COURT FILE NO.: CR-21-10000052-AP DATE: 2022-05-16

ONTARIO SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

BETWEEN:

HER MAJESTY THE QUEEN Respondent

- and -

JANOS RWEYEMANU RUTAIHWA Defendant/Appellant

Counsel: Joanne Bruno, for the Crown Colleen McKeown, for the Defendant/Appellant

HEARD: February 24, 2022, by Zoom Audio Visual Hearing

REASONS FOR DECISION

[On appeal from the judgment of the Honourable Justice S. Ray dated July 23, 2021]

Justice Michael G. Quigley Overview

[1] On July 23, 2021, the Honourable Justice S. Ray (the “Trial Judge”) convicted the Appellant, Janos Rweyemanu Rutaihwa (sometimes called the “Appellant” or Mr. Rutaihwa), of one count of sexual assault against the Complainant, V.L. The trial in the Ontario Court of Justice was heard almost a full year before that date and took three days. Counsel made their submissions based on the transcripts of the trial evidence. On September 15, 2021, the Trial Judge sentenced the Appellant to a custodial sentence of 15 months to be followed by three years of probation.

[2] V.L. and Mr. Rutaihwa both testified. There was no dispute that they had intercourse at a strip club where the Appellant worked as a male exotic dancer and where the Complainant had been a customer previously and on the night of the occurrence. The sole question was whether V.L. consented to the sexual activity that occurred between them.

[3] As in all two-witness sexual assault cases, the Trial Judge determined that question based upon her assessment of the credibility and reliability of the evidence of these two witnesses. Mr. Rutaihwa testified that the Complainant asked for a private dance and gave both verbal and non-verbal cues that indicated to him that she consented to the sexual activity. V.L. testified that Mr. Rutaihwa never asked for her consent and that she did not consent at any time during their encounter. She said she was frozen from the moment the sexual contact commenced and that she did not consent.

[4] The Trial Judge found Mr. Rutaihwa guilty. She did not believe or accept his evidence and found it to be unreliable. It did not leave her in a state of reasonable doubt. On the other hand, the Trial Judge did accept V.L.’s evidence. Based upon her acceptance of the Complainant’s evidence and her finding that there were problematic issues of reliability with Mr. Rutaihwa’s testimony, the Trial Judge was satisfied beyond a reasonable doubt of his guilt.

[5] As initially filed, the Notice of Appeal framed three principal grounds of appeal: (i) that the Trial Judge’s reasons are insufficient and do not permit meaningful appellate review; (ii) that the Trial Judge failed to resolve material inconsistencies in the Complainant’s evidence; and (iii), that the Trial Judge reversed the burden of proof. The first and third of those claims have both now been abandoned. The Appellant frames the grounds of appeal somewhat differently before me.

[6] First, the Appellant asserts the Trial Judge made a “palpable and overriding error” in concluding that V.L.’s evidence had “remarkable particularity” to it. Second, the Appellant contends the Trial Judge materially misapprehended the Appellant’s evidence about what the victim had to drink. Finally, he claims that the court took improper judicial notice regarding one aspect of the sexual intercourse. He asks this court to quash the conviction and order a new trial.

[7] The Crown contends that the Trial Judge made no error and correctly found that V.L.’s evidence did have “remarkable particularity” to it. Neither, in the Crown’s submissions, did the Trial Judge either misapprehend the Appellant’s evidence about what the victim had to drink or take “judicial notice” of any facts. Instead, Crown counsel asserts that the Trial Judge simply relied upon and made findings based on the facts of the case as she found them and that were plainly evident before her. Crown counsel contends the conviction should stand.

[8] Applying the appropriate standard of review, I find that I am unable to accept any of these grounds of appeal. The appeal is dismissed. My reasons are set out below.

Standard of Review

[9] The Court of Appeal observes in R. v. Rivera, 2011 ONCA 225, 104 O.R. (3d) 561, at para. 32, leave to appeal to S.C.C. refused. The standard of review to be applied in assessing the decision of the Trial Judge is that of “palpable and overriding error.”

[10] “Palpable” means that the error is obvious and plain to see on the face of the decision. It is not about looking for a needle in a haystack: Schwarz v. The College of Physicians and Surgeons of Ontario, 2021 ONSC 3313 (Div. Ct.), at para. 53, relying on Hydro-Québec v. Matta, 2020 SCC 37, 450 D.L.R. (4th) 547, at para. 33. The word “overriding” contemplates that the error is of such significance that it goes to the root of the decision’s validity – that it undermines the ability of the decision to stand. Palpable and overriding error is also a highly deferential standard. The Federal Court of Appeal observed in Zero Spill Systems (Int'l) Inc. v. Heide, 2015 FCA 115, at para 49, that “[w]hen arguing palpable and overriding error, it is not enough to pull at leaves and branches and leave the tree standing. The entire tree must fall.”

[11] The standard of review for questions of law is correctness and palpable and overriding error for findings of fact. However, there is also a presumption of fitness in favour of the Trial Judge that gives rise to deference: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. That said, a palpable and overriding misapprehension of trial evidence will warrant appellate intervention: Bayford v. Boese, 2021 ONCA 442, at para. 28.

[12] The Appellant's grounds of appeal focus upon alleged misapprehensions of the evidence by the Trial Judge. Misapprehensions of evidence may involve a failure to consider evidence relevant to a material issue, mistakes about the substance of the evidence, or a failure to give proper effect to the evidence: R. v. Wadforth, 2009 ONCA 716, 254 O.A.C. 295, at paras. 79-81. However, there must be a link between that misapprehension or failure and the core elements of the Trial Judge's reasoning process. The mere demonstration of a misapprehension of evidence will not give rise to appellate relief without more: the misapprehension of the evidence must cause a miscarriage of justice: R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at para. 88.

[13] In R. v. Lohrer, 2003 BCCA 456, the majority of the British Columbia Court of Appeal upheld convictions for aggravated assault and uttering threats, but Hollinrake J.A. dissented. He would have quashed the convictions and ordered a new trial because he found that the trial judge had misapprehended one piece of the evidence. In his view, that error effectively denied the accused his right to a fair trial.

[14] In a brief oral judgment for the Supreme Court, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 1-2, Binnie J. upheld the majority opinion of the B.C. Court of Appeal that the misapprehension by the trial judge of the single piece of evidence was not central enough in the context of the whole of the evidence to cause any material unfairness to the accused. In doing so, he adopted the observations of Doherty J.A. in Morrissey, at para. 93:

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 the 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.

[15] In conclusion, he summarized:

In our view, the statement of Rothman J.A. in C. (R.) and the statement of Doherty J.A. in Morrissey both correctly emphasize the centrality (or “essential part”) the misapprehension of the evidence must play in the trial judge’s reasoning process leading to the conviction before the trial judgment will be set aside on appeal on that basis: Lohrer (S.C.C.), at para. 8.

[16] So, it is clear that the standard is stringent. Before the alleged errors can be considered overriding, they must have played an essential part in the reasoning process of the judge that led to a conviction. They must go to the substance rather than to the detail or narrative of the decision.

The Facts

[17] The evidence of the parties is summarized in their factums. The trial transcripts reveal discrepancies in that body of evidence that needed to be and that were largely addressed in the Trial Judge’s reasons.

(i) Relationship of the parties

[18] Mr. Rutaihwa, worked part-time as a male dancer in Toronto. He and V.L. had been acquainted for five to six years. V.L. often went to strip clubs. She had seen the Appellant dance 10 to 12 times over that period and had paid him for private dances. V.L. liked Mr. Rutaihwa, felt they had a positive relationship, and she trusted him. They were not in the habit of seeing each other socially.

[19] However, the Appellant testified that on one occasion, he and Courtney (a mutual friend) had been invited to have dinner at V.L.’s home with her then fiancé, now husband, and his young child from a prior relationship. V.L. said that occasion never happened. She denied that he had ever been to her house or met her husband and child. It was surprising to me, given his claim they had dined together in her home, that the Appellant could not remember V.L.’s husband’s and child’s names, or where they lived. He only remembered “it was somewhere in Mississauga.”

[20] The evidence revealed that so-called “private dances” are usually one-on-one performances that typically take place in a private area of the club, rather than at the tables or on the stage. The dancer may be nude or not, as the customer prefers. V.L. testified that there was a pay scale. If a dancer did a dance for you at your table, you would pay $10, but if you went to a private booth for a dance, it was $20. However, Mr. Rutaihwa testified that he had increased his prices and at the relevant time was charging $40 for a private dance because he was a better dancer than others. I note that the question of whether he had raised his prices was never put to V.L.

(ii) Complainant’s account

[21] The incident commenced on April 27, 2019, when her then friend, Courtney, convinced V.L. to join her to spend the evening at the club where the Appellant would be dancing. V.L. told Courtney she was not particularly interested in going. However, Courtney really wanted to go and because it was her friend Cinda’s 40th birthday, V.L. agreed, but she did not bring any cash and only had her debit card.

[22] Courtney offered to pay the fee for V.L. to get into the strip club. Courtney also picked V.L. up at her mother’s condo and drove her to a hotel. V.L. said they arrived at about 9:00 pm. They booked a hotel room because they knew Courtney would be drinking, so there would be no designated driver. There were 10 people present to celebrate Cinda’s birthday, including Cinda and Mr. Rutaihwa, who was Cinda’s friend. V.L. did not know Cinda or most of the others. V.L. may have waved to the Appellant and said ‘hi’ at the hotel, but they did not have a chance to talk.

[23] While at the hotel, someone offered V.L. some wine since she had not brought any of her own drinks. V.L. testified that she was not really interested in drinking that evening, so she just had a sip or two, less than an ounce of wine. She could not remember if it was from a bottle or a Dixie cup, but she thought the latter. She explained that she is a social drinker but does not always drink and especially if she is with people she does not know. V.L. said she was entirely sober when she and Courtney, and one of the women that she did not know, took an Uber rideshare to the club from the hotel.

[24] The group including V.L. arrived at the strip club at around 10:00 or 10:30 p.m. V.L. was not going to order a drink because she did not have money with her, but Courtney insisted. Patrons were expected to buy drinks. She ordered a Jack Daniels and Coke for V.L., who had one or two sips. She said she did not have anything else to drink for the rest of the evening and was sober. It was never suggested to her that she had consumed more than that amount of alcohol.

[25] After the drinks came, V.L. said she saw Mr. Rutaihwa and asked Courtney if they should go and say hi to him. They walked over to say hello and exchanged hugs and regular small talk: ‘hi,’ ‘haven’t seen you in a while,’ that sort of exchange. Courtney told Mr. Rutaihwa that she and V.L. would like to do a private double dance with him later. V.L. testified that she and Courtney had done private dances together before. After chatting briefly, they parted ways and Mr. Rutaihwa continued circulating and chatting up other patrons.

[26] After they returned to their own table, Courtney stepped away from their table, either to go to the ladies’ room or outside. While Courtney was away from their table, V.L. observed Mr. Rutaihwa coming over. He approached V.L. and suggested to her that she have a private dance alone with him. This was something they had done before.

[27] V.L. told him that she did not have any money with her, so did not have the $20 for him to do a private dance. He said that it was ok and that she could pay him later. The Complainant agreed. He had granted this indulgence on prior occasions. However, Mr. Rutaihwa denied that there was any discussion about delayed payment on that particular evening.

[28] Mr. Rutaihwa guided V.L. to the private, so-called “VIP” booths, located at the back of the club. They were small, square spaces with a bench or seat on the back wall and a curtain at the entrance. When they arrived in the booth, the Appellant pointed at the bench, guiding V.L. down into the seat. V.L. testified that in her experience, dancers will ask you if you want them to be nude, but she said that Mr. Rutaihwa did not ask her on this occasion.

[29] Evidently, they chatted as they waited for the next song to start. The Complainant could not remember what they were talking about – “how have you been,” “joking around about the music,” “basically just small talk.” At that time, he was standing over her and directly between her and the exit from the booth. Although her weight was up at the time of the assault, he was certainly taller and considerably heavier than she was.

[30] While they were talking, waiting for the next song to start, the Appellant leaned in, slightly pulled down his pants and started to kiss her. The Appellant said nothing before he did that. V.L. did not know what to think. V.L. testified that she was shocked, not ready for it and did not want to kiss him. She was surprised because he had never tried to kiss her before.

[31] She testified that while he was kissing her, without saying anything, he pulled down her leggings, exposing her genitals. She could not remember for certain how long the kiss lasted or whether he used his tongue, but she thought the kissing lasted 1-2 minutes. She could not entirely remember how she reacted, or whether she pulled away, but she did not believe she kissed him back. She testified that she did not want him to remove her leggings and that he did not ask and she did not consent to him doing that.

[32] V.L. was asked in direct examination why she was unsure how she reacted. She responded that this part was “kind of blurry” and “not really fully in [her] head anymore.” She testified that she would not have put her tongue in his mouth. She said she was wearing black leggings and a red tank top, probably. She could not recall for certain, but assumed she was wearing underwear, as she usually did.

[33] V.L. testified that as the Appellant continued kissing her and pulling down her leggings, she did not know what was happening. She said she pulled back slightly towards the bench, but that the Appellant continued to press forward. She testified that he stood her up by pulling her hands and then, using his hands, slightly pulled apart her thighs. She said that she was mentally frozen when he was doing that, not comprehending what was happening or how to stop it. He commenced performing oral sex on her. She explained what her state of mind and action were at that time as he was performing oral sex:

I had my hand on top of his head and I thought I was trying to push him away, like it felt like I was trying to push him away. Sorry. And so after a minute I’m pushing and or feel like I’m trying to push him away and I remember wanting to say no or trying to say no but I’m not sure if it came out, I’m not sure if he just didn’t hear me. I don’t know. I just wasn’t loud enough, but he wasn’t stopping.

[34] V.L. braced herself on the walls. She felt completely frozen and incapable of moving at that time.

[35] After performing oral sex on her, Mr. Rutaihwa stood up, and without saying a word, put his hands on her hips, turned her around, pushed her so she bent over, and started penetrating her vaginally with his penis. He did not ask her if she consented. She did not tell him that she consented. V.L. said it was clearly without her consent.

[36] V.L. described the intercourse as “painful and urgent.” While his hands were on her hips, she remembered moving one of her hands to try to strike his hand away, but she could not remember which hand she used. She did not think he used a condom and did not know how long the sexual intercourse lasted. Based on his evidence, it would seem to have lasted for about 10 to 15 seconds, and then he just stopped, withdrew his penis, and let go of her hips. She fell sideways. V.L. said after that she was “sitting there just kind of staring” off into space. She said she was in pain and that was her focus. She said he asked her if he could ejaculate on her chest. She says she told him “No. No.” Her description of the actual intercourse is detailed:

Q. Okay. So maybe what we can start with is you had said that he bent you over and now your back was to him. He penetrated you vaginally. And what do you remember about this event? A. Um, well it hurt. Q. Okay. A. Like it was painful. Q. Okay. A. Um, the act itself was not gentle. Q. Okay so you’re talking about the intercourse? A. Yes. Q. Okay. And can you describe the level of, I don’t know if we want to call it aggression or the why you said it wasn’t gentle? A. It wasn’t that he was being necessarily aggressive. It was more almost like he was being urgent … Q. Okay. A. … I suppose. It was quick. Like it wasn’t slow. It wasn’t anything that would be considered like anything but just wanted to, you know, have intercourse. So it was very like, you know, quick. It wasn’t . .. Q. Okay. And do you remember doing anything when this was happening to you? A. Um, I remember with his hands on my hips, I remember putting my hand on his and I made a motion like I was trying to like remove his hand or just push his hand off of me and he flicks my hand away. Q. Okay and I’ll just describe for the record you kind of indicated, you know, picking up your right hand and sort of removing his hand which is basically how you have described it just now? A. Um, I can’t remember exactly which hand. Q. Yes. A. But it was definitely one of my hands was trying to remove his. Q. Okay, sure. And what was the reason for trying to remove -- in your mind what was the reason for trying to remove his hand from your hip? A. Just, I guess in attempt to make him stop. Q. Okay. When this is happening did you do anything else? And that’s a very vague question. Did you do anything physically with your body in any way? A. I was really unable to because of just the fact that he was right behind me and the bench, like the back, like the seat of the bench and the back of the bench was kind of keeping me from being able to move … Q. Okay. A. … forward or, or really anywhere. Q. Did you say anything to him do you recall? A. I thought I had said stop at one point but I’m unsure if I was heard or if I just more thought it rather than said it.

[37] V.L. testified that there were a few moments when there were bits of conversation between them, but that the actual exchange of words, the words spoken, were “fuzzy” to her. She said it was difficult for her to remember because “everything was so blurry”. She thought the Appellant said something as he pulled down her leggings but could not recall what and did not know if she responded. When asked by the Crown whether there was a reason she could not remember (beyond the passage of time), the Complainant explained that “It’s almost like it’s not there… like it’s just gone”.

[38] The Complainant remembered standing up after the intercourse was finished, but after that her memory started to go blank. She did remember a few fragments of the rest of the evening, including looking in the mirror in the bathroom and going back to the private booths with another dancer, “a shorter white man,” but she did not remember what happened in the booth with this other man.

[39] V.L. testified that the memory that she had been sexually assaulted by the Appellant only came back to her later that evening, when she had returned to the hotel room. V.L. explained that she had only experienced this phenomenon once before – when memories are gone and a night is blank – when she learned her father died. Things “got fuzzy” after she learned of his death and she could not remember what she did that day. However, she agreed it was different because she never lost consciousness that her father had died. Here, she lost consciousness that she had been assaulted.

[40] V.L. concluded her evidence by reiterating that it was not possible that she had indicated or expressed consent to any of the sexual activity that had taken place between her and Mr. Rutaihwa.

(iii) Appellant’s account

[41] Mr. Rutaihwa testified that he arrived at the hotel room at around 8:30 p.m. to celebrate his friend Cinda’s birthday. He was at the hotel for about an hour. He saw V.L. briefly and he said they probably engaged in small talk – ‘hey’, ‘good to see you’ – though he did not specifically recall. He was not sure what drinks V.L. would have had. There were different options available. He did remember seeing his friend Claire pour V.L. a glass of wine and saw the Complainant take a sip. At the hotel room, he drank two “Revs” (a brand of high alcohol cooler in a can) and a glass of Coke and either rum or vodka. He also shared a marijuana joint with two others. When he arrived at the club, he had a small buzz. He did not drink anything else. He testified that he generally still has a pretty good memory even when he has a buzz.

[42] At the club, the Appellant made his rounds. He briefly greeted the Complainant and Courtney. He was pretty sure they each had a glass – this would make sense as customers must buy one drink at the club. They engaged in small talk. Contrary to V.L.’s evidence, the Appellant did not remember any conversation about him doing a private dance with both V.L. and Courtney at the same time. After he circulated some more, Mr. Rutaihwa testified that it was V.L. who approached him on her own to ask him for a private dance. He said they went to the booths in the VIP room at the back of the Club.

[43] The Appellant testified that V.L. sat down and they talked casually while they waited for the music to change so that he could begin the dance. He did not remember the specifics of the conversation, only generally. They did not discuss anything sexual. When the next song came on, the Appellant said he started to dance. He touched the Complainant’s face. He said she closed her eyes and put her head towards his hand. He blew air on her neck to arouse her. He said she touched his chest. When he got very close, almost face-to-face, he kissed her. His evidence was that she kissed him back and did not pull away. He said they kissed for 5 to 10 seconds. He felt it starting to get more passionate. Mr. Rutaihwa agreed he did not ask before kissing her, but that he was the one who initiated the kiss and activity that followed.

[44] He said that he led her hand to his body and that she felt his chest and abs. While kissing her, he started touching her breasts. He kissed her breasts. He did not ask first. Mr. Rutaihwa claimed that V.L. was “moaning,” which he agreed was like heavy breathing.

[45] He said he then took her hand and brought her to a standing position. He asked her if she wanted to turn around and she did so without saying anything. He danced on her from behind. He tucked his thumbs in the waistband of her leggings. He said she helped him pull them down. That was when he performed oral sex on her from behind, that lasted 15 to 20 seconds.

[46] Mr. Rutaihwa testified that he then stood up and asked V.L.: “can I put it in?” He claims she said yes. He said he had a clear memory of this. They had sexual intercourse without a condom for 10 to 15 seconds. It was quick, but he said he was not thrusting aggressively or trying to hurt her. He said the pace was slow, and he described it as gentle. The intercourse stopped after a short time, because he said he had another public dance coming up and did not want to be in the back area for too long. He said he did not ejaculate – it was not permitted at the club. He asked if she wanted to lick her vaginal fluids off his penis. He testified that V.L. said yes, lunged at his penis, and gave him oral sex for a few seconds. He said he asked whether she liked it and whether everything was okay, and she said yes and smiled.

[47] Mr. Rutaihwa said he believed she had consented. He candidly agreed that he came to that belief as their interactions progressed based entirely and solely upon his reading of her body cues and feedback that he perceived, and it was on this basis and in response to his perception of her cues that he continued to and was initiating and leading during the encounter. It was never in response to any exchange of words or direct grant of consent by V.L.

[48] Towards the end of his evidence, Mr. Rutaihwa was asked whether V.L. appeared sober to him. His immediate response was that she did not appear sober, despite his earlier evidence that he had only seen her consume a couple of sips of wine. He said that she seemed “buzzed (but not belligerent)” and “had squinty eyes.” Then, he volunteered that he did not expect her to be sober, because she was a person who drank alcohol, despite having confirmed in his evidence that he did not see her consume anything beyond the sips of wine at the hotel.

(iv) Argument at trial and the Trial Judge’s reasons

[49] Counsel usually make closing submissions immediately after the evidence has been introduced. Due to Covid, a full year passed before submissions were heard in this case. By that time, transcripts had been prepared. Defence counsel filed written submissions in advance, making reference to passages from the evidence in the transcripts. In court, Crown counsel made oral submissions and defence counsel made submissions in reply.

[50] Mr. Rutaihwa did not rely on a defence of honest but mistaken belief in consent because he claims that the encounter was consensual. Instead, he argued that the Crown had not met its burden to prove beyond a reasonable doubt that the Complainant did not subjectively consent to the sexual activity. Defence counsel submitted that the Appellant’s memory of events was better than the Complainant’s memory.

[51] The core of the Appellant’s argument was that V.L.’s evidence raised “serious questions about both her credibility and reliability”, providing several examples of alleged inconsistencies. He also alleged motive to fabricate, but having reviewed the evidence in its entirety, I can find no air of reality to that allegation. The defence focused on the Complainant’s faulty memory, that she had only a “vague” recall of what happened in the booth, and that she candidly acknowledged that aspects of her memory were “blurry” or non-existent.

[52] Crown counsel submitted that V.L. was an honest and forthright witness, even when it was not to her benefit. For example, the Crown pointed to the Complainant’s testimony that she had very little memory of what happened after the sexual activity. The Crown argued that the Complainant’s blurry memory starting when she left the booth was consistent with a traumatic response and that this was supported by her evidence that she felt this way during a prior traumatic experience (the death of her father).

[53] Crown counsel urged the Trial Judge to reject the supposed inconsistencies and motives to fabricate advanced by the defence, and to find instead that it was Mr. Rutaihwa’s evidence that was internally inconsistent and that it was he who had no actual memory of the specific events and ought not to be believed. Instead, the Crown contended his evidence was an after the fact construct, based on what he thought he might have done, or what he usually did, or what probably happened, rather than on what he remembered. Further, Crown counsel noted that Mr. Rutaihwa himself acknowledged that he was “buzzed” or somewhat intoxicated throughout the occurrence but nevertheless pushed ahead with bolder sexual moves as he was “testing the waters”.

[54] The Trial Judge’s reasons were brief. The issue was consent. The Trial Judge accepted V.L.’s evidence. She found her to be a forthright and honest witness and found her evidence to be internally consistent. She found that V.L.’s evidence had “remarkable particularity” until she blanked out. V.L. had not exaggerated or tried to paint the Appellant in the most negative light. For example, although she testified that it did hurt her when Mr. Rutaihwa entered her from behind, V.L. testified the sexual intercourse was “urgent” rather than “aggressive.”

[55] Defence counsel claimed that V.L.’s evidence was unreliable because she could not remember particular exchanges of words, but the Trial Judge had little time for this contention, as she specifically noted that both parties had agreed in their evidence that there was not much conversation between V.L. and Mr. Rutaihwa in the booth before the “dance started”. In the Appellant’s factum, he incorrectly states that the court found that “there was not much conversation about sexual activity before it started.” This misstates what the Trial Judge said. There was no conversation about sexual activity at all.

[56] What the court did state in the judgment was that V.L. had testified that “at no time was there verbal or non-verbal consent.” This is consistent with Mr. Rutaihwa’s evidence that there was not much conversation about what was to happen in the area designated for private dances before they went there.

[57] The Trial Judge rejected Mr. Rutaihwa’s evidence as vague and unreliable. It did not raise a reasonable doubt in her mind. She found herself unable to rely on his evidence because it switched back and forth between the little he recalled had happened or had been said, compared with his recall of what might or would generally have happened on an evening where he was performing dances for patrons at the strip club.

[58] She concluded that Mr. Rutaihwa had no actual memory of some of the events of that evening and was instead trying to fill in the gaps. She also found that his evidence was internally inconsistent. For example, he had significantly exaggerated the amount the Complainant had been drinking, but then ultimately agreed that V.L. only had a sip of wine in the hotel room.

[59] The Trial Judge concluded that it was plausible, that is, probable or highly likely, that the drinks and marijuana the Appellant consumed had affected his memory. Mr. Rutaihwa denied that alcohol or smoking marijuana affects his memory, but when asked about the Appellant’s demeanour after the sexual intercourse was completed, the Complainant observed that that he seemed somewhat out of it – sort of dreamy. She said “[t]here just wasn’t a lot of communication between us. It was almost like he was just not all there.” After the sex was completed, she said he was just quietly smiling.

[60] While discussing the Complainant’s evidence about the “urgent” intercourse, the Trial Judge also found that the Appellant’s evidence that the sexual intercourse was slow and gentle was not credible if the intercourse only took 10 to 15 seconds. She said she did not know how it could be done in that amount of time. That finding is the subject of the Appellant’s third ground of appeal. Ultimately, for all these reasons, the Trial Judge found the Appellant’s evidence to be neither credible nor reliable, but accepted V.L.’s evidence and found him guilty of sexual assault.

Issues

[61] The focus at trial and on this appeal was entirely on whether the Crown had proven the actus reus of the offence of sexual assault beyond a reasonable doubt and specifically, whether the Complainant had consented to the sexual activity that occurred between her and the Appellant on April 27, 2019. The mens rea is not in dispute. The mens rea is determined from the perspective of the accused and whether he intends to sexually touch the other person without consent, or a reasonable apprehension of consent: R. v. Ewanchuk, [1999] 1 S.C.R. 330, at para. 42. In this case, there is no issue of intent. Mr. Rutaihwa intended to have a sexual encounter with V.L. but he claimed that it was consensual.

[62] A person commits the actus reus of a sexual assault if he touches another person sexually without her consent: R. v. A. (J.), 2011 SCC 28, [2011] 2. S.C.R. 440, at para. 23. Section 273.1(1) of the Criminal Code of Canada, R.S.C. 1985, c. C-46 defines “consent” as the voluntary agreement of the Complainant to engage in the sexual activity in question. It is a conscious agreement, freely given at the time of the activity, to engage in each and every act that comprises the sexual encounter. It may be revoked at any time. It is not abstract, but linked to the sexual activity in question, that is, specific physical acts with an identified partner: Ewanchuk, at paras. 26, 36; A. (J.), at paras. 34, 40, 43.

[63] For the purposes of the analysis required on this appeal, the most helpful discussion of the nature of consent may be found in the decision in R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at paras. 86-90, 98. As the Supreme Court instructs in that case, consent is treated differently at each stage of the analysis:

For purposes of the actus reus, "consent" means "that the complainant in her mind wanted the sexual touching to take place" (Ewanchuk, at para. 48). Thus, at this stage, the focus is placed squarely on the complainant's state of mind, and the accused's perception of that state of mind is irrelevant. Accordingly, if the complainant testifies that she did not consent, and the trier of fact accepts this evidence, then there was no consent — plain and simple (see Ewanchuk, at para. 31). At this point, the actus reus is complete. The complainant need not express her lack of consent, or revocation of consent, for the actus reus to be established (see A. (J.), at para. 37): Barton, at para. 89 [Emphasis added.]

[64] The evidence of V.L and Mr. Rutaihwa describes two different versions of events. Mr. Rutaihwa told the Trial Judge that from start to finish he believed that she did consent and continued to consent to their sexual encounter throughout its brief duration, based upon V.L.’s words and/or her actions. The Complainant testified that there was no consent at any time during the encounter, and that she was completely shocked, frozen, and unable to withdraw from the situation throughout its duration.

[65] The next morning, V.L. told her friend Courtney that Mr. Rutaihwa had sexually assaulted her. She said he had sexual intercourse with her without her consent. V.L. also told her mother that same day. She went to the police to make her complaint two days later.

[66] The Trial judge applied the correct tests in her analysis of the evidence: R. v. W. (D.), [1991] 1 S.C.R. 742. It is plain from her reasons that she did not believe the Appellant’s exculpatory evidence that the entire occurrence was consensual. Neither was she left in a state of reasonable doubt by that evidence.

[67] On the other hand, applying the third stage test under W. (D.), not only did the Trial Judge find V.L. to be a credible and reliable witness, but she also found that there was “remarkable particularity” to the Complainant’s evidence of the events. The Trial Judge accepted V.L.’s evidence that she did not consent at any time to having sexual intercourse or engaging in any other sexual activity with Mr. Rutaihwa. She found him guilty as charged.

[68] The Appellant raises three grounds of appeal in support of his position that there was consent at all times, and that the Trial Judge erred in finding that the Complainant had not consented.

[69] First, it is claimed that the Trial Judge erred in her assessment of the credibility and reliability of V.L.’s testimony arising out her alleged memory issues. In particular, as stated in its appeal materials, the Appellant asserts that the Trial Judge made a “palpable and overriding error” in finding that V.L.’s evidence had “remarkable particularity” to it in the face of these issues, and that she failed to resolve those significant concerns.

[70] The Appellant alleges two further errors. They concern the Trial Judge’s treatment of specific pieces of evidence that she highlighted in her reasons: (i) that she materially misapprehended the Appellant’s evidence about what the Complainant drank and (ii) that she took improper judicial notice of whether the sexual intercourse could be both “brief and slow.” The Trial Judge is said to have used both of those examples of alleged erroneous analysis to ground adverse credibility findings against the Appellant.

[71] The Appellant claims these errors, separately or cumulatively, require a new trial. I disagree. I turn now to address each of these issues in the following sections of my reasons.

Analysis

(i) Did the Trial Judge make a “palpable and overriding error” in finding that V.L.’s evidence had “remarkable particularity” to it?

[72] The challenge to the Trial Judge’s decision based on an alleged palpable and overriding error of fact has two parts: (i) that she erred in law in finding the Complainant’s evidence had “remarkable particularity” to it in the face of the Complainant’s acknowledgement of blurriness or fuzziness of memory; and (ii) that she failed to resolve significant reliability and credibility concerns arising out of the Complainant’s memory lapses, including during the sexual activity and “blanking out” after the event.

[73] I reject both lines of argument, and will address each, but before doing so wish to speak briefly to the adequacy of the Trial Judge’s reasons, as it is seemingly a matter that remains an issue underlying the appeal even if abandoned as a specific ground.

[74] The Appellant complains about the extremely brief “length” of the Trial Judge’s reasons. However, the point of concern should not be the length of a judge’s reasons, but rather their adequacy. The length of reasons will never determine whether they pass muster. R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869 instructs that judicial decision makers need to give reasons that are transparent and that permit their reasoning to be understood, not only by a reviewing court, but of equal importance, by the public. If the reviewing court finds itself unable to discern the reasons why a lower court reached the conclusions it did, that amounts to legal error that permits the decision to be set aside, for the obvious and simple reason that it leaves the reviewer in a position where they cannot determine whether the decision is correct or whether it is clearly inappropriate.

[75] I acknowledge that the Trial Judge provided very brief reasons – less than four pages of the transcript. In assessing the adequacy of her reasons, this court is obliged to be fair, balanced and not look for perfection. On the other hand, Sheppard requires that I be satisfied that the Trial Judge gave reasons that are transparent, and that permit insight into the reasoning and process of logic that she followed, in order to determine whether her reasoning correctly permitted her to reach the conclusion she did: at paras. 24-25.

[76] It will be evident from the paragraphs that follow that I am satisfied that the Trial Judge’s reasons are adequate for that purpose in the context of the entirety of the evidence that was before her, and to which she speaks in her reasons. An appeal court must defer to the conclusions of the Trial Judge on a finding of credibility unless a palpable and overriding error can be shown to be present. I am required to consider all the evidence before the trier of fact to determine whether the conclusion she reached cannot reasonably be supported by that evidence: R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 10; R. v. Burke, [1996] 1 S.C.R. 474, at para. 4.

[77] The principal ground of appeal is whether the Trial Judge misapprehended the evidence, and specifically, her finding that “there was remarkable particularity to [the Complainant’s evidence] until she blanked out after the sexual activity alleged.”

[78] Defence counsel states that this conclusion cannot be supported by the Complainant’s evidence at trial. I disagree.

[79] The Complainant acknowledged in her evidence that there was some “fuzziness” and some “blurriness” in her mind on several of the questions she was asked about conversation between her and Mr. Rutaihwa. However, defence counsel takes the position that V.L.’s uncertainty on those few and limited questions totally undermines the Trial Judge’s finding that there was “remarkable particularity” to the Complainant’s evidence of the events comprising the sexual encounter, up until she blacked out temporarily.

[80] To be clear and fair, it was evident to me as I read the transcripts that the few questions on which she admitted to fuzziness or blurriness did not relate to what happened physically between V.L. and Mr. Rutaihwa. Rather, they related to defence counsel’s effort to impeach the Complainant’s testimony because she could not recount the “exact wording” of what was “said” between herself and Mr. Rutaihwa as the sexual encounter progressed.

[81] V.L.’s inability to recount exactly what was said in the course of the limited exchanges of words between them, exchanges that they both admitted were limited, is the alleged deficiency that is said to constitute a “palpable and overriding error.” Importantly, as noted, those alleged deficiencies do not relate to the events as they transpired nor the specificity of V.L.’s description of those events. It is also important in that context that V.L. was not specifically challenged at any time with the claim that she had “fuzzy,” “blurry,” or forgotten memory relating to the actual physical interactions that took place.

[82] To the contrary, it is plain on the face of the record that the entire physical description of events and the interactions between them advanced before the court by V.L. and as presented in Crown counsel’s submissions, was accepted by defence counsel without challenge. Certainly, this acceptance, tantamount to admitting the accuracy of the Complainant’s entire description of the events that transpired, would not have been and was not lost on the Trial Judge.

[83] The Trial Judge was aware and mindful of the important fact that the defence never alleged that there were any inconsistencies in V.L.’s descriptive evidence. She would have given that fact the appropriate weight it deserved, not only relative to the events themselves, but also as one measure of the credibility and reliability of V.L.’s evidence. The only deficiency that is said to amount to palpable and overriding error is the Trial Judge’s alleged failure to undertake a sufficiently robust but arguably excessive analysis, in my view, relative to the absence of exact memories of words that were spoken, even in such a brief encounter.

[84] I can find no overriding, much less palpable error here in the Trial judge’s finding of “remarkable particularity” in the Complainant’s evidence. The description of “remarkable particularity” may be the principal collective reference of the Trial Judge that provides insight into her assessment of reliability, but the suggestion that conclusion is not on solid ground or informed by a panoply of undisputed facts is mistaken, in my view. It ignores the evidence that was before the Trial Judge. I find no error here that either shakes the foundation for the Trial Judge’s acceptance of the Complainant’s evidence, or that can reasonably undermine the Appellant’s conviction.

[85] Instead, enumerating the extensive aspects of V.L.’s testimony that did have “remarkable particularity to it until she blanked out after the sexual activity” demonstrates the actual weight of the Complainant’s uncontroverted descriptive evidence. That, together with the rest of the evidence the Trial Judge accepted, and her reasonable and grounded conclusions relative to the credibility and reliability of each of the witnesses, shows how the Trial Judge reached her conclusion applying the tests in W. (D.). It shows that she neither accepted the Appellant’s evidence nor was left in a state of reasonable doubt by it, and shows she was satisfied to the criminal standard that the Crown had proven the offence beyond a reasonable doubt based upon the evidence she accepted.

[86] In addition, however, the Trial Judge made other comments that provided insight into her assessment of V.L.’s evidence. Specifically, she observes that there is a notable neutrality to the evidence of V.L. with respect to Mr. Rutaihwa. The Complainant acknowledges they knew each other. She does not try to conceal that, or that he had performed dances for her and Courtney before. As well, the Trial Judge observed that V.L. “did not exaggerate or try to paint Mr. Rutaihwa in the most negative light” and provided an example of this balance in the Complainant’s delivery of her evidence.

[87] I find that it was entirely open and supported by the evidence for the Trial Judge to find that V.L.’s evidence was “remarkably particular”. Consider the numerous elements and aspects to that particularity:

(i) V.L. recounted in detail the plans for the evening, her discussions regarding those plans, and her actions in the hours prior to and upon arrival at the strip club. (ii) V.L. recounted exactly how much she had to drink. Not only that but she was clear and precise why she was not drinking more on this occasion, because she did not feel entirely comfortable as she did not know some of the people in the group. (iii) At the club she recounted where she was sitting, who she was with, how much exactly she had to drink and who paid for her admission and drink. (iv) Her testimony included specific detail about aspects of the evening, such as her inclusion of detail relating to how she had helped Courtney with her makeup at the hotel, and how she had asked another member of the group to watch her belongings when she went for the private dance. (v) V.L. painted an exceptionally clear picture for the court of the events that transpired between her and Mr. Rutaihwa. The transcript of her evidence reflects that her account of the sexual assault was very detailed. She leaves nothing to the imagination, but neither is any of it imagined. (vi) V.L. described the Appellant’s movements in precise detail. These include how he sat her down, stood her up and turned her around. She included details, such as being aware of where her leggings were when he stopped kissing her, what her knees were touching when he stood her up and where her hands were when he was having sex with her. She described the intercourse itself and how she fell sideways after he withdrew his penis from inside her. She specifically recalled moving her hand back towards her thigh to try to push him back and away from her, and that he flicked her hand away and continued having intercourse with her.

[88] Notwithstanding these examples, the Appellant points to parts of V.L.’s testimony and argues on the basis of these particular points that the court made a palpable and overing error in finding that V.L.’s evidence was “remarkably particular”:

(i) V.L. could not remember if the Appellant kissed using his tongue and she was not sure how she reacted to it. As indicated by the Supreme Court in Barton, at para. 98, however, resistance is not required to prove a lack of consent and V.L. was able to provide many other details about the kiss. She testified she was seated in the private booth and they were chatting and waiting for the music when he slightly pulled down his pants and kissed her. She said that nothing precipitated the kiss, that she was shocked and believed she did not reciprocate. She said that while he kissed her for 1-2 minutes, he pulled off her leggings. She testified that she did not say or do anything to indicate her consent to the kiss. Importantly in my mind, the Appellant agreed in his evidence that V.L. was surprised by the kiss and taken aback by it. He agreed that he did not ask nor did she indicate her consent prior to it. In these circumstances, it seems to me to be a peripheral and inconsequential detail in the context of the entirety of the evidence, that V.L. was unable to recall if the Appellant used his tongue or how exactly she reacted to the kiss. (ii) V.L. could not remember the exact words exchanged during the sexual encounter, but the Trial Judge found that there was very little conversation between the two parties during the encounter, a point they both acknowledged. Mr. Rutaihwa admitted he did not ask for V.L.’s consent. He admitted she did not indicate consent to him verbally prior to him kissing her, touching her, removing her clothing, performing oral sex on her or removing his clothing. All he said he relied upon as evidence of her consent, was paying attention to her “demeanour”, hearing her moan or “breath heavily”. While he may have interpreted her alleged heavy breathing as a reliable sign that she was enjoying the kissing and oral sex, it is trite to observe that “heavy breathing” does not indicate consent to sexual activity. More importantly in my view, it is not relevant in the entire circumstances and panoply of evidence at play in this case, that V.L. could not recall exact words exchanged in the limited verbal exchanges that took place during the quite brief sexual assault. Neither, in my view, does it undermine or detract in any meaningful way from the overpowering evidence that the Trial Judge relied upon in correctly concluding that V.L.’s evidence did have “remarkable particularity” to it, and that she relied upon in convicting the accused. (iii) Mr. Rutaihwa claimed that she indicated her consent by assisting him in removing her pants, by licking his penis upon his request, and by responding yes to his question “can I put it in you?” However, V.L. specifically denied that he asked her anything before penetrating her, or that she assisted him in removing her pants or as he performed oral sex on her. (vii) V.L. candidly testified in chief that while she wanted to say no or stop at times, and believed that she did, it was possible that she might not have verbalized those words loudly enough that it could be heard. This is not surprising given that the music at the strip club was likely played at a very high volume. It is conceivable that if V.L. did ask the Appellant to stop, as she says she did, he may not have heard it owing to substantial ambient noise. However, Barton clearly establishes that a victim is not required to protest for a sexual assault to be proven. The Complainant believed she said no to Mr. Rutaihwa’s continuing advances, although she could not be certain if she protested in a voice loud enough to be heard. However, even if she protested and was not heard, any further failure to protest or inability to be heard is not a deficiency in her conduct. (viii) In his factum, the Appellant asserts that V.L. could not remember what he said when he pulled down her pants or if she responded. In fairness, however, the fact is that Mr. Rutaihwa did not allege that he said anything to V.L. when he pulled down her pants. He did not say that he asked for permission before removing her pants. He did not allege that V.L. gave verbal consent to removing her pants. He claimed he inferred consent to the removal of her pants because she helped remove them, but V.L. denied that, entirely rejecting the suggestion that she ever assisted him in any way. Importantly, I note that she was not successfully challenged on her rejection of his suggestion. (ix) V.L. could not remember which hand she used to try to move the Appellant’s hand off her hip. V.L. testified that the Appellant had his hands on her hips during the sexual intercourse and that she tried to remove his hand in an attempt to stop him, but that he flicked her hand away as she tried to release his hold on her hips. That is the important point, and in my judgment, it is overreaching to suggest that which hand V.L. used was anything more than an inconsequential detail. It cannot reasonably be considered to undermine the decision that the court had to and did make. (x) Defence counsel argued that V.L. was “filling in gaps” in her memory by guessing in her responses to certain questions, but, unlike in the case of Mr. Rutaihwa, I do not accept that characterization. None of the examples alleged by the Appellant are examples of V.L. providing an answer presented as certain, but then revealed with further probing to be nothing more than a guess: (a) When she was asked what she was wearing, V.L. testified that she was wearing black leggings, flats and “I think it was a red tank top, probably.” V.L. acknowledged where there was uncertainty, but she was testifying to her best recollection. That was not a guess. It was a reflection of what she believed to be true, though she could not be certain. (b) V.L. testified that she was wearing underwear. The Crown noted a second’s hesitation in her answer and asked if she was sure. V.L. candidly explained that she had no specific memory of wearing underwear on this particular occasion, but she assumed that she was because that was her usual dressing habit. Far from being a careless guess, as the defence suggests, it is instead a reasonable truthful answer given her recall and her knowledge of her usual modes of dress and it reflects a sincere effort to be accurate and truthful, and to not overstate points on which she had some uncertainty. (c) In any event, not only was what V.L. was wearing during the sexual assault not relevant, but in fact there is no counterpoint evidence that can impeach her evidence for the simple reason that the Appellant did not testify about V.L.’s clothing, about what colour of top she might have been wearing, or whether she wore underwear that evening. (xi) On the Appellant’s version, for all the sex acts, except the intercourse, he was testing the waters and relying on silence, lack of resistance, or ambiguous conduct like heavy breathing, as opposed to getting consent before proceeding. However, Barton shows that belief in consent allegedly ascertained by silence, passivity, or ambiguous conduct, is a mistake of law. Neither can consent be obtained by testing the waters and then relying on a lack of resistance or objection: at paras. 98, 107.

[89] I also find that the Trial Judge was entitled to reject as flawed the Appellant’s logic regarding the impact of V.L.’s memory loss after the sexual assault. I find that the submission makes no sense. If V.L. lied and invented the memory loss (and there is no cogent evidence or explanation of why she would have needed to), she could have lied and said she did not recall anything else that occurred at the club after the sexual assault. Instead, she testified in chief that she remembered that Courtney gave her money after the assault for another dance. While it seems to me to be of the most tangential significance in the context of the whole of the evidence in this case, the fact that she didn’t recall the sexual assault right after it occurred but never forgot the death of her father can be explained by the differences in the contexts of these traumatic events.

V.L. said the following about her father’s passing:

My father passed away from a sudden heart attack. And we were told, we were told by the police after he had been brought to the hospital already dead. And when we were told is when things got fuzzy then.

[90] There are important differences in the context that can be ascertained from this description. First, when V.L. was told that her father had died, she was with someone else: she uses language that refers to “we.” Second, given that her father had just died and his body was at a hospital, there would be arrangements to be made. In those circumstances, it would have been highly unlikely that she could forget that her father was dead; she was speaking to the police for this very reason and the required arrangements and the inevitable reactions and ensuing conversations would not allow for that.

[91] However, the context of the sexual assault was quite different. She was at the strip club for a birthday and none of the people she was there celebrating with knew what had happened to her in the private booth. In these circumstances, the Trial Judge accepted that it was possible for her to lose the memory of the sexual assault itself for a time, due to a traumatic response, regardless of whether the traumatic events were the same or merely similar. I accept Crown counsel’s explanation that the similarity is in the forgetting when experiencing a traumatic event, not the content of what is forgotten. In any event, I find this line of logic and analysis to be of little consequence in the context of the evidence as a whole and determining whether the Trial Judge was correct in the conclusion she reached. It does not erase the “remarkable particularity” of V.L.’s detailed evidence on exactly how the assault occurred.

[92] The second argument the Appellant raises in respect of this ground of appeal is that the Trial Judge failed to resolve concerns about the Complainant’s reliability and credibility arising out of her memory lapses.

[93] Trial judges do not need to explicitly use the words ‘credibility’ or ‘reliability’ as long as they turn their mind to the relevant factors in the factual context of the case, and they do not err by conflating the two. In both R. v. Kishayinew, 2020 SCC 34, 451 D.L.R. (4th) 426, rev’g 2019 SKCA 127, 382 C.C.C. (3d) 560 and R. v. Slatter, 2020 SCC 36, 452 D.L.R. (4th) 1, rev’g 2019 ONCA 807, 148 O.R. (3d) 81, the Supreme Court adopted the reasons of the dissenting appeal judge in each case, holding that the trial judge did not err when he accepted the complainants’ evidence and found it to be credible, even if their reliability findings were not explicit on the face of the reasons. In R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at para. 82, the Court states in part as follows:

…However, under a functional and contextual reading of trial reasons, appellate courts should consider not whether the trial judge specifically used the words “credibility” and “reliability” but whether the trial judge turned their mind to the relevant factors that go to the believability of the evidence in the factual context of the case, including truthfulness and accuracy concerns. A trial judge’s determination to accept or believe inculpatory witness evidence includes an implicit assessment of truthfulness or sincerity and accuracy or reliability….

[94] The question for me is whether the trial judge turned her mind to the relevant factors that go to the believability of the evidence in the factual context of the case, including truthfulness and accuracy concerns. Where, as in this case, the Trial Judge decides to accept or believe the inculpatory witness evidence of V.L., that decision necessarily includes an implicit assessment of the Complainant’s truthfulness or sincerity, and accuracy or reliability.

[95] I acknowledge that the Trial Judge’s reasons did not refer to each of the specific credibility and reliability concerns with V.L.’s evidence that defence counsel highlighted in his submissions before the Trial Judge. In fact, defence counsel on this appeal says that the Trial Judge did not deal with any of the alleged inconsistencies. However, R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3 establishes that the trial judge is not required to make express findings on every piece of evidence or every controverted fact.

[96] Instead, when assessing the sufficiency of the Trial Judge’s reasons, the question is whether the reasons explain why the decision was reached, viewed in light of the record and counsel’s submissions on the live issues at trial: R.E.M., at para. 35. In this case, in her submissions, Crown counsel spoke at length before the Trial Judge to refute each of the submissions made by defence counsel regarding V.L.’s credibility. It is plain to me that the Trial Judge accepted those submissions and I find that it was open to her to do so.

[97] The finding that there was “remarkable particularity” to the Complainant’s core evidence describing the assault is itself a strong expression of acceptance of the evidence of the Complainant, but even if she had not chosen to use that phrase, this is a case where the transcript itself speaks volumes in relation to the Complainant’s credibility. After reviewing the whole of the evidence, the Trial Judge plainly found V.L. to be credible and reliable.

[98] The trial decision did not explicitly refer to the reliability of V.L.’s evidence, but in my view, it is implicit in the language used by the Trial Judge that the court found her evidence to be reliable. The Trial Judge stated that the victim’s evidence was “internally consistent” and had “remarkable particularity” to it. Further, the court found that the victim did not exaggerate her evidence. The Trial Judge was also aware and acknowledged that the Complainant did blank out after the assault, but it was implicit in her reasons that this did not affect her ability to recall the assault within some hours, and to recount the detail of the assault with particularity. These findings are implicit references to reliability.

[99] On the other hand, the Trial Judge accepted the Crown’s submission that Mr. Rutaihwa, had no actual memory of some things and tried to “fill in the gaps.” This was also evident from the transcripts of testimony and the language Mr. Rutaihwa used in response to certain questions. The Crown directed the Trial Judge’s attention to instances in Mr. Rutaihwa’s testimony where his answers showed that he did not have a specific memory of the subject matter upon which he was being questioned in relation to V.L. but was instead describing his general pattern of behavior as best as he could recall it. This is to be contrasted with V.L., who, notably, readily admitted when there was uncertainty in her memory of the events. I am unable to find any error or insufficiency in the Trial Judge’s findings on credibility and reliability, and in my view the evidential foundation was present for her to reach the conclusion that she did.

[100] Even if this were not the case and I were to find the trial decision to be deficient in explaining the result to the parties, (and I do not), as long as I considered myself able to explain the result to the parties as the appeal court, then the law supports the proposition that the explanation I provide in these reasons will be sufficient and there will be no need for a new trial owing to the ability of the curative provisions under s. 686(1)(b)(iii) to cure the error of law. In the result, however, I see no need to resort to that provision to prevent the Trial Judge’s decision from falling because in my view, the Trial Judge’s decision is correct and there is no error to be cured: see R.E.M., at paras. 19, 37, 41, and 56; Sheppard, at paras. 32, 55.

[101] In the end, I am unable to accept that the Trial Judge made a “palpable and overriding error” in finding that V.L.’s evidence had “remarkable particularity” to it. In my view, it was open on the record she had before her to make that finding relative to the evidence of the Complainant. She committed no error in doing so. This ground of appeal must fail.

(ii) Did the Trial Judge fail to resolve material inconsistencies and misapprehend the Appellant’s evidence about what the victim had to drink?

[102] Defence counsel acknowledges that the Trial Judge was not obligated to address every issue raised but says that since the Complainant’s credibility and reliability were central issues at trial, the Trial Judge did need “to explain and resolve major inconsistencies in the evidence of that material witness. She needed to assess whether the Complainant subjectively consented to the sexual activity in the light of all the evidence led at trial”: R. v. A.M., 2014 ONCA 769, 123 O.R. (3d) 536, at para. 13; see also R. v. R.P., 2020 ONCA 637, at paras. 12, 32. Specifically, the defence argues that the Trial Judge also needed to assess the extent to which the Complainant consumed alcohol that evening, and whether the Appellant’s description was accurate or inaccurate and careless in all the circumstances.

[103] However, in describing the evidence relating to alcohol consumption in this way, in my view, the Appellant seeks to elevate the very limited evidence on the subject of alcohol consumption and alleged inconsistencies in V.L.’s evidence into a “major concern in the evidence of a material witness.” At para. 41 of his factum, the Appellant states his position as follows:

The trial judge’s misapprehension of this evidence was material. The Appellant’s credibility was central to the trial. The trial judge’s misapprehension grounded the single internal inconsistency the trial judge highlighted in the Appellant’s testimony. In the context of her brief reasons, this inconsistency played an essential part in her reasoning process.

[104] I am unable to accept the Appellant’s contention that the credibility of the Complainant is undermined in any material way by alleged inconsistencies in V.L.’s or the Appellant’s evidence relating to alcohol consumption. In my view, this line of argument is untenable because it requires the importance of the limited evidence on alcohol consumption to be inflated as a material factor in the final reasoning of the Trial Judge. That argument cannot succeed and as a result, the Appellant cannot establish legal error on the second ground.

[105] Several decisions referenced by the parties speak to the nature and extent of the obligation of the trial judge to address inconsistencies in the evidence that go to the assessment of the credibility of the witnesses. A trial judge giving reasons for judgment is not under an obligation to review and resolve every inconsistency in a witness' evidence. She need not respond to every argument advanced by counsel. What she should do is explain how she has resolved major inconsistencies in the evidence of material witnesses.

[106] Even before considering whether inconsistencies in a witness’s evidence affect the assessment of their credibility or reliability, however, the significance of the inconsistency must be considered. The court in A.M. recognizes this point, in the same language and just as we instruct jurors:

Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: A.M., at para. 13, citing R. v. G. (M.), 93 C.C.C. (3d) 347, at p. 354.

[107] Determining whether alleged evidential inconsistencies are major or minor, and central or peripheral, is important in the fact-finding process and the assessment of a witness’s credibility and reliability. In the case of the Complainant, it will be of importance because a finding of unexplained inconsistencies in her evidence will be more likely to undermine her credibility, but only as they increase in significance and materiality to the central question of whether the actus reus of the offence of sexual assault is made out, that is, whether the Trial Judge finds that the Complainant consented or not. As Barton instructs, the focus at that initial stage of analysis is on the Complainant’s state of mind and whether, in her mind, she wanted the sexual touching to take place: at paras. 87, 89.

[108] I find the language of Major J. in Ewanchuk to provide a helpful summary of how the process is intended to work, and how it did work in this case:

29 While the complainant’s testimony is the only source of direct evidence as to her state of mind, credibility must still be assessed by the trial judge, or jury, in light of all the evidence. It is open to the accused to claim that the complainant’s words and actions, before and during the incident, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place. If, however, as occurred in this case, the trial judge believes the complainant that she subjectively did not consent, the Crown has discharged its obligation to prove the absence of consent.

30 The complainant’s statement that she did not consent is a matter of credibility to be weighed in light of all the evidence including any ambiguous conduct. The question at this stage is purely one of credibility, and whether the totality of the complainant’s conduct is consistent with her claim of non-consent. The accused’s perception of the complainant’s state of mind is not relevant. That perception only arises when a defence of honest but mistaken belief in consent is raised in the mens rea stage of the inquiry. [Emphasis added.]

[109] Here, the Appellant claims that the Trial Judge misapprehended each party’s testimony about what the Complainant drank when she outlined this evidence as part of her assessment of the Appellant’s account. In advancing this ground of appeal, counsel for the Appellant refers to the decisions in Morrisey, at pp. 218, 221 and Lohrer (S.C.C.), at paras. 1-2 and contends that the Trial Judge was mistaken as to the substance of the evidence relating to the consumption of alcohol, not only by the Complainant V.L., but also the Appellant. The Appellant further submits that those alleged mistakes or misapprehensions relating to the consumption of alcohol, and marijuana in the case of the Appellant, played an essential part in the reasoning process of the Trial Judge that resulted in her convicting the Appellant. Moreover, the Appellant claims that the alleged misapprehension of that specific evidence, limited as it was, went to the core substance of the decision rather than details, and that the error was central, rather than peripheral, to the Trial Judge’s reasoning process.

[110] I reject this line of argument from the Appellant, and specifically the contention that a misapprehension of the evidence relating to alcohol or marijuana consumption played an essential part “in the reasoning process resulting in a conviction.” It did play a role in the Trial Judge’s determination that she rejected the Appellant’s evidence under the tests in R. v. W. (D.), but I can see no other indication that alcohol or marijuana related evidence was central to the Trial Judge’s decision.

[111] At page 5 of the transcript of her reasons, the Trial Judge found as follows:

And [the Appellant’s] evidence was internally inconsistent. He suggested at times that the complainant had been drinking and exaggerated the amount. He eventually agreed that she had only had a sip from a glass, which is consistent with her testimony. According to his own testimony, he had had three alcoholic beverages within a short space of time. Plus, he had smoked a joint of marijuana. It is plausible that this has affected his memory and accounting of what transpired that evening. [Emphasis added.]

[112] In argument, defence counsel referred to paras. 1-2 of Lohrer (S.C.C.) in support of her position, but in my view, the more relevant passages are to be found not only in para. 2, but significantly, in paras. 5-9 of Binnie J.’s reasons:

2 Morrissey, it should be emphasized, describes a stringent standard. The misapprehension of the 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”.

5 In the course of his argument, the appellant mentioned a number of other alleged errors and inconsistencies in the trial judgment including his view that the trial judge had not adequately recognized the inconsistencies in the complainants’ evidence. However, what the trial judge said was that there were no “major” inconsistencies in their evidence, a conclusion with which we agree. In any event he evidently did not consider the inconsistencies, which he recognized, to be fatal to the complainants’ credibility on the material issues in dispute.

6 In our view, none of the errors urged by the appellant goes to “the substance of material parts” of the evidence that bears on an “essential part in the reasoning process” of the trial judge leading to the convictions.

7 We would apply to the trial judge in this case what was stated by Rothman J.A., dissenting in the result, in the Quebec Court of Appeal in R. v. C. (R.) (1993), 81 C.C.C. (3d) 417, where he said at p. 420:

I can see no indication that [the trial judge] failed to direct himself to the relevant issues or that he erred in his appreciation of the evidence in a manner that could have affected the outcome.

I emphasize the last phrase. The reasons of Rothman J.A. in dissent were adopted by a majority of this Court in restoring the conviction, reported in , [1993] 2 S.C.R. 226.

8 In our view, the statement of Rothman J.A. in C. (R.) and the statement of Doherty J.A. in Morrissey both correctly emphasize the centrality (or “essential part”) the misapprehension of the evidence must play in the trial judge’s reasoning process leading to the conviction before the trial judgment will be set aside on appeal on that basis.

9 None of the errors alleged in this case meets this standard. The appeal is therefore dismissed.

[113] The Appellant endeavoured to use the inconsistencies in his own evidence to raise doubt about what the Complainant drank. The Complainant testified that she had one or two sips of wine at the hotel. Whether it was from the bottle or a Dixie cup is a peripheral detail. She also had one or two sips of a Jack Daniels and Coke at the club. Her evidence was therefore that she had up to four sips from two different drinks in two different locations. She was not refuted in that evidence.

[114] The Appellant testified that he did not know what the Complainant would have had to drink at the hotel as multiple options were available. He did have a memory of her drinking a bit of wine but did not know what else she drank after that. He did not see her drink anything else though he left the hotel before she did. When he spoke to Courtney and the Complainant at the club, he was “pretty sure” the two women had a glass each – he said he thought this would make sense because it is mandatory to buy a drink at the club. However, when asked in cross-examination whether he thought the Complainant appeared sober, the Appellant said no. He said she was not belligerent but that she seemed “buzzed.” He said he had this impression because her eyes were “squinty.”

[115] Unfortunately, I do not understand what was meant by that answer, or whether and how “squinty” eyes could or would be evidence of some level of inebriation, and it was not clarified at trial. Essentially, however, it appears to me that the Appellant was seeking to undermine the Complainant’s direct evidence, otherwise unrefuted, by his suggestion of appearances and his perceptions of her sobriety, when he had no factual foundation for those opinions. Not only that, but the Trial Judge found that it was he who was actually “buzzed,” with potentially altered perceptions.

[116] Having reviewed the entirety of the evidence and the reasons of the Trial Judge, I am forced to conclude, contrary to what the Appellant indicates at paragraph 38 of his factum, that the Trial Judge did not at all misapprehend the Appellant’s testimony about what V.L. drank. The court correctly indicated in its judgment that the Appellant suggested at times that V.L. had been drinking and exaggerated the amount, but then agreed that she had only had two sips from a glass, which was consistent with her testimony.

[117] In the result, I accept the Trial Judge’s findings and reject the argument that the Trial Judge fail to resolve material inconsistencies in the Complainant’s evidence, and in particular misapprehended the Appellant’s evidence about what the victim had to drink. This ground of appeal also fails.

(iii) Did the Trial Judge take improper judicial notice whether the sexual intercourse could be both brief and slow?

[118] Under this third ground of appeal, the Appellant complains that the Trial Judge took improper “judicial notice” of whether the sexual intercourse between V.L. and Mr. Rutaihwa could be both “brief and slow”. The Appellant claims that the Trial Judge used that specific conclusion to ground an adverse credibility finding against him. In his submission, this alleged error is not only an error of law but is also sufficiently serious on its own that it requires that the Appellant’s conviction be quashed and that he be granted a new trial.

[119] There are two elements to this claimed error of law: (i) that the Trial Judge took judicial notice of an alleged fact, and (ii) that the matter upon which the Trial Judge allegedly took judicial notice is incapable of being judicially noted. Those are both issues of law.

[120] Respectfully, however, I find that there is no merit to this ground of appeal. In my view, the Trial Judge did not take judicial notice of anything, but merely reached a finding of fact based upon the evidence and made a comment in passing about the finding she made. Even if I am wrong in that conclusion and the Trial Judge did take judicial notice of an alleged fact, I find that the matters upon which she is said to have taken judicial notice would be permissible as “tacit or informal judicial notice,” where the trier of fact simply draws on “common experience, common sense or common knowledge to interpret and understand the formal evidence presented at trial”: R. v. J.M., 2021 ONCA 150, 154 O.R. (3d) 401, at para. 32 (i). As such, in my view, the Trial Judge made no legal error in making the observations she did and this ground of appeal must fail.

[121] By way of background, the Canadian Encyclopedic Digest provides a brief review of the doctrine and how and where it can and cannot apply:

§1103 Judicial notice is a legal doctrine by which a judge accepts the existence of a proposition of fact even though no party has proven it through admissible evidence. The doctrine effectively dispenses with the need of proof for facts on the ground that no reasonable person, including the adversary, can dispute the proposition being asserted. The concept has the potential to cause great difficulty. Parties in an adversarial system risk being placed at a considerable disadvantage if the trier of fact is given free range to resolve matters without the tendering of proof. Nonetheless, the doctrine is an essential fact-finding mechanism. Trials would be interminable without use of judicial notice to set the context and background for the real factual battles.

§1104 Judicial notice may be requested by any party to the case or initiated by the trial judge. However, if a judge is considering taking judicial notice of a specific fact, he or she should advise counsel before doing so. This may be done informally, but the judge should give counsel an opportunity to call evidence and make submissions as to the appropriateness of judicial notice in the circumstances. A judge must take care not to utilize personal knowledge, of which judicial notice cannot be taken, unless the personal knowledge otherwise qualifies as an indisputable fact: Canadian Encyclopedic Digest, “Evidence”, (Thomson Reuters Canada, 4th ed.), at XVII, “Judicial Notice 1 — General”.[^1]

[122] The appellant refers to our Court of Appeal’s decision in R. v. MacIsaac, 2015 ONCA 587, [2015] O.J. No. 4538 as authority for his claim that the Trial Judge engaged in impermissible judicial notice, but I find that a review of that decision shows it to be an entirely different kind of case with very different circumstances.

[123] In MacIsaac, the accused was charged with aggravated assault. He and the complainant were participants in a no-contact senior men’s hockey league. In the closing minute of the game, the accused collided with the complainant forward on the opposing team. The complainant was knocked to his back, suffering a concussion, face lacerations and losing two front teeth. The accused claimed that the collision was an unavoidable accident, but the Crown charged the accused with aggravated assault on the basis that it was an upper body deliberate blindside hit. There was evidence from the accused’s teammates that it was an accident, but the complainant’s teammates said they had seen the accused “jump off the ice” with his arms forward in an intentional upper body slam to the complainant, who could not have seen it coming. The trial judge found the accused guilty, but the Court of Appeal reversed her finding and ordered a new trial.

[124] The reasons of the trial judge showed that she considered herself to be highly knowledgeable about hockey and hockey strategy. However, in reaching her verdict based on her self-proclaimed knowledge of hockey strategy, she had engaged in impermissible speculative reasoning. She had erred in law in drawing inferences that did not flow logically and reasonably from established facts. She relied upon her understanding of hockey strategy and her views in relation to on-ice injuries in rejecting evidence of the defence witnesses, not with the benefit of any expert opinion evidence, but simply on her own seemingly self-proclaimed expertise. These errors could only be repaired if the accused was granted a new trial.

[125] Hourigan J.A. reiterated the basic principle that if a trial judge has engaged in speculative reasoning, a conviction tainted by that error must be quashed unless Crown counsel can demonstrate that the error caused no substantial wrong or miscarriage of justice: MacIsaac, at para. 47, citing Morrissey, at para. 58. In MacIsaac, however, the speculative reasoning was not about a minor or peripheral matter. Rather, it related to highly relevant points that were central to the case and whether the Crown had proven the charge to the criminal standard. At para. 49, he admonished that an accused is entitled to a determination of his guilt or innocence based on the evidence at trial, and “[a] trial judge ought not to supplement and supplant the evidentiary record, except in very limited situations where taking judicial notice is permitted.”

[126] There is another very recent Court of Appeal decision that describes different forms of judicial notice and that I find to be of assistance in considering the merit of the Appellant’s claim in this case. In R. v. G.M.C., 2022 ONCA 2, the court restated the basic principles, but with an important addition:

[34] The principles of judicial notice were recently explained by Brown J.A. in R. v. J.M., 2021 ONCA 150, 154 O.R. (3d) 401, at paras. 31-38. For the purposes of this appeal, only the following principles need be stated. First, courts may only take judicial notice of facts that are (1) “so notorious or “accepted”, either generally or within a particular community, as not to be the subject of dispute among reasonable persons”, or (2) “capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy”: J.M., at para. 31.

[35] Second, as Brown J.A. observed in J.M., there are different forms of judicial notice. The form that arises in this case has been referred to as “tacit or informal judicial notice”. This involves the trier of fact drawing on “common experience, common sense or common knowledge to interpret and understand the formal evidence presented at trial”: J.M., at para. 32. One issue on this appeal is whether the trial judge applied “common sense or common knowledge”, or a specialized field of “memory science”, which should have been the subject of expert evidence. [Emphasis added.]

[127] In the case before the court, the Trial Judge referred to both the Appellant’s and the Complainant’s descriptions of the sexual intercourse when she assessed the Complainant’s credibility. She found the Appellant’s account was not credible. The Appellant claims that it is implicit in her conclusion that the Trial Judge was not merely making a finding of fact in the ordinary course but was making a definitive legal pronouncement that “sexual intercourse cannot both be slow and gentle and last only 10 to 15 seconds.”

[128] I find this argument to be without merit and untenable. Regrettably, it appears based upon a select but incomplete view and construction of the whole of the evidence relating to the intercourse.

[129] Indeed, in my view there is no fair or reasonable basis to construe the Trial Judge’s comments as constituting judicial notice of anything, much less a pronouncement by the Trial Judge that as a general matter, regardless of who the participants are, or what the circumstances of the sexual encounter may be, or where in the world it may take place, that sexual intercourse cannot both “be slow and gentle and last only 10 to 15 seconds.” I find the Appellant’s contention that this simple observation either amounted to judicial notice or that it was a material consideration or evidential component of the Trial Judge’s decision to convict the Appellant, if not verging on artifice, is certainly nothing but sophistry and poppycock.

[130] The Trial Judge gave a number of reasons for rejecting the Appellant’s evidence: (1) his evidence was vague, general and speculative – he used what generally happens to fills in gaps in his memory; (2) his evidence was internally inconsistent; and (3) it was plausible his memory was impacted by what he drank and smoked that evening. This example of the Trial Judge’s disbelieving the Appellant’s evidence and preferring the Complainant’s account is incorrectly said to be one of only two specific examples she gave from his evidence.

[131] The commentary on the intercourse itself reflects a finding of fact and it reflects a further instance of the Trial Judge finding that evidence of the Appellant was not credible or reliable. However, in my view, it merely adds weight to the overall conclusions that the Trial Judge reached. It is hardly a standalone finding that grounds the Trial Judge’s decision that the Appellant’s evidence was unreliable and failed the two tests in W. (D.). To the contrary, the Trial Judge’s comment strikes me more as an expression of exasperation as a witness or counsel tries to convince a court of a fact that common sense and experience suggests is simply untenable.

[132] If the Trial Judge was taking judicial notice of anything, and in my view she was not, it would be entirely permissible because it would be exactly what the court means to describe in G.M.C. as “tacit or informal judicial notice”: a case where the Trial Judge draws on “common experience, common sense or common knowledge to interpret and understand the formal evidence presented at trial.”

[133] So, in considering the Trial Judge’s comments, and in assessing whether it amounts to judicial notice as the defence contends, this common life experience and the evidence must be considered together.

[134] The viva voce evidence known to the Trial Judge at that time from both parties includes the following:

(i) It hurt V.L. when the Appellant quickly penetrated her vagina after standing her up, turning her around, and forcing her to bend forward. (ii) V.L. described the intercourse, which admittedly lasted only 10 to 15 seconds, as painful. There was nothing gentle about it. (iii) Even if it was not “aggressive,” there was “a sense of urgency” to the Appellant’s actions in turning V.L. around and immediately and quickly penetrating her vagina. (iv) It was not slow. It was quick. That is plain on the Appellant’s own evidence since he was conscious of the need to get out of the back room and back up front for a dance, within 10 seconds or so from when he would have started to penetrate her. I found it to be a particularly telling observation by V.L. that she regarded the experience as the quick actions of somebody who just wanted to have intercourse – nothing more, nothing less.

[135] When asked if it is possible that he stopped because V.L. did not seem to be responsive to him, the Appellant said he stopped because he did not want to be back there for too long, but importantly, to my mind, he seemed to have cared nothing about what her feelings were. This was evidenced by his acknowledgement that he could not tell what her response was anyway because he “had her in the position so I couldn’t really see her face anyway” and was thrusting into her without knowing her reaction.

[136] Mr. Rutaihwa agrees in cross-examination that the intercourse was “pretty quick”, but when asked if he was “thrusting aggressively, if I can say that?”, he says twice, “No, not aggressive”. Having already admitted the intercourse was pretty quick, a point on which judicial notice could probably be taken when the entire act consumed only one quarter of one minute, he is asked if he is thrusting quickly. He responds “No, very slowly.”

[137] However, as he continues to be asked about the pace, and again whether it was very slow, the Appellant responded that he had had no intention to hurt V.L., and that there was no physical sexual aggressiveness, but curiously, that was not what he had been asked. Asked again, he again said the thrusting was very slow. He concluded by saying it was gentle.

[138] The impugned statement of the Trial Judge is at paragraph 43 of her reasons. The Appellant claims that the court took judicial notice when it found that “his evidence that the sexual intercourse was slow and gentle is not really credible if the intercourse only took 10-15 seconds.”

[139] I can find no error in the Trial Judge making that statement, nor can I find merit or evidential support for this argument on appeal. To the contrary, the weight of the evidence set out above makes it plain that the intercourse was neither gentle, nor was it slow. It was “quick” “urgent” and “painful.” It “hurt” V.L. but Mr. Rutaihwa would not have known that, or if he did, did not care, because he was satisfying himself quickly and urgently before his next dance, and, by his own admission, without even caring to see the Complainant’s face.

[140] Plainly, the court was making a finding of fact based on all the evidence at trial when the Trial Judge made her comment. In the judgment, the court refers to the testimony of V.L. She was clear in her description of the intercourse as “painful” and “urgent,” even if not “aggressive.” The Appellant said the intercourse lasted for only 10-15 seconds as he didn’t want to stay in the booth too long.

[141] The Trial Judge found that V.L.’s account of the sexual assault, which included a description of the intercourse as being urgent and painful, was credible. Importantly, as I have shown, the court was relying on the evidence of both V.L. and the Appellant in finding that, given the Appellant’s admitted urgency and the contradictory evidence of the Complainant, his evidence that the intercourse was slow and gentle, was simply not credible.

[142] It is enough to dispose of this argument for me to find that the Trial Judge was simply making a finding of fact that she was entitled to make based on the evidence before her, from both parties, and made no pronouncement of judicial notice whatsoever. A trial judge may properly reject an accused’s evidence based on the acceptance of the truth of the conflicting credible evidence of prosecution witnesses. In this case, the Trial Judge rejected the Appellant’s evidence on its own, for the reasons she gives, and based on the weight of the Complainant’s evidence and the rejection of Mr. Rutaihwa’s evidence. The rejection of an accused’s evidence based on the acceptance of what the court considers credible evidence from prosecution witnesses is as much of an explanation for the rejection as is a rejection based on a problem with the way the accused testified: R. v. O.M., 2014 ONCA 403, 313 C.C.C. (3d) 5, at para 45; R. v. N.T., 2021 ONCA 754, at paras. 8-10.

Conclusion

[143] To conclude, I reject each of the three grounds of appeal for the reasons set out above. In my view, the Trial Judge fulfilled all her obligations. She considered the evidence of the Appellant, on its own and in the context of the evidence as a whole and found that the Appellant’s evidence suffered from significant internal inconsistency and was not reliable. As such, she did not accept the Appellant’s exculpatory evidence nor did it leave her in a state of reasonable doubt.

[144] On the other hand, she found the Complainant’s evidence to be credible and reliable, and also that her description of the events as they transpired, which she found to be remarkably particular, was sufficient despite the few areas of uncertainty in the Complainant’s evidence. The Complainant’s evidence satisfied her beyond a reasonable doubt that the Appellant was guilty. I agree and can find no basis to conclude that the Trial Judge erred in reaching the decision she did. The evidential foundation was there and it was open to her to make the findings she did, including that the Appellant is guilty as charged.

[145] It follows that the appeal is dismissed.

Michael G. Quigley J. Released: May 16, 2022

COURT FILE NO.: CR-21-10000052-00AP DATE: 20220516

ONTARIO SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

BETWEEN:

HER MAJESTY THE QUEEN Respondent

- and –

JANOS RWEYEMANU RUTAIHWA Defendant/ Appellant

REASONS FOR DECISION

[On appeal from the judgment of S. Ray J. dated July 23, 2021] Michael G. Quigley J.

[^1]: Citations omitted, however the principal cases dealing with judicial notice and referenced in this passage, with others, are Reference re Alberta Legislation (1938), [1938] S.C.R. 100 (S.C.C.); affirmed 1938 CarswellAlta 92 (J.C.P.C.); R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863; and R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458.