear to contain language from a statement given by a victim in a California sexual assault case and subsequently reproduced in the media, including in the Globe and Mail (see “The Stanford rape case: Read the victim’s full courtroom statement” Globe and Mail (last updated June 8, 2016), online: <www.theglobeandmail.com>). I am cognizant of the fact that the parties have not had a chance to make submissions on the extent to which the trial judge’s reasons may indeed rely on or reproduce unattributed sources or the extent to which such reliance or the nature of such sources may impact on this appeal. As I have already concluded that this appeal should be allowed for the reasons set out above; as this conclusion was in no part based on the trial judge having potentially relied on unattributed or inappropriate sources; and as any such reliance by the trial judge on unattributed or inappropriate sources could only raise further concerns about the reasonableness of the trial judge’s verdict and the soundness of the conviction and could not assist the respondent, I find that it is unnecessary to address this issue further.
70I cannot conclude these reasons without expressing my gratitude to all counsel who appeared on this appeal for the very high quality of assistance they provided to me.
M. Dambrot J.
Released: July 20, 2017