COURT FILE NO.: CR-23-10000002-00AP DATE: 20240228

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING Respondent – and – GLEN ALEXANDER Appellant

Counsel: J. Bruno, for the respondent B. Bytensky, for the appellant

HEARD: December 13, 2023

REASONS FOR DECISION

On appeal from the conviction entered on March 21, 2022 by the Honourable Justice L. Chapin of the Ontario Court of Justice.

SCHRECK J.:

[1] Glen Alexander was charged with one count of sexual assault based on an allegation by M.T., a woman at whose apartment he spent an evening in February 2020. She claimed that Mr. Alexander, whom she met after he helped her move, made unwanted sexual advances towards her and put his fingers in her vagina without her consent. Mr. Alexander denies sexually assaulting M.T. He maintains that while he initially believed that M.T. was romantically interested in him despite being about 30 years younger, he came to realize that she was only interested in being paid for sex, which he was not willing to do.

[2] The Crown proceeded summarily and Mr. Alexander was tried in the Ontario Court of Justice. M.T. and Mr. Alexander both testified. The trial judge accepted M.T.’s evidence and did not accept Mr. Alexander’s and he was accordingly found guilty. Mr. Alexander appeals the conviction based on various alleged errors in the trial judge’s reasons as well as alleged improper conduct on the part of the Crown.

[3] The following reasons explain why the appeal is dismissed.

I. EVIDENCE

A. The Complainant’s Account

(i) Events Leading Up to the Alleged Sexual Assault

[4] The complainant, M.T., first met the appellant after she hired him as a mover on three occasions. She was 23 years old at the time and he was 52. After the second move, the appellant invited M.T. to attend a comedy show with him, which she agreed to do. They discovered that they had a common interest in metaphysics and philosophy.

[5] After the third move, the appellant invited M.T. to see “the lights” with him on February 2, 2020, although the evidence about what this referred to was unclear. She agreed. The appellant came to her residence in the evening as arranged, but once he arrived he told her that “the lights” had been cancelled. Instead, the two of them spent the evening in her bedroom. The appellant had brought his iPad and they spent time watching “philosophical” and other videos on YouTube.

[6] The appellant also brought alcoholic beverages, chocolate containing “magic mushrooms” (psilocybin), marijuana and cocaine, which they consumed together. M.T. testified that this was the first time she had tried psilocybin or cocaine. According to her, she consumed one can of juice that contained 5% alcohol, “two puffs of a joint,” half of the chocolate, and “barely” any cocaine.

[7] Throughout the evening, the appellant made sexual advances towards M.T., including attempts to kiss her, put his hands up her shirt and down her pants. Each time, she told him that she was uncomfortable and did not want him to do that. He would stop and become upset, but then deny that he was upset when she asked him why. This happened several times throughout the evening.

(ii) The Alleged Sexual Assault

[8] At around 2:00 a.m., M.T. asked the appellant when he needed to leave. She had been growing increasingly uncomfortable and wished him to leave, but did not want to appear rude. He replied that he needed to sober up and got into her bed next to her. They had various conversations while lying next to each other. According to M.T., the appellant always tried to steer the conversation to something sexual.

[9] At some point while in bed, he suggested to her that she could make a lot of money working as an escort. M.T. testified that she “laughed it off” and told the appellant that she had heard something similar before when someone had suggested that she could work at a strip club and make $2000 per day. She asked the appellant whether he wanted to be her “pimp,” to which he replied that “pimp is a just a word that people use.”

[10] The appellant then showed M.T. his erect penis under his clothing, which she believed was a suggestion that she perform fellatio on him. She said nothing and turned away, at which point the appellant said, “Well, you know, I got to see what I’m selling.” He then got up from the bed, grabbed her ankles and then her hips, pulled her pants aside and penetrated her vagina with his fingers for about 10 seconds. She repeatedly told him to stop. The appellant then put his fingers in his mouth and said, “You have a really nice taste.”

[11] M.T. testified that she “disassociated from that experience because I couldn’t stay in my body for that, because it was too much.” When she “came to,” the appellant acted like nothing had happened. She asked him when he was going to leave, and he told her a specific time that he would do so, which she believed was 3:00 or 3:45 a.m. She waited until that time and then tapped him on the shoulder and told him that it was time to leave. He collected his belongings and left.

(iii) The Day After

[12] The next morning, the appellant sent M.T. a text in which he said that he did not know why she had asked him to leave but that he hoped that she had had a good night. He also asked her to think about what they had discussed the previous night and indicated that he believed that they could make a lot of money. M.T. sent a text in response that said, “I told you to stop, and you did not stop. That is why I told you to leave. No means no” and “I’m not interested in being friends with someone who doesn’t respect me as a person.” M.T. did not preserve the text messages.

[13] According to M.T., the appellant responded by “apologizing in some way,” although he did not acknowledge what he had done. He offered to take her out to dinner to talk about things. According to M.T., this made her confused about everything that had happened and she remembered thinking, “Did I make it up, am I overreacting?” She then wrote to the appellant and told him that she was willing to join a book club that he had told her he was planning to organize. He responded by again inviting her out to dinner.

[14] After about a week, M.T. decided that she had been “gaslit into thinking that I was crazy.” Eventually, she contacted the police in April.

(iv) Injuries

[15] M.T. testified that as a result of the appellant putting his fingers in her vagina, her cervix and her sciatic nerve were “punctured,” causing her intense pain which she still experienced at the time of trial. She did not see a doctor about this.

B. The Appellant’s Account

(i) The Visit to M.T.’s Apartment

[16] The appellant’s evidence with respect to the beginning of the relationship was similar to M.T.’s. However, he testified that he formed the impression that she was “interested” in him, which he found surprising given their age difference.

[17] According to the appellant, on February 3, 2020, he and M.T. had arranged to go for a walk together and he went to her apartment as they had arranged. At her request, he brought some cocaine and psilocybin. By the time he got there, it was snowing outside so they decided not to go for a walk.

[18] The appellant and M.T. consumed drugs together, including the cocaine and psilocybin as well as some marijuana which she supplied. According to the appellant, they each had three “lines” of cocaine.

(ii) Discussions About Sex For Money

[19] The appellant testified that towards the end of the evening, M.T. reached over and began rubbing his crotch. He responded by rubbing her thigh and then her crotch, at which point she said, “stop.” He stopped. M.T. told him that she did not mind having sex, but that she wanted to make money and was looking to make $10,000 per week. She asked the appellant, “Are you that guy?” The appellant replied that he was not, but that he knew some people with whom she could make some type of “sugar daddy” arrangement. According to the appellant, he was upset because he had believed that M.T. genuinely liked him but now realized that she simply wanted to make money.

(iii) The Appellant’s Departure

[20] M.T. asked the appellant for more cocaine but he did not have any. They consumed the psilocybin instead. About an hour and a half or two hours later, M.T. again asked for more cocaine, but he did not have any. At this point, she became “strange” and asked him to leave. He told her that he needed to sober up first.

[21] The appellant and M.T. both lay down on her bed. According to the appellant, they did not speak and he felt uncomfortable. After a couple of hours, he got up and left.

[22] The appellant never saw M.T. again, but she sent him text messages to which he responded. After a while, he blocked her messages on the advice of some friends.

II. ANALYSIS

A. Drawing Inferences About the Complainant’s Level of Intoxication in the Absence of Expert Evidence

[23] In her Reasons for Judgment, the trial judge stated:

Despite her argumentative responses in cross-examination, [M.T.’s] evidence made sense. She was not contradicted or shaken with respect to her version of what occurred. She was cross-examined at length, and was candid with respect to her drug use that night, and was consistent throughout as to what occurred. The substances she consumed were ingested over an eight-hour period, and she did not take very much. Given that, it is not surprising that she was not feeling the effects of them to any great extent.

[24] The appellant submits that absent some expert evidence, it was not open to the trial judge to conclude that the substances ingested by the complainant would not have affected her. In doing so, he relies on a well-established line of drinking and driving cases which conclude that absent expert evidence, impairment cannot be inferred based solely on an accused’s blood alcohol content: R. v. Letford (2000), 51 O.R. (3d) 737 (C.A.), at para. 22. He submits that since impairment cannot be inferred from one’s level of consumption, it follows that a lack of impairment cannot be inferred from it either.

[25] I would not give effect to this ground of appeal. The complainant testified that she did not consume very much alcohol or drugs and was not feeling impaired. In my view, it was open to the trial judge to accept her evidence in this regard.

[26] While the appellant is correct that impairment cannot be inferred from one’s level of consumption alone, it can be inferred from the level of consumption together with other evidence: R. v. Shen, 2023 ONSC 3847, 533 C.R.R. (2d) 359, at para. 59; R. v. Selvarajah, 2011 ONCJ 468, at para. 17; R. v. Hurdon, 2018 ONCJ 667, 422 C.R.R. (2d) 211, at para. 44; R. v. Grewal, 2018 ONCJ 109, at para. 24; R. v. Nandlall, [2009] O.J. No. 3452 (S.C.J.), at paras. 5-6; R. v. Haas, 2011 ONSC 4529, at paras. 36-38. The same applies to an inference of non-impairment. In this case, the trial judge did no more than note that the small amount the complainant consumed was consistent with her evidence that she did not feel impaired.

B. Alleged Improper Conduct by the Crown

(i) The Issue

[27] During defence counsel’s cross-examination of M.T., he suggested to her that during her statement to the police, she had said that she and the appellant kissed on the evening that they visited the comedy club. The Crown objected that the question was impermissible absent a successful application pursuant to s. 276 of the Criminal Code. In making the objection, Crown counsel advised the court that since the Crown is also prohibited from leading evidence of prior sexual activity on the part of a complainant absent a ruling permitting it do so, he had instructed M.T. not to testify about this. Defence counsel then indicated that his purpose in asking the question was to establish an inconsistency by omission in M.T.’s evidence, but since the omission was explained by Crown counsel’s instructions to her, he withdrew the question.

[28] During his final submissions, Crown counsel began by summarizing the evidence of the interactions between the appellant and the complainant before the day of the alleged sexual assault. In the course of doing so, he said:

They moved – he’d helped her move, I guess, before the narrative kind of picks up, twice before and on the sort, sort of, the eve of a third move or sometime between the second and third move they were at a comfort with each other in their relationship, which she testified was platonic in an entirely credible way. [Emphasis added].

[29] The appellant submits that it was improper for the Crown to advance the submission that the complainant’s description of the beginning of the relationship as “platonic” was “entirely credible” when he knew that the complainant had told the police that she and the appellant and kissed at the comedy club.

(ii) Analysis

[30] I agree that it would have been preferable for Crown counsel not to make this submission, although I have no reason to believe that the error was anything but inadvertent. However, I am satisfied that this occasioned no prejudice to the appellant. There are several reasons for this conclusion.

[31] First, although the appellant’s counsel had an opportunity to make reply submissions and did so, he did not raise any objection to the Crown’s submission.

[32] Second, the trial judge did not rely on this submission at any point during her reasons, which included a summary of Crown counsel’s submissions.

[33] Third, and most importantly, whether the prior relationship between the appellant and the complainant was “platonic” was entirely irrelevant. It is, of course, well established that “details of previous sexual interactions are simply not relevant to the determination of whether the complainant consented to the act in question”: R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3, at para. 74. A corollary to this is that evidence of a prior non-sexual relationship is also not relevant to the determination of whether the complainant consented to the act in question. In either case, the issue is whether there was consent to the sexual act that forms the subject matter of the charge.

[34] The situation may be different where a complainant testifies about a prior non-sexual relationship and links the nature of the relationship to her lack of consent to the act in question (e.g., R. v. Harris (1997), 118 C.C.C. (3d) 498 (Ont. C.A.), at paras. 47-48; R. v. Kuzmich, 2020 ONCA 359, 388 C.C.C. (3d) 243, at paras. 61-69), or where the complainant has offered contradictory statements about the sexual nature of the relationship (e.g. Goldfinch, at para. 63). But that is not this case. Consent was not in issue. Rather, the issue was whether the sexual acts described by the complainant had taken place. Whether or not the prior relationship was platonic clearly had no relevance to this issue.

C. Uneven Scrutiny

(i) Overview

[35] The appellant submits that the trial judge subjected his evidence to a different standard of scrutiny than she did the complainant’s. For example, she found the fact that the appellant was argumentative in cross-examination was a reason to reject his evidence, but excused similar conduct by the complainant as being understandable in the circumstances. As well, she labelled as inconsistent certain aspects of the appellant’s testimony while finding that the complainant’s testimony had no inconsistencies when it in fact did.

(ii) The Law Respecting Claims of “Uneven Scrutiny”

[36] A claim of “uneven scrutiny” as a ground of appeal in a judge-alone trial is not uncommon, although it is, as counsel for the appellant acknowledges, one that is “notoriously difficult to prove”: R. v. J.B., 2023 ONCA 264, at para. 23-24; R. v. B.T.D., 2022 ONCA 732, 163 O.R. (3d) 561, at para. 54; R. v. Gravesande, 2015 ONCA 774, 128 O.R. (3d) 111, at paras. 18, 43; R. v. Kiss, 2018 ONCA 184, at paras. 82-83; R. v. Howe (2005), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59; R. v. Owen (2001), 150 O.A.C. 378 (C.A.), at para. 3; R. v. C. (H.), 2009 ONCA 56, 241 C.C.C. (3d) 45, at para. 62; R. v. Phan, 2013 ONCA 787, 313 O.A.C. 352, at para. 30; R. v. Aird, 2013 ONCA 447, 307 O.A.C. 183, at para. 39; R. v. Rancourt, 2020 ONCA 64, 384 C.C.C. (3d) 133, at para. 38; R. v. Holland, 2024 ONCA 106, at para. 13. To succeed on this argument, an appellant “must point to something in the reasons of the trial judge or perhaps elsewhere in the record that make it clear that the trial judge had applied different standards in assessing the evidence of the appellant and the complainant”: Howe, at para. 59.

[37] In R. v. G.F., 2021 SCC 20, at para. 100, Karakatsanis J., writing for a majority of the court, stated that she had “serious reservations about whether ‘uneven scrutiny’ is a helpful analytical tool to demonstrate error in credibility findings” and held that “the focus must always be on whether there is reversible error in the trial judge’s credibility findings.” She made the following observation, at para. 100:

In appellate cases that have accepted an uneven scrutiny argument, there was some specific error in the credibility assessments: see, e.g., Kiss, at paras. 88-106; R. v. Gravesande, 2015 ONCA 774, 128 O.R. (3d) 111, at paras. 37-43; R. v. Willis, 2019 NSCA 64, 379 C.C.C. (3d) 30, at paras. 55-62; R. v. Roth, 2020 BCCA 240, 66 C.R. (7th) 107, at para. 54. As shown in Howe, uneven scrutiny easily overlaps with other arguments for why a trial judge’s credibility findings are problematic. It is therefore unsurprising to see uneven scrutiny tacked on to arguments like insufficiency of reasons, misapprehension of evidence, reversing the burden of proof, palpable and overriding error, or unreasonable verdict.

[38] With these principles in mind, I turn now to the alleged instances of uneven scrutiny in this case.

(iii) Argumentativeness

[39] In explaining why she rejected the appellant’s evidence, the trial judge stated:

During cross-examination Mr. Alexander was evasive and argumentative when questioned. Instead of answering the question, he would say things like, “It is getting tiresome that you are asking the question over and over again,” and, “You are talking in riddles.”

With respect to the complainant, she said:

There is no question that she was very argumentative in cross-examination, however it was clear that she was angry about the suggestions that were being made to her that she was interested in prostitution, and I cannot imagine that any witness would not be angered by this suggestion.

Despite her argumentative responses in cross-examination, her evidence still made sense. She was not contradicted or shaken with respect to her version of what occurred.

[40] While the appellant is correct that the trial judge treated the argumentativeness of the appellant and the complainant differently, in my view it was open to her to do so because they were argumentative in different ways. Having reviewed the transcript, I conclude that it was open to the trial judge to conclude that the appellant was being somewhat evasive by suggesting that the questions he was being asked were repetitive. While Crown counsel was certainly persistent in questioning the appellant about what his plans were for the evening in question, I cannot say that he was being repetitive. The complainant, on the other hand, was sarcastic and discourteous in cross-examination, but it was open to the trial judge to conclude that she was not being evasive.

(iv) Inconsistencies

[41] The appellant also takes issue with the trial judge’s conclusion that some aspects of his testimony were inconsistent as well as her conclusion that the complainant’s evidence was not inconsistent. For example, the trial judge noted that the appellant had testified that he did not consider his relationship with the complainant to be a romantic one, but also stated that he asked her to go to the comedy club as a date. Counsel for the appellant argues that this is not necessarily inconsistent, as the appellant had testified that he believed that the complainant was genuinely interested in him. That may be, but it was open to the trial judge to conclude that this was an inconsistency and her decision to do so does not reflect any error.

[42] The appellant also takes issue with the trial judge’s conclusion that the complainant was consistent. For example, he points out that the complainant testified that she did not fall asleep while in bed next to the appellant, but in her statement to the police she said that he assaulted her as she was falling asleep. Counsel recognizes that it was open to the trial judge to accept the complainant’s evidence despite the inconsistency, but submits that it was an error for her to conclude that there were no inconsistencies.

[43] Having reviewed the transcript, it is not entirely clear that the complainant was inconsistent with respect to this point as her statement about not falling asleep seemed to have been made in the context of discussing what occurred after the assault while her statement to the police was about what occurred at the time of the assault. More importantly, the trial judge did not say that the complainant was entirely consistent with respect to all aspects of her testimony, only that she was consistent “with respect to her version of what occurred,” which I take to mean her description of the sexual assault.

[44] While the appellant has offered other examples, they are of a similar nature and ultimately amount to an effort to relitigate the facts. While another trial judge may well have come to different conclusions, I cannot say that the trial judge erred in her assessment of the evidence or that there is anything in the record that makes it clear that she applied different standards of scrutiny.

III. DISPOSITION

[45] The appeal is dismissed.

Justice P.A. Schreck

Released: February 28, 2024