COURT FILE NO.: SCA(P) 1976-19
DATE: 2021 12 29
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL
B E T W E E N:
HER MAJESTY THE QUEEN
Sarah Burton, for the Crown Respondent
Respondent
- and -
LEMAR JARAAR
Ahmad Karzai, for the Appellant
Appellant
HEARD: October 1, 2021
REASONS FOR JUDGMENT
[On Appeal from the Reasons for Judgment, dated September 12, 2019 of Justice Richard A. Humphrey]
J.M. Woollcombe J.
A. Overview
[1] The appellant, Lemar Jaraar, was charged with one count of sexual assault alleged to have occurred on December 24, 2017. The Crown alleged that while giving a massage to a first time client, the appellant, a registered massage therapist, sexually assaulted her. More specifically, it was alleged that the appellant touched the complainant’s breasts, rubbed her buttocks and attempted to touch her vagina over her clothes and was grinding her hips into the massage bed for a sexual purpose. The Crown submitted that the complainant did not consent and that the appellant knew that she did not consent. It was the defence position that all sexual activity between them was consensual or, in the alternative, that he held an honest, mistaken belief that she had communicated her consent.
[2] After a trial over September 9, 10 and 11, 2019, the appellant was found guilty by the trial judge in written Reasons for Judgment released on September 12, 2019. He appeals his conviction.
B. Summary of Relevant Facts
[3] A short summary of the facts is needed to put the arguments advanced on appeal into their proper context.
[4] In support of its case, the Crown called two witnesses: the complainant, K.S. and her husband.
[5] The complainant testified that during the massage, the appellant put his hands over her breasts, touching her nipples. She immediately said “stop” and asked him what he was doing. She said that she told him that she was married with three kids and that he could lose his job for doing that, to which he responded, “I know”. She said that he continued, running his hands down over her pants and trying to put them further down over her bum and over her crotch area. She described him as rubbing up and down. She believed he was trying to get to her vagina. This touching was over her clothes. She told him to stop. The complainant said that she did not want the appellant touching her crotch.
[6] While it was suggested to the complainant that she had been moaning and that he had said to her that he liked the way she moaned, she denied doing so. She agreed that the back massage had been feeling really good. She denied that she had been grinding her hips against the table during the massage.
[7] The Crown introduced text messages between the complainant her and the appellant after the alleged assault. The Crown’s position was that in the messages the appellant effectively apologized for having sexually assaulted her.
[8] The complainant’s husband was not present at the massage. He testified about the complainant’s demeanour after the alleged incident and about attempts to contact the appellant, including through text messages, afterwards.
[9] The defence position was that the sexual activity during the massage was consensual.
[10] The appellant testified that during the massage, the complainant moaned and was grinding her hips, which caused him to become aroused and to have an erection. He described things as “heated” between them and said that as he continued the massage, the complainant was enjoying it. The appellant agreed that he touched the complainant’s breast in a sexual manner that was not part of the massage. Asked if there was any other sexual touching that was not massage therapy touching, the appellant testified that he had shaken the complainant’s hips. He had one hand on each hip and was grinding them into the table. He agreed that this was not something he had learned in his training and said that as he did it, the complainant moaned even louder. His belief that she liked it was as a result of what he said were the noises she made and her body movements. The appellant said that the complainant never asked him to stop and never said she wanted to leave. The massage lasted a little over an hour.
[11] The appellant’s position was that the text messages before the court were not complete and that the complainant had either deleted or not provided other messages that assisted him. He also sought to explain what might appear to be inculpatory things that he had said in the texts. For example, he said that when he had been telling her that he was sorry, he meant that he was sorry for having become aroused with an erection, and promised never to do so again, not that he was sorry about what he had done.
B. The trial judge’s reasons
[12] In his reasons, the trial judge thoroughly reviewed the evidence of the witnesses, setting out a detailed, chronological summary of their evidence in chief, cross-examination and re-examination. This portion of the judgment took about 9 and one half of the 13 page judgment. The trial judge then briefly reviewed the elements of the offence of sexual assault and of the defence of mistaken belief in communicated consent set out in s. 273.2 of the Code.
[13] Beginning at paragraph 60 at page 11, the trial judge began his analysis of this case. In the course of that analysis, before concluding that the Crown had had proven the appellant’s guilt beyond a reasonable doubt, the trial judge found:
• That the appellant had acknowledged having touched the complainant’s breast and having manipulated her hips for a sexual purpose;
• That the appellant’s belief in the complainant’s consent came from evidence that she had been moaning and grinding her hips on the table, both of which she had denied;
• That the appellant “made no reasonable effort to ascertain whether she was consenting to the touching” because the touching occurred in a professional massage therapy session where the appellant knew he should not ask for her consent to sexual activity and should not touch her;
• That even if the sounds made by the complainant mimicked those of person engaged in sexual activity, in the context, where the appellant was professionally engaged with a person who was a stranger to him, he should have taken further steps to ensure that the complainant was consenting;
• That the complainant did not “over embellish her version of events”, that discrepancies in her evidence were mostly concerned with events that took place after the alleged assault, that she was consistent about the assault and that her evidence was for the most part consistent with what she had said in her police statement;
• That the appellant appeared to downplay and explain away his actions when confronted by the evidence of the complainant and in his text messages; and
• That the events took place as stated by the complainant.
[14] Ultimately, the trial judge was satisfied that the Crown had proven the appellant’s guilt beyond a reasonable doubt.
C. The Arguments on Appeal
[15] In his factum, the appellant advanced the following grounds of appeal, all really arising from the submission that the trial judge provided minimal analysis as to how he arrived at his decision:
• The trial judge misapprehended the evidence;
• The trial judge failed to address deficiencies in the complainant’s evidence, especially in view of the defence theory of the case;
• The trial judge erred in finding the complainant credible because she did not “over embellish” her version of events;
• The reasons for judgment provide insufficient legal analysis; and
• The trial judge erred in his R. v. W.(D.) analysis.
[16] During the oral argument of the appeal, while still pursuing these arguments, the appellant’s focus was really on an overall submission that the trial judge failed to meaningfully deal with the real issues he had to decide. The appellant argues that the trial judge failed to address many of the arguments advanced at trial respecting why the complainant was not credible. Related to this is the appellant’s position that the trial judge made legal errors in the analysis that he did conduct. Further, the appellant says that the trial judge never analyzed his evidence or explained why it did not leave him with a reasonable doubt.
D. Analysis
[17] In R. v. G.F., 2021 SCC 20, the Supreme Court of Canada re-stated, at paras. 69-71, the manner in which a reviewing court is to assess claims that a trial judge’s reasons are insufficient:
69 This Court has repeatedly and consistently emphasized the importance of a functional and contextual reading of a trial judge's reasons when those reasons are alleged to be insufficient: Sheppard, at paras. 28-33 and 53; R. v. Gagnon 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 19; Hill v. Hamilton-Wentworth Regional Police Services Board 2007 SCC 41, [2007] 3 S.C.R. 129, at para. 101; R. v. Dinardo 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 25; R. v. R.E.M. 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 15; R. v. Laboucan 2010 SCC 12, [2010] 1 S.C.R. 397, at para. 16; R. v. Vuradin 2013 SCC 38, [2013] 2 S.C.R. 639, at paras. 10, 15 and 19; R. v. Villaroman 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 15; R. v. Chung 2020 SCC 8, at paras. 13 and 33. Appellate courts must not finely parse the trial judge's reasons in a search for error: Chung, at paras. 13 and 33. Their task is much narrower: they must assess whether the reasons, read in context and as a whole, in light of the live issues at trial, explain what the trial judge decided and why they decided that way in a manner that permits effective appellate review. As McLachlin C.J. put it in R.E.M., "The foundations of the judge's decision must be discernable, when looked at in the context of the evidence, the submissions of counsel and the history of how the trial unfolded": para. 17. And as Charron J. stated in Dinardo, "the inquiry into the sufficiency of the reasons should be directed at whether the reasons respond to the case's live issues": para. 31.
70 This Court has also emphasized the importance of reviewing the record when assessing the sufficiency of a trial judge's reasons. This is because "bad reasons" are not an independent ground of appeal. If the trial reasons do not explain the "what" and the "why", but the answers to those questions are clear in the record, there will be no error: R.E.M., at paras. 38-40; Sheppard, at paras. 46 and 55.
71 The reasons must be both factually sufficient and legally sufficient. Factual sufficiency is concerned with what the trial judge decided and why: Sheppard, at para. 55. Factual sufficiency is ordinarily a very low bar, especially with the ability to review the record. Even if the trial judge expresses themselves poorly, an appellate court that understands the "what" and the "why" from the record may explain the factual basis of the finding to the aggrieved party: para. 52. It will be a very rare case where neither the aggrieved party nor the appellate court can understand the factual basis of the trial judge's findings: paras. 50 and 52.
[18] As the trial judge recognized, there was no issue that the appellant had, in the course of the massage, both been aroused sexually and touched the complainant in a sexual manner. There were, therefore, two issues to be decided: first, had the complainant consented to the sexual activity and, second, if she had not, had the Crown disproven that the appellant had a mistaken belief in communicated consent.
[19] In determining these issues, the trial judge had conflicting versions as to what happened in the massage room. He had to make credibility findings about the complainant and the appellant and had to explain why he did or did not find that the Crown had proven an absence of consent and that the defence of mistaken belief in communicated consent failed.
[20] Most of the judgement consists of a detailed summary of the evidence of the witnesses at trial in sequential order. Hourigan J.A. recently observed that while there is nothing impermissible in writing reasons this way, it is often problematic because “a detailed factual recitation is not a substitute for considered analysis of the issues”: Champous v. Jefremova, 2021 ONCA 92 at para. 21. When, as here, reasons predominantly contain a detailed summary of the evidence, there is a real risk that the analysis that follows is more conclusory than analytic. See also: Welton v. United Lands Corporation Ltd., 2020 ONCA 322 at paras. 56-60.
[21] In my respectful view, while the trial judge provided an accurate factual summary of the evidence in the case, he failed to conduct the necessary analysis of the evidence and to explain how he had resolved the critical issues.
The trial judge’s analysis respecting the complainant’s credibility
[22] I turn first to how the trial judge resolved the central issue of the complainant’s credibility and the reliability of her evidence.
[23] The appellant correctly acknowledges that the trial judge did not have to address every inconsistency in the complainant’s evidence or every argument advanced by the defence. He submits, however, that the trial judge was required to do better than he did in explaining how he had resolved the most important areas of concern, several of which he argues were significant and should have led the trial judge to have difficulties in accepting the complainant’s evidence.
[24] In my view, it was entirely open on this record for the trial judge to find that the complainant was credible and that she had not consented to the sexual activity during the massage. The problem is that the trial judge’s reasons for reaching these conclusions are lacking. the trial judge failed to address and resolve important concerns raised about the complainant’s evidence. To the extent that the trial judge provided reasons for finding the complainant believable, I think he fell into legal error, both because he used her police statement to bolster her credibility and because he relied on the absence of her embellishing to enhance her credibility. Considering these errors cumulatively, I am, unfortunately, persuaded that the verdict must be set aside.
[25] To begin, I observe that the trial judge never made an explicit finding that the complainant did not, subjectively, consent to the sexual activity. Such a finding was dependant on accepting the complainant’s evidence about what happened in the massage room and required an analysis as to why her evidence was credible. Counsel for the appellant accepts that the trial judge must have implicitly found that the complainant did not consent. This is a fair concession, as the trial judge seems to have then gone on to consider the defence of mistaken belief in communicated consent, a step he would never have reached had he not been satisfied that she did not consent.
[26] One of the appellant’s complaints is about the trial judge’s failure to resolve the alleged inconsistency between the complainant’s evidence that she was dizzy and not well after leaving the massage and the evidence on the video of the reception area that she appeared to be smiling and in conversation with the receptionist. The trial judge recognized, at paragraph 67 of his reasons, that there appeared to be an inconsistency between the complainant’s evidence and the video.
[27] To the extent he resolved this issue, the trial judge seems to have had two approaches. First, he found at paragraph 25 that the complainant was uncertain about “collateral details” and, similarly concluded at paragraph 70 that discrepancies in the complainant’s evidence were mostly in respect of collateral events that took place after the sexual assault. In my view, it was open to the trial judge to find that this discrepancy was not that important. Indeed, given the implicit suggestion of the defence that to be credible, the complainant should have conducted herself in a particular manner, the trial judge’s decision not to make any credibility finding against the complainant on this basis is appropriate. Had this been the extent of the trial judge’s analysis about this inconsistency, I would have found no error.
[28] However, the trial judge’s second reason for apparently discounting the inconsistency was because he found, at paragraph 67, that her statement to police given on December 31, 2017 was “more in line with the video clips”. In saying this, in my respectful view, the trial judge was relying on the complainant’s prior statement to police to bolster her credibility. This amounts to legal error. The police statement, which had been used by the defence in cross-examination, was not admissible for its truth, and could not be used to show consistency that enhanced the complainant’s credibility. In relying on it to discount the inconsistency between the complainant’s evidence and the video, and thus to bolster her credibility, the trial judge fell into error: R. v. Dinardo, 2008 SCC 24 at paras. 39-40.
[29] That the trial judge appears to have mis-used the complainant’s statement to police more than once can be seen in his general comments about her credibility, at the conclusion of his summary of her evidence at paragraph. 25. The trial judge said, after finding that she had been hesitant about collateral details, that “she did not waiver concerning the actions of the accused forming the subject matter of the complaint and her evidence at trial was consistent with her statement to the police in that regard”. He made similar comments at paragraph 67 when he said that the defence position was that the complainant was untruthful notwithstanding that her evidence “was for the most part consistent with her evidence as given to police”.
[30] While the trial judge could, of course, correctly point out that the failure of the defence to establish inconsistencies between her statement to police and her evidence meant that her credibility had not been effectively impugned, I am not satisfied that this was what the trial judge was saying. Rather, I think that the trial judge’s reasons in these passages reflect that he was using consistency between the complainant’s evidence about the sexual assault in her statement and at trial to enhance her credibility. This amounts to legal error.
[31] There is a third reference by the trial judge to complainant’s police statement in which the purpose for which he used the evidence it is less clear. At paragraph 19, the trial judge observed that the complainant had said in her statement to police that she was not getting aroused during the massage This, of course, is consistent with her evidence at trial. I cannot determine from this reference whether the trial judge was relying on this consistency to bolster the complainant’s credibility or not. Accordingly, there is no basis on which to find an error flowing from this reference to the complainant’s police statement. However, as I have indicated, in the passages already referred to, I cannot reach any conclusion other than that the trial judge used the complainant’s police statement improperly to enhance her credibility.
[32] Counsel for the appellant also submits that the trial judge failed to resolve the inconsistencies in the complainant’s evidence respecting why she left a tip when she paid for the massage. Under cross-examination, the complainant acknowledged having left a tip. Under re-examination, she was asked why she had chosen to leave a tip. She said “from what I remember, I don’t think there was an option not to leave a tip”, but that she was not 100 percent sure. She was asked if the debit machine had a prompt, and testified that she thought it had asked what percentage she wanted to leave as a tip, and that she “just put whatever was first and left”. The evidence of the spa manager, as set out in the Agreed Statement of Fact, contradicted this in that the machine used for payment had a touch screen and the main screen had three options for clients to choose from: percentage tip, dollar amount tip and no tip.
[33] In his reasons, at paragraphs 33-35, the trial judge recognized that the manager’s evidence was elicited by the defence to demonstrate that the complainant did not appear to have been upset after the alleged sexual assault. In his review of the evidence, the trial judge appears to have mis-spoken when he said that there was an agreed fact that “the machine used for payment had no option category for the tip”. A fair reading of the trial judge’s reasons is that he was aware of the inconsistency. He did not address it specifically. However, as I have indicated, he found that the complainant was “uncertain as to collateral details surrounding the sexual assault” and that “any discrepancies in the evidence for the most part concerned themselves with collateral events which took place after the alleged assault”. While the trial judge could certainly have explained his conclusions about this inconsistency more fully, I infer from what he did say that while he appreciated this inconsistency, he found it to be minor because it related to a collateral detail. The complainant’s fairly equivocal evidence about this issue makes any inconsistency even more minor. I see no error in the trial judge not saying more.
[34] The appellant also submits that the trial judge never addressed the defence position that the complainant had deleted text messages and so there were incomplete messages before the court. For instance, the appellant testified that after sending the complainant a message that included, “because you were enjoying it a little too much”, he sent her a further message saying that she had been moaning and grinding. He also said that she had texted him saying that she wanted to return for a further treatment.
[35] A review of the defence closing arguments reveals that there was a great deal made by the defence about why the text messages undermined the complainant’s credibility. The argument was made that she was evasive and forgetful in her evidence about these messages, that there were inconsistencies between what she and her husband said about them and that the things she had said supported the defence position that she had consented to the sexual activity or that the appellant had a mistaken belief in her having communicated her consent.
[36] While the trial judge was not obligated to expressly consider each and every argument advanced by the defence, given the centrality of these messages to the defence position respecting the complainant’s credibility, the trial judge could not, in my view, simply ignore this issue entirely in his analysis of the complainant’s credibility. I think that he was required, at a minimum, to advert to whether he viewed the text messages as significant, or not, and why. The messages had the potential to significantly undermined the complainant’s credibility. In this context, the trial judge’s decision not to consider and resolve this very live issue leaves me with a concern that he did not fairly assess the complainant’s credibility.
[37] The appellant submits that the trial judge fell into further error when he stated, at para. 71 “that:
The court’s assessment of the demeanour of the complainant was she did not over embellish her version of events. For instance, she allowed that the accused did not touch under her jeans and described his actions as an attempt to touch her vagina.
[38] The presence of embellishment can be a reason to find a complainant incredible. On the other hand, the absence of embellishment, like the absence of inconsistency, cannot be used as a makeweight in favour of a complainant’s credibility: R. v. Kiss, 2018 ONCA 184 at para 52; R. v. Alisaleh, 2020 ONCA 597 at paras. 16-17.
[39] The appellant submits that the trial judge improperly used this factor to bolster the complainant’s credibility. In Kiss, Paciocco J.A., writing for the Court of Appeal, found no error in the trial judge commenting that he found no examples of the complainant embellishing her testimony. The court noted that there is nothing wrong with noting that things that might have diminished the complainant’s credibility were absent. By contrast, at para. 17 of Alisaleh, the Court of Appeal found that the trial judge had improperly used the absence of embellishment because in her reasons, the lack of embellishment was specifically noted as an “important” factor used to “enhance” the complainant’s credibility.
[40] This case is not as clear-cut as that in Alisaleh in that the trial judge did not directly say that he was using the absence of embellishment to enhance the complainant’s credibility. The difficulty here is that there was very little else said by the trial judge as to why he found her to be credible, other than the fact that she was “resolute and consistent” in terms of what happened during the massage. His comment about the absence of embellishment came at the end of his analysis. Having provided no other reasoned explanation for finding the complainant credible, this statement about the absence of embellishment takes on added significance. In the absence of any other reason being provided for accepting the complainant’s evidence, this factor appears to me to have been impermissibly used as a makeweight.
[41] In conclusion, while reasons for judgment are not to be finely parsed looking for error on the part of the trial judge, the trial judge’s assessment of the complainant’s credibility in this case provides no assurance that he considered and analysed the arguments advanced by the defence. Significant challenges to her credibility were not addressed or dealt with at all. Further, to the extent he used consistencies in her police statement and the absence of embellishment to enhance her credibility, the trial judge erred. Given the centrality of the complainant’s credibility, the absence of analysis on the critical issues and the presence of legal error, cumulatively, require that the decision of the trial judge be set aside and a new trial ordered.
The trial judge’s analysis respecting the appellant’s evidence and the mistaken belief in communicated consent defence
[42] I move now to the trial judge’s analysis respecting the appellant’s evidence and defence of mistaken belief that the complainant communicated consent.
[43] Having concluded, as he must have, that the Crown had proven an absence of consent, the trial judge had to consider whether the Crown had proven that the defence of mistaken belief in communicated consent was not available to the appellant. This required answering the question of whether the appellant took reasonable steps to ascertain that she was consenting. The trial judge recognized the burden to prove the defence was not on the appellant and that it was for the Crown to disprove. At the same time, he acknowledged that silence, passivity and ambiguous conduct were insufficient.
[44] The appellant submits that it is unclear whether the trial judge rejected his evidence as to what happened in the massage room, or found that the steps that were taken were insufficient, despite having not addressed those steps.
[45] Without doubt, on this record it was open to the trial judge to conclude, as he did at paragraph 73, that “the version of events that took place were as stated by the complainant”. However, before reaching this conclusion, the trial judge needed to explain why he rejected the appellant’s version of events and what he found had taken place in the massage room, with reference to the appellant’s evidence. While the trial judge emphasized at paragraph 64 of his reasons that the sequence of events showed that the appellant had a “sexual intention”, this was effectively conceded by the defence and so was not an issue.
[46] The appellant testified that during the massage, the complainant became aroused and was moaning and grinding her hips. He said he also became aroused and asked her, more than once, whether “the pressure was ok”. When she said it was, he said that he continued the massage. The trial judge made no finding as to whether the complainant had been moaning and moving her hips as the appellant had said in his evidence. He made no finding as to whether or not the appellant had asked the complainant if the pressure was ok multiple times and, if he had, how she had responded. These issues were very significant to the defence of mistaken belief in communicated consent. The trial judge made no finding about what, if any, of the appellant’s evidence as to what took place in the massage room was credible or reliable.
[47] The reasonable steps analysis is highly contextual: R. v. Barton, 2019 SCC 33 at paras. 104-109. What steps are required in any particular case depends on the particular facts. The question in this case was whether the appellant took reasonable steps to find out whether the complainant was consenting and whether he honestly believed that she was communicating her consent to the sexual activity. In rejecting the defence of mistaken belief in communicated consent, the trial judge concluded, at paragraph 60, that the appellant “made no reasonable effort to ascertain whether she was consenting to the touching”.
[48] The trial judge continued by explaining that “this is so” because the touching occurred in the context of this being a stranger, who had sought a massage and not sexual services, and where the appellant had been trained about the impropriety of engaging in sexual activity in the course of professional massages. In other words, the trial judge’s rejection of the appellant’s defence was because of the significant reliance he placed on the professional context in which the massage took place, and on the fact that the complainant and appellant were strangers and so the appellant should have known that he was ethically precluded from seeking consent or touching the complainant sexually.
[49] While the relevant context certainly included the professional massage setting and the appellant’s knowledge of the professional and ethical regulations under which he operated, those factors were not be dispositive of the reasonable steps analysis. Rather, in my view, the trial judge was required to first make a factual determination as to what he found the appellant did to determine if the complainant was consenting, and second to decide if those steps were reasonable.
[50] The trial judge addressed this issue, in part, when he said, at paragraph 63, that the appellant could not have based a mistaken belief in communicated consent on any sounds of pleasure from the complainant during the massage. But, the trial judge never identified what, if anything, he found that the appellant did and why whatever he did do was insufficient. The appellant was entitled to this factual and legal analysis. In its absence, I am not persuaded that the trial judge’s conclusory statements about the absence of reasonable steps can be sustained.
[51] Linked to the trial judge’s failure to make factual findings about the appellant’s evidence is the appellant’s further submission that the trial judge erred in his application of the important principles in R. v. W.(D.). The trial judge both quoted the Supreme Court of Canada’s decision in R. v. W.(D.) and then explained how a jury is told to consider the question of credibility. His review of the law is correct.
[52] The trial judge’s only discussion of the credibility and reliability of the appellant’s evidence was his conclusion that “the court gained the impression that he was attempting to downplay his actions and explain them away when faced with evidence of the complainant in combination with the texts”. He then concluded that events took place as the complainant had stated, and concluded that guilt had been proven beyond a reasonable doubt.
[53] It is not clear from the limited discussion about the appellant’s evidence whether the trial judge rejected some, part or all of the appellant’s evidence. It is also not clear that the trial judge considered whether the appellant’s evidence, even if disbelieved, was capable of raising a reasonable doubt. However, given his correct articulation of the test to be applied, and the presumption that the trial judge knew and correctly applied this most basic of legal principles, I cannot conclude that he made reversible legal error by failing to consider, expressly, the third branch of this analysis.
E. Conclusion
[54] Having considered the trial judge’s Reasons for Judgment as a whole, functionally and contextually, I am not satisfied that the trial judge’s credibility findings respecting the complainant are sustainable. He did not grapple with some significant challenges to the complainant’s evidence. Furthermore, to the extent that he explained why he found her credible, he erred in relying on her police statement to bolster her credibility and used as a makeweight the fact that he found her not to have embellished her evidence. In my view, had the trial judge not made these errors, he might well have reached a different view respecting the complainant’s credibility. I am not confident that his decision would have been the same.
[55] Further, the trial judge failed to explain his findings respecting the credibility and reliability of the appellant’s evidence and, in particular, why he found that the appellant could not have held a mistaken belief in communicated consent. Factual findings were critical for the appellant’s defence to be fairly assessed and for a proper legal analysis to be conducted. Given that the trial judge’s analytic path to his legal conclusion that the defence of mistaken belief in consent could not succeed is not clear, this also requires that the verdict be set aside and a new trial ordered.
[56] For the reasons I have provided, the appeal is allowed, the conviction is set aside and a new trial is ordered. The matter is remanded to the Ontario Court of Justice on January 17, 2022 at 9 a.m. by Zoom to set a new trial date.
J.M. Woollcombe J.
Released: December 29, 2021
COURT FILE NO.: SCA(P) 1976-19
DATE: 2021 12 29
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
LEMAR JARAAR
REASONS FOR JUDGMENT
[On Appeal from the Reasons for Judgment, dated September 12, 2019 of Justice Richard A. Humphrey]
J.M. Woollcombe J.
Released: December 29, 2021