COURT FILE NO.: CR-18-10000019-AP DATE: 20190621

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – ASHWIN SENTHAMILSELVAN Appellant

COUNSEL: N. Golwalla, for the Respondent M. Gourlay, for the Appellant

HEARD: April 16, 2019.

REASONS FOR JUDGMENT

On appeal from the convictions entered on June 16, 2017 and the sentence imposed on February 21, 2018 by the Honourable Justice B. Brown of the Ontario Court of Justice.

SCHRECK J.:

[1] “Screamers” is an event that takes place at Exhibition Place in Toronto at Halloween. Visitors enter “haunted houses” in which employees dressed in costumes attempt to scare them. Ashwin Senthamilselvan went to Screamers with several members of his extended family and went through one of the haunted houses. Two employees alleged that he touched their chest areas as he went through. Mr. Senthamilselvan acknowledged that he touched one of the complainants but said that he did so accidentally. He did not dispute that somebody had touched the second complainant, but maintained that it had not been him. Following a summary conviction trial in the Ontario Court of Justice, Mr. Senthamilselvan was convicted of two counts of sexual assault. He received a suspended sentence and was ordered to comply with the Sexual Offender Information Registration Act (“SOIRA”) for life.

[2] Mr. Senthamilselvan appeals his convictions and sentence. With respect to the conviction appeal, he submits that (1) the trial judge erred by failing to properly instruct herself on the frailties of identification evidence; (2) the trial judge erred by drawing an adverse inference from his failure to apologize to the first complainant and question his family members whether they had assaulted the second complainant; and (3) the finding that the first assault was sexual in nature was unreasonable. With respect to the sentence, he submits that he ought to have been granted a discharge.

[3] I would not give effect to the first or third grounds of appeal. I would, however, give effect to the second ground of appeal. In my view, the trial judge erred by impermissibly relying on assumptions and generalizations about how an innocent person in the appellant’s circumstances would behave or be expected to behave and then drawing an adverse inference from the appellant’s failure to behave in that manner. As a result, I need not consider the sentence appeal.

I. EVIDENCE

A. Screamers

[4] “Screamers” is an event that takes place at Exhibition Place in Toronto at Halloween during which visitors walk through “haunted houses” which have a variety of rooms, each with a different theme. The houses are composed of a number of attached trailers which customers progress through until they reach the exit. Customers are allowed to enter in groups of four, presumably to ensure that there are not too many people in each room at a time. Employees of Screamers are in each room dressed in costumes and attempt to scare customers in an amusing way. The employees are not supposed to touch or be touched by the customers.

B. The First Complainant

[5] On October 18, 2016, the appellant, who was 19 years old at the time, went to Screamers with 14 members of his extended family, including several cousins, siblings and their spouses. This was the second time he had been to Screamers.

[6] The first complainant, A.P., who was 23 years old, was in the second room of the house, which was known as the “bedroom”. He did not work in that room, but was on a break and checking on a female colleague to make sure that she was “scaring people properly”. A.P. was dressed as a female doll in a dress and a wig and with make up on his face. He was wearing white contact lenses, which prevented him from seeing far.

[7] A.P. testified that he was crouched at the side of a bed, preparing to “pop up” and scare people. As a group of people walked by, A.P. “popped up” to scare them and then sat down on the bed. He felt somebody touch him underneath his armpit, grab his chest and squeeze. The person who did this then walked out of the room. A.P. heard the person say “you like that” or something similar.

[8] A.P. testified that when he was touched, he felt only a slight pressure under his armpit. At first, he was not sure what had happened. It was only after he heard the second complainant, T.D., say “don’t touch me” that he realized what had happened. Upon hearing T.D. say that, he went to the room that she was in.

C. The Second Complainant

[9] The second complainant, T.D., who was 17 years old, worked in a room known as the “asylum” or the “chain room”, which was the third room in the house. There were two more rooms between it and the exit. T.D. was dressed as a prisoner in an orange jumpsuit and make up. The room she worked in had strobe lighting, which flashed continuously.

[10] T.D. testified that a group of six males entered the room and she tried to scare them. As they were leaving the room, one person remained behind, although she did not initially notice him. This person suddenly came towards her quickly and grabbed her breast “really hard.” She screamed “Don’t touch me. You’re not supposed to touch me like that” and pushed the person twice. He then left the room. T.D. estimated that the whole incident took about 10 seconds.

D. The Events Following the Alleged Assaults

[11] T.D. followed the person who had touched her out of the room. She testified that in the second room after the “chain room”, A.P. caught up with her and T.D. told him that she was following a person who had just touched her. A.P. replied that the person had done the same thing to him.

[12] According to A.P., T.D. was still in the “chain room” when he entered it and was crying and looking as if she was scared. He asked her who had touched her and she pointed out “the same person” and said “that guy with the red hat” had touched her. A.P. acknowledged that he lost sight of the assailant as he left the room.

[13] T.D. and A.P. followed the person they believed to be the assailant and the group he was with out of the trailer, where they joined another group of people. T.D. testified that she never lost sight of the assailant, who was wearing a hat and a dark hoodie. According to T.D., A.P. left to get the manager and she stayed near the group of people. According to A.P., he remained with T.D.

[14] T.D. spoke to the group of people, which included the appellant, and said “I’m just here because your friend here just assaulted me and I’m just making sure you guys stay here.” T.D. thought that when she confronted the group, she mentioned that it had been her breast that had been touched. The people in the group began to yell and called her names such as “whore”, “slut” and “bitch”. According to T.D., the appellant denied that he had touched her, although she could not recall his exact words.

[15] When the police arrived, T.D. described the person who had assaulted her as being “a very big kind of tall guy”. She described his baseball hat, but agreed that her description of it was based on her observations of the appellant outside of the trailer. She did not testify about what any of the other members of the group were wearing or their sizes.

E. The Appellant’s Evidence

(i) The Visit to Screamers

[16] The appellant testified that he went to Screamers, where he had been once before, with his brothers and cousins and their spouses. He was wearing a black hoodie, blue jeans and a black hat. At the time, he was 6’2” tall and weighed 320 pounds. The male cousins he was with ranged between 5’9” and 6’0” in height and 140 to 200 pounds in weight. The appellant was the largest and tallest of the group.

[17] The appellant entered the house where the complainants worked together with three of his cousins. Another group of family members had entered before them. As the appellant and his group entered each room, the other group would be leaving it.

(ii) The First Alleged Assault

[18] The appellant testified that while he was in one of the rooms, somebody jumped towards his face and screamed. The appellant reacted reflexively by pushing the person back and saying “what the fuck”. According to the appellant, he pushed the person with his forearm against his chest, near the area of his armpit. He then continued through the house.

(iii) The Second Alleged Assault

[19] According to the appellant, he went through another room and passed a person dressed in an orange jumpsuit. After passing her, he heard a female voice say “Don’t touch me like that”. He then left the house. He testified that he did not touch or come into contact with the person.

(iv) The Appellant’s Failure to Question His Relatives

[20] Once the appellant was out of the house, two people accused him of touching them. This caused him to become angry and confused. He did not recall T.D. saying that she had been touched sexually, but knew that she was accusing him of having touched her sexually because she looked as if she was going to “break down”. He acknowledged that he reacted to the allegation by calling her a “slut”. He then sat down on a bench to await the arrival of the police.

[21] In cross-examination, the appellant agreed that he had no reason to doubt that T.D. had been touched by somebody. He was then cross-examined on whether he had taken steps to discover who had touched her:

Q. You don’t look around and try to figure out whose fault this is, who did this? A. I wasn’t thinking like that at the time. Q. What were you thinking? A. I was wondering why she was accusing me of this. Q. You weren’t wondering who the real perpetrator was? A. No. Q. You had no reason to wonder who it was? A. Not until I actually sat down on the bench and started thinking about it. Q. But you never asked anybody who it was? A. No. [1]

[22] The appellant was questioned at length about each of his cousins, their physical descriptions, their opportunities to have touched the complainant, and whether he believed any of them to be the perpetrator. He replied that he did not know. Eventually, his counsel objected to the line of questioning, submitting that it required the appellant to engage in speculation and was unfair. The trial judge apparently agreed and said “sustained”.

(v) The Failure to Apologize

[23] The appellant was also asked in cross-examination why he had not apologized to A.P.:

Q. … And now – and then at the end as you’re outside this guy that you do remember making physical contact with, he too is accusing, accusing you right now, right? A. Yes. Q. So it’s not just the girl, it’s the guy who’s, who’s also accusing you, right? A. Yes. Q. And, and at that point did you say to him, “I’m sorry, I didn’t mean to hit you, I was just scared?” A. No, I didn’t. Q. You remember hitting him though when you were outside being confronted by these people, right? A. Yes. Q. And you knew the manager was coming, right? A. Yes. Q. And you do remember making physical contact with him, right? A. Yes. Q. And so was that – I mean, this would have been the perfect opportunity to go, “I’m sorry, buddy, It’s just I got scared and just, I didn’t mean to,” right? A. But with my level of anger at the time, I didn’t think to say sorry. Q. So you didn’t think to apologize to the, the gentleman you accidentally hit at that time? A. No, not at the time. [2]

II. ANALYSIS

A. The Trial Judge’s Failure to Self-Instruct on Identification Evidence

[24] The appellant submits that the trial judge erred by failing to instruct herself with respect to the frailties of identification evidence. Notably, he does not allege that the verdicts in this case were unreasonable.

[25] There is no question that eyewitness identification evidence is notoriously unreliable and has been the cause of countless wrongful convictions: R. v. Bao, 2019 ONCA 458, at para. 14; R. v. M.B., 2017 ONCA 653, 356 C.C.C. (3d) 234, at para. 29; R. v. Olliffe, 2015 ONCA 242, 322 C.C.C. (3d) 501, at paras. 36-37; R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445, at para. 50; R. v. Gough, 2013 ONCA 137, at paras. 34-37; R. v. Goran, 2008 ONCA 195, 234 O.A.C. 283, at para. 19; R. v. Miapanoose (1996), 30 O.R. (3d) 419 (C.A.), at p. 423.

[26] I agree that trial judges are well-advised to specifically avert to these frailties in their reasons: Gough, at paras. 15, 34; Goran, at paras. 25-26. However, in my view the failure of the trial judge to do so in this case did not constitute reversible error. While she did not specifically avert to the dangers inherent in eyewitness identification evidence, the trial judge did consider the circumstances in which T.D. came to identify the appellant, as well as the fact that he was of considerably larger stature than the other people in the area. In determining that she accepted T.D.’s evidence, the trial judge specifically stated that she found her evidence to be both credible and reliable.

[27] I would not give effect to this ground of appeal.

B. The Reliance on the Appellant’s Failure to Make Inquiries or Apologize

(i) Overview

[28] The trial judge identified the issue before her as being primarily one of credibility and indicated that she intended to follow the approach recommended in R. v. W.(D.), [1991] 1 S.C.R. 742. She accordingly began her analysis by considering the appellant’s evidence and concluded that she did not accept it and that it did not give rise to a reasonable doubt. She gave several reasons for her conclusion:

(1) The appellant’s evidence that A.P. startled him by getting close to his face was not credible because he was five or six inches taller than A.P. (2) The appellant had been to Screamers before so he would not have been startled by A.P. (3) The appellant knew that T.D.’s allegations were sexual in nature when she had not said this. (4) The appellant did not apologize to A.P. (5) The appellant did not ask any of his cousins whether they had committed the assault on T.D. and was not curious about who had assaulted her.

[29] The appellant submits that the last two of these reasons are marked by legal error in that the trial judge ought not to have relied on how he reacted to the allegations against him. He also submits that the trial judge misapprehended the evidence in some respects. As I understand his argument, he does not rely on these misapprehensions as freestanding grounds of appeal, but submits that they should be considered in determining the impact of any errors.

(ii) Applicable Legal Principles

(a) Inferences Based on Expectations About “Normal” Behaviour

[30] There is a substantial body of authority stating that triers of fact must be cautious in relying on evidence of how an accused reacted to allegations that were made against him and that such evidence often has little, if any probative value. Much of it can be traced back to R. v. Levert (2001), 159 C.C.C. (3d) 71 (Ont. C.A.). In that case, the accused had been cross-examined on the fact that he was calm and not defensive when confronted with allegations of sexual assault. Rosenberg J.A. said the following with respect to this evidence (at paras. 26-27):

Since it was not suggested that the appellant had adopted the allegations, the only possible basis upon which the evidence of the appellant’s demeanour on being confronted with the allegation could be relevant in this case is that his unusually calm reaction was evidence of consciousness of guilt.

The probative value of this type of evidence is highly suspect. In the two recent cases of Susan Nelles and Guy Paul Morin use of the accuseds’ demeanour was found to have played a part in the wrongful prosecution. The Report of The Commission on Proceedings Involving Guy Paul Morin, 1998, vol. 2, pp. 1142 to 1150, contains an extensive discussion of the dangers of admitting such demeanour evidence. The expert and other evidence introduced at the Commission strongly suggests that this evidence can be highly suspect and should be admitted at a criminal trial with caution. Perceptions of guilt based on demeanour are likely to depend upon highly subjective impressions that may be difficult to convey to the jury and in any event the significance of the reaction will often be equivocal

[31] The reason why evidence of this nature must be treated with caution was later explained by Doherty J.A. in R. v. Trotta (2004), 190 C.C.C. (3d) 199 (Ont. C.A.), at para. 40 (rev’d on other grounds 2007 SCC 49, [2007] 3 S.C.R. 453):

Demeanour evidence has been routinely admitted in criminal proceedings. It is now recognized, however, that the probative value of such evidence is in many circumstances more apparent than real. The problem with demeanour evidence is at least two-fold. First, it assumes that there is a “normal” range of reaction to highly stressful situations that is applicable to all individuals. Second, demeanour evidence assumes that outward appearance accurately reflects an individual’s state of mind or emotional state.

[32] Rosenberg J.A. came to a similar conclusion in R. v. Stark (2004), 190 C.C.C. (3d) 496 (C.A.), where the trial judge had drawn an adverse inference from the fact that the accused’s response to an accusatory message from the complainant was “totally lacking in energy” (at para. 16):

The manner in which an innocent person should react to an allegedly false allegation is an uncertain basis for drawing an adverse inference against an accused. It may be that there was something in the appellant’s testimony or the circumstances of the case that made his response to the allegation in the chat line or his explanation for that response suspect, but the trial judge did not identify any such evidence to support her conclusion. Rather, she simply adopted a position based on the objective “expectations of adults”.

See also R. v. Chafe, 2019 ONCA 113, at para. 40; R. v. Wall (2005), 77 O.R. (3d) 784 (C.A.), at para. 49.

[33] While many of the cases speak about “demeanour” evidence, it is clear that the same principles apply with respect to other evidence respecting how an accused behaved when confronted with allegations: R. v. J.S.W., 2013 ONCA 593, 301 C.C.C. (3d) 252, at paras. 46-48; Chafe, at para. 39. In all cases, the danger consists in making potentially unsafe assumptions about how a “normal” person would react to allegations and then drawing conclusions from the fact that the accused behaved differently.

(b) Stereotypes and Assumptions Respecting Sexual Assault Complainants

[34] Similar concerns have been raised in relation to evaluating the credibility of sexual assault complainants based on a comparison of the complainant’s behaviour with the trier of fact’s assumptions about how a victim of sexual assault would be expected to behave. In R. v. A.R.J.D., 2018 SCC 6, [2018] 1 S.C.R. 218, aff’g 2017 ABCA 237, 55 Alta. L.R. (6th) 213, the Supreme Court of Canada adopted the reasons of the majority of the Court of Appeal, which included the following (at para. 43):

The most serious problem with the trial judge’s comparison-based assessment of the complainant’s credibility stems from his impermissible reliance on a myth or stereotype (masquerading as logic and common sense) about how a sexual assault complainant, in general and in this case, is assumed or expected to behave post-sexual assault(s). Put plainly, the trial judge’s reliance on his own “logic and common-sense” about how humans react following sexual assault, is itself highly questionable as to relevance and reliability. But it becomes particularly dangerous when reliance on that “logic” overshadows any resort to or assessment of the actual evidence at trial. The trial judge found reasonable doubt because this particular complainant did not exhibit expected predictive, avoidant behaviour. In our view, it is neither logical nor a matter of common sense to expect a child complainant to behave in any particular manner.

See also R. v. A.B.A., 2019 ONCA 124. Of course, in the sexual assault context, the impermissible assumptions that the courts are concerned about are rooted in sexist stereotypes, unlike in Levert and the cases that followed it. However, as was noted in R. v. Quartey, 2018 ABCA 12, 43 C.R. (7th) 359, at para. 2 (aff’d 2018 SCC 59), “[a]pplying stereotypes is inappropriate whether it is directed at assessing the behaviour of a person accused of sexual assault or that of a complainant”. See also R. v. Kodwat, 2017 YKCA 11, at para. 36.

(c) The Role of Common Sense

[35] As the respondent points out, trial judges are undoubtedly entitled to rely on common sense. But they must be cautious not to allow unsupported generalizations and assumptions about human behaviour to infect their reasoning under the guise of common sense, a point that was made by Cory J. in his concurring reasons in R. v. R.D.S., [1997] 3 S.C.R. 484, at para. 129:

However, it is also the individualistic nature of a determination of credibility that requires the judge, as trier of fact, to be particularly careful to be and to appear to be neutral. This obligation requires the judge to walk a delicate line. On one hand, the judge is obviously permitted to use common sense and wisdom gained from personal experience in observing and judging the trustworthiness of a particular witness on the basis of factors such as testimony and demeanour. On the other hand, the judge must avoid judging the credibility of the witness on the basis of generalizations or upon matters that were not in evidence.

[36] But how does one draw a distinction between permissible common sense inferences and impermissible reliance on generalizations, assumptions and stereotypes? In my view, A.R.J.D. is instructive on this issue. As noted, in that case, the trial judge had erred in comparing the complainant’s behaviour with how he would have expected a victim of sexual assault to behave because “the expressed judicial expectation is devoid of any of the certainty or invariability that are preconditions to legal reliability”: A.R.J.D. (C.A.), at para. 48. It follows from this that a trier of fact can draw inferences based on assumptions or expectations about how a person would behave in certain circumstances only where those assumptions or expectations have a degree of certainty or invariability: Kodwat, at para. 41. Some of the cases relied upon by the respondent demonstrate the type of generalizations that have that degree of certainty, such as that people who engage in sexual intercourse usually do so until one or both reach sexual climax (R. v. G.H. 2018 ONCA 349, at paras. 3-6), or that a person who drinks a significant amount of alcohol would feel some effect (R. v. D.K.N., 2017 ONSC 3890, at para. 132). Other generalizations do not.

[37] In my view, there are two important points to consider when determining whether a “common sense” assumption about human behaviour can be safely relied on. The first is that human beings are complex and how they behave in unusual, stressful or difficult circumstances may often be difficult to predict, particularly by people who have never themselves experienced similar circumstances. It is difficult to apply “common sense” expectations to how somebody would behave after being sexually assaulted or suddenly accused of a serious crime because these are not common experiences. Caution should be exercised in applying “common sense” to uncommon circumstances.

[38] The second point is that a trier of fact hearing a witness testify usually know little about the witness and his or her life experiences, personality and background. As well, in a multicultural region such at the Greater Toronto Area, courts hear from witnesses from a variety of cultural backgrounds, some of whom are new to Canada. What might seem to be a “normal” reaction to somebody from a particular cultural background may appear strange and unusual to a person with a different background. There are simply too many variables to allow a trier of fact to safely make accurate assumptions about how a “normal” person would react in an unusual or stressful situation.

[39] With these legal principles in mind, I turn now to the reasons of the trial judge in this case.

(iii) The Trial Judge’s Reasons

(a) The Appellant’s Failure to Question His Relatives

[40] The appellant’s submissions focus on the trial judge’s reliance on the appellant’s failure to question his relatives and his failure to apologize to A.R. With respect to the former, the trial judge stated:

When asked in cross-examination, he testified that he did not ask anyone else in his group if they had touched her, nor was he even curious to know if anyone else in his group had touched her. He was cross-examined about the prospect that it would be odd if he was effectively being accused of doing something that perhaps someone else in his group had done, and he testified he was not even curious about that, and did not ask them about whether someone in his group had done so. He could have asked any of them, in the lengthy time before event security and the police eventually arrived on the scene, but he chose not to do so. He never asked any of them, even though he ended up being charged, at any time before he hired a lawyer who advised him not to speak to the others about the incident. [3]

Later in her reasons, the trial judge stated:

His failure to question any other member of his group, especially the last member travelling through the trailer, or at least the person he identified that person [sic], where [T.D.] had accused someone of assaulting her, especially in the open area where he was then being accused of something serious, does not make sense. He could have done so quietly, without implicating in a legal sense another member of the group. However, it is clear on his evidence he felt there was no need to question anyone else, even though he essentially admitted the fact that she had been assaulted. [4]

(b) The Appellant’s Failure to Apologize

[41] With respect to the appellant’s failure to apologize to A.P, the trial stated:

It is important to note that although Mr. Senthamilselvan admitted he had struck [A.P.], and explained that it was a reflex action in response to being startled by the actions of [A.P.] in scaring him, that he at no time outside the trailers apologized to [A.P.] for what he had done in striking [A.P.]. As noted later, that is quite telling as it would have been a perfect opportunity to apologize for what he testified at trial was a reflex, non-intentional striking of [A.P.]. He had no explanation, except to say that with his level of anger he did not think to say sorry. That seems a rather odd and empty type of response to what might be an expected response to the accusations that were flowing outside the trailers of the haunted house, as he awaited the arrival of security officers, and later the police. [5]

Later in her reasons, the trial judge stated:

In reviewing the testimony of Mr. Senthamilselvan there are certain aspects that do not make sense. If he had accidentally struck [A.P.], given the tense atmosphere of [A.P.] and [T.D.] being present outside the trailers before the security arrived, and ultimately the police, it would have made sense for Mr. Senthamilselvan to apologize for accidentally or non-intentionally striking [A.P.] in response to being startled, if that is in fact what had happened. He did not apologize to [A.P.] before the security arrived, and he had no good explanation as to why he would not have apologized if it had been a non-intentional assault. [6]

(iv) The Permissibility of Considering the Failure to Ask Questions

[42] Before considering whether it was permissible for the trial judge to engage in this line of reasoning, I would note two evidentiary points. The first is that the evidence does not support the trial judge’s view that there was a “lengthy time” before the security personnel and police arrived on the scene during which the appellant could have made inquiries of his cousins. T.B. testified that she was unsure of how much time passed between when she first followed the appellant out of the trailer and when the security personnel arrived, but that it was “[m]aybe, like, 10 minutes.” The only other witness to give evidence on this point was the appellant, who said that it was “around five, 10 minutes.” There was no evidence as to what transpired after that or if the appellant was taken into custody. There was no evidence as to when he retained counsel or what opportunity he had to speak to his cousins after the police arrived.

[43] Second, it is not accurate that the appellant said that he was “not even curious” about who had touched the complainant. He testified that when he sat down on the bench to await the arrival of the police, he was wondering who had touched her.

[44] More importantly, in my view the trial judge engaged in an inappropriate line of reasoning. It is clear from her reasons that she employed the following type of reasoning: A normal innocent person accused of having assaulted the complainant would have questioned the other members of his group to determine who had committed the assault. The appellant did not do so. The only reason he would not have done so would be if he knew that he was the person who had committed the assault. In my view, the trial judge erred by engaging in this type of reasoning, particularly in light of the misapprehensions of evidence relating to the appellant’s opportunity to question others and his lack of curiousity: R. v. J.L., 2018 ONCA 756, 143 O.R. (3d) 170, at para. 47; R. v. Mah, 2002 NSCA 99, 207 N.S.R. (2d) 262, at paras. 70-75; Chafe, at paras. 39-40.

[45] In this case, the trial judge knew virtually nothing about the appellant, his background or his life experiences, other than that he was 19 years old and apparently suffered from some kind of anxiety issue. While the appellant’s name suggests that he is of south Asian origin, there is no evidence as to his cultural background or whether he grew up in Canada or is new to this country. In these circumstances, it was unsafe to draw any inference from the fact that the appellant did not embark on some sort of investigation of his family members to discover the identity of the “real perpetrator” (to use the language of Crown counsel at trial). This is particularly so where the appellant may have had as little as five or 10 minutes to question the others.

[46] In my view, in the circumstances of this case it was an error for the trial judge to discount the appellant’s evidence because he failed to react to the allegations made against him in a way the trial judge viewed as normal or which would have made sense to her.

(v) The Permissibility of Considering the Failure to Apologize

[47] I draw a similar conclusion with respect to the appellant’s failure to apologize to A.P. The trial judge concluded that since an apology “might be an expected response” to a non-intentional touching, the appellant’s failure to offer one undermines his evidence. However, what constitutes an “expected response” in a given situation is highly subjective. Indeed, I am far from convinced that an apology would have been an expected response in the circumstances. The 19-year-old appellant had just been accused of improper conduct by not only A.P., but by T.D. as well, whom he maintains he did not touch. An apology to A.P. in the circumstances may well have been misunderstood as an admission to having touched both complainants. As well, I see nothing “odd and empty” about the appellant’s explanation that he was angry. To be clear, I am not suggesting that the appellant’s evidence was true or should have been accepted by the trial judge, only that she rejected it for reasons which were, in my view, unsound.

(vi) Post-Offence Conduct

[48] The respondent has attempted to characterize the evidence in this case as evidence of “post-offence conduct”. That term is usually used to refer to evidence of an accused’s conduct that is said to provide circumstantial evidence of culpability or a consciousness of guilt: R. v. White, [1998] 2 S.C.R. 72, at paras. 19-21. I do not read the trial judge’s reasons as having used the impugned evidence in that way. Rather, she used it to assess the appellant’s credibility. Even if she had used it as circumstantial evidence of guilt, my conclusion would remain the same. The appellant’s failure to investigate his cousins and apologize to A.P. cannot reasonably give rise to an inference of guilt: R. v. Figueroa, 2008 ONCA 106, 232 C.C.C. (3d) 51, at para. 33.

[49] With respect to the appellant’s failure to question his cousins, this is somewhat similar to evidence that an accused charged with murder failed to make inquiries upon learning of the deceased’s death. Such evidence has been held to have no probative value: R. v. Baltrusaitis (2002), 58 O.R. (3d) 161 (C.A.), at paras. 75-77; R. v. Bennett (2003), 67 O.R. (3d) 257 (C.A.), at para. 147.

[50] With respect to the lack of apology, what the trial judge did amounts to drawing an inference from the appellant’s decision to remain silent in the face of an allegation. There is no question that if he had refused to respond to a police officer, this could not have been used as evidence of post-offence conduct: R. v. Turcotte, 2005 SCC 50, [2005] 2 S.C.R. 519, at paras. 40-47. In my view, the fact that he did not respond to an allegation by somebody who is not a police officer makes no difference. The right to silence is but a subset of the “general right enjoyed in this country by anyone to do whatever one pleases, saying what one pleases or choosing not to say certain things, unless obliged to do otherwise by law”: R. v. Rothman, [1981] 1 S.C.R. 640, at p. 683: Turcotte, at para. 41.

[51] Finally, I note that Crown counsel at trial did not invite the trial judge to rely on this evidence as evidence of post-offence conduct, or indeed at all. Although she cross-examined the appellant on his failure to ask questions or make an apology, she made no reference to either subject in her closing submissions.

(vii) Applicability of the Proviso

[52] The respondent submits that even if the trial judge erred, this court should nonetheless dismiss the appeal applying the proviso in s. 686(1)(b)(iii) of the Criminal Code, which is incorporated into the summary conviction appeal context by virtue of s. 822(1). That section allow the court to dismiss an appeal notwithstanding an error of law if “no substantial wrong or miscarriage of justice has occurred.” The proviso can be applied in two situations. The first is where the error is so harmless or minor that it would not have had any impact on the verdict. The second is where the evidence against the accused was so overwhelming that a conviction was inevitable: R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, at paras. 34-36; R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272, at para. 53. In this case, it is not entirely clear which category the respondent is relying on, so I will address both.

[53] With respect to the first category, the respondent submits that since the failure to ask questions or apologize were not the trial judge’s only reasons for rejecting the appellant’s evidence, the verdict should be upheld. I do not agree for two reasons. First, the Supreme Court of Canada made it clear in Van that whether an error is minor should be determined without reference to other evidence (at para. 35):

The question of whether an error or its effect minor should be answered without reference to the strength of the other evidence presented at trial. The overriding question is whether the error on its face or in its effect was so minor, so irrelevant to the ultimate issue in the trial, or so clearly non-prejudicial, that any reasonable judge or jury could not possibly have rendered a different verdict if the error had not been made.

The errors in this case clearly do not meet that definition.

[54] The second reason is that at least one of the other reasons for which the trial judge rejects the appellant’s evidence appears to reflect a misapprehension of the evidence. The trial judge found it “quite telling” that the appellant knew that T.B. was making an allegation of sexual assault and not simple assault even though T.B. “had not said or intimated it was sexual.” [7] In fact, while the appellant had testified that he could not remember T.B. saying anything other than that he had touched her, T.B. had testified that thought she had specifically said to him that he had touched her on the breast.

[55] With respect to the second category, as was explained in Van, at para. 36, the proviso can be applied “if the case against the accused was so overwhelming that a reasonable and properly instructed jury would inevitably have convicted.” Thus, the issue is not whether the trial judge in this case would have convicted despite the errors, but rather whether any reasonable trier of fact would inevitably have done so. In this regard, it is significant that this case turned on credibility and I have not had the advantage of seeing and hearing the witnesses and am therefore ill-suited to “wade into the waters of truthfulness”: R. v. C.J., 2011 NSCA 77, 307 N.S.R. (2d) 200, at para. 54; R. v. Perkins, 2016 ONCA 588, 339 C.C.C. (3d) 438, at para. 32.

[56] I note, as well, that the Crown did not apply to have the evidence apply across counts, so the evidence relating to each count was presumptively inadmissible with respect to the other count: R. v. Durant, 2019 ONCA 74, 144 O.R. (3d) 465, at para. 82.

[57] While there was certainly evidence upon which a trier of fact could have convicted the appellant, I am unable to conclude that any reasonable trier of fact would inevitably had done so.

C. Evidence That the Assault on A.P. Was Sexual In Nature

[58] The appellant submits that the trial judge erred in concluding that the touching of A.P. was a sexual assault because the evidence did not establish that his sexual integrity was violated. I do not agree. Whether an assault is of a sexual nature is to be determined objectively in light of all of the circumstances, including the part of the body touched, the nature of the contact, the situation in which it occurred, and the words and gestures accompanying the act: R. v. Chase, [1987] 2 S.C.R. 293, at p. 302; R. v. Marshall, 2017 ONCA 801, at para. 52. In this case, there was evidence that the appellant touched A.P., who was dressed in female clothing, in the chest area and said “You like that” or words to that effect. In my view, it was open to the trial judge on this evidence to find that the assault was of a sexual nature.

IV. DISPOSITION

[59] The appeal is allowed, the convictions are set aside and a new trial is ordered.

Justice P.A. Schreck

Released: June 21, 2019.

COURT FILE NO.: CR-18-10000019-AP DATE: 20190621 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – ASHWIN SENTHAMILSELVAN REASONS FOR JUDGMENT P.A. Schreck J. Released: June 21, 2019

[1] Trial Transcript, p. 215, ll.15-32. [2] Trial Transcript, p.220, l.17-p.221, l.18. [3] Trial Transcript, p. 281, l.32-p.282, l.17. [4] Trial Transcript, p.285, ll. 8-23. [5] Trial Transcript, p.272, ll. 14-33. [6] Trial Transcript, p.284, ll.8-21. [7] Trial Transcript, p.283, l.28-p. 284, l.5