R v. H.W., 2024 ONSC 6471

citation: "R v. H.W., 2024 ONSC 6471" parties: "His Majesty the King v. H.W." party_moving: "H.W." party_responding: "His Majesty the King" court: "Superior Court of Justice" court_abbreviation: "ONSC" jurisdiction: "Ontario" case_type: "appeal" date_judgement: "2024-11-19" date_heard: "2024-10-29" applicant:

• "H.W." applicant_counsel:
• "John M. Rosen"
• "Mindy Caterina" respondent:
• "His Majesty the King" respondent_counsel:
• "Michelle Occhiogrosso" judge:
• "Conlan" summary: > H.W., a young person, appealed his sexual assault conviction. The Superior Court of Justice found that the trial judge made material misapprehensions of evidence regarding the complainant's reason for visiting H.W.'s house and H.W.'s post-incident text messages. These misapprehensions fatally flawed the trial judge's credibility assessment of H.W. The court allowed the conviction appeal, quashed the conviction, and ordered a new trial, deeming it unnecessary to address the sentence appeal. interesting_citations_summary: > This decision highlights the stringent standard for appellate intervention based on misapprehension of evidence, reiterating that such misapprehensions must be material and occupy an essential place in the trial judge's reasoning process to warrant reversal. It also clarifies the application of the "only reasonable course of action" test for adoptive admissions by silence and cautions against treating an offender's lack of insight as an aggravating factor in sentencing, particularly for those who pleaded not guilty. final_judgement: "Conviction appeal allowed, conviction quashed, and a new trial ordered." winning_degree_applicant: 1 winning_degree_respondent: 5 judge_bias_applicant: 0 judge_bias_respondent: 0 year: 2024 decision_number: 6471 file_number: "CR-24-0002-00AP" source: "https://www.canlii.org/en/on/onsc/doc/2024/2024onsc6471/2024onsc6471.html" cited_cases: legislation:
  • title: "Criminal Code, R.S.C. 1985, c. C-46"
  • title: "Youth Criminal Justice Act, S.C. 2002, c. 1" case_law:
  • title: "R. v. Hunt, 2024 ONSC 5454" url: "https://www.canlii.org/en/on/onsc/doc/2024/2024onsc5454/2024onsc5454.html"
  • title: "R. v. McLean, 2021 ONSC 34" url: "https://www.canlii.org/en/on/onsc/doc/2021/2021onsc34/2021onsc34.html"
  • title: "R. v. Smits, 2012 ONCA 524, 294 O.A.C. 355" url: "https://www.canlii.org/en/on/onca/doc/2012/2012onca524/2012onca524.html"
  • title: "R. v. Grosse (1996), 29 O.R. (3d) 785 (C.A.)" url: "https://www.canlii.org/en/on/onca/doc/1996/1996canlii6643/1996canlii6643.html"
  • title: "R. v. Doyle, [2006] O.J. No. 315 (C.A.)"
  • title: "R. v. Clark, 2005 SCC 2, [2005] 1 S.C.R. 6" url: "https://www.canlii.org/en/ca/scc/doc/2005/2005scc2/2005scc2.html"
  • title: "R. v. Sheahan, 2017 ONCA 159, 8 M.V.R. (7th) 1" url: "https://www.canlii.org/en/on/onca/doc/2017/2017onca159/2017onca159.html"
  • title: "R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3" url: "https://www.canlii.org/en/ca/scc/doc/2008/2008scc51/2008scc51.html"
  • title: "Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235" url: "https://www.canlii.org/en/ca/scc/doc/2002/2002scc33/2002scc33.html"
  • title: "R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), 38 C.R. (4th) 4" url: "https://www.canlii.org/en/on/onca/doc/1995/1995canlii3498/1995canlii3498.html"
  • title: "R. v. C.R., 2010 ONCA 176, 260 O.A.C. 52" url: "https://www.canlii.org/en/on/onca/doc/2010/2010onca176/2010onca176.html"
  • title: "R. v. M.C., 2019 ONCA 502, 146 O.R. (3d) 493" url: "https://www.canlii.org/en/on/onca/doc/2019/2019onca502/2019onca502.html"
  • title: "R. v. Doodnaught, 2017 ONCA 781, 358 C.C.C. (3d) 250" url: "https://www.canlii.org/en/on/onca/doc/2017/2017onca781/2017onca781.html"
  • title: "R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3" url: "https://www.canlii.org/en/ca/scc/doc/2011/2011scc40/2011scc40.html"
  • title: "R. v. Kwok, 2023 ONCA 458, 427 C.C.C. (3d) 462" url: "https://www.canlii.org/en/on/onca/doc/2023/2023onca458/2023onca458.html"
  • title: "R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732" url: "https://www.canlii.org/en/ca/scc/doc/2004/2004scc80/2004scc80.html"
  • title: "R. v. Tran, 2023 ONCA 11" url: "https://www.canlii.org/en/on/onca/doc/2023/2023onca11/2023onca11.html"
  • title: "R. v. Robinson, 2014 ONCA 63, 118 O.R. (3d) 581" url: "https://www.canlii.org/en/on/onca/doc/2014/2014onca63/2014onca63.html"
  • title: "R. v. Warner (1994), 21 O.R. (3d) 136 (C.A.)" url: "https://www.canlii.org/en/on/onca/doc/1994/1994canlii842/1994canlii842.html"
  • title: "R. v. D.B., 2024 ONCA 546" url: "https://www.canlii.org/en/on/onca/doc/2024/2024onca546/2024onca546.html"
  • title: "R. v. C.B., 2008 ONCA 486" url: "https://www.canlii.org/en/on/onca/doc/2008/2008onca486/2008onca486.html" areas_of_law:
• Criminal Law
• Criminal Procedure
• Evidence keywords:
• Sexual assault
• Misapprehension of evidence
• Credibility
• Adoptive admission by silence
• New trial
• Youth Criminal Justice Act
• Sentencing
• Aggravating factors

# Court File and Parties

**COURT FILE NO.:** CR-24-0002-00AP
**DATE:** 2024 11 19
**ONTARIO**
**SUPERIOR COURT OF JUSTICE**

**BETWEEN:** His Majesty the King
Michelle Occhiogrosso, for the Crown, Respondent on Appeal

**– and –** H.W.
John M. Rosen and Mindy Caterina, for H.W., Appellant

**HEARD:** October 29, 2024

# REASONS FOR DECISION ON SUMMARY CONVICTION APPEAL

[1] In the latter half of 2020, H.W. and the complainant were in a dating relationship. In mid-March 2021, a few months after the break-up of the relationship, the complainant went over to H.W.’s house. They had sexual relations, including intercourse.

[2] Stemming from that incident, H.W. was charged with sexual assault contrary to section 271(1)(b) of the Criminal Code, R.S.C. 1985, c. C-46, as amended (“Code”).

[3] At the time of the alleged offence, H.W. was 14 years old. The complainant was 15 years of age.

[4] As a “young person” as defined in the Youth Criminal Justice Act, S.C. 2002, c. 1, as amended (“YCJA”), H.W. was tried in the Ontario Court of Justice over three days in February 2023. Three witnesses testified – the complainant, the complainant’s mother, and H.W.

[5] After trial, in written reasons for judgment dated March 14, 2023, H.W. was convicted of sexual assault. He was later sentenced to a nine-month custody and supervision order followed by probation for fifteen months, plus ancillary orders.

[6] H.W. appeals against his conviction and also seeks leave to appeal against his sentence.

[7] For the following reasons, I would allow H.W.’s conviction appeal and order a new trial. This makes it unnecessary to address the sentence appeal.

## I. Factual Background and the Reasons of the Trial Judge

[8] The complainant and H.W. were students at the same high school, neighbours, and boyfriend and girlfriend. Their romantic dating relationship had ended a few months before the alleged offence date.

[9] On the date in question, the complainant went over to H.W.’s house. They were alone. They kissed and, ultimately, had sexual intercourse.

[10] The trial presented a stark contrast in the accounts of the two principal witnesses, as is often the case in sexual assault prosecutions. The complainant testified that she did not consent to any of the sexual activity that had occurred. H.W. testified that she did. The complainant’s mother’s evidence was treated by the trial judge as being confirmatory of the complainant having not consented to the sexual activity in that the mother testified that the complainant was in physical pain afterwards and needed an icepack for relief, had left blood in the toilet after going to the bathroom, was having trouble walking, and was emotionally distressed after returning home.

[11] In thorough reasons for judgment, the trial judge properly instructed himself on the basic legal principles applicable to criminal trials, including but not limited to the burden of proof being on the Crown, the standard of proof being beyond a reasonable doubt, and the W.(D.) instruction.

[12] The trial judge concluded that H.W. was not a credible witness. His evidence, particularly on the issue of consent, was not believed by the trial judge, and his evidence did not raise a reasonable doubt either (paras. 17 and 27 of the Reasons for Judgment).

[13] The trial judge gave four reasons for drawing those conclusions about H.W.’s evidence: (i) it made no sense for H.W. to say that the complainant consented to sudden and escalating sexual contact with him when H.W. knew that the complainant only came over to H.W.’s house to talk about being friends, and (ii) H.W.’s evidence that the sexual activity was consensual was contradicted by compelling evidence from the complainant and the complainant’s mother about the pain and discomfort that the complainant experienced afterwards, and (iii) H.W.’s evidence that the sexual activity was consensual was contradicted by the evidence from the complainant and the complainant’s mother about the complainant being upset and out of sorts afterwards, and (iv) the texts exchanged between H.W. and the complainant, post-alleged offence date, were incriminating in that, when confronted with the complainant’s allegation of sexual impropriety, H.W. failed to deny or correct her allegation, and that amounted to an admission by H.W. that the complainant had not consented to the sexual activity (paras. 18-26 of the Reasons for Judgment).

[14] The trial judge then went on to explain why he believed the evidence of the complainant and why he was persuaded that the Crown had established the guilt of H.W. to the requisite standard of proof.

## II. Analysis

### Jurisdiction

[15] This Court’s jurisdiction to hear H.W.’s appeal derives from (i) section 37(5) of the YCJA, which provides that an appeal in respect of an offence prosecuted summarily lies in accordance with Part XVII (summary conviction offences) of the Code, and (ii) section 812(1)(a) of the Code, under Part XVII, which provides that the Superior Court of Justice is the “appeal court” for summary conviction offences.

[16] The within appeal is brought under section 813(a) of the Code, which provides, in part, that the defendant may appeal (i) from conviction and/or (ii) against a sentence.

### Grounds of Appeal

[17] Against conviction, it is alleged that (i) the trial judge misapprehended the evidence in two respects, regarding why the complainant went to H.W.’s house on the date in question and with respect to the post-incident text messages exchanged between the complainant and H.W., and (ii) the trial judge unevenly scrutinized the evidence.

[18] In oral submissions, Mr. Rosen focused almost exclusively on the alleged misapprehensions of the evidence.

[19] Against sentence, it is alleged that the trial judge made four errors that permit this Court to sentence H.W. afresh. The sentence now being recommended, in light of the fresh evidence filed about events that post-date the sentencing decision of the trial judge, is 24 months of probation.

[20] The four errors alleged are that (i) the trial judge erred in comparing this offence to a sexual assault in the context of overt acts of violence, (ii) the trial judge erred in treating as a significant aggravating factor that H.W. appeared to have little understanding of the impact of his behaviour on the complainant, (iii) the trial judge failed to properly consider all reasonable alternatives to custody, and (iv) the trial judge gave insufficient reasons as to why a non-custodial sentence was not appropriate.

### Standard of Review

[21] There are three possible bases upon which the within appeal may be allowed: (i) the verdict is unreasonable or cannot be supported by the evidence; (ii) there was a wrong decision made on a question of law, and/or (iii) there has been a miscarriage of justice: [R. v. Hunt, 2024 ONSC 5454, at para. 11](/on/scj/2024/5454); [R. v. McLean, 2021 ONSC 34, at para. 11](https://www.canlii.org/en/on/onsc/doc/2021/2021onsc34/2021onsc34.html).

[22] Though questions of law are generally reviewed on a standard of correctness, the jurisdiction of this Court to review a finding of fact made by the trial judge is limited. I am not entitled to retry the case or to substitute my own view of the evidence for that of the trial judge. This is not a retrial. This Court has no basis upon which to interfere with the trial judge’s findings unless they are unreasonable or unsupported by the evidence: [R. v. Smits, 2012 ONCA 524, 294 O.A.C. 355, at para. 67](https://www.canlii.org/en/on/onca/doc/2012/2012onca524/2012onca524.html); [R. v. Grosse (1996), 29 O.R. (3d) 785 (C.A.), at p. 791-792](https://www.canlii.org/en/on/onca/doc/1996/1996canlii6643/1996canlii6643.html); [R. v. Hunt, supra, at para. 12](/on/scj/2024/5454); [R. v. McLean, supra, at para. 13](https://www.canlii.org/en/on/onsc/doc/2021/2021onsc34/2021onsc34.html); R. v. Doyle, [2006] O.J. No. 315 (C.A.), at para. 6.

[23] Put another way, the factual findings of a trial judge are entitled to deference, and an appellate court may only interfere where there has been a palpable and overriding error. Findings of fact and factual inferences must be clearly wrong, unsupported by the evidence, or otherwise unreasonable before an appellate court can interfere: [R. v. Hunt, supra, at para. 13](/on/scj/2024/5454); [R. v. Clark, 2005 SCC 2, [2005] 1 S.C.R. 6, at para. 9](https://www.canlii.org/en/ca/scc/doc/2005/2005scc2/2005scc2.html); [R. v. Sheahan, 2017 ONCA 159, 8 M.V.R. (7th) 1, at para. 12](/on/onca/2017/159); [R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 54](https://www.canlii.org/en/ca/scc/doc/2008/2008scc51/2008scc51.html); [Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 10 and 23](https://www.canlii.org/en/ca/scc/doc/2002/2002scc33/2002scc33.html).

[24] Credibility is a question of fact, and an appellate court should afford due deference to the trial judge who actually saw and heard the witnesses. Further, it is wrong for an appellate court to dissect the trial judge’s reasons into small pieces without examining how those pieces affect the end result (the verdict) and/or without appreciating that reasons for judgment must be read as a whole: [R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), 38 C.R. (4th) 4, at para. 28](https://www.canlii.org/en/on/onca/doc/1995/1995canlii3498/1995canlii3498.html); [R. v. C.R., 2010 ONCA 176, 260 O.A.C. 52, at para. 31](https://www.canlii.org/en/on/onca/doc/2010/2010onca176/2010onca176.html).

### Misapprehensions of the Evidence

[25] I would allow the conviction appeal on this ground.

### The Legal Principles

[26] It was of course open to the trial judge to reject the testimony of H.W. that the sexual activity that took place was consensual, but his reasons for doing so must be free of legal error: [R. v. M.C., 2019 ONCA 502, 146 O.R. (3d) 493, at para. 82](/on/onca/2019/502).

[27] In this case, with respect, two of the four reasons why the trial judge rejected the evidence of H.W. are fatally flawed in that each one is the product of a misapprehension of the evidence.

[28] In [R. v. Doodnaught, 2017 ONCA 781, 358 C.C.C. (3d) 250](/on/onca/2017/781), Watt J.A. summarized the legal principles applicable to an appeal that is grounded on an alleged misapprehension of the evidence by the trial judge. Paragraphs 71-75 of that decision are set out below.

[71] A misapprehension of evidence may involve a failure to consider relevant evidence; a mistake about the substance of evidence; a failure to give proper effect to evidence or some combination of these failings: [R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 218](https://www.canlii.org/en/on/onca/doc/1995/1995canlii3498/1995canlii3498.html). To succeed before an appellate court on a claim of misapprehension of evidence, an appellant must demonstrate not only a misapprehension of the evidence, but also a link or nexus between the misapprehension and the adverse result reached at trial.

[72] To determine whether an appellant has demonstrated that a misapprehension of evidence has rendered a trial unfair and resulted in a miscarriage of justice, an appellate court must examine the nature and extent of the misapprehension and its significance to the verdict rendered by the trial judge in light of the fundamental requirement of our law that a verdict must be based exclusively on the evidence adduced at trial. The misapprehension of evidence must be at once material and occupy an essential place in the reasoning process leading to the finding of guilt: Morrissey, at p. 221.

[73] The standard set for misapprehension of evidence to warrant appellate reversal is stringent. An error in the assessment of the evidence will amount to a miscarriage of justice only if striking it from the judgment would leave the trial judge’s reasoning on which the conviction is based on unsteady ground: [R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at para. 56](https://www.canlii.org/en/ca/scc/doc/2011/2011scc40/2011scc40.html).

[74] Where an appellant alleges a misapprehension of evidence, an appellate court should first consider the unreasonableness of the verdict rendered at trial. A verdict may be unreasonable because it is one that could not have been reached by a properly instructed trier of fact acting reasonably, or because it can be seen from the reasons of the trial judge that the verdict was reached illogically or irrationally, in other words, due to fundamental flaws in the reasoning process: Sinclair, at paras. 4, 44.

[75] Where an appellant succeeds in establishing that a verdict is unreasonable, an appellate court will enter an acquittal. On the other hand, where the appellate court is satisfied that the verdict is not unreasonable, the court must determine whether the misapprehension of evidence occasioned a miscarriage of justice. An appellant who shows that the error resulted in a miscarriage of justice is entitled to a new trial: Morrissey, at p. 219.

[29] More recently, Zarnett J.A., for the Court of Appeal for Ontario, stated the following at paragraphs 53-55 of the decision in [R. v. Kwok, 2023 ONCA 458, 427 C.C.C. (3d) 462](/on/onca/2023/458).

[53] That a trial judge, in the course of convicting an accused, got some of the evidence wrong, does not necessarily equate to a miscarriage of justice.

[54] But a conviction that rests on a material misapprehension of the evidence will be reversed, and a new trial directed, if the misapprehension goes to substance, and is on a matter that is material to the trial judge’s reasoning process. To overturn a conviction, the misapprehension must have played an essential part of the reasoning process that resulted in it. If a misapprehension of evidence was essential to the verdict, the verdict is not true, the trial has been unfair, and a miscarriage of justice will have occurred. This is a stringent standard. It does not apply to peripheral reasoning or matters of detail or narrative only: [R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2](https://www.canlii.org/en/ca/scc/doc/2004/2004scc80/2004scc80.html); Morrissey, at p. 541.

[55] A misapprehension ground of appeal can succeed even if the conviction, based on all the evidence, was not unreasonable: Morrissey, at p. 541. If a conviction was unreasonable, it must be set aside and an acquittal entered. If evidence was misapprehended in a way that was essential to the trial judge’s finding of guilt, the misapprehension could have affected the outcome, and, accordingly, the verdict should be set aside, even if the evidence properly before the trial judge was capable of supporting a conviction.

### The Legal Principles Applied

[30] At paragraph 18 of the reasons for judgment, in the course of discussing the first of four reasons for rejecting the evidence of H.W., the trial judge stated that “[the complainant’s] uncontradicted evidence is that when this incident happened, she visited with H.W. at his house to have a conversation about restoring a relationship with each other as it was prior to dating. I find as a fact that H.W. was aware that since the prior December [the complainant] had little interest in him and that the reason she came to his house was to talk about restoring their relationship to what it was prior to dating.”.

[31] It is alleged on behalf of H.W. that the said findings by the trial judge are flawed in that they rest on a material misapprehension of the evidence (the complainant’s evidence was not that she went to H.W.’s house for that reason) and, with regard to the finding of fact about what H.W. knew, are unsupported by any evidence at trial.

[32] The Crown’s position is that the trial judge’s findings at paragraph 18 of the reasons for judgment are based on a logical inference drawn by the trial judge, an inference that was well-grounded on the evidence as a whole and on discussions between the trial judge and then counsel for H.W. about why the complainant may have gone over to H.W.’s house.

[33] With respect, I agree with counsel for the appellant.

[34] There can be no reasonable debate that, if there was a misapprehension of the trial evidence on this point, it was a material one. It went to substance. It went to a matter that was significant in the trial judge’s reasoning process. It did not apply to peripheral reasoning or matters of detail or narrative only. To the contrary, the findings made at paragraph 18 of the reasons for judgment were essential to the verdict in that, at the very least, any misapprehension that led to those findings could have affected the outcome, and accordingly, the verdict would have to be set aside.

[35] The Crown takes no issue with any of the above, nor could it reasonably do so in light of the structure of the reasons for judgment and this issue being the first of four reasons given by the trial judge for rejecting the evidence of H.W. Rather, the Crown simply argues that there was no misapprehension of the evidence. Respectfully, I disagree. The findings made by the trial judge at paragraph 18 of the reasons for judgment were unsupported by the evidence.

[36] The trial evidence on this point consisted of (i) the complainant’s statement to the police (adopted by her at trial), (ii) other testimony by the complainant in direct examination at trial, (iii) the testimony of the complainant in cross-examination at trial, and (iv) H.W.’s evidence at trial (both in direct and in cross-examination).

[37] In her statement to the police, the complainant told the officer that she went over to H.W.’s house because they just started talking one day, and she really liked and missed his dog, and he messaged her after school to say that she could come over and see the dog, and so she went. Later, she told the officer that she thought that they were just going to talk, sort some things out, and try to just become friends again. When the officer asked her whether H.W. knew what she wanted to talk about, the complainant answered “I had mentioned it before. I had said, like, we could talk about it and just see where things go, but.”. The officer then moved on to something else.

[38] In her direct testimony at trial, the complainant was asked whether there was any other conversation that she had with H.W. the night before the visit to his house, apart from them having discussed her going to see his dog, and the complainant answered “[n]ot that I can remember.”.

[39] In cross-examination at trial, the complainant, in answer to a question from the trial judge, confirmed that, on the day before the visit to H.W.’s house, they communicated by Snapchat, and he had invited her to his house to see his dog. Later, she said that she wanted to see the dog.

[40] In direct examination at trial, H.W. testified that the complainant came to his house because she insisted on seeing his dog.

[41] In cross-examination at trial, H.W. testified that, although the dog was acting aggressively, the complainant came over to his house in order to see the dog.

[42] Besides the above, there was no other evidence at trial on why the complainant went over to H.W.’s house on the day in question.

[43] In light of that evidence on this point, it is my view that the trial judge erred (i) in finding that the complainant’s uncontradicted evidence was that she went over to H.W.’s house so that they could talk about restoring their relationship to what it was prior to dating and, further, (ii) in finding that H.W. was aware that the complainant came to his house for that reason.

[44] On the first point, the complainant’s evidence that she went to H.W.’s house for that reason was contradicted. It was contradicted by much of her own evidence. And it was contradicted by all of H.W.’s evidence. In fact, on this issue, if one ignores the use of the word “uncontradicted”, only one small part of the trial evidence as a whole, that is when the complainant told the officer in her police statement that she thought that they were just going to talk and sort some things out and try to just become friends again, was capable of supporting the finding made by the trial judge. The rest of the trial evidence from both the complainant and H.W. was that she went over to his house to see the dog.

[45] The trial judge was of course entitled to accept all, some, or none of any witness’ evidence, including the complainant’s. In light of what the actual trial evidence was on this point, however, there is no way to understand why or how the trial judge made a finding that the complainant went over to H.W.’s house to talk with him about restoring their relationship to what it was before they dated.

[46] Almost all of the trial evidence, including that from the complainant herself, was that she went over to H.W.’s house to see the dog, yet the trial judge found as a fact that she went over to talk with H.W. about restoring their relationship to what it was before they were dating. That finding of fact was significant in that it bolstered the trial judge’s conclusion that H.W. would have known in advance that the complainant was not interested in anything romantic or sexual on the date of the visit, and thus, in the eyes of the trial judge, H.W.’s evidence that the sexual activity was consensual was not credible.

[47] On the second point, even if the trial judge’s finding that the complainant’s uncontradicted evidence was that she went over to H.W.’s house for the reason stated by the trial judge was to survive appellate scrutiny, I am of the view that the trial judge’s further finding of fact that H.W. knew that the complainant came to the house for that reason was unsupported by the evidence at trial.

[48] This was a very significant finding of fact that the trial judge made. It was very significant because it served to undermine the credibility of the appellant and to make it seem totally nonsensical for him to suggest at trial that the two of them had consensual sexual intercourse when they both knew beforehand, presumably because they communicated with each other about it, that she was coming to his house expressly for the purpose of restoring their relationship as friends, and only as friends.

[49] Yet there was nothing in the trial evidence to support a finding that H.W. was aware of that reason for the visit. At its highest, the only evidence adduced at trial that was relevant to that finding made by the trial judge was that the police officer asked the complainant if H.W. knew what she wanted to talk about, and the complainant answered “I had mentioned it before. I had said, like, we could talk about it and just see where things go, but.”.

[50] The trial judge would have had to infer that the “it” was her desire to restore their relationship to being friends. The trial judge would have had to further infer that “before” meant the day before or the night before the visit. Finally, the trial judge would have had to further infer that “we could talk about it” meant that they would talk about it and, hence, that is why she was coming over to his house the next day.

[51] If those inferences were drawn by the trial judge, and if that is how the trial judge reached that finding of fact about H.W.’s knowledge or awareness of the reason for the visit, then, with respect, I think that was an unreasonable finding of fact to have made. That is particularly so given that the accused was never cross-examined on this point – whether he knew that the complainant was coming over to his house in order to talk to him about restoring their relationship to what it was prior to dating, and, further, the issue does not appear to have ever been raised by the Crown in submissions at trial or as part of its discernible theory of the case as evidenced at any phase of the trial. In that sense, the within appeal bears similarities to that in [R. v. Tran, 2023 ONCA 11](/on/onca/2023/11), where Justice Copeland for the Court of Appeal for Ontario allowed the appeal, set aside convictions, and ordered a new trial because the trial judge had made a key credibility finding against the accused/appellant in a procedurally unfair manner and on the basis of a misapprehension of the evidence. That is what happened here as well, in my respectful view.

[52] Separate and apart from the findings made by the trial judge at paragraph 18 of the reasons for judgment, at paragraphs 21-26 of the reasons for judgment, the trial judge outlined the fourth and final reason why he rejected the evidence of H.W. In the course of that discussion, the trial judge found that H.W. effectively admitted that the sexual activity between him and the complainant was not consensual because, during the texts exchanged between the two of them post-alleged offence date, when confronted by the complainant about him having sexually assaulted her, H.W. replied “all you had to say was no” rather than deny or correct her allegation, and therefore, that amounted to an adoptive admission by silence.

[53] At paragraph 26 of the reasons for judgment, the trial judge found that “[i]n the circumstances of this case, it was reasonable to expect that when H.W. responded to [the complainant’s] accusation that she did not say yes, he would have challenged or denied her if what she said was untrue.”.

[54] The trial judge cited the decision of the Court of Appeal for Ontario in [R. v. Robinson, 2014 ONCA 63, 118 O.R. (3d) 581](https://www.canlii.org/en/on/onca/doc/2014/2014onca63/2014onca63.html). It is alleged on behalf of H.W. that the trial judge did not properly apply that decision because the trial judge failed to make a finding that, in all of the circumstances, a denial by the appellant would have been the only reasonable course of action expected if he was not responsible: [R. v. Warner (1994), 21 O.R. (3d) 136 (C.A.), at p. 144](https://www.canlii.org/en/on/onca/doc/1994/1994canlii842/1994canlii842.html). It should be noted that R. v. Warner, supra, and the authorities cited therein, were cited by the Court of Appeal for Ontario at paragraphs 55 and 56 of the decision in R. v. Robinson, supra.

[55] In oral submissions on the appeal, I asked the Crown (who was not the trial Crown) whether it was agreed that the test for an adoptive admission by silence is the “only reasonable course of action” test, and the Crown answered in the affirmative.

[56] If so, then it would have to be found that the trial judge erred in law at paragraph 26 of the reasons for judgment when he employed a much less onerous test than that – whether it was “reasonable to expect” that H.W. would have denied the complainant’s accusation.

[57] Rather than paint it as an error in law, however, counsel for H.W. describes this as a misapprehension of the evidence in that, contrary to the recent decision of the Court of Appeal for Ontario, Coroza J.A. writing for the Court, in [R. v. D.B., 2024 ONCA 546](/on/onca/2024/546), the trial judge failed to consider the explanation by H.W., during his evidence at trial, as to why he did not say more than he did.

[58] I am not sure that I would agree with that submission made by counsel for the appellant. After all, the trial judge did, at paragraph 24 of the reasons for judgment, deal with part of the appellant’s explanation.

[59] In doing so, however, with respect, the trial judge misapprehended the trial evidence in two ways. First, in fact, H.W. was never asked in cross-examination why he did not correct the complainant when she wrote that she never said yes, contrary to what the trial judge found at paragraph 24 of the reasons for judgment. The trial transcript reveals that the Crown certainly asked H.W. questions about the text messages exchanged post-alleged offence date, but the appellant was never asked what the trial judge said in his reasons he was asked. What the Crown did was simply have H.W. confirm that when the complainant messaged “I never, never said yes”, H.W. did not respond to say that she did say yes (page 39 of the trial transcript of the cross-examination of H.W.). There was no questioning by the Crown as to why H.W. did not correct the complainant. Second, the trial judge conflated two issues when he stated, at paragraph 25 of the reasons for judgment, that the appellant testified that he failed to correct the complainant when she wrote that she never said yes because he was trying to be non-confrontational in that the complainant was being emotional. The trial judge rejected that explanation by H.W., and that was a key reason for rejecting his evidence as a whole, but the trial judge got the evidence wrong. The testimony from H.W. about trying to be non-confrontational was not about why he did not correct the complainant when she wrote that she never said yes. Rather, it was in answer to a direct question by the Crown about why he sent a text message to the complainant the next day which said that all she had to say was no (page 41 of the trial transcript). The two things are different – why he did not correct the complainant when she said that she did not say yes (which question H.W. was never asked in any event) and why he sent a text message the next day which said that all she had to say was no. Also, the trial judge found the appellant to be lacking credibility for saying that the complainant was being emotional because, in the trial judge’s eyes, there was nothing emotional about the text from the complainant which said that she did not say yes or no. The problem is that H.W. did not testify that the said text was emotional. He did not testify that any of her post-alleged offence date texts were emotional. He said “I was trying to be non-confrontational and I know she is emotional, and I was trying to keep her on a level head.”. Not that her text(s) was/were emotional.

[60] The end result is that the trial judge’s treatment of the entire issue of the text messages between the complainant and H.W., post-alleged offence date, was, respectfully, flawed. The legal finding of an adoptive admission by silence is precarious in that it was not based on the more onerous test that the Crown concedes is the correct test, and it also seems to be incongruous with the cautions expressed by Justice Coroza in [R. v. D.B., supra](/on/onca/2024/546) about making such a finding (the trial judge cannot be faulted for not referring to that decision as it was decided well after the reasons for judgment were delivered). And the key factual findings made by the trial judge in rejecting the explanation offered by H.W. in terms of why he did not say more in the text messages were all based on misapprehensions of the evidence.

[61] As was the case with the first category of misapprehension of the evidence (that related to why the complainant went over to H.W.’s house on the date in question), the misapprehensions of the evidence that infect paragraph 24 of the reasons for judgment are material ones. The Crown takes no issue with their importance, if they are made out, but simply argues that they do not exist. I find that they do exist.

[62] In summary, putting aside the issue of whether the trial judge erred in law in dealing with the adoptive admission by silence issue, two of the four express reasons as to why the trial judge rejected the evidence of the appellant cannot stand. This is because they rest on material misapprehensions of the evidence, without which the outcome could very well have been different. This was not an overwhelming case for the Crown. The verdict depended on the credibility analysis of the two principal witnesses, and crucial to that credibility analysis of the appellant, and why his evidence was rejected by the trial judge, were these two areas that were tainted by material misapprehensions of the evidence.

[63] In those circumstances, the verdict is unsafe. There has been a miscarriage of justice. There must be a new trial.

[64] It is unnecessary to deal with the alleged uneven scrutiny of the evidence issue. I think that argument is weak in any event.

[65] It is also unnecessary to deal with the sentence appeal, although it should be observed that the Crown conceded that what the trial judge stated at paragraph 24(e) of the reasons for sentence, that is that a “significant aggravating feature” to this case is that “[t]he offender appears to have little understanding of the impact of his behaviour on the victim”, is, in the Crown’s words in oral submissions on the appeal, “an issue”; “a problem”; and “concerning”. I think that Ms. Occhiogrosso ought to be commended for that candour, and I think that she is correct in saying that in light of the decision of the Court of Appeal for Ontario in [R. v. C.B., 2008 ONCA 486, at para. 57](https://www.canlii.org/en/on/onca/doc/2008/2008onca486/2008onca486.html). That decision I brought to the attention of counsel at the hearing of the appeal because it stands for the proposition that a lack of insight or understanding on the part of an offender, particularly one that pleaded not guilty and had a trial (like H.W.), ought not to be treated as an aggravating factor on sentence but may be a relevant factor on determining a fit sentence.

## III. Disposition

[66] I would accordingly allow the conviction appeal, quash the conviction, and order a new trial.

_____________________
Conlan J.

Released: November 19, 2024