Court File and Parties
COURT FILE NO.: CR-18-10000089-00AP
DATE: 20191104
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
BOZDAR BOBBY LJILJANIC
Appellant
Counsel:
Paul M. Alexander, for the Respondent
Michael Dineen, for the Appellant
HEARD: October 24, 2019
Subject to any further Order by a Court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s.486.4(1) of the Criminal Code of Canada
Justice J. Copeland
REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL
[1] The appellant appeals from conviction on one count of sexual assault. His sole ground of appeal is that the trial judge’s reasons in relation to recklessness as the mens rea for sexual assault were insufficient.
[2] In order to explain the ground of appeal, I briefly summarize the context for the trial judge’s finding of guilt on the count under appeal.
[3] The appellant was charged with two counts of sexual assault, alleged to have been committed on April 11, 2015, and April 17, 2015. The trial judge found the appellant guilty of the April 11 count, but not guilty of the April 17 count.
[4] In making these findings, it is a fair summary of the trial judge’s reasons to say that she had grave concerns about the complainant’s credibility and reliability as a witness, which she explained in detail in her reasons for judgment. Because of these concerns about the complainant’s credibility, the trial judge effectively decided that she could not rely on the complainant’s evidence where it was uncorroborated. I pause to note that the trial judge was alive to the law that corroboration is not required for a finding of guilty on a count of sexual assault, but that presence or absence of corroboration is a factor that a trial judge may consider in assessing whether the Crown has proven a count beyond a reasonable doubt (see reasons for judgment at para. 65).
[5] The complainant’s evidence was uncorroborated on the Aptil 17, 2015 count, and the trial judge acquitted.
[6] The April 11, 2015 count involved two factual allegations within the same sexual encounter: (i) an allegation that the appellant had intercourse with the complainant without a condom, when she testified that she had previously indicated that she was only consenting to intercourse with a condom; and (ii) an allegation that the appellant ejaculated in the complainant’s mouth without her consent.
[7] The allegation of intercourse without a condom without consent was not corroborated. Given the trial judge’s concerns about the complainant’s credibility, she found this aspect of the April 11, 2015 count was not proven beyond a reasonable doubt. However, in relation to the issue of the allegation that the appellant ejaculated into the complainant’s mouth without her consent, there was a text message exchange which the trial judge found provided corroboration for the fact that this act occurred, that it occurred without the complainant’s consent, and that the appellant was reckless as to the complainant’s consent to this sexual act. It is the trial judge’s reasons in relation to recklessness that the appellant challenges as insufficient.
[8] The appellant argues that the trial judge’s reasons in finding that the appellant was reckless as to whether the complainant consented to him ejaculating in her mouth are insufficient. The appellant argues that the trial judge found that the complainant was not a credible or reliable witness. The appellant argues that the text messages containing what the trial judge found to be admissions by the appellant could not support a finding of recklessness as to consent without more specific factual findings about what happened during the sexual encounter. In particular, the appellant argues that the complainant’s evidence contained several versions of how the non-consensual ejaculation took place, including: (i) that the oral sex was itself non-consensual; (ii) that the appellant did not tell her before he ejaculated in her mouth that he was going to do so; (iii) after being confronted with her police statement which said he told her that he would ejaculate in her mouth, the complainant said his penis was already in her mouth when he said this; and (iv) that the appellant’s penis was in front of her face when he said he was going to ejaculate in her mouth.
[9] The appellant does not argue unreasonable verdict. Nor does the appellant challenge the trial judge’s finding that the Crown proved non-consent of the complainant to the appellant ejaculating in her mouth beyond a reasonable doubt. Thus, the only issue raised is sufficiency of the trial judge’s reasons in relation to recklessness as the mens rea in the circumstances of this case.
[10] Where an appellate court is asked to consider an argument about sufficiency of reasons, the court should take a functional approach to the reasons, reading them as a whole, in the context of the evidence and arguments at trial, and with an appreciation of the purposes for which reasons are delivered (telling the parties why the decision was made, public accountability, and permitting meaningful appellate review). A trial judge’s reasons must be intelligible, in the sense that the factual findings linking the evidence to the verdict can be logically discerned. In other words, do the reasons explain the logical connection between “what” the trial judge decided, and “why” she decided it? In deciding if the trial judge’s reasons establish the logical connection between the verdict and the basis for the verdict, an appellate court should consider the reasons in the context of the evidence, the submissions of counsel, and the live issues at trial, in order to determine the live issues as they emerged at trial. A trial judge is not required to make express findings on every piece of evidence or controverted fact: R. v. R.E.M., [2008] 3 S.C.R. 3, 2008 SCC 51 at paras. 11-21, 25, 35, 55-57; R. v. Sheppard, [2002] 1 S.C.R. 869, 2002 SCC 26 at paras. 24-33, 46, 55.
[11] I have reviewed the trial judge’s reasons, the evidence, and the submissions at trial in considering whether the trial judge’s reasons in relation to recklessness are sufficient. In my view they are sufficient.
[12] The issue of whether the appellant’s statements in the particular text message exchange had relevance as admissions to the issue of his intent, and also potentially to corroborating an aspect of the complainant’s evidence (non-consent to the ejaculation in her mouth) was the subject of submissions by both Crown counsel and defence counsel at trial. This was not an issue that was raised for the first time in the trial judge’s reasons without notice to the appellant. Counsel for the appellant at trial (similarly to appellate counsel), took the position that the appellant’s statements in the text exchange were too ambiguous to ground any finding about his intent. The trial judge found otherwise.
[13] In order to find recklessness as to consent on the part of the appellant, the trial judge had to be satisfied beyond a reasonable doubt that at the time of the sexual act at issue, the appellant was aware that there was a risk that the complainant might not be consenting to this particular sexual act. The appellant argues that recklessness as to consent could not be inferred from the text exchange 12 days after the sexual encounter, because, he submits, one cannot infer from the texts that he was aware of the risk of non-consent at the time of the sexual act.
[14] With respect, I disagree with the appellant that this factual finding was not open to the trial judge. I also disagree with the appellant that the trial judge’s reasons on the recklessness issue are insufficient.
[15] As set out in R.E.M., reasons will be sufficient where they explain the logical connection between what the trial judge decided, and why she decided it. The trial judge’s reasons in this case, do that. She clearly explained why she had grave concerns about the complainant’s credibility. She then explained that she was considering if there was any evidence to corroborate the complainant’s evidence, and considered the text message exchange. She explained why she found that the text message exchange provided corroboration on the issue of non-consent and also showed that the appellant was reckless as to consent. In particular, paragraphs 59-61, and 65-68 of the reasons for judgment explain her reasoning process in relation to her findings of both non-consent of the complainant to the appellant ejaculating in her mouth, and that the appellant was reckless as to consent to that particular act.
[16] The appellant argues that the trial judge’s reasons regarding the finding of recklessness are insufficient because she did not specify her factual findings about the actual circumstances of the particular sexual act of the appellant ejaculating in the complainant’s mouth (see discussion of the complainant’s various versions of events on this issue at para. 8 above). With respect, the trial judge’s reasons are clear that the found that the complainant did not consent to the appellant ejaculating in her mouth (and the appellant does not challenge that finding). She was not required to spell out more particularly the factual findings.
[17] The trial judge’s reasons on the issue of recklessness were sufficient to show the logical path between the finding on guilt, and the basis for that finding. I am not persuaded that the trial judge committed any error. The appeal is dismissed.
Justice J. Copeland
Released: November 4, 2019
COURT FILE NO.: CR-18-10000089-00AP
DATE: 20191104
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
BOZDAR BOBBY LJILJANIC
Appellant
REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL
Justice J. Copeland
Released: November 4, 2019