COURT FILE NO.: CR-23-53-00AP
DATE: 2024 11 29
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
His Majesty the King
R. Morrow, for the Respondent, Crown
– and –
K.N.
M. Caterina, for the Appellant K.N.
HEARD: November 22, 2024
REASONS FOR DECISION ON SUMMARY CONVICTION APPEAL
Conlan J.
[1] As the trial judge indicated at the outset of the reasons for judgment, the appellant, a man in his early sixties, and the complainant, a woman in her mid-twenties, had a dominant-submissive sexual relationship.
[2] On April 22, 2021, the complainant was blindfolded and bound to the bed. She was to engage in the sexual activity that the appellant directed.
[3] Unbeknownst to the complainant, however, on this particular occasion, the appellant had invited another man to join in the sexual activity, his 71-year-old friend, a stranger to the complainant.
[4] With the three persons in the bedroom, the sexual activity began with the complainant performing fellatio on the appellant’s friend. It continued and included the complainant performing fellatio on both men, back and forth, and each man having sexual intercourse with the complainant.
[5] During the sexual encounter, without the knowledge of the complainant, the appellant used his cellular telephone to take a video of the complainant performing fellatio on both men.
[6] The appellant was charged with sexual assault contrary to section 271 of the Criminal Code, R.S.C. 1985, c. C-46, as amended (“Criminal Code”), and unlawful confinement contrary to section 279(2) of the Criminal Code, and voyeurism contrary to section 162(1)(c) of the Criminal Code.
[7] The appellant and the appellant’s friend were tried together. The appellant’s friend is not a part of the within appeal.
[8] After trial, in oral reasons for judgment delivered on December 16, 2022, the appellant was convicted on all three counts.
[9] The appellant appeals against his convictions. There is no sentence appeal.
[10] For the following reasons, I would allow the appeal on both the unlawful confinement and the voyeurism counts, quash the convictions on those two counts, enter an acquittal on the unlawful confinement, and order a new trial on the voyeurism count. I would dismiss the appeal on the sexual assault offence.
I. The Reasons of the Trial Judge
[11] After summarizing the uncontested facts and the trial evidence of the complainant, the appellant, and the appellant’s friend, the trial judge concluded that the evidence of the complainant could not be relied upon. The trial judge doubted whether the complainant was being truthful when she testified that she did not know that a third person was there and did not consent to the sexual activity with that third person or with the appellant while that third person was present.
[12] The trial judge then continued, however, and found that both the appellant and the appellant’s friend misunderstood the concept of consent.
[13] The trial judge then properly instructed herself on the basic legal principles applicable to all criminal trials, including the presumption of innocence, the burden of proof resting exclusively with the Crown, the standard of proof being beyond a reasonable doubt, and the W.(D.) instruction.
[14] The trial judge then discussed, at length, with references to both statutory provisions in the Criminal Code and jurisprudence, the meaning of consent.
[15] Ultimately, the trial judge found that the complainant had been “tricked”. When the sexual activity began, that is when the appellant’s friend’s penis touched the mouth of the complainant, it could not be said that the complainant consented to that because she did not know that the penis belonged to a man other than the appellant. In other words, she consented to the act but not to the identity of the partner. The ruse was orchestrated by the appellant. The actus reus of sexual assault was complete the moment that the appellant’s friend’s penis touched the mouth of the complainant. Accordingly, the appellant was found guilty of sexual assault.
[16] The trial judge then turned to the voyeurism count. In very brief reasons (eight lines of transcript), the appellant was found guilty of that offence because he took the video surreptitiously, with the complainant being unaware of it, and the complainant did not consent to the video being taken, and the appellant had to have known that.
[17] The trial judge then turned to the unlawful confinement count. In brief reasons, the appellant was found guilty of that offence because, although the complainant consented to be bound to the bed and could be freed at any time on her request, the trick that was perpetrated by the appellant (inviting his friend into the bedroom without the knowledge of the complainant) meant that the complainant’s consent was not voluntary or informed in that it was vitiated by fraud.
II. Analysis
Jurisdiction
[18] This Court’s jurisdiction to hear the within appeal derives from section 812(1)(a) of the Criminal Code, under Part XVII, which provides that the Superior Court of Justice is the “appeal court” for summary conviction offences.
[19] The within appeal is brought under section 813(a) of the Criminal Code, which provides, in part, that the defendant may appeal (i) from conviction and/or (ii) against a sentence. As indicated above, there is no sentence appeal in this matter.
Grounds of Appeal
[20] A review of the Amended Notice of Appeal dated August 6, 2024, and the factum of the appellant, supplemented by Ms. Caterina’s excellent oral submissions at the hearing of the appeal, reveals that the appellant is advancing the following arguments:
(i) the trial judge misapprehended the evidence, and that misapprehension led to an erroneous conviction on the sexual assault offence;
(ii) the trial judge gave insufficient reasons for the conviction on the sexual assault charge;
(iii) the trial judge misapprehended the evidence and, further, misapplied the law regarding unlawful confinement, and those errors led to a conviction for unlawful confinement that cannot stand;
(iv) likewise, the trial judge misapprehended the evidence and, further, misapplied the law regarding voyeurism, and those errors led to a conviction for voyeurism that cannot stand; and
(v) against all of the convictions, there was a miscarriage of justice due to the ineffective assistance of counsel in (a) pursuing a non-existent defence to the sexual assault charge, and (b) failing to pursue the admission of exculpatory evidence, and (c) failing to defend, at all, the voyeurism charge.
[21] In summary, the grounds of appeal advanced in this case fall into two main categories: (i) alleged errors made by the trial judge, and (ii) alleged ineffective assistance of trial counsel.
Standard of Review
[22] 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 paragraph 11; R. v. McLean, 2021 ONSC 34, at paragraph 11.
[23] It is clear from the submissions of counsel on behalf of the appellant, taken as a whole, that all three of those bases are relevant in this case.
[24] 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, at paragraph 67, 294 O.A.C. 355, 102 W.C.B. (2d) 316 (Ont. C.A.), [2012] CarswellOnt 9437 (C.A.), [2012] O.J. No. 3629 (C.A.), 36 M.V.R. (6th) 217 (Ont. C.A.); R. v. Grosse (1996), 1996 6643 (ON CA), 29 O.R. (3d) 785 (C.A.), at pages 791-792; R. v. Hunt, supra, at paragraph 12; R. v. McLean, supra, at paragraph 13; R. v. Doyle, [2006] O.J. No. 315 (C.A.), at paragraph 6.
[25] 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 paragraph 13; R. v. Clark, 2005 SCC 2, at paragraph 9, [2005] 1 S.C.R. 6 (S.C.C.), 249 D.L.R. (4th) 257 (S.C.C.), 193 C.C.C. (3d) 289 (S.C.C.), 25 C.R. (6th) 197 (S.C.C.), [2005] S.C.J. No. 4 (S.C.C.); R. v. Sheahan, 2017 ONCA 159, at paragraph 12, 8 M.V.R. (7th) 1 (Ont. C.A.); R. v. R.E.M., [2008] 3 S.C.R. 3 (S.C.C.), at paragraph 54, 2008 SCC 51; Housen v. Nikolaisen, [2002] 2 S.C.R. 235 (S.C.C.), at paragraphs 10 and 23, 2002 SCC 33.
[26] 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. Morrisey (1995), 22 O.R. (3d) 514 (C.A.), at paragraph 28, 1995 3498 (ON CA), 38 C.R. (4th) 4 (Ont. C.A.), 97 C.C.C. (3d) 193 (Ont. C.A.), [1995] CarswellOnt 18 (C.A.), [1995] O.J. No. 639 (C.A.); R. v. C.R., [2010] O.J. No. 911 (C.A.), at paragraph 31, 2010 ONCA 176.
The first category of grounds of appeal – alleged errors made by the trial judge
[27] On the voyeurism and unlawful confinement counts, with respect, I find that the trial judge erred in law. Those two convictions cannot stand.
Voyeurism
[28] Regarding the voyeurism count, although the trial judge considered (i) whether the appellant took the video surreptitiously (with the complainant being unaware of it), and (ii) whether the complainant consented to the video being taken, and (iii) whether the appellant knew that the complainant had not consented to the video being taken, the trial judge did not consider an essential element of the offence of voyeurism – whether the complainant was in circumstances that gave rise to a reasonable expectation of privacy.
[29] It is not disputed by the Crown, nor could it be, that a reasonable expectation of privacy is an essential element of the offence of voyeurism, something that the Crown had to prove beyond a reasonable doubt. The plain wording of section 162(1) of the Criminal Code makes that clear. The decision of the Supreme Court of Canada in R. v. Jarvis, 2019 SCC 10, [2019] 1 S.C.R. 488, 52 C.R. (7th) 62, makes that clear as well, as confirmed in the commentary at page 417 of The 2025 Annotated Tremeear’s Criminal Code, 2024 Thomson Reuters Canada Limited, David Watt, K.C., The Honourable Madam Justice Michelle Fuerst, and Jill D. Makepeace.
[30] It is equally not disputed by the Crown, nor could it be, that whether the complainant consented to the video being taken is not determinative of the question of whether there was a reasonable expectation of privacy. We know that from Jarvis, supra, at paragraph 29, where the Supreme Court of Canada points to awareness of or consent to the recording as being only one of many factors in a list of non-exhaustive considerations that may assist a court in deciding whether there was a reasonable expectation of privacy.
[31] The totality of the circumstances must be considered. The inquiry is a contextual one, and there are instances where some of the considerations mentioned at paragraph 29 in Jarvis, supra will not be relevant, for example where a camera is hidden in a washroom and used to surreptitiously record what is a patently obvious private experience of someone who uses the washroom. Jarvis, supra, at paragraph 30.
[32] In fairness to the trial judge, on the issue of a reasonable expectation of privacy, no assistance was given to her by counsel on either side. The case appears to have been presented, and decided, primarily on the basis that there was a straight line between a finding of no consent to the video being taken and a conviction for voyeurism. Respectfully, that was wrong in law.
[33] It is possible for a recording to be done surreptitiously but not in breach of a reasonable expectation of privacy. Jarvis, supra, at paragraph 33. If that is the case, then it is certainly possible for a recording to be done without consent but not in breach of a reasonable expectation of privacy.
[34] With respect, to convict the appellant of voyeurism in the absence of any analysis of or finding of a reasonable expectation of privacy, an essential element of the offence, was a legal error.
[35] The Crown urges this Court to apply the curative proviso.
[36] In R. v. Edwards, 2022 ONCA 78, Justice Sossin, writing for the Court of Appeal for Ontario, very neatly summarized the legal principles applicable to the curative proviso. Paragraphs 36-40 of that decision are set out below.
[36] The curative proviso applies in two circumstances: first, where there is an error so harmless or minor that it could not have had any impact on the verdict; and second, where there are serious errors that would otherwise justify a new trial or an acquittal, but where the evidence against the accused was so overwhelming that a conviction was inevitable.
[37] The Crown has the burden of establishing that the curative proviso is applicable, and that the conviction should be upheld notwithstanding the legal error: R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, at para. 34.
[38] The Crown argues that either branch of the curative proviso is applicable here, as the errors, if any, were minor, and as the evidence against the appellant was overwhelming. According to the Crown, the appellant was “enveloped in a web of circumstantial evidence that he could not escape”.
[39] In my view, it cannot be said that the cumulative impact of the errors in the charge to the jury were harmless or minor. The trial judge’s failure to instruct the jury on eyewitness, voice, and circumstantial evidence impacted virtually all the Crown’s case against the appellant. Therefore, the question is whether the curative proviso applies because the evidence against the appellant was so overwhelming that his guilt was inevitable.
[40] In R. v. Khan, 2001 SCC 86, [2001] 3 SCR 823, the Supreme Court elaborated on the situations where the curative proviso applies because the evidence is so overwhelming that a trier of fact would inevitably convict:
- In addition to cases where only a minor error or an error with minor effects is committed, there is another class of situations in which s. 686(1)(b)(iii) may be applied. This was described in the case of R. v. S. (P.L.), 1991 103 (SCC), [1991] 1 S.C.R. 909, at p. 916, where, after stating the rule that an accused is entitled to a new trial or an acquittal if errors of law are made, Sopinka J. wrote:
There is, however, an exception to this rule in a case in which the evidence is so overwhelming that a trier of fact would inevitably convict. In such circumstances, depriving the accused of a proper trial is justified on the ground that the deprivation is minimal when the invariable result would be another conviction.
Therefore, it is possible to apply the curative proviso even in cases where errors are not minor and cannot be said to have had only a minor effect on the trial, but only if it is clear that the evidence pointing to the guilt of the accused is so overwhelming that any other verdict but a conviction would be impossible. [Citations omitted.]
[37] In my view, the curative proviso cannot be applied here. The error was not minor or harmless as it went to an essential element of the offence and, thus, clearly impacted on the verdict. Further, the evidence against the appellant on the voyeurism count was not so overwhelming that a conviction was inevitable. It was not so overwhelming that any other verdict would have been impossible. The trial judge could have found that the video was taken surreptitiously (without the consent of the complainant) but that a fulsome analysis of all of the factors mentioned in Jarvis, supra, together with the facts that the complainant knew that there were two men in the bedroom and was involved in sexual activity with both of them by the time that the appellant commenced taking the video (which findings were available on the record and would have been consistent with the reasons for judgment taken as a whole), meant that there was a reasonable doubt as to whether there was a reasonable expectation of privacy.
[38] The conviction on the voyeurism count must, therefore, be quashed.
[39] In terms of remedy, the choice between entering an acquittal and ordering a new trial is left to this Court’s discretion. Where reversible error of law is committed, but the evidence at trial is such that a properly instructed trier of fact acting reasonably could have convicted, it is usually appropriate to order a new trial. R. v. Levy, 1991 2726 (ON CA), citing R. v. Haslam (1990), 1990 166 (BC CA), 78 C.R. (3d) 23 at 34, 56 C.C.C. (3d) 491 at 502; and R. v. More (1959), 1959 447 (BC CA), 31 C.R. 59 at 65-69, 28 W.W.R. 562, 124 C.C.C. 140 at 146-150.
[40] Here, the evidence at trial was such that a properly instructed trier of fact acting reasonably could have convicted (could have found, beyond a reasonable doubt, a reasonable expectation of privacy). Thus, I order a new trial on the voyeurism count.
[41] Given the manner in which the appellant was sentenced, however, and given the disposition of the appeal on the sexual assault offence, I would strongly urge the Crown to not retry the appellant on the voyeurism offence. It would not be in the interests of justice. It would not be a good use of judicial resources.
Unlawful Confinement
[42] Regarding the unlawful confinement count, at the very end of the hearing of the appeal, the Crown fairly conceded that the appeal should be allowed and the conviction quashed if this Court finds that the trial judge had to consider whether the complainant was confined for a significant period of time, or even for some period of time that can be said to have been beyond fleeting.
[43] I do so find. Respectfully, although again the trial judge received no assistance from counsel on either side on this point, it was incumbent on the trial judge to consider that issue, and the failure to consider that issue amounted to an error in law, and thus, the conviction for unlawful confinement must be quashed.
[44] The law is clear that the two essential elements of an unlawful confinement are (i) an intentional confinement and (ii) a confinement without lawful authority. Confinement is an unlawful restriction on liberty for any significant period of time, or at least for some appreciable period of time. Watt’s Manual of Criminal Jury Instructions, 2023, 2023 Thomson Reuters Canada Limited, David Watt, K.C., at page 917; R. v. Sundman, 2022 SCC 31, at paragraph 21.
[45] The Crown does not argue, nor could it on this evidentiary record, that the complainant was physically restrained, contrary to her wishes, and her liberty deprived, for any significant period of time, or for any period of time beyond what could only be described as fleeting.
[46] Given the express concession made by the Crown at the hearing of the appeal, and given the state of the law on what constitutes a confinement, there is no other reasonable conclusion other than that the trial judge misapplied the law and erred in convicting the appellant of unlawful confinement.
[47] It is not appropriate to order a new trial. This Court enters an acquittal on the offence of unlawful confinement. Specifically with regard to the period of time that the complainant was restrained against her wishes and had her liberty deprived, the evidence at trial was not such that a properly instructed trier of fact acting reasonably could have convicted the appellant of unlawful confinement. The Crown does not seriously suggest otherwise.
[48] In summary, it was not sufficient to ground the conviction of the appellant for unlawful confinement exclusively on the basis that the complainant’s consent to be bound to the bed was vitiated by fraud, which is what the reasons for judgment stand for.
Sexual Assault
[49] Regarding the sexual assault count, I am of the view that the trial judge did not err in any way. More specifically, there was no misapprehension of the evidence, and the reasons were not insufficient.
[50] In R. v. Doodnaught, 2017 ONCA 781, 358 C.C.C. (3d) 250 (Ont. C.A.), 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), 1995 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 218. 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.
[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.
[51] 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.
[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; 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.
[52] Here, first, the appellant’s counsel points to an alleged inconsistency between the appellant’s evidence in direct examination at trial (page 21 of the Appellant’s Compendium) and his evidence in cross-examination at trial (page 26 of the Appellant’s Compendium). It is submitted that only the former, where the appellant stated that he asked the complainant if she was okay only after she had already been touched sexually by the appellant’s friend, was inculpatory. The latter, it is submitted, was not.
[53] With respect, counsel for the appellant is straining to find something that is simply not there.
[54] Even if it is correct to say that what the appellant testified to in cross-examination was in fact different than what he said in direct examination, on the basis that he asked the complainant if she was okay “before anything happened”, and “anything” includes the first sexual touching of the complainant by the appellant’s friend, all of which is not at all clear to me on a reading of the evidence at page 26 of the Appellant’s Compendium, it remains that whether the first sexual touching, that is the appellant’s friend’s penis to the complainant’s mouth, occurred in circumstances where the complainant did not know that the penis belonged to someone other than the appellant was a finding of fact made by the trial judge. It is owed deference by this Court. The trial judge was entitled to accept all, some, or none of the appellant’s evidence. She was not required to review all of his evidence on any one point, especially where his evidence in direct examination on this point was crystal clear, while his evidence was much less so in cross-examination. The evidence of the appellant at page 21 of the Appellant’s Compendium fully supported the trial judge’s finding of fact referred to above.
[55] Second, the appellant’s counsel points to the appellant’s friend’s trial evidence at page 31 of the Appellant’s Compendium, where the appellant’s friend stated in cross-examination that he thought that the complainant “sensed” that there was a third party in the bedroom.
[56] Respectfully, the trial judge’s finding of fact that the complainant did not know about the third person in the bedroom when the appellant’s friend first touched the complainant in a sexual manner could not reasonably be undermined by that evidence at page 31 of the Appellant’s Compendium. Frankly, that evidence was next to worthless. It was speculative to the point of being inadmissible. It ran contrary to the entire admitted scheme of the appellant to orchestrate this sexual encounter with his friend as a “surprise”, and thus it made no common sense. The trial judge cannot be faulted for not mentioning that evidence of the appellant’s friend when making her finding of fact referred to above.
[57] Third and finally, the appellant’s counsel submits that there is a host of unanswered questions in terms of why the trial judge made the findings that she did and, therefore, why she convicted the appellant of sexual assault.
[58] The appellant’s counsel asks, how was the complainant “tricked” when it would have been obvious to the complainant that the penis that first touched her mouth could not have been from the person who was on the bed (the appellant), and thus, she must have known that there were two persons besides herself in the bedroom (referring to an excerpt from the closing submissions at trial of the appellant’s friend, page 32 of the Appellant’s Compendium)? With respect, what was said in closing submissions was not evidence.
[59] The appellant’s counsel asks, further, why did the trial judge state that the discrepancy between the evidence of the complainant and the appellant’s friend on what constituted the first sexual touching between them, whether him touching her vagina or her putting his penis inside her mouth, was not “determinative of the result in this case” (page 7 of the transcript of the reasons for judgment)? With respect, the answer is obvious – that discrepancy did not matter because, either way, the first sexual touching was without valid consent on the part of the complainant.
[60] The appellant’s counsel asks, further, how did the trial judge find a “trick” when she found both the appellant and his friend to be credible witnesses and accepted much of their evidence? With respect, the trial judge found that because the appellant himself testified that the whole thing was a “surprise”, both by design and in effect (the latter having been effectively admitted by the appellant when he testified that he asked the complainant if she was okay only after the first sexual touching occurred between his friend and the complainant).
[61] In summary, there were no misapprehensions of the evidence by the trial judge.
[62] Turning to the insufficiency of reasons argument, I see no merit to it.
[63] A very helpful summary of the legal principles applicable to a sufficiency of reasons argument is found in the decision of the Court of Appeal for Ontario, Doherty J.A. writing for the Court, in R. v. J.J.R.D., 2006 40088. Paragraphs 26-33 of that decision are set out below.
[26] It is one of the peculiarities of the criminal justice system that if an accused is tried by a jury, the law demands a one or two word verdict and forbids any explanation of that verdict. However, if the same accused is tried on the same charge by a judge alone, the same law demands a reasoned explanation for the verdict.
[27] In judge alone trials, the reasons for the judgment are the focus of most appeals. Prior to R. v. Sheppard (2002), 2002 SCC 26, 162 C.C.C. (3d) 298 (S.C.C.), and its companion case, R. v. Braich (2002), 2002 SCC 27, 162 C.C.C. (3d) 324 (S.C.C.), arguments based on the inadequacies in the trial judge’s reasons took either or both of two tacks. In some cases, it was argued that an inadequacy in the reasons demonstrated an underlying or implicit legal error in the trial judge’s reasoning process. Perhaps the best example is the argument made in many appeals that the failure to refer to the principles in R. v. W.(D.), supra, demonstrates a misapplication of the reasonable doubt standard to credibility determinations: see e.g. R. v. Strong, [2001] O.J. No. 1362 (C.A.).
[28] The second approach is to point to the inadequacies in the reasons to support a claim that the verdict is unreasonable within the meaning of s. 686(1)(a)(i) of the Criminal Code. In this context, the inadequacies in the reasons are said to reflect errors or gaps in the trial judge’s legal analysis or the processing of the evidence and are offered to explain how the judge, presumably a reasonable person, could have arrived at an unreasonable verdict: see e.g. R. v. Biniaris (2000), 2000 SCC 15, 143 C.C.C. (3d) 1 at para. 36 (S.C.C.).
[29] Post Sheppard and Braich, a third genre of argument based on alleged inadequacies in the trial judge’s reasons has flourished. On this argument, inadequacies in the reasons are sufficient to justify reversal in their own right without inferring any underlying legal error from those inadequacies and without finding that the verdict was unreasonable. These two cases hold that the absence of reasons (Sheppard) or seriously inadequate reasons (Braich) can constitute a freestanding error of law justifying the quashing of the verdict and the direction of a new trial.
[30] In Sheppard, supra, at para. 53, Binnie J. stressed that a claim that reasons for judgment are inadequate and that the inadequacy amounts to an error in law must be tested functionally and in the context of the specific case. He acknowledged, at paras. 18-23, that reasons served various salutary purposes in the criminal justice process, including informing the losing party of why he or she had lost. In the context of appellate review, however, Binnie J., at para. 25, described the function of reasons for judgment in these terms:
The issue before us presupposes that the decision has been appealed. In that context the purpose, in my view, is to preserve and enhance meaningful appellate review of the correctness of the decision (which embraces both errors of law and palpable overriding errors of fact). If deficiencies in the reasons do not, in a particular case, foreclose meaningful appellate review, but allow for its full exercise, the deficiency will not justify intervention under s. 686 of the Criminal Code. [Emphasis added.]
[31] After a review of the cases, Binnie J. returned to what he saw as the crucial question on appellate review of the adequacy of trial reasons at para. 46:
These cases make it clear, I think, that the duty to give reasons, where it exists, arises out of the circumstances of a particular case. Where it is plain from the record why an accused has been convicted or acquitted, and the absence or inadequacy of reasons provides no significant impediment to the exercise of the right of appeal, the appeal court will not on that account intervene. On the other hand, where the path taken by the trial judge through confused or conflicting evidence is not at all apparent, or there are difficult issues of law that need to be confronted but which the trial judge has circumnavigated without explanation, or where (as here) there are conflicting theories for why the trial judge might have decided as he or she did, at least some of which would clearly constitute reversible error, the appeal court may in some cases consider itself unable to give effect to the statutory right of appeal. In such a case, one or other of the parties may question the correctness of the result, but will wrongly have been deprived by the absence or inadequacy of reasons of the opportunity to have the trial verdict properly scrutinized on appeal. In such a case, even if the record discloses evidence that on one view could support a reasonable verdict, the deficiencies in the reasons may amount to an error of law and justify appellate intervention. It will be for the appeal court to determine whether, in a particular case, the deficiency in the reasons precludes it from properly carrying out its appellate function. [Emphasis added.]
[32] The circumstances of the particular case will determine the adequacy of the reasons for judgment and the effect, if any, of the inadequacy of reasons or the outcome of the appeal. Reasons for judgment must be examined in the context of the entire proceeding, especially the nature of the evidence heard and the arguments advanced.
[33] Nor should appellate courts overestimate the complexity of most criminal litigation or underestimate the ability of those involved in the trial process to understand the reasons for the outcome. Most criminal trials, even the difficult ones, are not particularly complicated. Most accused, even those who vehemently disagree with the result, understand only too well why they were convicted. Once again, I return to the words of Binnie J. in Sheppard, supra, at para. 60:
[I]n the vast majority of criminal cases both the issues and the pathway taken by the trial judge to the result will likely be clear to all concerned. Accountability seeks basic fairness, not perfection, and does not justify an undue shift in focus from the correctness of the result to an esoteric dissection of the words used to express the reasoning process behind it.
[64] Here, the route to conviction was clearly and fully explained by the trial judge at page 14 of the transcript of the reasons for judgment. In short, the complainant was tricked. The penis of the appellant’s friend touched the mouth of the complainant without the complainant even being aware that there was someone else in the bedroom besides her and the appellant, and this was by design of the appellant.
The reasons of the trial judge have permitted meaningful and effective appellate review, and they certainly explained to the appellant why he was found guilty of sexual assault.
The second category of grounds of appeal – alleged ineffective assistance of counsel
[65] It is unnecessary to analyze whether there was ineffective assistance of trial counsel regarding the unlawful confinement and the voyeurism counts. The appeal is allowed on those two counts for different reasons.
[66] On the sexual assault offence, I am of the view that the appellant cannot succeed on the prejudice component of the test for ineffective assistance of counsel, in other words there was no miscarriage of justice, and thus that ends the inquiry.
[67] The law regarding ineffective assistance of counsel was nicely summarized by the Court of Appeal for Ontario in R. v. J.B., 2011 ONCA 404, [2011] O.J. No. 2322, at paragraphs 2 and 6, set out below.
[2] There are several prerequisites which must be met before a court will set aside a conviction on the basis of ineffective assistance of counsel. First, the appellant must establish the facts underlying the allegation on a balance of probabilities. Second, the appellant must establish that the acts or omissions amount to incompetence. Third, the appellant must establish that the ineffectiveness resulted in a miscarriage of justice, by undermining either the appearance of a fair trial or the reliability of the verdict. The court is to determine the last question first, as, if competent representation could not have altered the verdict, it is unnecessary to undertake the other parts of the analysis. See R. v. Archer (2005), 2005 36444 (ON CA), 202 C.C.C. (3d) 60, paras.118-121 (Ont. C.A.); R. v. G.D.B. (2000), 2000 SCC 22, 143 C.C.C. (3d) 289, paras.23-29 (S.C.C.); R. v. White (1997), 1997 2426 (ON CA), 114 C.C.C. (3d) 225, at pp. 245-247 (S.C.C.); R. v. Joanisse (1995), 1995 3507 (ON CA), 102 C.C.C. (3d) 35, at pp.43-44, 56-58 (Ont. C.A.). In our opinion those prerequisites have been met.
[6] The purpose of appellate inquiry is not to grade counsel’s performance. The appellant has shown that the acts or omissions of his trial counsel could not have been the result of reasonable professional judgment. The appellant was entitled to competent legal representation at his trial, because effective representation by counsel enhances the reliability of the outcome of the adversarial trial process. In this case, the cumulative effect of the failures of counsel undermined the reliability of the verdict and resulted in a miscarriage of justice. Further, the appearance of a fair trial was undermined by trial counsel’s failure to advocate for her client by pressing for the rejection of the complainant’s evidence.
[68] Reference should also be had to the decision of the Court of Appeal for Ontario in R. v. Fiorilli, 2021 ONCA 461, 156 O.R. (3d) 582. On the prejudice component of the analysis specifically, paragraphs 54 through 59 of that decision are important, set out below.
[54] To satisfy the prejudice component, “the appellant must show the ineffective representation resulted in a miscarriage of justice, ether by rendering the trial unfair or the verdict unreliable”: R. v. K.K.M., at para. 55. Put otherwise, the appellant must meet either or both of two alternative prejudice branches, the ‘trial fairness’ branch, and the ‘unreliable verdict’ branch.
The trial fairness branch of the prejudice component
[55] The trial fairness branch of the prejudice component is concerned with the “adjudicative fairness of the process used to arrive at the verdict”: Joanisse, at p. 57. Occasionally, appellate courts refer to “procedural” fairness instead of trial fairness to describe this branch: see e.g., R. v. G.D.B., at para. 34; Prebtani, at para. 4. In Joanisse, when illustrating the kinds of infirmities in legal representation that might cause a trial to become unfair, at pp. 62-63, Doherty J.A. spoke of lawyers who are intoxicated throughout a trial, or who are acting in a conflict of interest. In such cases, the incompetence is so pervasive that it destroys the fairness of the adjudicative process at trial, thereby amounting to a constructive denial of the assistance of counsel: Joanisse, at pp. 62-63.
[56] Some of the decisions that must be made during the course of a trial, such as the mode of trial, whether to testify or plead guilty, or whether to advance the defence of not criminally responsible, are so fundamental to procedural fairness that counsel’s failure to permit the appellant to make the decision, or to provide effective advice on the matter, can raise questions of procedural fairness: R. v. G.D.B., at para. 34; R. v. Trought, 2021 ONCA 379, at paras. 46-50.
[57] Where the trial fairness branch of the prejudice component is at issue, the focus is, in fact, on “the appearance of the fairness of the trial”: Archer, at para. 120. This is in keeping with the principle that “justice must not only be done, but must manifestly be seen to be done”: Joanisse, at p. 63, citing R. v. Cook and Cain (1980), 1980 2839 (ON CA), 53 C.C.C. (2d) 217 (Ont. C.A.), at p. 224. If counsel’s performance has undermined the appearance of trial fairness, no further prejudice need be established: R. v. Stark, 2017 ONCA 148, 347 C.C.C. (3d) 73, at para. 14.
The unreliable verdict branch of the prejudice component
[58] The unreliable verdict branch of the prejudice component operates differently than the trial fairness branch. As its name suggests, the unreliable verdict branch is concerned with the confidence that can be placed in the validity or reliability of the result of the trial: R. v. Dunbar, 2007 ONCA 840, at para. 23; R. v. Nwagwu, 2015 ONCA 526, [2015] O.J. No. 3695, at para. 7. In Joanisse, at p. 63, Doherty J.A. explained this branch as follows:
Some claims of incompetence relate to specific decisions made or actions taken by counsel in the course of the defence. These claims do not assert an actual or constructive denial of the assistance of counsel, but instead contend that the assistance given was so deficient that it was ineffective. These claims come down to the assertion that because of counsel’s incompetence, the defence was not properly put, or the Crown’s case was not properly challenged. In these situations, the effect on the fairness of the trial of counsel’s incompetence is measured by reference to the impact of the error or errors on the reliability of the result.
[59] This court spoke in Archer, at para. 120, of the appellant satisfying the unreliable verdict branch of the prejudice component by demonstrating that “had counsel performed in a competent fashion, there is a reasonable possibility that the verdict could have been different” (emphasis added). However, the authorities coalesce in requiring the appellant to establish a reasonable probability that the result would have been different: see e.g., Joanisse, at p. 64; Prebtani, at para. 4; R. v. R.S., 2016 ONCA 655, 341 C.C.C. (3d) 530, at para. 44; R. v. Al-Shammari, 2016 ONCA 614, 350 O.A.C. 369, at para. 75. In Joanisse, at p. 75, Doherty J.A. described a “reasonable probability” as “more than a mere possibility, but less than a likelihood”. In Al-Shammari, at para. 75, Juriansz J.A. said “a reasonable probability is established when the reviewing court is satisfied that because of counsel’s incompetence, the verdict cannot be taken as a reliable assessment of the appellant’s culpability.”
[69] Here, in my view, it cannot be said that the trial was rendered unfair or the verdict unreliable as a result of anything that defence counsel at trial did or did not do.
[70] Once it was established that the complainant was not aware of the addition of a third person into the sexual activity until after it started, and the appellant knew that because he intended that to be the case as it was meant to be a “surprise” (all findings of fact made by the trial judge, and all supported by the appellant’s own evidence at trial), and more specifically once it was established that there was sexual touching between the appellant’s friend and the complainant before the appellant asked the complainant if she was okay and before the complainant knew that the person whose penis was touching her mouth belonged to a third person (all findings of fact made by the trial judge, and all supported by the appellant’s own evidence at trial, in particular his evidence in examination-in-chief at page 21 of the Appellant’s Compendium), a conviction for sexual assault was the inevitable consequence.
[71] That the appellant’s counsel at trial appears to have advanced a theory of the defence on the sexual assault charge that could not have amounted to a defence in law, even if accepted by the trial judge, because one cannot consent to sexual activity retrospectively (with effect from a time that has already passed), did not result in an unfair trial or an unreliable verdict.
[72] The verdict was grounded on the undisputed facts and the appellant’s own evidence at trial. A high degree of confidence can be placed on the validity and reliability of the appellant’s conviction for sexual assault because, in essence, that conviction did not depend on anything that the appellant himself did not agree with. Given the appellant’s own admissions at trial, there is no reasonable probability, or even reasonable possibility, that the verdict would, or even could, have been any different.
[73] Defence counsel at trial could have taken a different approach. He could have taken an approach more like that of Ms. Caterina on appeal, arguing that there was other evidence at trial which made it uncertain whether the first sexual touching between the appellant’s friend and the complainant actually happened before she knew that there was a third person in the bedroom. This is not an exercise in grading the performance of defence counsel at trial, however. On the trial fairness branch of the prejudice component, we are concerned about the appearance of the fairness of the trial, as justice must manifestly be seen to be done. This Court does not conclude that trial counsel’s performance undermined the appearance of trial fairness.
III. Disposition
[74] I would accordingly allow the appeal in part.
[75] The conviction on the unlawful confinement offence is quashed, and an acquittal is entered on that count.
[76] The conviction on the voyeurism offence is quashed, and a new trial is ordered on that count.
[77] The appeal against the conviction on the sexual assault offence is dismissed. There was no misapprehension of the evidence by the trial judge. The reasons of the trial judge were clear and thorough and more than sufficient. There was no ineffective assistance of trial counsel.
[78] Again, I repeat my strong urging to the Crown to not retry the appellant on the voyeurism count.
Conlan J.
Released: November 29, 2024