Court File and Parties

COURT FILE NO.: CR-23-0067-AP DATE: 2024-04-18

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

A.C. Ms. P. Olinyk, for the appellant Appellant

- and -

His Majesty the King Mr. M. Shaub, for the Crown Crown

HEARD: via Zoom on January 22, 2024, at Thunder Bay, Ontario

Madam Justice H.M. Pierce

[Restriction on Publication Pursuant to s. 110(1) and 111(1) of the Youth Criminal Justice Act]

110.(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111.(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

Reasons on Appeal

Introduction

[1] On January 27, 2023, the appellant (“A.C.”), a young person, was convicted of sexual assault contrary to s. 271 of the Criminal Code. He was sentenced to 20 months of probation on May 5, 2023. He asks that the appeal against conviction be allowed and an acquittal entered, or, alternatively, that the appeal be allowed and a new trial ordered.

[2] Two witnesses testified in this case: the complainant and A.C. Both were thirteen years old at the time of the allegations. They were friends. Credibility, and therefore an analysis based on R. v. W. (D.), [1991] 1 SCR 742, 63 C.C.C. (3d) 397 (“W. (D.)”), is at the heart of this case.

[3] The appellant submits that the trial judge misapprehended the evidence and gave insufficient reasons.

[4] If the reviewing court is satisfied that the trial judge misapprehended the evidence, it may quash the conviction and acquit. However, if the reviewing court determines that the trial judge’s reasons are insufficient, such that they constitute an error of law, it may quash the conviction and order a new trial.

[5] In this case, the notice of appeal and supplementary notice of appeal argue that the trial judge:

1. erred in her analysis based on R. v. W. (D.);
2. erred by failing to consider all material evidence, and misapprehended the evidence;
3. erred by failing to provide sufficient reasons for discounting evidence that would give rise to a reasonable doubt, including all the appellant’s evidence and certain admissions made by the complainant;
4. erred by failing to provide sufficient reasons for conviction;
5. misapprehended the evidence by drawing illogical inferences that were unsupported by the evidence;
6. failed to provide sufficient reasons to support her credibility findings and failed to reconcile the frailties in the complainant’s evidence with the appellant’s conviction; and
7. failed to address the complainant’s motive to fabricate raised by the defence.

[6] The respondent submits that the trial judge’s findings of fact, including findings of credibility, are entitled to a high degree of deference. The respondent argues that the reviewing court should not read the trial court’s reasons in a search for error.

[7] As well, the respondent contends that the trial judge’s reasons were sufficient for the reviewing court to understand the decision.

Standard of Review

[8] Section 686 of the Criminal Code prescribes when an appeal court may intervene and overturn a conviction:

686(1) On the hearing of an appeal against conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal

(a) may allow the appeal where it is of the opinion that

(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,

(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or

(iii) on any ground there was a miscarriage of justice;

Fact-Finding

[9] While the standard of review that applies to a trial judge’s interpretation of the law is correctness, significant deference is owed to the trial judge’s findings of fact because he or she is in the best position to see and hear witnesses and to assess their credibility. Credibility is a question of fact: R. v. C.R., 2010 ONCA 176, at para 31.

[10] Fact-finding cannot be overturned by the appeal court unless the trial judge committed “palpable and overriding error or made findings of fact including inferences of fact that are clearly wrong, unreasonable or unsupported by the evidence.”: see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, paras. 1, 8, and 10; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 54 (“R.E.M.”).

[11] The Court of Appeal for Ontario put it this way in R. v. Tsekouras, 2017 ONCA 290, at para. 230:

Whether a trial judge has drawn the proper inference from a fact or group of facts established by the evidence is a question of fact, as is whether the whole of the evidence is sufficient to establish an essential element of an offence. Appellate courts may not interfere with the findings of fact made and the factual inferences drawn by a trial judge unless those findings and inferences are:

i. clearly wrong;

ii. unsupported by the evidence; or

iii. otherwise unreasonable. [Citations omitted.]

[12] A misapprehension of the evidence must deal with more than peripheral matters. In R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, para. 4, the Supreme Court held:

… This 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.”

[13] The Supreme Court called out bad fact-finding in R. v. Beaudry, 2007 SCC 5, para. 97, in these terms:

No one should be convicted on the strength of manifestly bad reasons – reasons that are illogical on their face, or contrary to the evidence – on the ground that another judge could but might not necessarily have reached the same conclusion for other reasons. [Italics in original.]

[14] In R. v. Sinclair, 2011 SCC 40, [2011] 3 SCR 3, at paras. 17-21, the court concluded that illogical or irrational reasoning can also make a verdict unreasonable within the meaning of s. 686(1)(a)(i) of the Criminal Code. This can happen when a trial judge makes an inference or a finding of fact essential to the verdict that contradicts the evidence from which it is drawn.

[15] In addition, a misapprehension of the evidence can include “a failure to consider relevant evidence, a mistake about the substance of evidence and a failure to give proper effect to evidence.” R. v. Vant, 2015 ONCA 481, para. 108 (“Vant”), citing R. v. Morrissey (1995), 22 O.R. (3d) 514 (Ont. C.A.), at para. 83.

[16] In this case, the trial judge acknowledged that, since credibility was in issue, a W. (D.) analysis was appropriate.

[17] In W. (D.), the Supreme Court of Canada gave a well-known instruction to trial judges for analyzing credibility. While the formula has been modified in subsequent appellate cases, those refinements are not relevant for purposes of this case. The Supreme Court advised trial judges:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in a reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[18] Unfortunately, the trial judge in this case did not analyze credibility by using a W. (D.) analysis.

The Facts

[19] Except for two qualifications, the respondent accepts as generally correct the following statement of facts set out in the appellant’s factum, which I summarize as follows:

1. On December 2, 2022, the appellant was tried by Justice E.J. Baxter on a single count of sexual assault committed on August 24, 2021, against L.W. The complainant and the appellant were the only witnesses. At the time of the allegations, both were 13 years old. At the time of trial, they were both 14 years old.
2. The complainant testified that she and the appellant communicated by text on the date of the incident. She messaged him saying, “OMG, after 5:30 to 6, can I come over?” He replied, “Why? And my parents aren’t home so sure.”
3. The complainant also testified that in the same message exchange she and the appellant were sending each other drawings of penises. The complainant admitted on cross-examination to having left these messages out when speaking to the police and that she did not want the police to take her phone and see them.
4. In examination-in-chief, the complainant testified that she went to the appellant’s house later in the evening. She testified that he kept repeatedly begging her to have sex with him. She also stated that she was trying to respectfully say no in different ways, such as through her body language. She testified that the appellant tried to force her to perform fellatio by forcing her head down. She did not recall which hand he used. She said she was able to pull away.
5. The complainant testified during examination-in-chief that the appellant put his hand on her “butt” and slid his hand between her legs, and she responded by rolling onto her back. She stated that the appellant went to put a condom on; she didn’t think there was any discussion about this. She stated that the appellant pulled her pants off and everything “just kind of happened.” She could not recall if any discussion took place. She added that she was too scared to say “Stop,” and [sex] “just happened.”
6. In cross-examination, the complainant agreed that she laid back with the appellant on his bed and that there was no way for him to have known that she did not want him kissing her. She also testified in cross-examination that she sent a text message to her friend afterwards, saying, “LOL, no I think he raped me.”
7. The complainant confirmed in cross-examination that it was her friend who told the complainant’s mother, and that her mother brought her to the police. She agreed that she never wanted her parents to call the police because she knew that she had not been sexually assaulted.
8. In his testimony, the appellant stated that he and the complainant exchanged text messages throughout the day and planned for her to come to his home because his parents were not home.
9. The appellant testified that he asked the complainant if she wanted to cuddle, and she laid back in his arms on his bed. He stated that he asked her if she wanted to give him a blow job and she nodded her head, which he took to mean, “Yes.” He testified that he unzipped his pants, took his penis out, and she put it in her mouth.
10. The appellant stated that he got up to get a condom, while the complainant got up and removed her own pants. He testified that he put the condom on, and that they engaged in consensual sexual intercourse. He said that about half-way through intercourse, he asked her if she wanted to stop, to which she replied, “No.” He testified that eventually he just stopped because he wasn’t enjoying it. He stated that the complainant consented throughout and that he believed she was consenting throughout.

[20] The two additional qualifiers added by the Crown in its factum regarding the facts, were that:

1. the complainant’s video statement was filed as Exhibit #1 at trial, pursuant to s. 715.1 of the Criminal Code.
2. the Crown adds as facts the full exchange between the complainant and defence counsel in cross-examination regarding her evidence on consent, as follows:

Q. You didn’t want your parents to call the police, right?

A. Correct.

Q. Because you knew in your mind that it was a consensual interaction, right?

A. Pardon?

Q. You knew in your mind that it was consensual?

A. It was not consensual.

[21] At trial, the appellant’s counsel submitted that the test in R. v. W. (D.) applied.

[22] Appellant’s counsel also argued that if the court found that the complainant did not consent to sexual activity, the court could consider the defence of honest but mistaken belief in communicated consent.

[23] The defence also argued that the appellant had taken reasonable steps, pursuant to the modified objective standard, and having regard for his age and level of experience, to establish consent to the sexual activity.

[24] The defence identified significant issues with the complainant’s testimony, highlighting her motive to fabricate. Specifically, counsel submitted that the complainant had no intention of going to the police until her parents learned that she had sex. She didn’t want her parents to call the police because she knew she hadn’t been sexually assaulted. The defence also argued that non-consent doesn’t arise just because the complainant regretted having sex after the fact.

[25] The Crown argued that the complainant’s testimony that she was “tensing up” was a clear indication that she was not consenting to sexual activity, and that the appellant knew or should have known that was the case.

[26] In her reasons for judgment, the trial judge determined that the complainant did not consent to sexual activity. She also found that the defence of honest but mistaken belief was not available to the appellant. The trial judge accepted the complainant’s evidence that she did not want or consent to kissing, fellatio or intercourse, finding that the appellant “begged and begged and wore her down.”

Did the Trial Judge Misapprehend the Evidence?

[27] In my view, although the trial judge’s fact-findings are entitled to deference, her conclusions are flawed by her failure to engage in a W. (D.) analysis. A proper W. (D.) analysis would have led her to consider the evidence of the accused, particularly his evidence as it related to his belief in consent, and to a discussion about his credibility and reliability and whether it left her with any doubt about his guilt. It also should have led her to address the complainant’s credibility and reliability, which should have led to a discussion on the contradictions in her evidence before accepting that same evidence as conclusory of the accused’s guilt. These contradictions would have played an essential part in the reasoning process. The failure to consider them, and to consider the accused’s evidence entirely, led to a conviction.

[28] The most significant contradiction is the complainant’s admission in cross-examination that she didn’t want her parents to call the police because she knew that the appellant didn’t sexually assault her. Had the trial judge accepted this evidence, the first branch of the W. (D.) test would have been satisfied. However, she also denied during cross-examination that the sexual encounter was consensual.

[29] This evidence is not peripheral but goes to the heart of the case: whether the complainant consented to sexual activity. The contradiction, together with conflicting testimony by the participants, is the substance of reasonable doubt, which is the second branch of the W. (D.) test. However, the trial judge makes no mention of the complainant’s admission in her reasons.

[30] Another significant contradiction in the evidence of the witnesses is whether the appellant pulled down the complainant’s pants before intercourse or whether she did it herself. This detail is not mentioned in the reasons for judgment, yet it is relevant to the issue of consent or perceived consent.

[31] The reasons for judgment do not discuss the appellant’s testimony giving rise to his belief in the complainant’s communicated consent, in keeping with the third branch of the W. (D.) test. They simply dismiss the defence as being unavailable.

[32] The reasons for judgment indicate that the trial judge took account of the age of the children involved in this case, but they do not examine the evidence through the lens of a child’s experience and maturity, especially when evaluating consent. For example, the trial judge infers that the awkwardness demonstrated by these young people after intercourse was indicative of lack of consent. She does not consider an alternate inference: that neither of them had enough sexual experience to deal with their embarrassment following intimacy.

[33] The trial judge did not consider the appellant’s argument that the complainant was motivated to fabricate her evidence, nor consider the evidence that could support that defence:

a) the complainant sent a text to her friend after she left the appellant’s home: “LOL, I think [the accused] raped me.”;

b) she asked the appellant to text her when she could return to his house;

c) her desire that her parents not know she’d been sexually active;

d) her editing of sexual text messages between herself and the appellant earlier in the day, so that the police wouldn’t see them; and

e) her admission in cross-examination that the appellant did not sexually assault her.

[34] In my view, these failures to consider evidence or to reconcile conflicting evidence are not peripheral. Rather, the trial judge failed to consider relevant evidence about credibility. This amounts to a palpable and overriding error: see Vant, para. 108. For these reasons, the conviction is quashed and a new trial is ordered.

Requirement to Give Reasons

[35] Trial judges have a duty to give reasons. In R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 19, the Supreme Court elaborated on the nature of the duty to give reasons and the role of the reviewing court:

This Court has consistently admonished trial judges to explain their reasons on credibility and reasonable doubt in a way that permits adequate review by an appellate court. Having encouraged these expanded reasons, it would be counterproductive to dissect them minutely in a way that undermines the trial judge’s responsibility for weighing all of the evidence. A trial judge’s language must be reviewed not only with care, but also in context. Most language is amenable to multiple interpretations and characterizations. But appellate review does not call for a word-by-word analysis; rather, it calls for an examination to determine whether the reasons, taken as a whole, reflect reversible error. The task is to assess the overall, common sense meaning, not to parse the individual linguistic components.

[36] In R.E.M., at para. 15, the Supreme Court of Canada held that a trial judge’s reasons must be sufficient to fulfil their threefold function of explaining why an accused person was convicted or acquitted, provide public accountability, and permitting effective appellate review.

[37] Appellate courts are directed to adopt a functional, context-specific approach when reviewing the adequacy of reasons. A trial judge need not discuss all of the evidence on any point, so long as the reasons show that they considered the live issues at trial: R.E.M., para. 64.

[38] A trial judge’s reasons need not be lengthy if they are responsive to the issues in the case and the parties’ key arguments: R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245, at para. 20.

Did the Trial Judge Give Insufficient Reasons?

[39] The appellant submits that the trial judge’s reasons for judgment are deficient in two respects:

1. there was no analysis of the evidence in accordance with the W.(D.) formula, and therefore no credibility analysis; and

2. the appellant’s evidence concerning his honest but mistaken belief in communicated consent was not addressed.

[40] I agree with these submissions. The discipline of giving reasons reminds trial judges of the tests to apply to the evidence. In this case, the trial judge acknowledged that the W. (D.) case applies, but as I said previously, she did not engage in a W. (D.) analysis of the evidence.

[41] The trial judge referred to the statutory parameters of the defence of honest but mistaken belief, set out at s. 273.2 of the Criminal Code. She concluded that the defence does not apply because the appellant ignored or was wilfully blind to the complainant’s lack of expressed consent and he did not take reasonable steps to ascertain that she was consenting.

[42] However, the trial judge did not consider the evidence supporting the defence and explain why she rejected it. For example, she makes no mention of his testimony that:

a) he and the complainant were friends and she suggested coming to his home even though his parents were not there;

b) he sought her agreement to cuddle and she responded by laying back on his arm;

c) he asked if she wanted to give him a “blow job” and she nodded in the affirmative. He took that as agreement and pulled his pants down and she began oral sex;

d) he did not use force to compel her to perform oral sex but held her hair out of her face;

e) he retrieved a condom from the bedside table and put it on in her presence while she pulled down her own pants and lay on the bed;

f) he asked her part-way through intercourse whether he should stop and she responded, “No”;

g) her actions seemed normal. She did not indicate that she didn’t want to engage in sexual activity;

h) after intercourse, he pulled his pants up but she left hers half-way down until the appellant’s sister came into the room;

i) the appellant’s parents arrived home and the complainant hid in the closet, then left, telling the appellant to text her when she was allowed to return.

[43] In the absence of reasons dealing with this and other evidence, it is not possible for the reviewing court to understand why the defence of honest but mistaken belief in communicated consent was rejected. The trial judge simply concluded that the appellant was wilfully blind or reckless as to consent without explaining why.

[44] As well, the trial judge’s reasons do not address the appellant’s position that the complainant was moved to fabricate. There is no consideration of the evidence that might support the defence position, cited in the discussion about misapprehension of evidence above.

Conclusion

[45] For all of these reasons, the conviction is quashed and a new trial is ordered.

“Originally signed by”

The Hon. Madam Justice H.M. Pierce

Released: April 18, 2024