Court File and Parties

Court File No.: CR-20-18-AP Date: February 25, 2021 Superior Court of Justice – Ontario

Re: Her Majesty the Queen And: Joshua William Bennett

Before: Justice Patrick Hurley

Counsel: Holly Chiavetti, for the Crown Howard L. Krongold, for the Appellant

Heard: January 13, 2021

Reasons for Decision

[1] The appellant, Joshua Bennett, was found guilty of sexual assault and assault by Mr. Justice Larry O’Brien of the Ontario Court of Justice at Kingston on August 8, 2019. On March 20, 2020, Justice O’Brien sentenced him to 9 months in jail on the sexual assault conviction and 30 days concurrent for the assault to be followed by two years probation on specified terms. He also made the usual ancillary orders.

[2] Mr. Bennett appeals both conviction and sentence. He submits that the trial judge made the following legal errors:

i. He relied upon stereotypical assumptions about female behaviour as a basis for rejecting Mr. Bennett’s evidence.

ii. He failed to stay the assault conviction pursuant to the Kienapple principle (Kienapple v. R., [1975] 1 S.C.R. 729).

iii. He misapprehended the evidence with respect to the sexual assault which should lead to a reduction in the sentence.

The conviction appeal

[3] On the evening of July 29, 2018, A.E. was the designated driver for a group of friends and acquaintances who attended a field party. She drove people, including Mr. Bennett, to and from the party during the evening. At about 12:40 a.m., she picked up Mr. Bennett and D.S. at the party, intending to drop them off at the homes of two of their friends. Both were intoxicated; Ms. E. was sober. Mr. Bennett sat in the front passenger seat. Ms. E. was a year younger than him and they had gone to high school together.

[4] While in the driveway at the house where she dropped off Mr. S., Mr. Bennett took her hand and put it on his crotch area. She pulled her hand away. After Mr. S. left the vehicle, Mr. Bennett pulled his shorts down, exposing his penis and put her hand on it as she backed out of the driveway. She pulled her hand away. He grabbed her hair and pulled her head towards his penis. She told him to leave her alone. He asked her to masturbate him and she refused.

[5] As she drove Mr. Bennett to his destination, which was a short distance away, he once more grabbed her hair and pulled her head down to his penis. She continued to physically resist and told him to stop. She began crying and repeatedly told him to get out of the car. He grabbed her head and forced her to perform oral sex on him. After this occurred, she said that she was going to call the police. He got out of the car and she drove away. She was distraught and called a friend who met her at a nearby baseball field.

[6] The next day, Mr. Bennett sent her, by Snapchat, a photograph of himself shirtless which depicted scratches and bruising in his collarbone area. In this message and texts he exchanged with her, he wrote that he was “really sorry” about his behavior. He did not deny Ms. E.’s complaint in her texts that he had assaulted her and told her to fellate him.

[7] At trial, Mr. Bennett denied mistreating Ms. E. in any way. He claimed that once they arrived at his friend’s house, Ms. E., suddenly, and without saying anything, undid his pants, masturbated him and then performed oral sex on him for about 20 minutes until he ejaculated in her mouth. This upset her and she started to cry. That was the reason for his apologetic messages the next day.

[8] The appellant acknowledges that the trial judge’s reasons are thoughtful and comprehensive, that he accurately reviewed the evidence and correctly applied the law. However, he contends that Justice O’Brien fell into error when he relied upon stereotypical assumptions about female behaviour in finding Mr. Bennett guilty of the charges.

[9] He focuses his challenge on the following passage from the trial judge’s reasons:

“I find it stretches credulity that Mr. Bennett, who didn’t consider Ms. Ewart a friend, nor had they hung out before, was not romantically interested in, and with only small talk and music playing, without any flirting or discussion beforehand, was the recipient of being masturbated by the sober designated driver and acquaintance with no previous flirtation, without any words being spoken between them, to be followed by 20 minutes of oral sex on him without any words being exchanged by either of them until he ejaculated into her mouth.”

[10] Reliance upon stereotypical views about how a victim of sexual assault would behave is an error of law: R. v. A.B.A., 2019 ONCA 124 at para. 5. This applies not only to the discredited myths about how a complainant would act before, during and after a sexual assault but also assumptions about female behavior as a basis for accepting the complainant’s testimony or rejecting the accused’s: R. v. Cepic, 2019 ONCA 541 at paras. 13-15.

[11] During his able submissions, Mr. Krongold observed that this ground of appeal has become a nuanced area of the law. I agree. It is difficult to reconcile some of the appellate decisions across the country; what appears to be a conclusion drawn from a common sense interpretation of a witness’s actions is revealed, upon appellate scrutiny, to be the product of a stereotypical assumption on the trial judge’s part.

[12] He argues that Justice O’Brien crossed the line, straying into impermissible stereotypical reasoning by presuming that Ms. E. would have been more “diffident”; would not have engaged in consensual sexual activity absent some flirtation between her and Mr. Bennett; and would not have been the sexual aggressor in the circumstances.

[13] This is, in my view, too narrow a reading, not only of the impugned passage but also Justice O’Brien’s reasons as a whole. He did not make any generalization about how people would be expected to behave in the circumstances or advert to a presupposition based on a stereotype to support his conclusions about the credibility of Ms. E. or Mr. Bennett.

[14] I recognize that a trial judge could make assumptions about human behaviour without explicitly stating so but language matters. In R. v. J.L., 2018 ONCA 756, Pepall, J. A. opined at paras. 46 – 47:

The second basis for the trial judge’s conclusion depended on an assumption about what a “young woman” will and will not do. As mentioned, the trial judge said: “I cannot accept that a young woman would go outside wearing a dress in mid-December, lie down in dirt, gravel and wet grass and engage in consensual sexual activity.” In other words, the trial judge could not accept, or even have a doubt arising from, the appellant’s evidence because the trial judge was of the view that, young women would not do what the complainant was said to have consensually done. There is a real danger that this reasoning contributed to the trial judge’s assessment of whether, on the whole of the evidence, the Crown had proven the appellant’s guilt beyond a reasonable doubt. I do not share the trial judge’s view that it can be taken as a fact that no young woman would consensually engage in the alleged behaviour.

Although trial judges must exercise common sense when making credibility findings and resolving what actually happened in a case, relying upon assumptions about what young women will and will not do may impact a judge’s objective deliberation of the reasonable doubt standard. In R. v. Mah, 2002 NSCA 99, [2002] N.S.J. No. 349, at para. 75, Cromwell J.A. (as he then was) stated: “Assumptions about the ways of the world appear to have contributed to the judge's failure to give proper consideration to the question of whether, on the whole of the evidence, he had a reasonable doubt”. Here, by relying on an assumption regarding what young women will and will not do, as if it were a fact, and in light of the centrality of that assumption to the trial judge’s reasoning, his finding of guilt was tainted by error.

[15] See also the decision of my colleague, London-Weinstein, J. in Phelps v. Her Majesty the Queen, 2020 ONSC 5228 at para. 23.

[16] Here, Justice O’Brien was faced with sharply divergent accounts of what happened between Ms. E. and Mr. Bennett when they were alone in the car. He carefully reviewed the evidence and ultimately concluded that he believed Ms. E. and did not believe Mr. Bennett. His decision was not based on any preconceived beliefs about female deportment. To borrow from Justice Paciocco in R. v. F.B.P., 2019 ONCA 157, his findings were “grounded in common sense propositions about the likelihood of behaviour in all of the circumstances” (para. 9).

[17] In addition to Ms. E.’s testimony, which he found to be credible and reliable, there was circumstantial evidence which he took into account and gave proper weight to – her emotional state immediately after the sexual assault and the electronic messages between Mr. Bennett and her later that day.

[18] And in reaching his conclusion that Mr. Bennett was guilty, he instructed himself that the test in a criminal case is not which side to believe but whether, on the totality of the evidence, the Crown has proven each essential element of the offences beyond a reasonable doubt.

[19] This ground of appeal fails.

The application of the Kienapple principle

[20] This issue was not argued before the trial judge nor was there any explanation for the failure to do so. Neither side has taken the position that that I should not consider its application because of the general principle that new issues should not be raised for the first time on appeal.

[21] The law is well settled. As stated by the Court in R. v. Bienvenue, 2016 ONCA 865 at para. 9:

The Kienapple principle provides that where the same transaction gives rise to two or more convictions on offences with substantially the same elements, the accused should be convicted only of the more serious offence. It is designed to protect against undue exercise by the Crown of its power to prosecute and punish. It applies where there is both a factual and a legal nexus between the offences. The requisite factual nexus is established if the charges arise out of the same transaction. The legal nexus is established if the offences constitute a single criminal wrong.

[22] Sexual assault is an inherently violent offence. As Justice O’Brien noted in his decision, the actus reus requires proof of nonconsensual touching. I agree with the Crown’s submission that the overlap between sexual assault and assault is not such that it invariably prohibits multiple convictions but on the evidence before the trial judge, it appears that all of the touching was of a sexual nature because it immediately preceded the sexual assault and was done for the purpose of forcing Ms. E. to commit a sexual act upon Mr. Bennett. Justice O’Brien did not explain why he also found him guilty of assault. The concurrent sentence indicates that he considered all of the physical contact part and parcel of the same transaction.

[23] This is a close case. If the issue had been raised before Justice O’Brien, he might very well have concluded that the count of assault should be stayed. Or, if he thought it should not, he would have explained the reasons for the conviction and concurrent sentence.

[24] With some reluctance, I have been persuaded by Mr. Krongold that I can revisit this issue on appeal. I conclude that the conviction for assault should be stayed because it was, in effect, a continuation of the sexual assault and Justice O’Brien would have likely reached the same conclusion had it been argued before him.

The sentence appeal

[25] Mr. Bennett seeks a reduction of three months because, according to him, Justice O’Brien misapprehended the evidence on an important aggravating factor – that Mr. Bennett ejaculated in Ms. E’s mouth. In accepting her evidence and rejecting Mr. Bennett’s, the trial judge must have found, as a fact, that Mr. Bennett did not do so when he convicted him but, when he sentenced him, concluded that he did.

[26] In his reasons for conviction, Justice O’Brien did not state, one way or the other, that Ms. E. agreed with Mr. Bennett’s assertion that he had ejaculated. He did note that she denied the suggestion put to her during cross-examination that, when Mr. Bennett wrote that he was “really sorry” in his messages that day, he was referring to his contrition for ejaculating in her mouth.

[27] In his reasons for sentence, Justice O’Brien referred to the mitigating and aggravating circumstances and reviewed the case law presented to him. He set out the statutory principles. He noted the importance of restraint, particularly for first-time offenders. He did not expressly state that the purported ejaculation was a factor in the sentence nor can it be inferred from his reasons that he increased the length of the sentence because of it.

[28] An appellate court may only interfere with a sentence where there is an error in principle, a failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigating factor or the sentence is demonstrably unfit. It must also be established that the alleged error had an impact on the sentence that was imposed: R. v. Lacasse, 2015 SCC 64.

[29] I find that there was no error made by Justice O’Brien and, even if the alleged misapprehension of evidence occurred, it did not have any impact on the sentence.

Disposition

[30] The appeal with respect to the conviction for sexual assault and sentence is dismissed. The appeal with respect to the conviction for assault is allowed and it shall be stayed.

Hurley, J. Released: February 25, 2021