Court File and Parties
COURT FILE NO.: CR-21-10195-00AP
DATE: 2022-07-27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent
– and –
FADI AL-SAKA Appellant
Counsel: Armin Sethi, for the Respondent Alexie Zaitsev, for the Appellant
HEARD: December 17, 2021, by video-conference
THE HONOURABLE MR. JUSTICE I.R. SMITH
REASONS FOR JUDGMENT
Introduction
[1] The appellant was convicted of the offence of sexual assault after a trial before Justice Katzsch in the Ontario Court of Justice. He now appeals against that conviction on three main grounds of appeal, which I summarize as follows:
That the reasons for conviction are tainted by misapprehensions of evidence, ungrounded common-sense assumptions, and/or impermissible speculation;
That the trial judge either failed to engage in the analysis required by R. v. W.(D.) (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.), or incorrectly applied it, and/or provided insufficient reasons in that respect; and,
That the trial judge erred in her legal analysis of the mens rea of the offence of sexual assault.
Overview of the facts
[2] The appellant (a man aged 23 at the time of trial) and the complainant (a woman aged 20 at the time of trial) met on an internet dating site and struck up a relationship. They met three times, once in March or April of 2019, and twice in August of that same year.
[3] Early in the evening on the second of those occasions in August, the complainant and the accused exchanged text messages and agreed to meet for sex at the home where the complainant was "dog sitting." In their text exchange, the appellant asked whether the complainant wanted to try anal intercourse. She initially said "No", but then added "Unless you have lube." A discussion ensued about which lubricant was best and the appellant agreed to get it.
[4] Later that evening, the appellant arrived at the residence. He and the complainant went straight upstairs to the bedroom which the complainant was using. The complainant's friend, MT, remained downstairs with the dogs.
[5] In the bedroom, the complainant and the appellant engaged in consensual kissing, vaginal intercourse, and oral sex. They had agreed that the appellant would wear a condom for vaginal intercourse, which he did. The condom was removed after the vaginal intercourse and before the oral sex. They then attempted anal intercourse.
[6] The complainant testified that she was on all fours on the bed and the appellant was behind her (at trial, this was referred to as "position one" or the "first position"). He used lubricant and began to insert his penis into her anus, but the complainant immediately said "no" and told him to "stop" because it was uncomfortable. Nevertheless, the appellant inserted his penis fully, thrusting into her slowly. According to the complainant, he said that "it would stop hurting in a bit or it will get better in a bit." After a short time (less than a minute), the appellant removed his penis.
[7] The complainant testified that the appellant then laid back on the bed and asked her to get on top of him, which she did, lying with her back against his chest and with her legs on either side of him ("position two" or the "second position"). She said that she expected that they would return to vaginal intercourse, but, contrary to her wishes, he guided his penis into her anus again, thrusting upwards. Again, the complainant said "no" and "stop." After "more than a couple" of thrusts, she got up and told the appellant to leave. The appellant tried to convince her to come back to the bed and said that he had not meant to hurt her and was sorry. He left the house very shortly thereafter.
[8] The complainant testified that between the two positions, she said "no" or told the appellant to "stop" 15 – 20 times. She said that something less than two minutes passed between the beginning of the first instance of anal intercourse and the end of the second instance.
[9] After the appellant left, the complainant said that she spoke with her friend MT. MT testified and said that the complainant was obviously upset. The complainant told MT that she had had anal sex, that she had twice told the appellant to "stop," and that he had not.
[10] The appellant testified that after engaging in oral sex, the complainant got on all fours on the bed. Before he inserted his penis, he told the complainant that "it might hurt at the beginning, but it will get better." He then inserted his penis. The complainant was moaning with pleasure but when his penis was about half-way in, she said "stop" and the appellant "stopped right away."
[11] The appellant inferred that the complainant did not want to have anal sex, so he lay back and he "let her decide what she wants to do." The complaint then got on top of him as the complainant described and she guided his penis all the way into her anus. He assumed that this was what she wanted, especially since she did not ask him to put on a condom for vaginal intercourse pursuant to their agreement in this respect. In any case, the appellant said that he lay still and the complainant made all the movements. He said that "she was the one in control." She did not say "no" or "stop." After a short time, she got off the appellant and told him to leave. He did not understand why. He agreed that what happened was "shocking."
[12] The following day, the appellant and the complainant exchanged texts again. The complainant initiated the exchange saying "sorry about last night" but adding "But FYI if a girl is telling you to stop and no 15 times you should stop." A discussion followed in which the appellant raised their prior agreement to try anal sex, to which the complainant responded that she had agreed in advance but that "when were [sic] actually doing it and I say no then it means no and I don't want to … if a girl is saying no and stop you need to otherwise it's considered rape." To these comments, the appellant responded "Okay."
The reasons for conviction
[13] After reviewing the facts and the positions of counsel, the learned trial judge instructed herself on the burden and standard of proof, including the proper approach to assessing evidence in a criminal case as set out in Regina v. W.(D.), supra, the meaning of "consent" as described in Regina v. Barton, 2019 SCC 33, and the elements of the offence of sexual assault, as described in Regina v. Ewanchuk, [1991] 1 S.C.R. 330.
[14] Katzsch J. then turned to her findings on the evidence, beginning with her conclusion that the evidence of the appellant lacked credibility. She said that his evidence suffered from internal inconsistencies and was contradicted by the content of the text messages.
[15] The trial judge said that she did not believe the appellant's evidence that the complainant told him to stop almost immediately after he first tried to penetrate her anally and that she then immediately got back on top of him and inserted his penis in her anus "without the slightest bit of hesitation, despite just moments earlier telling him to stop and indicating her discomfort."
[16] She found as follows:
I find this evidence does not make sense in the circumstances. If this same act was causing her so much difficulty, she could not bear to continue in position one, and the accused was cognizant of her discomfort, it belies common sense to accept she would simply re-engage in the exact same activity with such complete abandon or disregard regarding possible pain and discomfort upon entry.
The accused understood she had withdrawn her consent to this activity, but suggested without any conversation that her consent was immediately renewed by her actions. This again seems completely inconsistent with her rapid withdrawal from this activity in position two, and her demand for the accused to dress and leave the house, even though on his evidence, the complainant also said at the same time it was, "Okay, and nothing happened."
[17] The trial judge also rejected the appellant's explanation for the post-event text messages, finding as follows:
The entire version of events simply does not make sense. The accused suggested he did not respond to the complainant's allegations in the text messages because he did not want to argue with the complainant, yet from the outset of the text conversation he is in fact quite argumentative with her saying, "You need to try everything when you have sex", reminding her she told him to bring the lubricant and asking, "Why she let him do it from the beginning then."
Despite his evidence that he did not understand the crux of what she was saying due to his limited grasp of English, the text messages suggests full comprehension on his part, and a desire to put any blame back on the complainant.
[18] Katzsch J. then said that she found the appellant's in-court testimony strained, that he "was struggling to come up with his answers," and that those answers "did not make sense". She concluded that the appellant's evidence suggested that it was his view that the complainant's text messages before the event "constituted an agreement from which the complainant could not resile."
[19] For all these reasons, the trial judge rejected the appellant's evidence and found that it did not raise a reasonable doubt. She then turned to the question of whether the Crown had proven its case beyond a reasonable doubt.
[20] Katzsch J. found the complainant credible, found that her evidence was corroborated by her own post-event conduct, by the evidence of MT, and in many respects by the evidence of the appellant. She rejected the various concerns raised by the appellant with respect to the credibility of the complainant, including discrepancies in her evidence about how many times she said "no" and "stop", her inability to remember how her clothes and those of the appellant had come off, and discrepancies between her evidence and the evidence of MT, among other even more "minor and immaterial" inconsistencies.
[21] With respect to the evidence about the use of a condom, Katzsch J. said as follows:
The defence places great weight on the fact that the complainant testified she wanted the accused to wear a condom for vaginal sex as she was concerned about pregnancy. It is suggested this is inconsistent, therefore with her assertion that she expected vaginal sex after position one of anal intercourse, given she did not demand he re-apply a condom at that time.
It was the complainant's evidence that she would normally ask a partner to wear one for vaginal sex but it didn't always happen and it was not her focus at that particular time.
Again, however, this was corroborated to some extent by the accused. Mr. Al-Saka testified that as he allowed the complainant to determine what she wanted as she assumed a second position on the bed after the first attempt at anal intercourse, he inferred she might be about to resume vaginal intercourse.
He too stated in evidence that it was his preference to wear a condom for this act and was going to wear one even if the complainant had not requested it. However, neither parties [sic] seemed focused on this issue at that time. This lends itself to a conclusion that the encounter was moving quickly from one position and one act to another, and the condom issue had been lost in the transition.
[22] The trial judge concluded that the complainant was credible and reliable, and that she was largely unshaken in cross-examination. Justice Katzsch found that the complainant initially agreed to participate in anal sex, then revoked that consent, saying "no" and "stop". When the appellant penetrated her anally again over her "protestations," she removed herself and ordered the appellant to leave. The trial judge found that the complainant did not consent to the resumption of anal intercourse in position two. She was persuaded beyond a reasonable doubt that the actus reus of the offence had been committed.
[23] Referring to Regina v. A.J., 2011 SCC 28 and Ewancuk, supra, the trial judge then turned to the mens rea of the alleged offence and considered whether there was a doubt that the appellant "believed that the complainant 'communicated consent.'"
[24] In this regard, the trial judge noted that she had already rejected the appellant's evidence that he stopped immediately when told to do so by the complainant when they were in position one, and that the appellant penetrated her in position two shortly thereafter without making any effort to secure her consent to do so. She noted that the complainant's apparent willingness to continue with sexual activity "does not equate to a willingness to continue with anal intercourse." In the second position, the complainant continued to say "no" and "stop", but the appellant did not stop.
[25] In this latter respect, the trial judge said: "[The appellant] understood those words but was intent on relying on her previous consent as noted in the text messages afterward." Katzsch J. noted that consent is "an ongoing state of mind" and that her consent may be revoked and, once revoked, that lack of consent must be respected.
[26] Justice Katzsch ended as follows:
The complainant said "no", the complainant said "stop". She said both numerous times but the [appellant] refused to listen. He had actual knowledge of her lack of consent and persisted with the act of anal intercourse. In so doing he committed the offence of sexual assault.
Ground 1: Misapprehension of evidence and reliance on speculative common-sense assumptions
[27] Under this heading, the appellant makes several inter-related arguments. First, referring especially to the portions of the trial judge's reasons quoted at paragraphs 16 and 17 above, he submits that in rejecting the appellant's evidence the trial judge improperly relied on her own "common sense" assumptions about human behaviour rather than on the evidence which was before her. In particular, he argues that "there was no evidence capable of supporting the inference that [the complainant] personally, let alone, someone in general, would never engage in activity that causes them pain." Moreover, according to the appellant, the trial judge mischaracterized the evidence when she said that the anal intercourse in position one was "the exact same activity" as the anal intercourse in position two.
[28] Before turning to the appellant's argument, which attacks the trial judge's findings of credibility and fact, I note that those findings "deserve particular deference" (Regina v. G.F., 2021 SCC 20, at para. 81) and that "appellate intervention [to overturn them] should be rare" (Regina v. Doodnaught, 2017 ONCA 781, at para. 80; see also Regina v. Mugabo, 2017 ONCA 323, at para. 25).
[29] The appellant leans heavily on the judgment in Regina v. J.C., 2021 ONCA 131. There, Justice Paciocco wrote as follows [citations omitted; emphasis added]:
[58] […] [J]udges must avoid speculative reasoning that invokes "common-sense" assumptions that are not grounded in the evidence or appropriately supported by judicial notice. For clarity, I will call this "the rule against ungrounded common-sense assumptions".
[59] To be clear, there is no bar on relying upon common-sense or human experience to identify inferences that arise from the evidence. Were that the case, circumstantial evidence would not be admissible since, by definition, the relevance of circumstantial evidence depends upon using human experience as a bridge between the evidence and the inference drawn.
[60] Nor is there any absolute bar on using human experience of human behaviour to draw inferences from the evidence. If there was, after-the-fact conduct evidence about things such as flight or the destruction of evidence would not be allowed. Such evidence is relevant because human experience tells us that these behaviours, flight and destroying evidence after a criminal act, are generally undertaken to hide guilt. An absolute bar on using human experience of human behaviour to draw inferences would also mean that evidence that an accused drove a protesting sexual assault complainant to a secluded location could not be used as proof of his intention or her lack of consent. The inferences to be drawn from that evidence depend on common-sense conclusions about what a person acting in a particular manner is likely to be thinking.
[61] Properly understood, the rule against ungrounded common-sense assumptions does not bar using human experience about human behaviour to interpret evidence. It prohibits judges from using "common-sense" or human experience to introduce new considerations, not arising from evidence, into the decision-making process, including considerations about human behaviour.
[63] The second relevant, overlapping rule is that factual findings, including determinations of credibility, cannot be based on stereotypical inferences about human behaviour. I will call this "the rule against stereotypical inferences". Pursuant to this rule, it is an error of law to rely on stereotypes or erroneous common-sense assumptions about how a sexual offence complainant is expected to act, to either bolster or compromise their credibility. It is equally wrong to draw inferences from stereotypes about the way accused persons are expected to act.
[65] … like the rule against ungrounded common-sense assumptions, the rule against stereotypical inferences does not bar all inferences relating to behaviour that are based on human experience. It only prohibits inferences that are based on stereotype or "prejudicial generalizations" …
[30] In my view, considering the trial judge's reasons as a whole, she did not commit the error alleged by the appellant. The trial judge's rejection of the evidence of the appellant was not based on common sense conclusions which find no foundation in the evidence. On the contrary, the trial judge's application of "common sense" was based on the circumstances of this case. As Paciocco J.A. wrote in J.C., trial judges are not prohibited from drawing on experience, they are prohibited from introducing considerations into the analysis which considerations do not arise from the evidence.
[31] In this case, contrary to the submission of the appellant, the trial judge did not conclude that no person, including the complainant, would ever willingly engage in behaviour that caused pain. Instead, referring to the evidence before her, she found that it defied common sense that the complainant, having just moments earlier declined to engage in anal sex because it was painful, saying "no" and telling the appellant to "stop," would them immediately attempt to do so again. This was especially so, in the circumstances of this case, given the lack of any discussion between the parties between position one and position two during which the complainant communicated a renewed consent to anal sex.
[32] In my view, the trial judge's conclusion in this respect was an inference available to her on the evidence. It did not rely on assumptions about human behaviour generally which were unfounded on the evidence at trial. It was, instead, rooted in the evidence: in particular, the complainant's experience of pain, the appellant's knowledge of same, the clear revocation of consent, and the lack of communication between the parties before the second instance of anal intercourse. This is plain in the paragraphs which the appellant criticizes.
[33] Relatedly, the appellant criticizes the trial judge's characterization of the anal intercourse in position one as "the exact same activity" as the anal intercourse in position two. While the appellant is, strictly speaking, correct that the use of different positions meant that the "activity" was not exactly the same, there is no basis upon which to draw the inference that the trial judge did not understand that there were two different positions involved. Indeed, the trial was consumed by evidence about, and discussion of, the two positions and what happened between them. In my view, the "activity" to which Katzsch was referring was anal intercourse and that was the "exact same" thing undertaken in both position one and position two.
[34] The appellant also argues, however, that the fact that the positions were different was important to him. In his factum, he asserts that the change in position was important because the complainant climbed on top of him. From this, he thought that the complainant was renewing her consent.
[35] Again, in my view, it was open to the trial judge to reject this evidence as she did. Her conclusion in this regard, as I have said, was based on the evidence. It was not unreasonable to conclude, nor was such conclusion based on any mischaracterization of the evidence, that the complainant was very unlikely to have renewed her consent to something she had found painful – and to which she had just revoked her consent – without a clear indication that she was doing so.
[36] The appellant argues next, however, that the complainant's own evidence suggests that she was communicating renewed consent by climbing back on top of the appellant in position two. It was therefore an error for the trial judge to "intimate" that it was unreasonable for the appellant to believe that the complaint was renewing her consent by her actions alone.
[37] In my view, this argument rests on an incomplete reading of the complainant's evidence. She was clear that she "assumed we were going back to vaginal sex but it wasn't discussed, I was just hoping he understood and would want to go back to vaginal sex but he went back to anal, so that's when I started to say "no" and "stop" again."
[38] In cross-examination, the complainant added that after position one, the appellant "just got off, laid down, and then asked me to get on top, and there was no communication of what was gonna happen, so I didn't know if it was gonna go vaginally or anally. […] Because at that point I thought he had listened to me and we were gonna go back to regular intercourse instead of anally."
[39] On the complainant's evidence, by climbing on top of the accused, she was clearly not communicating consent to resume anal sex. Contrary to the appellant's submission, any uncertainty the complainant harboured about what the appellant was going to do when she climbed on top of him was not evidence of consent, or of the appellant's belief in her consent, reasonable or otherwise. It was instead evidence of uncertainty about how the appellant would behave, and whether he would respect her wishes. The trial judge's conclusion that the complainant's actions did not "immediately renew" her consent to anal sex was, in my view, entirely reasonable.
[40] Next, the appellant submits that the trial judge erred by concluding that "just because someone rapidly withdraws from a sexual activity it somehow supports the conclusion that they did not consent in the first place." This does not, in my view, accurately describe the trial judge's reasoning on this point. She did not find that rapid withdrawal alone was evidence of lack of consent, she found that rapid withdrawal and the complainant's demand that the appellant leave the residence, as in the circumstances of this case, was consistent with the fact that the complainant had not consented. Indeed, it would have been odd if the complainant had withdrawn as rapidly as she did and immediately demanded that the appellant leave if in fact she was consenting in the first place.
[41] I do not agree with the appellant that the trial judge used the evidence of rapid withdrawal to reject the appellant's claim that he subjectively believed that she was consenting. As the appellant argues, the complainant's after-the-fact conduct cannot inform the appellant's understanding at the time of the sexual contact when the complainant's consent, or the appellant's belief in her consent, is crucial. Here, however, in my view, the trial judge's purpose was as I have described it in the previous paragraph – that the evidence of rapid withdrawal was consistent with lack of consent. I note that the fact of the complainant's withdrawal plays no part of the trial judge's analysis of the mens rea of the alleged offence, where the key question was whether the appellant believed that the complainant was consenting to anal sex in position two.
[42] Next, the appellant argues that the trial judge misapprehended the appellant's evidence respecting the text messages exchanged the day after the sexual encounter. In this respect, he submits that the there was no evidence that the appellant was "struggling to come up with his answers" during cross-examination on the text messages and that the reasons for conviction do not adequately explain what about the appellant's evidence "did not make sense."
[43] As for the trial judge's assessment of the appellant's in-court testimony, I am obliged to acknowledge the significant advantage enjoyed by the trial judge, who saw and heard the appellant testify. In any case, on my reading of the reasons, the trial judge finds on the evidence that the appellant was taking the position in the post-event text exchange that because the complainant had agreed to try anal sex in advance she was fixed with that agreement and "could not resile" from it. What does not make sense, in other words, is the appellant's understanding of consent, a point to which Justice Katzsch returned later in her reasons, where she said:
A consent of a complainant is an ongoing state of mind. There is no substitute for the complainant's actual consent to the sexual activity at the time that it occurred no matter what may have been communicated at a prior time. It is an error of law for the accused to believe that the complainant is still consenting acter she expresses a lack of agreement to engage in the sexual activity (see Regina v. A.J., supra, at paras 39 to 40).
[44] I do not agree that the reasons are inadequate in this respect.
[45] The appellant also argues that the trial judge misapprehended the evidence and erred by finding an inconsistency between the appellant's evidence that he answered "okay" to the complainant's most serious allegations in the post-event text messages because he did not want to argue with her, and his evidence that he was somewhat argumentative with her at the outset of that text exchange. In my view, the reasons do not betray any misapprehension of this evidence. The trial judge made an observation about the appellant's testimony which had a foundation in the evidence. She then continued from that point to reject the balance of the appellant's explanation, that he answered "okay" because his English was poor, given that the text messages suggest "full comprehension on his part." Again, these were conclusions which the trial judge was entitled to draw on the evidence before her.
[46] Relatedly, the appellant argues that the trial judge's reasoning about the post-event text messages was tainted by ungrounded assumptions about human behaviour. He points to an exchange during closing submissions in support of this position, noting that the trial judge put to counsel the suggestion that an accusation of rape might have generated a more vigorous response than "okay" if it were false. In my view, assuming that this chain of reasoning is faulty, it finds no expression in the reasons for judgment.
[47] For all these reasons, I do not give effect to the first ground of appeal.
Ground 2: Flawed W.(D.) analysis
[48] The appellant finds fault with the trial judge's application of Regina v. W.(D.), supra.
[49] First, it is alleged that the trial judge failed to consider the evidence of the appellant in the context of the evidence as a whole, that she instead rejected it simply because she preferred the evidence of the complainant, which she assumed to be true, and that she reversed the burden of proof by pointing out that the appellant could not explain the complainant's rapid withdrawal and ejection of the appellant from the residence.
[50] I do not read the trial judge's reasons in this way. Justice Katzsch instructed herself correctly on W.(D.), expressly noting that the appellant "is presumed innocent and need prove nothing," and that "it is not my role to choose between the two version of events…" When she turned to her analysis of the appellant's evidence, the trial judge said: "I have reviewed all the evidence in this case in detail. Beginning with the defence evidence, I found the accused's testimony to lack credibility" [emphasis added]. She then analyzed that evidence, finding it internally inconsistent and contradicted by the text messages. Justice Katzsch further found, as explored above, that she rejected the appellant's evidence because it did not make sense.
[51] None of this involved a comparison with the evidence of the complainant or indicates that the trial judge simply chose the version of events she preferred. On the contrary, the trial judge expressly considered the evidence of the appellant in the context of all the evidence and found both that she did not believe it and that it did not raise a doubt. I see no error in the trial judge's reasoning.
[52] Further, the appellant misreads the reasons when he argues that the trial judge reversed the burden of proof. While Justice Katzsch did refer to the fact that the appellant "could not account for the change in [the complainant's] demeanour", she did so only in the context of her review of the evidence. In this respect, she accurately summarized the appellant's evidence. None of this played any role in her application of W.(D.).
[53] Second, the appellant says that the trial judge failed to explain why the appellant's evidence did not raise a doubt and thereby failed to provide adequate reasons which allow for appellant review. He relies on the judgement of the Court of Appeal in Regina v. Y.M. (2004), 2004 CanLII 39045 (ON CA), 186 C.C.C. (3d) 247 (Ont. C.A.), at para. 29.
[54] In my view, this case is distinguishable from Y.M.. There, the trial judge dismissed the accused's evidence in a single conclusory sentence. Justice Laskin, writing for the court, concluded in these circumstances that the trial judge had offered no explanation for rejecting the accused's evidence, that it was not clear that the trial judge had applied W.(D.), and that meaningful appellate review was therefore impossible (see Y.M., supra, at paras. 24 – 29).
[55] Here, Justice Katzsch offered reasons over roughly three pages for her conclusion that the appellant's evidence was not credible and then added that she further found that his evidence did not raise a doubt. There is nothing unusual about a trial judge finding the evidence of the accused incredible and, for the same reasons, finding that it does not raise a doubt, thereby dealing with the first two steps of the W.(D.) test. That is what happened here. Moreover, the trial judge then proceeded to consider whether the evidence as a whole convinced her of the guilt of the appellant beyond a reasonable doubt. The trial judge's reasons must be read as a whole and, when one does, they allow for meaningful appellate review (see Regina v. Tzarfin (2005), 2005 CanLII 30045 (ON CA), 201 O.A.C. 183 (C.A); Regina v. J.J.R.D. (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.), at paras. 44 – 55).
[56] But the appellant argues that the trial judge, having rejected the appellant's evidence "in its entirety", then used that very evidence to bolster the evidence of the complainant. He argues that the trial judge engaged in uneven scrutiny of the evidence of the appellant and the complainant. I do not accept this argument. It is clear that the trial judge did accept some portions of the appellant's evidence. As the trial judge pointed out, the two main witnesses corroborated each other on many points. That the trial judge would make this observation when considering the criticisms of the complainant's evidence levelled by the appellant is hardly surprising and does not amount to uneven scrutiny, as alleged by the appellant.
[57] The appellant further argues, however, that the trial judge erred by improperly analyzing the evidence as a whole when determining whether the Crown had proved the case beyond a reasonable doubt. He says that the trial judge speculated "just to explain away inconsistencies and close the gaps in A.P.'s evidence for the Crown." In so doing, it is alleged that she repeatedly misapprehended the evidence.
[58] First, the appellant says that the trial judge incorrectly said that the complainant had acknowledged being high on the night in question when in fact it was MT who had done so. The trial judge said as follows: "I found the complainant in this case to be credible in her evidence. She acknowledged being under the influence of cannabis and having some difficulty recalling precise details."
[59] In fact, the complainant acknowledged using cannabis before the appellant arrived and said she could not "quite remember" whether she was still feeling its effects when the appellant arrived. Twice in cross-examination she explained that she could not remember when she had last smoked cannabis that evening and that that was why she could not remember whether she was high when the appellant arrived. MT, who did acknowledge being under the effects of marijuana at the time the appellant arrived at the house, also said that she could not remember when she and the complainant had last smoked marijuana.
[60] In my view, the trial judge's mischaracterization of the evidence was minor and does not warrant appellate intervention, the threshold for which is high (Regina v. Worrie, 2022 ONCA 471, at para. 106. See also, Regina v. Mahmood, 2011 ONCA 693, at paras. 46 – 48; Regina v. Gough, 2013 ONCA 137, at paras. 20 – 29). The complainant did acknowledge using marijuana and, as the trial judge correctly noted, that she did not remember many details.
[61] This latter observation leads to the appellant's second complaint: that the trial judge unreasonably excused the complainant's inability to recall details other than those relating to the anal sex. In my view, the trial judge did nothing more than conclude that the complainant was focused, reasonably so, on the events during which she says that she was violated. She therefore had a better memory of those events than of other parts of the time she spent with the appellant that evening. This is not an error.
[62] Third, the appellant argues that the trial judge failed to grapple properly with the inconsistencies in the evidence of the complainant respecting how many times she said "no" and "stop." I disagree. The trial judge was well-aware that the complainant had given different estimates at trial, to the police, to MT, and in her post-event text messages. Katzsch J. dealt with all those sources of evidence and drew her conclusions based on the evidence, i.e., that the inconsistencies did not detract from the credibility of the complainant and that the complainant had said "no" and "stop" to the appellant repeatedly. These were reasonable conclusions available on the evidence.
[63] Fourth, the appellant argues that the trial judge erred by finding that she was "unsure what to make of" a discrepancy between the evidence of the complainant and that of MT. MT testified that the complainant told her that the appellant had told her to "stay still and shut up." The complainant denied that she had said that to MT.
[64] The appellant says that if the trial judge was unsure what effect this inconsistency had, she should have found that it created a reasonable doubt. Instead, the trial judge concluded as follows: "there is simply not enough evidence on this point before the Court, to make a determination that this statement significantly undermines the complainant's credibility or reliability."
[65] While this conclusion might have been better-expressed, it is my view that the trial judge's conclusion that the complainant was credible is apparent from a reading of her reasons as a whole, that she was not sure what to make of the evidence in an area where the evidence was confusing to her, and that she was observing, as is often the case, that the court had not heard all the evidence which might have been helpful. These were conclusions open to the trial judge and I see no error in them that warrants correction. As Justice Watt noted in Regina v Gibson, 2021 ONCA 530, at paras. 56 – 57, the trial judge was not required to resolve every conflict in the evidence in coming to her findings respecting credibility, which findings are "notoriously difficult to dislodge on appeal."
[66] Last under this ground of appeal, the appellant argues that the trial judge erred in her assessment of the evidence about the fact that no condom was used in the second position. The trial judge's reasons in this respect are quoted above at paragraph 21. I see no error in that portion of her reasons. Her conclusion that the parties' agreement to use a condom for vaginal sex was "lost in the transition" between position one and position two was explained by Justice Katzsch and was available to her on the evidence.
[67] For all these reasons, I would not give effect to the second ground of appeal.
Ground 3: The analysis of mens rea
[68] Last, the appellant argues that the trial judge erred in her treatment of the mens rea for the offence of sexual assault.
[69] In my view, the trial judge's assessment of the evidence of mens rea in this case betrays no error and I would not give effect to this ground of appeal. The trial judge referred to relevant and controlling authorities, applied the facts as she found them to the law which she correctly stated, and concluded that this element of the offence was made out. That conclusion was not unreasonable and was supported by the facts as found by the trial judge.
[70] For all these reasons, the appeal is dismissed.
I.R. Smith J.
Released: July 27, 2022
COURT FILE NO.: CR-21-10195-00AP
DATE: 2022-07-27
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
FADI AL-SAKA
REASONS FOR JUDGMENT
I.R. Smith J.
Released: July 27, 2022