Court File and Parties

COURT FILE NO.: 18-100000800AP DATE: 20190618 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – MARCO LUPI

Counsel: Paul Alexander, for the Respondent, A.G. Ontario Mark Halfyard, for the Appellant

HEARD: May 30, 2019

JUDGMENT ON SUMMARY CONVICTION APPEAL

PUBLICATION BAN

Roberts J.:

Introduction

[1] Marco Lupi and the complainant, Ms. V, met on a dating site. After exchanging text messages, they met for lunch, and again for dinner, on May 7, 2017. They agreed to meet again two days later, on May 9, 2017. They went for dinner and then back to Mr. Lupi’s apartment. They agreed to have sexual intercourse. Ms. V insisted that Mr. Lupi use a condom. The only factual dispute was whether Mr. Lupi penetrated Ms. V after removing the condom. Ms. V testified that he did. Mr. Lupi testified that he did not. More specifically, Ms. V described hearing a “snap” like a rubber band after they changed sexual positions, and Mr. Lupi moved behind her. Mr. Lupi continued to penetrate her for about 5 seconds before she figured out that Mr. Lupi had removed the condom. She turned and stopped the sex and saw the condom lying on the edge of the bed. Mr. Lupi agreed that the “snap” was the sound of the condom being removed, but testified that in removing the condom in that fashion he was indicating that the sex was over. He did not penetrate Ms. V again after he removed the condom.

[2] Resolving what happened in this approximately 5 second period was at the heart of the trial. During the evidence phase of the trial, everyone proceeded on the understanding that if Mr. Lupi continued to penetrate Ms. V after he removed the condom, contrary to her express wishes, he committed sexual assault. On the other hand, if he did not remove the condom, or the trial judge had a reasonable doubt about this, he was not guilty. However, in his written submissions at the end of trial, defence counsel raised R. v. Hutchinson, 2014 SCC 19, and argued that even if Mr. Lupi had removed the condom, that did not transform the sexual act and vitiate Ms. V’s consent unless it involved fraud.

[3] Not surprisingly, the focus of the reasons for judgment was resolving the credibility dispute that lay at the heart of the evidence. However, the trial judge also explicitly concluded that the circumstances of the case were distinguishable from Hutchinson. Unlike Hutchinson, where there was consent at the time of the sexual intercourse, in this case, there was no consent to penetration without the condom at the time of the sexual intercourse. The trial judge also went on to explicitly conclude that if he was wrong, and Hutchinson was not distinguishable, then consent had been vitiated by fraud.

[4] On appeal, Mr. Lupi argues that the trial judge misapprehended facts central to his credibility assessment, and the verdict cannot stand.

[5] In addition, Mr. Lupi argues that the trial judge was wrong that Hutchinson was distinguishable, and he failed to apply the appropriate framework to consider whether consent was vitiated by fraud. A new trial is necessary in order to do this.

[6] The Crown responds that the trial judge made no error. He did not misapprehend the facts. Nor did he get the law wrong: Hutchinson did not apply, and if it did, Ms. V’s consent was vitiated by fraud in the circumstances of the case.

Issue 1 - Did the trial judge misapprehend the evidence suggesting that Ms. V gave inconsistent accounts? If so, was the misapprehension material?

[7] Mr. Lupi complains that the trial judge misapprehended Ms. V’s evidence and, as a result, failed to properly account for a significant inconsistency. Ms. V testified that she told the investigating officer Constable Olga Davydova about other acts of sexual impropriety by Mr. Lupi. Constable Davydova denied this. Mr. Lupi complains that the trial judge misapprehended the evidence by resolving this inconsistency by concluding that Ms. V only mentioned these other acts on a “what if” basis.

Relevant legal principles

[8] A misapprehension of evidence can result in a miscarriage of justice under s.686(1)(a)(iii) of the Criminal Code where 1) a trial judge is mistaken as to the substance (not mere detail) of material parts of the evidence (material and not peripheral to the reasoning of the trial judge); 2) the errors play an essential part not just in the narrative of the judgment but “in the reasoning process resulting in a conviction”. Such a conviction is not based exclusively on the evidence, and is therefore a miscarriage of justice. R. v. Lohrer, 2004 SCC 80 per Binnie J. at paras.1-2; R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.) at p.221.

Background Evidence

[9] Ms. V testified that, in addition to surreptitiously penetrating her without a condom, Mr. Lupi also engaged in a number of acts of inappropriate sexual behavior. She did not include these in her own personal notes about what happened nor did she describe them in the videotaped statement she gave to police. In cross-examination Ms. V explained that she did not mention these other things in her videotaped statement because she was ashamed that they did not cause her to leave. She decided to focus on the condom incident because it was clear.

[10] Ms. V recalled that “some of these things did come up” on the telephone with Constable Davydova but “I don’t remember the details of our conversation other than, well, those would be additional charges. And I just decided to leave it….You know, we were communicating. I mean, I always had questions like what does this mean, you know, this also came up, what do I do with this. So that was one of those conversations, and we just left it at that .” [Transcript, Vol.1, p.69, emphasis added] When pressed, Ms. V recalled that she brought up some of these other improprieties. She could not recall “which parts of these incidences that I actually told Constable Davydova” apart from the following two:

• Mr. Lupi biting her face as they walked side-by-side to dinner on May 7, 2017. Ms. V recalled Constable Davydova saying something like “Ouch, that would’ve hurt. I hope he didn’t harm you”.
• Mr. Lupi groping her on his balcony on May 7, 2017.

[11] In re-examination, Ms. V elaborated on the nature of her conversation with Constable Davydova about these other incidents:

Usually I would call with a question and around, the biting and the groping it was, it, it might have been something like actually other things happened and I’m not sure if I should include this, well what happened , and then I – sorry I’m just guessing , told her what had happened. The face biting, her response and then the groping. And then I remember, I think I remember her saying well those would be additional charges and I guess she let me decide what I wanted to do with that and I just left it because out of all of the – I mean I had nothing to kind of support that that happened so I left it….[T]he conversation was more that… if I were to include that, that would be another charge, and no, I didn’t express to her that I wanted to file another charge. [Transcript, Vol.1, p.129, emphasis added]

[12] Towards the end of the Crown’s case, counsel indicated that they were working on an agreed statement of facts to the effect that there was nothing in the investigating officer’s notes about other acts of sexual misconduct as she only ever spoke to Ms. V about procedural things on the telephone. The trial judge responded as follows:

It’s potentially quite crucial. I really need for the two of you to sit down and hammer out what it is you’re agreeing, okay? Relatively common in a trial that a witness adds detail….I really need to know with precision whether it’s agreed the officer has no recollection of specific allegations or wrongdoing, or the officer says there were no more allegations of wrongdoing. [Transcript, Vol.2, p.22]

[13] When counsel were unable to reach an agreed statement of facts, and the Crown indicated that she did not plan to call the investigating officer, the trial judge cautioned her that he could draw an adverse inference against Ms. V’s credibility as a result. In light of that, the Crown called the investigating officer.

[14] Constable Davydova testified that she and Ms. V had “lots of conversations about the process” over the telephone including about:

[T]he issue in hand today, which is if she was to provide further information about other things that may or may not have happened what would happen then…. [Transcript, Vol. 2, p.33, emphasis added]

I do remember having conversations [one or more]…about her potentially exploring coming into the station to provide more information. …It was more of a question, how do I go about [it] if I wanted to provide more information about something. So we had conversations about the procedure, that and I would give her her options…..I do remember advising her that if she did have more information to disclose about the incident, or any other information she wanted to disclose about other incidents she would have to come in to provide me a statement which would be done at the station on camera…. [Transcript, Vol. 2, p.34, emphasis added]

So we had conversations about if she was to disclose, if Ms. V was to disclose other information that would be criminal in nature…then we would be potentially looking at other charges or new charges….And again I provided her options, that if she did need to disclose particulars of a new event that she would have to come in and provide a video statement. [Transcript, Vol. 2, p.35]

From my recollection I believe that she was thinking about disclosing another incident but for – from her not coming into the station and providing me a video statement I believe that she just wasn’t either ready to do it or she didn’t want to, and obviously her being a victim of a traumatic event I didn’t want to push her to give me any information that she didn’t want to give me….She would call me to speak about not hypothetical questions about other people’s cases….It would be about her current case, so we had discussions about her case and not other people’s cases, so by her asking me questions about what would happen if I was to disclose something or how would I go about doing this, I felt that it was about her case. [Transcript, Vol. 2, p.36]

[15] When Constable Davydova was asked whether Ms. V would give examples of what she was proposing to disclose as “what if I disclose this”, she responded “ I don’t remember, but I mean it’s quite possible , and if she did do that then I still would not have made notes about it because it wouldn’t be her saying this is what happened to me”. [Transcript, Vol.2, p.36]

[16] Constable Davydova could not recall Ms. V mentioning Mr. Lupi groping her on the balcony or biting her face. Davydova elaborated:

I have no recollection of a particular act, but again if it was brought to me hypothetically there’s no reason for me to make note of it. [Transcript, Vol.2, p.39]

[17] In cross-examination, Constable Davydova acknowledged that she had many telephone conversations with Ms. V but did not take notes of any of them because she viewed them all as “procedural”. [Transcript, Vol.4, pp.6-7] She agreed that if Ms. V had provided further information, such as Mr. Lupi biting her face, that would have to be noted and disclosed. She was diligent about taking notes, so because she made no such note, she agreed that Ms. V must not have said that, or anything like it.

Analysis

[18] Ms. V’s credibility was of central importance. The trial judge fully appreciated this. In addition, he understood what inconsistencies were alleged, and why they could be important. I conclude that he did not misapprehend the evidence, and reached a conclusion about Ms. V’s credibility that was open to him on the evidence. There is no basis for me to intervene.

[19] The trial judge began his consideration of these inconsistencies by explicitly noting that he was “cognizant” that the defence position was that Ms. V “ought not to be believed because she asserted that Mr. Lupi had committed other sexual improprieties (which he denied), and that she had told the investigating detective Constable Davydova, about them , something Davydova denies.” [Reasons for Judgment, paragraph 10, emphasis added] In short, he fully appreciated that Ms. V testified that she told Constable Davydova about other sexual improprieties, and Constable Davydova denied this.

[20] The trial judge also appreciated the significance of these inconsistencies, noting that “the Defence position is well-taken and is potentially a fatal blow to Ms. V’s credit”. However, he went on to conclude that on “deeper examination” the matter is not a serious issue because “it is entirely plausible that the Complainant mentioned the other incidents on a casual, ‘what if’ basis and Davydova made no notes because in her view if there were allegations they would have to be video-taped.” [Reasons for Judgment, para.12]

[21] The trial judge had explained what he meant by a “what if” basis in the immediately preceding paragraph: “Ms. V testified that she often called the Detective and they would chat about the case, her position was that she believed that she talked about the other allegations, in the context of what would happen if the Accused had done this? ” [Reasons for Judgment, paragraph 11, emphasis added] That was a fair and accurate summary of Ms. V’s evidence about the conversation in which she made her disclosures about other sexual improprieties.

[22] I am satisfied that the trial judge appreciated the evidence in relation to this issue and reached a conclusion about it that was open to him on the evidence. He appreciated that Ms. V testified she told Constable Davydova about other acts of sexual impropriety, and Constable Davydova denied this. But he also appreciated that there was significant context that made the conflict more nuanced and ultimately understandable. Far from misapprehending this evidence, he was in command of it and understood it in all its subtlety. There is no basis for me to intervene.

Issue 2 – Did the trial judge err in concluding Hutchinson did not apply, or if it did, in properly applying it?

[23] Given the trial judge’s conclusion that Mr. Lupi continued with sexual intercourse after removing the condom, was the trial judge correct that this constituted sexual assault because R. v. Hutchinson was either distinguishable, or Ms. V’s consent was vitiated by fraud?

Background Evidence

[24] As noted at the outset, the evidence portion of the trial proceeded on the understanding that Mr. Lupi’s guilt turned on whether or not he penetrated Ms. V’s vagina with his penis without a condom. There was no issue that Ms. V was not prepared to consent to sexual intercourse without a condom. Or that Mr. Lupi knew that was the case. He agreed that Ms. V made this abundantly clear. The issue was whether it happened. Ms. V said it did. Mr. Lupi said it did not.

[25] During cross-examination, Mr. Lupi repeatedly acknowledged that he understood that Ms. V was only prepared to consent to sexual intercourse if he wore a condom:

At one point, after I said no [to whether he had a condom] and she reaches for her clothes and she makes her way to get…dressed again, it’s absolutely clear that the sex is not happening without a condom. That is when I realized the condom is clearly a deal breaker. [Transcript, Vol.3, p.71]

Q. [T]here’s no doubt in your mind that she does not want to have sex with you without a condom?

A. At that point, no, until she, she – I realized that when she eventually makes her way to grab the clothes. Yes. [Transcript, Vol.3, p.75]

[26] Towards the end of Mr. Lupi’s evidence, in response to an objection about a question in cross-examination, the trial judge noted that the issue in the case was factual:

It is abundantly clear, and I think Mr. Lupi has conceded, no sex without a condom. He has conceded that. If he took off the condom and continued to have sex, the charge would be made, you know, and Mr. MacAdam [defence counsel] concedes it. [Transcript, Vol.3, p. 95]

[27] At the conclusion of the evidence, both counsel confirmed that the issue in the case was factual. [Transcript, Vol.3, p.105]

[28] During written submissions, however, defence counsel also argued, in the alternative, that if the Crown proved beyond a reasonable doubt that Mr. Lupi did continue to penetrate Ms. V after he took the condom off, the Crown had not proven beyond a reasonable doubt that this “vitiated an otherwise valid consent to engage in sexual activity”. On the day set for the release of the judgment, the Crown did a brief “reply”, arguing that Hutchison did not apply in the circumstances of the case, as consent was withdrawn. Alternately, if it did, consent was vitiated by fraud.

Relevant legal principles

[29] Section 273.1(1) of the Criminal Code sets out a two-step approach to analyzing consent to sexual activity. The first step is to determine whether there was “consent”, meaning “the voluntary agreement of the complainant to engage in the sexual activity in question.” If the complainant did consent, or there is a reasonable doubt about the lack of consent, the second step is to consider whether there are any circumstances which vitiated the apparent consent. S.273.1(2) and s.265(3) list circumstances in which no consent is obtained. These include fraud (s.265(3)(b)).

[30] In Hutchinson the majority of the Supreme Court concluded that a narrow approach must be taken to the meaning of “the sexual activity in question” in s.273.1(1). It is simply “the basic physical act agreed to at the time, its sexual nature, and the identity of the partner.” (Hutchinson, para.22) It does not include “conditions or qualities of the physical act, such as birth control measures or the presence of sexually transmitted diseases.” The majority elaborated:

Thus at the first stage of the consent analysis, the Crown must prove a lack of subjective voluntary agreement to the specific physical sex act. Deceptions about conditions or qualities of the physical act may vitiate consent under s.265(3)(c) of the Criminal Code, if the elements for fraud are met. (Hutchinson, para.55)

Analysis

[31] The circumstances of this case appear to fall squarely within the Hutchinson paradigm. Like Ms. V, the complainant in Hutchinson “would not have consented to sex without a condom”. (Hutchinson, para.44) Accordingly, I find that the trial judge erred in distinguishing Hutchinson. However, I am satisfied that he was correct that the Crown established beyond a reasonable doubt that Ms. V’s consent was vitiated by fraud in the circumstances of this case.

[32] Mr. Lupi complains that in reaching this conclusion, the trial judge failed to apply the correct analytical framework, and there was no evidence of serious bodily harm or the risk of serious bodily harm. As a result, the trial judge was wrong to conclude that consent was vitiated by fraud. I disagree. While the trial judge’s reasons on this issue are brief, they are adequate in the circumstances of the case. And there was ample evidence of both serious bodily harm and the risk of serious bodily harm.

[33] Fraud is essentially dishonest deprivation, or the risk of deprivation. Both elements must be present in order for fraud to vitiate consent to a sexual act. In R. v. Cuerrier, [1998] 2 S.C.R. 371 and R. v. Mabior, 2012 SCC 47, HIV non-disclosure cases, the Supreme Court of Canada concluded that the deprivation or risk of deprivation is serious bodily harm, or the risk of serious bodily harm.

[34] The dishonesty in this case was obvious. As the trial judge put it in his reasons, “No one disputes the fact [that the complainant] would not have sex without the condom.” [Reasons for Judgment, para.21] The surreptitious removal of the condom was directly contrary to Ms. V’s express wishes. Mr. Lupi literally did this behind her back. It was dishonest.

[35] Deprivation was also established in the circumstances of the case. The trial judge concluded that “Mr. Lupi’s actions fundamentally affected Ms. V’s consent….[They] deprived her of control over her sexual activity” and “flew in the face of the Charter values of equality and autonomy”. Mr. Lupi complains that the trial judge erred in focusing on consent rather than serious bodily harm or the risk of serious bodily harm. But in the circumstances of this case, depriving the complainant of control over how she was prepared to have sexual intercourse ( only with a condom), was a significant part of what caused her significant bodily harm.

[36] In R. v. Mabior, the Supreme Court affirmed that “serious bodily harm” means “any hurt or injury, whether physical or psychological , that interferes in a substantial way with the integrity, health or well-being of a victim” (Mabior, emphasis added, para.82). (The Supreme Court developed this definition in R. v. McCraw, [1991] 3 S.C.R. 72 at para. 23 in concluding that a threat of rape is a threat to cause serious bodily harm.) In Hutchinson, the Supreme Court noted that the meaning of “serious bodily harm” in the context of a s.265(3)(b) fraud analysis is not limited to the circumstances of the cases where it had been considered (namely Cuerrier and Mabior). The Court noted that while Cuerrier specifically addressed the risk of sexually transmitted disease, “It did not foreclose the possibility that other types of harm may amount to equally serious deprivations and therefore suffice to establish the requirements of fraud under s.265(3)(c).” (Hutchinson, paras. 69-72)

[37] In this case, Ms. V insisted on using a condom because she and Mr. Lupi did not know each other. She explained this to Mr. Lupi at the time. She was deeply and obviously traumatized by Mr. Lupi’s surreptitious removal of the condom part way through sexual intercourse. She testified that she broke down in tears in the moment, and became hysterical after leaving Mr. Lupi’s apartment. She went to see her doctor the next morning and began a course of prophylactic treatment for pregnancy and STDs, including HIV, which required months of treatment, including regular checks to ensure that her liver function was not compromised by the medication she was required to take for the treatment. During her testimony at trial, she described the psychological effect of what happened as making her “suspicious of men”. She noted that she “probably cried every day for two months” and that “it’s bothered me since the day it happened”, elaborating:

[S]ometimes I feel like I’m not even in my body. Like I feel faint and it’s hard to focus….at times I felt like my personal safety is threatened. I don’t know who this guy is….He takes a boxing class. [Transcript, Vol.1, pp.47-49]

[38] In addition, based on Ms. V’s decision to take the “Plan B” treatment, or morning after pill, to prevent unwanted pregnancy, Ms. V was concerned that Mr. Lupi’s unilateral decision to remove the condom exposed her to the risk of an unwanted pregnancy. The majority in Hutchinson concluded that exposing someone to the risk of pregnancy can amount to a risk of serious bodily harm:

The concept of harm does not encompass only bodily harm in the traditional sense of that term; it includes at least the sorts of profound changes in a woman’s body…resulting from pregnancy. Depriving a woman of the choice whether to become pregnant or increasing the risk of pregnancy is equally serious as a ‘significant risk of serious bodily harm’ within the meaning of Cuerrier, and therefore suffices to establish fraud vitiating consent under s.265(3)(c). (Hutchinson, at para.70).

[39] In Hutchinson, the Crown did not establish beyond a reasonable doubt that the faulty condoms caused the complainant to become pregnant, however, the majority of the Supreme Court concluded that “a condom with a pinprick in it is no longer effective birth control” and this “constituted a sufficient deprivation for fraud”. It follows that removing a condom altogether is no longer effective birth control, and could give rise to the risk of serious bodily harm. As noted, pregnancy was one of the things Ms. V was specifically concerned about in this case.

[40] In sum, it was readily apparent from the record that the harm here went well‑beyond “financial deprivations or mere sadness or stress from being lied to” and extended to serious bodily harm, or the risk of serious bodily harm, both by substantially interfering with Ms. V’s well-being, and exposing her to the risk of an unwanted pregnancy. In the circumstances, the trial judge did not err in concluding that the Crown had discharged its burden of proving that Mr. Lupi’s “act of removing the condom in clear violation of her wishes vitiated her consent”.

Sentence

[41] There is no basis to intervene in the trial judge’s broad discretion to craft a fit sentence in the circumstances of this offence and this offender.

[42] The 15 month sentence imposed is within the range suggested by counsel (18 months by the Crown and 90 days intermittent or 6 months conditional by defence counsel). It is below the range for a major sexual assault involving penetration (the very bottom of which is generally two years – see e.g. R. v. S.A., 2014 ONCA 266). It cannot be said to be manifestly unreasonable. I note that Mr. Hutchinson was sentenced to 18 months. (R. v. Hutchinson, 2013 NSCA 1 at para.88)

[43] Nor do the reasons for sentence reflect any error in principle. The trial judge recognized that Mr. Lupi’s decision to take off the condom was what vitiated consent and gave rise to the sexual assault, but concluded it was also an aggravating feature of the case. It was open to him to do so. The actus reus lay in Ms. V’s lack of consent in the circumstances. The failure to use a condom, and all the potential harm that brings, both physical and psychological, is a well‑established aggravating fact in sexual assault cases. Even if the trial judge erred in principle in considering the absence of a condom as aggravating in the particular circumstances of this case, there is no nexus between this and the sentence imposed such that the sentence imposed is unfit. (See e.g. R. v. DiBenedetto, 2019 ONCA 496 at para.22)

[44] Nor did the trial judge fail to consider Mr. Lupi’s first offender status. While he did not explicitly mention this, it was a significant feature of the narrative and deeply connected to what the trial judge did explicitly consider. He was clearly alive to it and sensitive to it. Mr. Lupi testified at trial and provided some of his background. During the sentencing submissions, both the Crown and defence counsel explicitly referred to the fact that Mr. Lupi was a first offender with no record. [Transcript, Vol.4, pp.21, 44] Defence counsel referred to the fact that he was a permanent resident in Canada, had worked here as an architect for years, and the conviction would make him inadmissible and subject to deportation. [Transcript, Vol.4, pp.40, 44] The trial judge explicitly noted that Mr. Lupi was an architect who had lived and worked in Canada for the last ten years and was steadily employed. And the criminal conviction had made him permanently inadmissible and could cause him to be deported from Canada, his home for the last ten years. The trial judge explicitly viewed these circumstances, which were connected to his status as someone without a record, as mitigating.

[45] In sum, there is no basis to re-consider the sentence imposed in this case.

Conclusion

[46] The appeal against conviction and sentence is dismissed.

Justice G. Roberts Released: June 18, 2019

COURT FILE NO.: 18-100000800AP DATE: 20190618 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – MARCO LUPI JUDGMENT ON SUMMARY CONVICTION APPEAL G. Roberts J. Released: June 18, 2019