WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of ( a ) any of the following offences: (i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or ( b ) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) . (2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)( a ) or ( b ), the presiding judge or justice shall ( a ) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and ( b ) on application made by the complainant, the prosecutor or any such witness, make the order. 486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court File and Parties

COURT FILE NO.: CR24-22 DATE: 20241025

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – J.C. Respondent

Counsel: N. Nolan, for the Appellant Crown Vanessa Garcia & Bradley Alford, for the Respondent

HEARD: September 3, 2024

REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL Justice Hélène C. Desormeau

Overview

[1] The Respondent was acquitted of sexually assaulting K.B., contrary to section 271 Criminal Code of Canada (“CCC”) on January 12, 2024, by Justice Shamai.

[2] The Crown appeals that acquittal on the following alleged errors of law:

a. The Trial Judge wrongfully admitted section 276 evidence and then wrongfully used that evidence in the decision. The Crown is especially concerned that what amounts to a sexual assault, the Respondent slapping the complainant’s butt as she slept, was used by the judge to find the chest touching was de minimis and that there was “implied consent”;

b. The Trial Judge erred in law by relying on “implied consent” in her ruling;

c. That “de minimis” does not apply in criminal law; in the alternative, it was the incorrect conclusion in this case; and

d. That the Trial Judge failed to apply the decision in R. v. Chase, [1987] 2 S.C.R. 293, in her consideration of the nature of the upper chest touching and, essentially, in reaching the conclusion that what happened was not done for a sexual purpose. Alternatively, that the Trial Judge failed to provide sufficient reasons on this point.

[3] The Respondent requested that the court dismiss the appeal and articulated the following positions with respect to the Appellant’s grounds of appeal:

a. That s. 276 does not apply to the evidence identified by the Crown, as it was not of “prior sexual activity”;

b. That the Trial Judge made no error in relying on the doctrine of implied consent;

c. That the Trial Judge did not rely on the de minimis principle in acquitting the Respondent; and

d. That the Trial Judge committed no error by not explicitly referring to the decision in R. v. Chase in reaching the conclusion that the touching which occurred was not for a sexual purpose.

[4] Given the Crown argued insufficiency of reasons as an overarching concern on all grounds of appeal, that issue will be addressed first.

[5] For reasons that follow, all grounds of appeal are dismissed.

Evidence at Trial

[6] The Crown called only one witness at trial, the complainant, K.B. Both Crown and the Respondent agree that at trial, K.B. testified that during a conversation, J.C. grabbed and squeezed her left breast. She testified that the Respondent had grabbed her breast “like a hamburger” and squeezed twice. After she reacted saying “you just sexually assaulted me...” he replied, “I had to do that for the real [K.B.] to come out, I have to, I have to break you down in order to build you up.”

[7] In cross-examination, K.B. agreed that she had described the contact as a “touch” twice before the interviewing police officer introduced the words “grab” and “squeeze.”

[8] The Respondent also called only one witness at trial, V.G., the Respondent’s wife, who was present at the time of the alleged sexual assault.

[9] V.G. testified that the Respondent had finished his nightshift and returned home. She and K.B. were sleeping in the same bed. She testified that J.C. jumped on the bed, slapped the women on the buttocks and said, “good morning.” Some time later that same morning, the parties moved to the kitchen where a conversation ensued about K.B.’s past relationships. K.B. and J.C. were sitting facing one another. At one point, the Respondent poked the complainant using four fingers on the left side of her chest above her breast. In cross-examination, V.G. testified that J.C. has ADHD and frequently demonstratively used his hands while speaking.

Jurisdiction

[10] While initially the Respondent argued that the Appellant Crown had limited grounds of appeal as found in s.676(1) (a) CCC, it was clarified that this appeal was pursuant to s. 813 (b)(i) CCC. The parties referenced R. v. D.R., 2024 ONSC 1231, which at para. 23 articulates that the expression "dismisses an information" as found in s. 813(b)(i) CCC includes a verdict of acquittal. Thus, this court has jurisdiction to hear this appeal.

Argument 1. That the Trial Judge failed to apply the decision in R. v. Chase, [1987] 2 S.C.R. 293, in her consideration of the nature of the upper chest touching and, essentially, in reaching the conclusion that what happened was not done for a sexual purpose. Alternatively, the Crown argued the Trial Judge failed to provide sufficient reasons on this point.

[11] The Crown submitted that the court failed to reflect on the factors set out in Chase in assessing the sexual nature of the touching, which would incorporate the surrounding context, including the conversation leading up to the touching. It was argued that the touching was sexual in nature. Alternatively, the Crown argued the Trial Judge failed to provide sufficient reasons on this point.

[12] The Respondent argued that while the Trial Judge did not make any specific reference to Chase, the relevant factors were nevertheless considered by her.

Analysis

[13] Trial Judges are presumed to know the law and relevant case law.

[14] Trial reasons will be sufficient if, read in context, they show why the judge decided as he or she did. The object is not to show how the judge arrived at his or her conclusion, in a “watch me think” fashion. It is rather to show why the judge made that decision: R. v. R.E.M., 2008 SCC 51, at para. 17.

[15] A trial judge is not obliged to discuss all the evidence on any given point, provided the reasons show that he or she grappled with the substance of the live issues on the trial: R. v. R.E.M., 2008 SCC 51, at para 64. Further, a trial judge is not required to summarize specific findings on credibility by issuing a general statement as to “overall” credibility. It is enough that the trial judge has demonstrated a recognition, where applicable, that the witness’s credibility was a live issue: R. v. R.E.M., ibid.

[16] As set out in Chase, and Farouk, the test to be applied in determining whether an assault is of a sexual character is objective. The trier of fact must ask itself"[v]iewed in the light of all of the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer": R. v. Chase, [1987] 2 S.C.R. 293 (S.C.C.), at p. 302. The circumstances to be considered include the part of the body touched, the nature of the contact, the situation in which the contact occurred, and any words or gestures accompanying the act, among other things. The intent or purpose of the person committing the act may also be a factor in considering whether the conduct was sexual, but it is only one factor to be considered in the analysis: Chase, at p. 302; R. v. Marshall, 2017 ONCA 801 (Ont. C.A.), at paras. 51-53: See R. v. Farouk, 2019 ONCA 662 at para. 33.

[17] The Trial Judge referenced at paragraph 7 that the complainant initially stated to the police officer that the accused touched her chest, using “touch” twice, then adopted the words “grab and squeeze” after the officer used them. This was compared to V.G.’s evidence that the Respondent would have touched K.B. on the bony part of her chest, to the left side of the breastbone or clavicle. The Trial Judge analyzed whether the Crown had proven the Respondent sexually assaulted K.B. In making this determination, she addressed the part of the body touched, the situation in which the contact occurred, gestures accompanying the act, and context surrounding the touch.

[18] At paragraph 16 of her written decision, the Trial Judge found she had concerns about the complainant’s evidence, in particular, she was not persuaded that the Crown had proven that the touch in question amounted to a “grab and squeeze.” The Trial Judge found “that it might reasonably be true that it was a mere touching in the course of the animated and emotional discussion.” She dismissed the count of sexual assault and went on to consider whether the touching was an assault.

[19] Based on the above, this court finds that the Trial Judge properly addressed the relevant factor set out in Chase. Moreover, the Trial Judge’s reasons adequately explain how she came to her ultimate determination of the issue.

[20] Based on a review of the Trial Judge’s reasons, this ground of appeal is dismissed.

Argument 2: The Trial Judge wrongfully admitted section 276 evidence and then wrongfully used that evidence in the decision.

[21] On this ground of appeal, the Crown raised issue that the evidence that the Respondent might have slapped the complainant’s butt as she slept was used by the Trial Judge to find the chest touching was de minimis and that there was “implied consent”.

[22] The Crown submitted the Trial Judge found that the sexual touching as described by the complainant, the breast grabbing, was not proven beyond a reasonable doubt. The Trial Judge accepted the evidence of V.G. that touching of the upper chest took place. The Trial Judge immediately classified this touching as potentially an assault, but not a sexual assault. The Crown expressed concern that the Trial Judge found that the Respondent had “implied consent” to the touching of the complainant’s upper chest and that the touching was de minimis. It was argued by the Crown that to support these findings, the Trial Judge would have relied on V.G.’s evidence that the Respondent had slapped the butt of the sleeping complainant.

[23] At the heart of this argument was the Crown’s view that the Trial Judge, as the ultimate gatekeeper, impermissibly admitted evidence of prior sexual history into evidence, and then wrongfully used that evidence in the decision.

[24] In their factum, the Crown advanced that, in accordance with R. v. Chase, at para. 11, the butt slap was sexual in nature. This was therefore not only impermissible evidence, but because of the nature of the evidence, the complainant was not questioned about it and V.G. was not cross-examined on this point. The Crown advanced that this evidence was used to buttress a de minimis finding as well as an implied consent finding.

[25] In oral submissions, the Crown also argued it was an error in law to suggest there was implied consent in the context of a sexual assault, citing R. v. Ewanchuk.

[26] As an alternative to the evidence being relied on by the Trial Judge, the Crown reasoned that there were insufficient reasons on the decision to admit the “butt slapping” into evidence.

[27] The Respondent contended that it was open to the Trial Judge to accept V.G.’s evidence that the primary purpose of the Respondent’s contact with the two women was to wake them up, and it was not sexual in nature. The Respondent stated, “[w]hile contact with the buttocks may certainly be “sexual activity” in some contexts, it is not necessarily or automatically so…” The Trial Judge did not treat this incident as any different from the other evidence of non-sexual physical contact between [the Respondent] and [K.B.] that was heard during the trial. The court heard evidence that [the Respondent] was touching [K.B.]’s legs earlier in the discussion, or that when the three of them would sit on the couch together, [the Respondent] would put his arms around both [V.G.] and [K.B.]. The Trial Judge parceled this evidence together to illustrate the intimate dynamic of the relationship between three close friends, not to suggest that [K.B.] had previously consented to [the Respondent]’s sexual advances.”

[28] The Respondent reasoned the Trial Judge concluded that the Crown had not met their onus of beyond a reasonable doubt pursuant to the credibility analysis, particularly following cross-examination of the complainant, in conjunction with V.G.’s evidence as to the location of the touch.

[29] The Respondent contended that the Crown was inviting this court to re-evaluate the facts, re-weigh the evidence and determine that the butt-slap was a sexual assault.

[30] Ultimately, the Respondent advanced that at no point in the Trial Judge’s analysis on the sexual assault allegation was the evidence of the Respondent waking the two women considered. While it had been mentioned briefly in the summary of the evidence, there was no evidence of twin-myth reasoning, and the Trial Judge rightly identified the requisite elements of the offence.

[31] Alternatively, Respondent suggested that if this court were to remove the two references to the butt-slap in the Trial Judge’s reasons, her reasons would still read harmoniously. The references were not so intertwined with her reasons that should this court excise them, the judgment would read the same, with or without that evidence.

Trial Judge’s Oral Reasons for Judgment:

[32] Immediately at the end of trial, the Trial Judge provided very brief oral reasons for judgment as follows:

[1] So, what I will say right now, [the Respondent], is that having heard the evidence yesterday, a brief trial, the evidence of [K.B.] and the testimony of [V.G.] as well, I do not doubt [K.B.]'s sincerity and the expression of offence which she took at the manner you [the Respondent] attempted to express yourself in the discussion on April 17th, 2022, and that you indeed touched her in the course of that exchange.

[2] However, given the contradictions which were raised in terms of the statement which [K.B.] gave on the same day of the event mere hours later, and given as well the testimony of [V.G.] who was present at the time of the offence and who was mere feet away from the exchange between yourself and [K.B.], there are significant discrepancies which arise in terms of the touching which is alleged as the sexual assault on April 17th, 2022. I am unable to reach a conclusion that the Crown has proved the sexual assault beyond reasonable doubt.

[3] The position that is taken in relation to the touching, which seems uncontroverted on the evidence, is on your behalf [the Respondent], sir, that it is something that I ought to deal with by the de minimis principle, but in the context of the exchange ongoing at the time it was not an assault but something that ought not be dealt with as a matter of law by the criminal law.

[4] I take into account the context of the relationship which on all of the evidence, brief record that it is, shows me that it was a very close relationship ongoing between you [the Respondent] and your wife with [K.B.], and that not only in the past had there been contact of a very friendly nature among the three of you but that even that morning, mere hours before the incident that is the basis of this complaint, according to [K.B.] you had jumped on the bed where she and [V.G.] were sleeping to wake them, and that according to [V.G.] not only did you jump on the bed, but you slapped them on their rear ends in order to wake them. That certainly sets a tone of friendliness and a level of context which I take into account in assessing whether the touching, which I find certainly occurred on that day, amounts to a criminal assault.

[5] Taking a contextual approach and applying the de minimis principle, I am unprepared to enter a finding of guilt and I am dismissing the charge entirely.

Trial Judge’s Written Reasons for Judgment:

[33] In her written reasons for judgment, the first 8 paragraphs set out the evidence heard at trial. The butt-slap was referenced by the Trial Judge at paragraph 4:

In fact on the date in question, she said she was “reeling” from a breakup, and spent the Saturday night of Easter 2021, possibly the Friday night as well, with [the Respondent] and [V.G.] at their home in Maxville. [K.B.] said that she was able to do meal prep with her friend [V.G.] as she had expected to do that with the person she had just broken up with. She said being with her friends comforted the pain she experienced as they gave her hugs, and simply let her be present. [V.G.] allowed her to sleep in her bed, as [K.B.] was having difficulty sleeping. At the time, [the Respondent] was working nights at the Maxville Manor, about 10 minutes from the residence. On his return he jumped on the bed where the two women were sleeping. [V.G.] added that he slapped the two of them on their behinds to wake them. [V.G.] told [K.B.] that her husband was drunk that morning, which [K.B.] observed when she saw him in the kitchen. She also testified that she saw Smirnoff’s (vodka) and Royal Crown peach rum in the kitchen.

[emphasis added]

[34] The Trial Judge then at paragraph 9 addressed what she felt were the paramount considerations: credibility, followed by the Crown onus, then discrepancies in the evidence, which led the Trial Judge to find at paragraph 12 that the evidence was equivocal. The Trial Judge continued at paragraph 13 indicating that she found the three interested parties to have a close relationship. Next, the Trial Judge analyzed in the following paragraphs the evidence of V.G., where the evidence was the Respondent extended his arm straight out, touching K.B.’s breastbone or collarbone, several inches higher than the at breast level given the height disparity between the Respondent and complainant. For ease of reference, the salient paragraphs are set out below:

[9] At first level of analysis this is an issue of credibility. Has the Crown proved beyond reasonable doubt, that [the Respondent] sexually assaulted [K.B.] by “grabbing and squeezing” her breast? There would be no doubt that the Crown proved the case if I am satisfied of that. If I accept that it was in fact a simple touch to illustrate the point in the conversation between dear friends, one consulted by the other about her record for failed relationships, then is that touch an assault, in the alternative?

[11] I have the testimony of [V.G.]. There are some minor differences between her testimony and that of [K.B.], apart from the central discrepancy in terms of “touch” or “grab and squeeze”. For example, she said that [K.B.] gave [the Respondent] a shot of whiskey; she said that [the Respondent] told [K.B.] that she could leave if she wanted to. These are differences which do not undermine [V.G.]’s credibility: they do not make [the Respondent] less drunk or [K.B.] less aware. As ever, different people recall things differently: they have different experiences of the same event. In this case, [K.B.] made a statement at the time. [V.G.] did not have the advantage of referring to a record of an event made at the time. Crown suggests that [V.G.] might be assumed to recall events as might favour her spouse. That may be; however I cannot assume that she would fabricate her evidence for that purpose however.

[12] In the result, the evidence upon which the Crown rests its case is equivocal. [K.B.]’s statement appears to have been significantly affected by the suggestion of the officer. While the complainant refers to an earlier statement she made to an officer as being in the mind of the officer, when the latter suggested “grab and squeeze” the earlier statement if indeed it was recorded or recalled by another unnamed officer, was not put to the witness. No officer was a witness to the alleged incident in any case. [Emphasis added]

[16] Applying the analysis of the evidence mandated by fundamental principles of criminal law, that the Crown bears the burden of proof beyond reasonable doubt, I am mindful that it is not for [the Respondent] to convince me that he did not commit the alleged act. That is of course one available outcome. In this case, the evidence which I have highlighted leaves me with a doubt, and a reasonable one, given the evidence I have outlined, that the touching in question did not amount to the “grab and squeeze” mentioned in the course of [K.B.]’s testimony. I find that it might reasonably be true that it was a mere touching in the course of the animated and emotional discussion. I dismiss the count of sexual assault, and consider whether the touching was an assault. [Emphasis added]

[21] In cases of non-consensual touching, the absence of consent must be something the defendant is aware of. Clearly as an essential element of the offence, the defendant’s action includes not only the act of touching, but awareness that the touching was uninvited and not permissible, and that the touching was intended, nonetheless.

[35] After concluding that the evidence did not support a finding that it was a sexual assault, the Trial Judge went on to analyze whether there ought to be application of the de minimis principle. Here, she again referenced the butt slap:

[22] In this case, the touching as I have found it was so slight as to invite application of the de minimis principle. In any event, the context was such that [K.B.] had a close relationship with [the Respondent] and his wife, she was not offended by the slapping of her behind when [the Respondent] jumped on the bed a short time before, where [K.B.] was sleeping with his wife. The general context of their relationship was typified by the three sitting on the couch with him draping his arms around both of them, and even, in the framework of the same conversation as the touch to her breastbone, touching her legs in order to make a conversational point.

[23] I cannot find in the context that the Crown has proved that in touching [K.B.], [the Respondent] did not have an implied consent to this as he had had to other incidental and contextual contact throughout the friendship they enjoyed. …

Analysis

[36] On this ground of appeal, the Crown argued the Trial Judge made an error in law by relying on impermissible other sexual activity, specifically, the butt-slap, while reaching her verdict. It was argued this evidence played a role in reaching a determination, evidence upon which neither Crown nor defence elicited further evidence given the nature of same.

[37] This court has considered the reasons set out in R. v. D.K., 2020 ONCA 79, where the court articulated the 276 concerns regarding prior sexual history, “that consent on other occasions suggest the complainant consented to the sexual activity in question.” The Court of Appeal went on to indicate at paragraph 52:

The reach of s. 276 is broad. It applies to consensual and non-consensual activity by a complainant, including conduct occurring before, at the time of, and after the alleged sexual assault: see R. v. L.S., 2017 ONCA 685, 354 C.C.C. (3d) 71 (Ont. C.A.), at paras. 77-81; R. v. Goldfinch, 2019 SCC 38 (S.C.C.), per Moldaver J., at para. 111; and Stewart, at pp. 8-7 to 8-8. The purpose of s. 276 is to prohibit "all discriminatory generalizations" about a complainant's credibility and disposition to consent: R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443 (S.C.C.), at para. 34: See R. v. D.K, 2020 ONCA 79.

[38] As set out in R. v. Goldfinch, 2019 SCC 38, at para. 1:

Our system of justice strives to protect the ability of triers of fact to get at the truth. In cases of sexual assault, evidence of a complainant's prior sexual history —if relied upon to suggest that the complainant was more likely to have consented to the sexual activity in question or is generally less worthy of belief — undermines this truth-seeking function and threatens the equality, privacy and security rights of complainants.

[39] Here, the Trial Judge commenced her reasons with an overview of the evidence. She then turned to the complainant’s evidence and found that there was a shift in the narrative by the complainant following the police interview. The Trial Judge then grounded the acquittal of the sexual assault allegation on the equivocal evidence by the complainant regarding the touch, such that the Trial Judge determined the Crown failed to meet their burden in establishing a sexual assault had occurred.

[40] The Crown argued that the Trial Judge used the butt-slapping evidence to support a “close relationship” between the Respondent and the complainant. However, this discussion occurred at paragraph 13 of the decision, after noting concerns regarding the complainant’s evidence, wherein the Trial Judge stated:

However, what appeared to be uncontroversial was [V.G.’s] of the nature of the relationship among the three. Consistent with [K.B.] testimony of the close relationship, where [K.B.] would spend days, weekends and more with the couple, and that she was comforted by [V.G.] by the latter allowing her to sleep in her bed with her, and that when the three were on the couch, [the Respondent] would drape his arms around both of them, [V.G.] added that [K.B.] “always touches him without explicit consent”. These details set a tone for the type of close relationship the three enjoyed. As well, the topic of conversation on the morning in question shows the intimate and trusting relationship.

[41] Contrary to the Crown’s submission, the Trial Judge did not conflate the issues. She clearly articulated her verdict on the allegation of sexual assault prior to turning her mind to whether the touch was an assault simpliciter. Only then did the Trial Judge consider the doctrine of de minimis. The Trial Judge explicitly articulated at paragraph 16, “I find that it might reasonably be true that it was a mere touching in the course of the animated and emotional discussion. I dismiss the count of sexual assault and consider whether the touching was an assault.” Then at paragraph 17, “Defence asks me to apply the doctrine of de minimis, based on that finding.”

[42] Thereafter, at paragraph 22, separate from her verdict on the allegation of sexual assault, the Trial Judge referenced the slapping of the complainant’s behind as one example of the context of the relationship between the Respondent and the complainant.

[43] In her very brief oral reasons released immediately following the trial, the Trial Judge referenced the contradictions in the complainant’s evidence and the testimony of V.G. She found there were significant discrepancies which arose and was therefore unable to conclude that the Crown had proved the sexual assault beyond a reasonable doubt. Again, only after this determination did the Trial Judge turn her mind to the included offence of assault, and only at that time did she make any reference to V.G.’s evidence that the Respondent had slapped both of their butts.

[44] While the evidence regarding the butt-slap was inherently sexual in nature and ought not to have been admitted into the trial, this court finds it was not central to the Trial Judge’s ultimate rejection of the Appellant’s evidence on the issues. When the Trial Judge’s reasons are read as a whole, it is apparent that the Trial Judge clearly understood the law. The Trial Judge found that the Crown’s evidence did not establish the offence beyond a reasonable doubt based on the paramount considerations of credibility and reliability of the evidence.

[45] Here, the Trial Judge found the complainant’s evidence equivocal, and that the nature of the evidence changed after speaking to the police. As stated in Goldfinch, a relationship may provide relevant context quite apart from any sexual activity: See para. 57.

[46] It was very much open to the Trial Judge to weigh the evidence and find there was reasonable doubt that the touching in question was not a sexual assault.

[47] The Trial Judge is owed deference in her findings of fact and credibility determinations. It is not this court’s role to re-weigh this type of evidence.

[48] However, having concluded that the Trial Judge committed an error by admitting evidence regarding the butt-slap, the court must now consider whether this error warrants a new trial.

[49] As set out in in R. v. Graveline, 2006 SCC 16, an acquittal will be overturned only where the Crown can demonstrate that the Trial Judge made a legal error that "might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal." (See para. 14; Also see R. v. Goldfinch, 2019 SCC 38 at para. 135.)

[50] It is this court’s view that the reading of the court’s rulings as a whole, that the paramount considerations here were credibility and reliability of the evidence. The Trial Judge rejected the Appellant’s evidence and identified the central discrepancy as the change in the complainant’s evidence which “appears to have been significantly affected by the suggestion of the officer” from a “touch” to a “grab and squeeze”, particularly in context of V.G.’s evidence that it was a “touch” near the breastbone or collarbone.

[51] As set out in R. v. B. (C.R.), [1990] 1 S.C.R. 717 (S.C.C.), the question is whether, in the context of the ruling as a whole and all the circumstances, the error was material. This court cannot conclude that it had material bearing on the acquittal or the determination of credibility and reliability of the evidence. Therefore, this court is not satisfied that Crown’s burden was met.

[52] As for the argument that the Trial Judge provided insufficient reasons, based on the analysis articulated above, this court finds the reasons provided in her judgment adequately explain how the Trial Judge reached her verdict.

Arguments 3 and 4. The Trial Judge erred in law by relying on “implied consent” in her ruling. That “de minimis” does not apply in criminal law; in the alternative, it was the incorrect conclusion in this case.

[53] Based on the manner of which the Trial Judge concluded her decision, these two appeal questions will be addressed together.

[54] The Crown argued that the Trial Judge erred in law by relying on “implied consent” in her ruling. The Crown argued that implied consent has similar practical limitations to de minimis. Both the doctrine of implied consent and the concept of de minimis are based on the public policy interest to not over-criminalize certain actions. It must be "strictly limited to conduct which is consistent with the purpose and rationale underlying the policy basis.” (See R. v. A.E., at para. 33.)

[55] The Crown also argued insufficiency of reasons on this ground, notably, the context of the conversation at the time of the event.

[56] The Crown correctly advanced that implied consent is not applicable to the allegation of sexual assault: R. v. Ewanchuck, [1999] 1 SCR 330, at para. 31.

[57] The Crown articulated that de minimis non curat lex does not apply in criminal law, or alternatively that de minimis should not have been applied in this case. De minimis non curat lex (“the law does not concern itself with trifles”) is a principle used as a defence at common law. It was argued there is ongoing debate about de minimis, and therefore it should be approached with great caution.

[58] It was submitted that even on V.G.’s evidence the touching was not de minimis, such that even if the court entirely rejected K.B.’s evidence, the court could not find that there was a de minimis defence for the touching. This was due to the location of the touching, being the upper chest, and the sexualized context of the conversation leading up to and following the touching, as well as the impact on the complainant, K.B.

[59] The Respondent submitted the Trial Judge did not rely on the de minimis principle in support of the acquittal.

[60] The Respondent argued the Trial Judge made no error in relying on the doctrine of implied consent. They relied on R. v. Bennett, at para. 45, for the proposition that in order for the doctrine of implied consent to operate, the particular touching must fall within the type or scope of touching which our customary norms of social interaction deem to be consensual. This is an objective standard.

Analysis

[61] As noted by the Crown in their factum, de minimis non curat lex is a question of law alone and must be reviewed on a standard of correctness: R. v. Rumo, 2013 ONSC 1856, at para. 11; R. v. Kubassek.

[62] The two identical arguments raised by the Crown, above, were argued in Kubassek, at para. 17. In that case, the Ontario Court of Appeal was in favour of the second argument, that the principle was not available in the circumstances of that case and declined to address the first argument.

[63] Here, the Trial Judge addressed the competing evidence from the two witnesses regarding whether there was a sexual assault by “grabbing and squeezing” the complainant’s breast, or “a simple touch to illustrate the point in the conversation between dear friends,” the second of which would require a determination of whether it was a touch or an assault. (See para. 9, as set out above.)

[64] The Trial Judge at paragraph 12 found the evidence to be equivocal, then went on in the following paragraphs to set out the context, concluding at paragraph 16 that the Crown had not proven the sexual assault beyond a reasonable doubt.

[65] Only after finding the Crown had not met its onus on the sexual assault did the Trial Judge turn her mind to consider whether the touching constituted an assault simpliciter.

[66] When addressing the defence request to apply the doctrine of de minimis, and at paragraph 17, the Trial Judge set out: “The recent jurisprudence provided by counsel inclines me in this case to apply that doctrine and exculpate [the Respondent] of criminal liability in relation to the touching of [K.B.]. In the result, I find that it is not unreasonable to find that the touch was intended to illustrate his point, and not for an offensive nor a sexual purpose.”

[67] The Trial Judge then reviewed the Supreme Court of Canada decision of R. v. Cuerrier, [1998] 2 SCR 371, regarding the description of what is an assault, an overview of what “force” includes, and the determination that where an application of force is consensual, there is no assault.

[68] The Trial Judge was alive to the controversy over applying de minimis, as found at paragraph 19, when she stated, “Courts appear to recognize the existence at law of the idea that “the law does not concern itself with trifles,” or harmless conduct. There is understandable reluctance to apply it.”

[69] Next, she reviewed R. v. Carson, which addressed societal interest, the use of force, and domestic violence.

[70] The Trial Judge concluded:

[21] In cases of non-consensual touching, the absence of consent must be something the defendant is aware of. Clearly as an essential element of the offence, the defendant’s action includes not only the act of touching, but awareness that the touching was uninvited and not permissible, and that the touching was intended nonetheless.

[23] I cannot find in the context that the Crown has proved that in touching [K.B.], [the Respondent] did not have an implied consent to this as he had had to other incidental and contextual contact throughout the friendship they enjoyed. To the extent that de minimis appears to exist in Canadian law, this would be a situation to which it would apply. However, with the reticence our courts demonstrate in the application of the principle, I am of the view in any event that there is no evidence that the Crown has proved all elements of the offence. [Emphasis added]

[71] Importantly, the Trial Judge did not turn to the question of implied consent in the framework of the analysis of the alleged sexual assault.

[72] Instead, based on the structure of the decision, it is clear to this court that the questions of implied consent and de minimis were grappled with after the Trial Judge concluded that the sexual assault was not proven beyond a reasonable doubt.

[73] Further, while the Trial Judge found that the Appellant had touched the complainant, she articulated that in her view, the Crown had not proven beyond a reasonable doubt that Appellant has the requisite mental element to know he was applying force to the complainant without consent.

[74] Regarding the de minimis argument, the Trial Judge explained her thought process in examining this issue. She recognized the reticence of the courts to apply the principle.

[75] The Trial Judge then found that “in any event”, the Crown had not provided all the elements of assault, resulting in the dismissal of that included offence.

[76] Ultimately, this court is of the view that the Reasons provided by the Trial Judge on these two issues, when read wholistically, demonstrate why the judge concluded as she did. These reasons therefore are found to be sufficient to support her verdict.

[77] In the result, this court finds that these two grounds of appeal must fail.

Disposition

[78] Accordingly, the appeal is dismissed.

[79] The “to be spoken to” date of October 29, 2024, at 9:00 a.m. is hereby vacated.

The Honourable Justice Hélène C. Desormeau Released: October 25, 2024

COURT FILE NO.: CR24-22 DATE: 20251025 ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – J.C. REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL The Honourable Justice Hélène C. Desormeau Released: October 25, 2024