Her Majesty the Queen v. Samuel Marrello
COURT FILE NO.: CR-19-10000018-00AP
DATE: 20200129
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
SAMUEL MARRELLO
Appellant
COUNSEL:
Kim Motyl, for the Respondent
Michael Dineen, for the Appellant
HEARD: October 21, 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proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4(1) of the Criminal Code of Canada.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
Introduction
[1] The Appellant, Samuel Marrello, appeals from his conviction for assault causing bodily harm. He was originally charged with one count of assault causing bodily harm, and one count of sexual assault. The trial judge found the Appellant not guilty of sexual assault, but found him guilty of assault causing bodily harm.
[2] The charges arose out a sexual encounter between the Appellant and the complainant at the complainant’s apartment following an evening of drinking at a nearby bar. The complainant testified that she was very intoxicated, and there were significant gaps in her memory of the evening at issue. The sexual assault count involved an allegation of intercourse and other sexual contact. The assault causing bodily harm conviction related to significant bruising on the complainant’s inner thighs, which the trial judge found had been caused by an application of force[^1] by the Appellant at the apartment.
[3] In relation to the sexual assault count, the trial judge was left with a reasonable doubt about whether the sexual contact was non-consensual. The trial judge also rejected the argument of the Crown at trial that the complainant was so intoxicated that she lacked the capacity to consent. In relation to the assault causing bodily harm count, the trial judge found that the Crown had proven all of the elements beyond a reasonable doubt. I will not summarize the trial judge’s findings on each element. But of particular note is that she found that the Crown had proven beyond a reasonable doubt that the complainant did not consent to the application of force that caused the bruising on her inner thighs. The trial judge also found that the Appellant was reckless as to the complainant’s consent to the application of force that caused the bruising on her inner thighs (see Reasons for Judgment at paras. 77-92, 103-119, 120-124).
[4] The Appellant raises one ground of appeal, which concerns the trial judge’s finding that non-consent to the application of force that caused the thigh bruising was proven beyond a reasonable doubt. The Appellant argues that the trial judge misapprehended the evidence in stating that the complainant’s evidence was “clear” that she “did not consent” to an earlier slap by the Appellant on the walk to the apartment. Rather, the Appellant submits that that the complainant testified that it was possible that she had told the Appellant that she liked being hit, and possible that she had given him permission to slap her, but that she did not remember one way or the other.
[5] The Appellant argues that, although the earlier slap was not alleged to be part of the actus reus of the assault causing bodily harm, the trial judge’s misapprehension about the complainant’s evidence regarding the earlier slap was a central factor in her conclusion that the application of force at the apartment that caused the thigh bruises was non-consensual. The ground of appeal raised regarding misapprehension of evidence relates only to the element of the actus reus of assault causing bodily harm of non-consent to the application of force. The Appellant does not challenge the trial judge’s findings on any of the other elements of assault causing bodily harm.
[6] Although raised in the Notice of Appeal, the Appellant no longer advances unreasonable verdict as a ground of appeal. In addition, at the hearing of the appeal, counsel for the Appellant expressly stated that he was not advancing an allegation of inconsistent verdicts as a ground of appeal.
[7] The Respondent argues that the trial judge did not misapprehend the evidence. The Respondent further argues that even if the trial judge did misapprehend the evidence relating to the earlier slap, the misapprehension was not essential to her finding that the Crown had proven beyond a reasonable doubt that the complainant did not consent to the application of force that caused the bruising on her inner thighs. In particular, the Respondent notes that the only injuries that the trial judge was considering in relation to the assault causing bodily harm count was the bruising on the complainant’s thighs. The trial judge found that these were the only injuries to the complainant that went beyond merely transient or trifling in nature. For this reason, the earlier slap as they walked to the complainant’s apartment, and whether the complainant consented to it, was not being considered by the trial judge as part of the actus reus of the assault causing bodily harm count, but rather was simply narrative.
[8] Further, the Respondent argues that the earlier slap was also not material to the defence advanced at trial, because the Appellant’s evidence was not that the complainant consented to any acts that led to the large bruises on her thighs. Rather, in his evidence he denied that he engaged in any act that could have caused the bruises on her inner thighs (the trial judge found otherwise on that point, and that finding of fact is not challenged).
[9] For the sake of clarity, I note that the Crown did not allege at trial in this matter that the Appellant intended to cause bodily harm to the complainant. Thus, there was no issue raised at trial about whether the application of force that caused the bruising on the complainant’s thighs was an act that as a matter of law a person could not consent to pursuant to Jobidon (see Reasons for Judgment at para. 103; and Transcript of July 23, 2018, Submissions, at pp. 4-5). Further, the Crown did not allege at trial that because of the sexual contact surrounding it, the application of force that caused the thigh bruising constituted a sexual assault causing bodily harm (see Reasons for Judgment at para. 4).
[10] For reasons I will explain, I conclude that the trial judge misapprehended the complainant’s evidence in relation to the earlier slap on the walk to her apartment. The misapprehension was on a matter of substance, and not a detail. The misapprehension played a central role in the trial judge’s reasoning process in concluding that the Crown had proven beyond a reasonable doubt that the complainant did not consent to the application of force that caused the bruising on her thighs. A new trial must be ordered on the assault causing bodily harm count.
[11] In fairness to the trial judge, the evidentiary portion of this trial took place in late June 2018. The trial judge heard submissions one month later, in late July 2018. She reserved judgment, and judgment was delivered two months after that, in late September 2018. This type of timeline for a trial is not unusual in the Ontario Court of Justice, or in this Court. But it does not make a trial judge’s task of recalling all of the evidence an easy one. I note as well that this was a trial with many contested issues – both in terms of the facts to be found, and the elements of the two offences charged. Of those many issues, which the trial judge addressed carefully in her reasons, the Appellant has raised only one ground of appeal. However, for the reasons I explain below, in my view this ground of appeal must succeed, and new trial must be ordered.
Applicable law
[12] There is no dispute between the Appellant and Respondent on the applicable law in relation to misapprehension of evidence. Two of the leading authorities are R. v. Lohrer, [2004] 3 S.C.R. 732, 2004 SCC 80, and R. v. Morrissey (1995), 97 C.C.C.(3d) 193 at pp. 217-221, 1995 CanLII 3498 (ONCA).
[13] In Lohrer, the following passages from the reasons of Doherty J.A. in Morrissey were adopted (at para. 1 of Lohrer):
Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction, then, in my view, the accused’s conviction is not based exclusively on the evidence and is not a “true” verdict.
If an appellant can demonstrate that the conviction depends on a misapprehension of evidence then, in my view, it must follow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice. This is so even if the evidence, as actually adduced at trial, was capable of supporting a conviction.
[14] Justice Binnie in Lohrer underlined the high standard that must be met for an appellate court to intervene on the basis of misapprehension of evidence at para. 2:
Morrissey, it should be emphasized, describes a stringent standard. The misapprehension of evidence must go to the substance rather than to the detail. It must be material rather than peripheral to the reasoning of the trial judge. Once those hurdles are surmounted, there is the further hurdle (the test is expressed as conjunctive rather than disjunctive) that the errors thus identified must play an essential part not just in the narrative of the judgment but “in the reasoning process resulting in a conviction”.
[15] As is clear from these extracts, an appellant who advances misapprehension of evidence as a ground of appeal must show not only that the trial judge misapprehended some aspect or aspects of the evidence, but also that the misapprehension is on a matter of substance and not on a detail, and also that the misapprehension played an essential or central part in the reasoning process of the trial judge leading to conviction: see also R. v. Sinclair, [2011] 3 S.C.R. 3, 2011 SCC 40, at para. 56; R. v. Gill, 2019 ONCA 902 at para. 10.
[16] Finally, I note that the case law is clear that an appellate court considering misapprehension of evidence as a ground of appeal should not “dissect, parse, or microscopically examine the reasons of a trial judge”: per Abella J. in R. v. C.L.Y., [2008] 1 S.C.R. 5, 2008 SCC 2 at para. 11 (adopted by LeBel J. in the context of misapprehension of evidence in Sinclair at para. 54).
Analysis
[17] The case law set out above requires me to engage in a two stage analysis: First, did the trial judge misapprehend the evidence on a matter of substance; and second, did the misapprehension play an essential or central part in the reasoning process of the trial judge leading to conviction.
Did the trial judge misapprehend the evidence on a matter of substance?
[18] Having reviewed the trial record, and the reasons for judgment, I find that the trial judge misapprehended the evidence in stating that it was “clear” that the complainant “did not consent” to the earlier slap on the walk home. In order to explain the reasons that I make this finding, I will briefly review the complainant’s evidence about the earlier slap, and the trial judge’s reasons on the non-consent issue and the earlier slap.
[19] As I have noted above, the complainant testified that she was very intoxicated that evening by the time they left the bar. She testified that there were significant gaps in her memory, both of events on the walk home from the bar, and at her apartment. She testified that she had “flashes” or memory, but there were significant gaps. The gaps in her memory were clear from her evidence both in examination-in-chief, and in cross-examination.
[20] In relation to the earlier slap on the walk home to the apartment, the complainant’s evidence varied at different points in her testimony. In examination-in-chief, when she first described the slap on the walk home, she testified that as they were walking home, the Appellant turned her to face him, placed his hands on her shoulders, and asked, “how do you feel about hitting?” She could not recall her response to that question, aside from possibly saying “what?” The Appellant struck her with an open hand across her face. The time from when he asked how she felt about hitting to the slap was “very short”. She said the slap was strong, and made her stumble, but then the Appellant put his arm around her, and they continued walking back to her apartment (Transcript of June 25, 2018, pp. 16-17).
[21] Later, at the very end of the examination-in-chief, in response to a question from Crown counsel of whether she consented to “the hitting that took place that you’ve described and the injuries you received, did you consent to that?”[^2], the complainant responded, “no” (Transcript of June 25, 2018, p. 41).
[22] In cross-examination, the complainant confirmed that she did not remember her response to the Appellant asking her how she felt about hitting on the walk home (Transcript of June 25, 2018, pp. 50, 87-88). Later in the cross-examination, she agreed that she did not know whether she gave the Appellant permission to slap her on the walk home, and she agreed that saw was not sure if the slap on the walk home was consensual or not (Transcript of June 25, 2018, pp. 107-108).
[23] Before moving on to the relevant portions of the trial judge’s reasons, I note that there was other circumstantial evidence from which it was open to the trial judge to reach a finding of non-consent regarding the application of force that caused the thigh bruising. This evidence was summarized by the trial judge in her reasons for judgment (Reasons for Judgment, paras. 77-92, and103-119). And in my view, there is no question that the trial judge’s finding of non-consent to the application of force that caused the thigh bruising relied to a large extent on the body of other circumstantial evidence. However, in my view, the trial judge’s reasoning regarding non-consent also relied significantly on the misapprehension that the complainant’s evidence was “clear” that she “did not consent” to the earlier slap on the walk home.
[24] The trial judge’s reasons in relation to non-consent to the application of force that caused the thigh bruises are found at paragraphs 77-92, and 103-119 of her reasons. The trial judge began by summarizing the evidence in relation to the complainant’s injuries, and some of the complainant’s recollection of the Appellant applying force to her during the sexual encounter (Reasons for Judgment, paras. 77-81). The trial judge then said: “At this point, it is important to review some additional evidence” (Reasons for Judgment, para. 82). She then reviewed the Appellant’s evidence about a conversation about rough sex on the walk home from the bar, and the complainant’s evidence about the Appellant asking how she felt about hitting, and the slap on the walk home from the bar (Reasons for Judgment, paras. 83-92). In the course of reviewing the complainant’s evidence about the slap on the walk home, the trial judge stated: “She did not consent to this slap” (Reasons for Judgment, para. 87).
[25] The trial judge then considered her finding about whether the Appellant caused the thigh bruising, a finding which is not contested on appeal (Reasons for Judgment, paras. 93-103).
[26] The trial judge then considered the issue of non-consent at paragraphs 103-119 of her reasons. At paragraph 105, she noted that there was no direct evidence from the complainant about whether she consented to the application of force that caused the thigh bruises, due to her “inability to recall more than flashes or events”. The trial judge stated at paragraph 106 that the Crown had succeeded in convincing her, based on the totality of the circumstantial evidence, that the only reasonable inference was that the complainant did not consent to the application of force that caused the bruising on her thighs. The trial judge explained her reasons for that conclusion at paragraphs 107-119 of her reasons.
[27] At paragraphs 107 to 119 of her reasons, the trial judge explained a number of factors she relied on to draw the inference that the complainant did not consent to the application of force that caused the thigh bruises. Those factors were the following:
• That as a matter of common sense, most people do not enjoy being hit or slapped (para. 107);
• The complainant’s evidence that she did not have a preference for rough sex. Although the complainant also testified that in the past she had consented to rough sex, she said it was only in trusted relationships, where her partner had an interest in it. It was not her preference (para. 108);
• The trial judge did not accept the Appellant’s evidence regarding the discussion of rough sex (paras. 109-111);
• The trial judge accepted the complainant’s evidence that at the point immediately before her blackout in the bedroom started, she did not consent to being hit by the Appellant (para. 112);
• The trial judge found that the flashes of memory that the complainant had of the time in the bedroom did not include a memory that she consented to being hit or enjoyed being hit (paras. 113)
• That there was no direct evidence that the complainant consented to the application of force in the apartment (paras. 114-117). In the course of this portion of her reasons, the trial judge returned to the evidence about the slap on the walk home. In paragraph 116, the trial judge stated: “Her evidence was clear that she did not consent to this slap. I am inclined to believe that that slap happened in the manner described by [the complainant]; however, there is a possibility that she conflated that slap with slaps to her face that took place in the bedroom. What is significant is that she did not consent to the slap on the sidewalk; thus if it was conflated with the bedroom slaps there is an inference that she did not consent to those slaps. What is clear from the evidence is that her state of mind when she was slapped in the face by [the Appellant] was that she did not consent.” [underlining added]
• The evidence of the complainant’s state of mind of being scared after the Appellant left (para. 118)
[28] Considering the complainant’s evidence at various points in her testimony about the slap on the way home, and in the context of her evidence as a whole, I find that the trial judge misapprehended her evidence on this issue. The complainant’s evidence was not “clear” that she “did not consent” to the slap on the way home. The key paragraphs of the trial judge’s reasons that show the misapprehension of evidence are paragraphs 87 and 116.
[29] Based on the complainant’s evidence at trial, it was not clear that she did not consent to the slap on the walk home to her apartment. Early in the examination in chief she did not expressly say she did not consent. Rather she described the question being asked about whether she liked being hit, and then the slap happening very quickly, before she could really respond (I accept that it would be open to a trial judge to make a finding of non-consent based on this evidence). She also testified about significant gaps in her memory, both on the way back to the apartment, and in the apartment. At the end of the examination-in-chief she said she did not consent to the hitting that took place. In cross-examination, she said that she did not know if she gave the Appellant permission for the slap on the way home, and that she was not sure if it was consensual or not.
[30] I pause to note that I am not saying that the trial judge could not have made a factual finding based on the record at trial that the slap on the way home was not consensual. But in my view, and I address this below, that is not what the trial judge did in her reasons. The trial judge proceeded in her analysis based on the misapprehension that the complainant’s evidence was “clear” that she “did not consent” to the slap on the way home.
[31] It is important to be precise about what the effect was of the complainant’s evidence that she did not know if she gave permission for, or consented to, the slap on the walk to her apartment. I agree with counsel for the Respondent that it is not affirmative evidence that the complainant consented to the slap on the walk home. But I do not agree that it is “no evidence at all” (the Respondent relied on R. v. Cedeno, 2005 ONCJ 91[^3], for this proposition). Rather, the portions of the complainant’s evidence I have outlined above are evidence that she did not remember, one way or another, if she agreed to the slap on the way home. It is evidence of lack of memory. The problem is, that the effect of the trial judge’s misapprehension was to proceed as if the complainant only gave affirmative evidence that she did not consent to the slap on the way home. This is where, in my view, the misapprehension lies.
[32] The Respondent argues that the portions of the trial judges reasons at paragraphs 87 and 116 where the she refers to “clear” evidence that the complainant “did not consent” to the earlier slap are not statements of the evidence, but rather are findings of fact based on inferences from the whole of the evidence. I accept that it would have been open to the trial judge to draw the inference, based on the whole of the evidence, that the complainant did not consent to the earlier slap. But as I read the trial judge’s reasons, that is not what she was doing at paragraphs 87 and 116 of her reasons.
[33] Paragraph 87 is a review of evidence, not a process of drawing inferences. This is clear from the trial judge’s statement at paragraph 82 introducing that section, by saying: “At this point, it is important to review some additional evidence”. It is also clear from the content of paragraphs 83-91, which are a review of evidence, and not paragraphs which engage in inference drawing.
[34] In paragraph 116 (and 114-116 in general), the trial judge is considering inferences in relation to non-consent to the application of force in the bedroom. But her statements about the complainant’s evidence about the slap on the way home do not appear to me to be inferences, but rather refer to the complainant’s evidence being that she did not consent to the slap on the way home (“Her evidence was clear that she did not consent to this slap”. . . “What is significant is that she did not consent to the slap on the sidewalk”). Respectfully, that is a misapprehension of the complainant’s evidence.
[35] Counsel for the Respondent also notes that the trial judge did advert, at para. 111 of her reasons, to the complainant saying that it was possible she told the Appellant she liked hitting, when he asked her if she liked hitting (indeed, the trial judge made reference to this evidence at paragraph 87 as well). I take this reference in the trial judge’s reasons to refer to the complainant’s evidence on June 25, 2018, at pp. 87-88. The difficulty I see is that the evidence addressed at paragraph 111 is about a discussion about whether the complainant may have said she liked hitting (which would be circumstantial evidence in relation to consent). It is not evidence that directly addressed whether she may have consented to or given permission for the slap on the sidewalk (Transcript of June 25, 2018, pp. 106-108). It is the failure to advert to the latter body of evidence, and the trial judge’s statements that the complainant’s evidence was “clear” that she “did not consent” to the slap on the walk home, that are the crux of the misapprehension of evidence.
[36] I find that the misapprehension on this issue was not on a detail. Although the slap on the walk home was not alleged to be part of the actus reus of the assault causing bodily harm count (as it was not alleged that that slap caused bodily harm), and thus was elicited essentially as part of the narrative of events, in my view the misapprehension of evidence on this issue played a significant role in the trial judge’s reasoning process on the assault causing bodily harm count. The trial judge relied on the misapprehension of evidence that the complainant’s evidence was “clear” that she “did not consent” to the earlier slap in her analysis of whether the Crown had proven that the complainant did not consent to the hitting that caused the thigh bruises. I consider whether the trial judge’s reliance on the misapprehension was sufficiently central to her analysis of that issue to amount to a miscarriage of justice under the second branch of the analysis.
Did the Misapprehension play an essential or central part in the reasoning process of the trial judge leading to conviction?
[37] The Respondent argues, in the alternative, that if the trial judge did misapprehend the complainant’s evidence in relation to the earlier slap, it was not an essential part of the trial judge’s reasoning process in relation to proof of non-consent on the assault causing bodily harm count. The Respondent argues that any misapprehension of evidence about the earlier slap was only minimally related to the trial judge’s finding that that the complainant did not consent to the force that caused the bruises on her thighs. Respectfully, I disagree with the Respondent’s submission.
[38] It is clear from reviewing the trial judge’s reasons at paragraphs 77-92, and 103-119, that her assessment of the evidence and her analysis in relation to non-consent on the assault causing bodily harm count was a contextual one, based on a consideration of the totality of the evidence. This is, of course, exactly how triers of fact are supposed to assess evidence. However, the trial judge’s reasons are also clear that she relied on the misapprehended evidence – that the complainant’s evidence was “clear” that she “did not consent” to the earlier slap on the walk home – as part of her reasoning process in concluding that the Crown had proven beyond a reasonable doubt that the complainant did not consent to the later application of force that caused the bruising on her thighs.
[39] The question under the second branch of the analysis is whether the misapprehension was central or essential to the trial judge’s reasoning process in finding that the complainant did not consent to the application of force that caused the bruising on her thighs. If it was, there must be a new trial. If the trial judge’s reliance on the misapprehended evidence only played a small or unimportant role in the trial judge’s reasoning process, then I would not allow the appeal on this ground.
[40] I find that the misapprehension of evidence in relation to the complainant’s evidence being “clear” that she “did not consent” to the earlier slap was sufficiently central to the trial judge’s reasoning process in her finding that non-consent was proven on the assault causing bodily harm count that a new trial is required on this count. The trial judge referred repeatedly to the complainant’s non-consent to the earlier slap in her analysis of whether the Crown had proven non-consent to the application of force that caused the bruises on her thighs. But it is not the number of references to the misapprehended evidence that leads me to conclude that the misapprehended evidence played a central role in the trial judge’s reasoning process.
[41] Rather, as I read the trial judge’s reasons, the non-consent to the earlier slap played a significant role in her analysis of whether non-consent to the later application of force that caused the thigh bruising was proven beyond a reasonable doubt. The trial judge included the misapprehended fact in the “additional evidence” that in her view it was “important to review” (Reasons for Judgment, paras. 82, 87). The misapprehended evidence played a significant role in the trial judge’s conclusion that it was implausible that the complainant would have consented to being hit in the bedroom – because, based on the misapprehension, the trial judge proceeded on the basis that the complainant’s evidence was “clear” that she “did not consent” to the earlier slap.
[42] I acknowledge that the misapprehended evidence is not the only factor in the trial judge’s analysis of non-consent in relation to the assault causing bodily harm count. Nor is it the most important factor[^4]. But, as I read her reasons, the misapprehension that the complainant’s evidence was “clear” that she “did not consent” to the earlier slap on the walk home was a significant factor in the trial judge’s analysis of why she found the Crown had proven non-consent to the application of force that caused the bruising on the complainant’s thighs.
[43] I want to address four specific arguments the Respondent made as to why the misapprehension was not a central or essential part of the trial judge’s reasoning and did not lead to a miscarriage of justice.
[44] First, the Respondent argues that if there was a misapprehension about the complainant’s evidence about the earlier slap, it was one factor out of eight that the trial judge relied on in concluding that there was sufficient circumstantial evidence to prove non-consent to the force that caused the bruises to the complainant’s thighs beyond a reasonable doubt. The Respondent argues that even removing the misapprehended evidence from the analysis, the trial judge’s finding of non-consent was “not unreasonable.”
[45] I underline that the Appellant is not arguing that the finding of non-consent to the force that caused the thigh bruising was unreasonable. I accept that it was open to the trial judge to reach a conclusion of non-consent based on the circumstantial evidence in this case. That is not the issue in this appeal. The issue is whether the trial judge reached her conclusion on non-consent based in an essential or central way on the misapprehended evidence.
[46] Further, I accept, as I have outlined above, that the trial judge relied on a number of factors together and contextually in coming to her finding of non-consent. The Respondent characterizes it as eight factors; the defence as five or six factors. In my own review above at paragraph 27 of these reasons, I characterize it was seven factors. The specific number does not matter, and depends on how one groups related factors together.
[47] But in my view, it would not be appropriate to treat the analysis of whether the misapprehension of evidence was central or essential to the trial judge’s reasoning process by mathematically calculating what fraction of the factors relied on by the trial judge the misapprehension constituted. Rather, in my view an appellate court must consider the whole of the reasons, and assess within that whole whether the misapprehended evidence was significant in the trial judge’s reasoning process. The assessment is qualitative, not quantitative. For reasons I have explained above, in my view, the misapprehended evidence in this case played a significant and central role in the trial judge’s reasoning on her conclusion about non-consent.
[48] Second, the Respondent argues that that the Appellant’s evidence was not that the complainant consented either to the slap on the way home, or to the force that caused the bruising. Rather, his evidence was that he denied that he slapped the complainant on the way home, and he denied that he engaged in any conduct during the sexual encounter that could have led to the bruises on her lower body (although admitted that slapped her twice during the sexual interaction, and may have caused the bruises to her face and collarbone). I take the point of the Respondent’s argument on this issue to be that there was no affirmative evidence that the complainant consented to the earlier slap or consented to the application of force that caused the bruises on her thighs.
[49] The Respondent is correct that this was the Appellant’s evidence on these issues at trial (see Transcript of June 27, 2018, pp. 13, 61-63). Thus, the Appellant’s evidence did not provide affirmative evidence of consent either to the slap on the way home, or to the application of force that caused the bruises on the complainant’ thighs. But the Respondent’s evidence on these issues did not relieve the Crown of its burden to prove beyond a reasonable doubt that the complainant did not consent to the application of force that caused the bruises on her thighs. As I have explained, in my view, the trial judge’s reasoning process in concluding that the Crown had proven non-consent to the force that caused the bruises on the complainant’s thighs relied significantly on a misapprehension of the complainant’s evidence
[50] Sometimes, in a case involving an assault or sexual assault, where a defendant denies that the act at issue even happened, for strategic or other reasons, defence counsel at trial may take the position that if the trial judge finds that the act did happen, proof of non-consent is not in issue. In some cases, the nature of the act alleged leads counsel to make this choice. But that did not happen in this case.
[51] Although in his evidence the Appellant denied that he applied any force that caused the bruises on the complainant’s thighs, it was also clear, from the cross-examination of the complainant, and the submissions of counsel, that the defence was not conceding that if the act was proven, then non-consent as part of the actus reus would follow. Defence counsel clearly submitted before the trial judge that even if the trial judge did not believe the Appellant’s evidence or was not left with a reasonable doubt from the Appellant’s evidence, it was the defence position that there was no reliable evidence of what happened – i.e., the complainant’s evidence was not sufficient to sustain a conviction (Transcript of July 23, 2018, at pp. 5-6, 13, 20-23, pp. 26-46, 63-65). All of which is to say that I do not agree with the Respondent’s submission that the misapprehension was not significant to the trial judge’s reasoning process because the Appellant did not give evidence that the complainant consented either to the earlier slap on the walk home, or to the application of force that caused the bruises on her thighs.
[52] Third, the Respondent argues that the Appellant’s own evidence was a sufficient basis for the trial judge to find that he was reckless in relation to consent to the application of force that caused the bruises on the complainant’s legs.
[53] In my view the Respondent’s argument in this respect treats the mens rea element of knowledge (including recklessness) of non-consent as necessarily the same as whether or not the actus reus of actual non-consent on the part of the complainant has been proven. But that is not necessarily so.
[54] The law is well-established that the actus reus of non-consent is based only on the complainant’s state of mind. By contrast, the mens rea element of knowledge of non-consent is based on the defendant’s state of mind: R. v. Barton: 2019 SCC 33 at paras. 87-90.[^5] The trial judge’s finding in this case that the Appellant was reckless as to non-consent in relation to the conduct that caused the thigh bruises is not challenged. But it relates only to the mens rea element of the offence. The ground of appeal raised by the Appellant in relation to misapprehension of evidence relates to the actus reus of the offence (the complainant’s state of mind), not to the mens rea. It is possible, as a matter of theory, and on the evidence before the trial judge, to find that a defendant was reckless as to consent, but that the Crown has not proven beyond a reasonable doubt that the complainant did not consent. Thus, in my view, the trial judge’s unchallenged finding that the Appellant was reckless as to consent is not an answer to the Appellant’s misapprehension of evidence argument in relation to the actus reus element of proof of non-consent on the part of the complainant
[55] Fourth, the Respondent argues that the Appellant in his evidence conceded that the complainant did not consent to him doing anything that could cause her visible injuries or bruising – that is, did not consent to the causing of bodily harm (Transcript of July 27, 2018, p. 55), and thus on his own evidence there was not consent. In my view, there are two flaws with this argument. The first is that the Appellant’s evidence must be read in context. At page 55 of his cross-examination, right after he agreed that the complainant did not consent to “that you could cause her visible injuries”, and agreed with Crown counsel’s suggestion that “[the complainant] never did anything to lead you to the possibility that she was okay with you bruising her face”, the Appellant said, “other than asking me to slap her”. A fair reading of this evidence in context is that the Appellant said that the complainant asked him to slap her, but agreed that she did not say anything agreeing to the infliction of bodily harm.
[56] This leads me to the second flaw. In many trials, as a result of R. v. Jobidon, [1991] 2 S.C.R. 714, 1991 CanLII 77, if bodily harm is caused, the nature of the bodily harm allows an inference of intention to cause bodily harm, and as a result, consent is not a defence, because a person cannot consent to the intentional infliction of bodily harm. However, that was not true in this trial. As I have outlined above, Crown counsel at trial (not counsel on appeal) did not allege that the Appellant intended to cause bodily harm to the complainant. Thus, there was no issue raised at trial about whether the application of force that caused to the bruising on the complainant’s thighs was an act that as a matter of law a person could not consent to pursuant to Jobidon (see Reasons for Judgment at para. 103; and Transcript of July 23, 2018, Submissions, at pp. 4-5). As it was put in a brief submission at the start of closing submissions, the law in this province is that for Jobidon to apply to vitiate consent, bodily harm must be both caused and intended: R. v. Zhao, 2013 ONCA 293. In this case, the Crown did not allege that the bodily harm was intended and that it vitiated consent.
[57] I want to be clear that in reaching the conclusion that the trial judge misapprehended the evidence in relation to the earlier slap on the walk home, and that it played a central role in her reasoning process, I do not base my conclusion on any purported inconsistency between the trial judge’s finding that non-consent in relation to the sexual assault count had not been proven beyond a reasonable doubt, and her finding that non-consent was proven beyond a reasonable doubt in relation to the assault causing bodily harm count. As I have noted, the Appellant has not raised inconsistent verdicts as a ground of appeal. And in my view, there would be nothing inconsistent on the record before the trial judge in reaching different conclusions about non-consent in relation to the two counts. The law is quite clear that consent must be to each application of force: R. v. Barton: 2019 SCC 33 at para. 88. Thus, a finding that non-consent was proven with respect to one application of force, but not for another, would not be inconsistent, at least on the record in this case.
[58] In summary, using the language of Justice LeBel in Sinclair at para. 56, in this case, striking from the trial judge’s reasons her references to the “clear” evidence of the complainant that she “did not consent” to the earlier slap, would leave the trial judge’s reasoning on non-consent regarding the application of force that caused the thigh bruises on unsteady ground. If the consideration of the misapprehended evidence were removed from her reasoning process, the trial judge may have come to the same conclusion, she may not have. In my view, it would have been open to the trial judge, based on the record before her, to have concluded that non-consent to the application of force that caused the thigh bruises was proven beyond a reasonable doubt, without reference to the misapprehended evidence that the complainant’s evidence was “clear” that she did not consent to the earlier slap. But that is not how the trial judge reached her conclusion on non-consent to the application of force that caused the thigh bruising. She relied on the misapprehended evidence that the complainant’s evidence was “clear” that she “did not consent” to the earlier slap.
[59] In my view, in light of trial judge’s significant reliance on the misapprehension that the complainant’s evidence was “clear” that she “did not consent” to the earlier slap in reaching the conclusion that it was proven beyond a reasonable doubt that the complainant did not consent to the later application of force that caused the thigh bruising, the Appellant has satisfied me that the misapprehension of evidence led to a miscarriage of justice. A new trial is required.
[60] The appeal is allowed. The conviction for assault causing bodily harm is set aside, and a new trial ordered on that count.
[61] I direct that the Appellant appear in the Ontario Court of Justice, 60 Queen Street West, on February 26, 2020, in courtroom #111, at 9:00 a.m., to set a new trial date.
[62] I thank both counsel for their helpful and focussed submissions.
Justice J. Copeland
Released: January 29, 2020
COURT FILE NO.: CR-19-10000018-00AP
DATE: 20200129
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
SAMUEL MARRELLO
Appellant
REASONS FOR JUDGMENTON SUMMARY CONVICTION APPEAL
Justice J. Copeland
Released: January 29, 2020
[^1]: In these reasons I refer to the conduct that led to the bruises on the complainant’s thighs as an “application of force” that caused the bruising. However, the complainant’s memory of how the bruises happened was incomplete. She testified that she had flashes of memory, that the Appellant hit her all over, that she was roughly handled by the Appellant, and that she remembered blunt force strikes to her face and legs. Although the complainant could not say with precision how the bruises were caused, the trial judge found as a fact that the bruises were caused by the actions of the Appellant. That finding is not challenged (Reasons for Judgment at paras. 93-102).
[^2]: I read this question as encompassing both the application of force in the apartment, and the earlier slap on the walk home. But the question is not entirely clear.
[^3]: Cedeno is distinguishable on its facts from this case, because in Cedeno the trial judge found that in addition to the complainant not having consented, the Crown had proven beyond a reasonable doubt that he complainant lacked the capacity to consent. Indeed, his primary finding was that the complainant lacked capacity to consent. It was in that context of the finding that the complainant was so intoxicated that she lacked the capacity to consent that the trial judge in Cedeno held that it was speculative to infer from her lack of memory that she may at some point have gathered enough capacity to consent. As the trial judge evocatively put it in Cedeno: “The scenario of the complainant somehow managing to muster up sufficient mental capacity to give consent at some unknown point in the evening – a sort of island of acuity in a sea of oblivion – is entirely without any foundation in the evidence.” By contrast, in this case, the trial judge did not accept the Crown’s submission at trial that the evidence proved beyond a reasonable doubt that the complainant lacked the capacity to consent (Reasons for Judgment at paras. 54-75). The trial judge’s finding that lack of capacity to consent was not proven has not been challenged.
[^4]: Because the trial judge’s analysis was contextual and based on the totality of the evidence, it is difficult to say that any of the factors she relied on was more important than any other factor. In my view, each played a significant role in her reasoning process.
[^5]: Barton was considering the actus reus and mens rea in the context of a sexual assault. However, on this issue the same analysis would apply to a non-sexual assault offence: see, for example, Justice Watt’s model instruction on the elements of assault causing bodily harm.