Court File and Parties
Court File No.: CR-23-0090-00AP Date: 2024 11 29 Ontario Superior Court of Justice
Between: His Majesty the King, Respondent Crown And: D.S., Appellant
Counsel: R. Morrow, for the Respondent, Crown M. Bartlett, for the Appellant D.S.
Heard: November 28, 2024
Reasons for Decision on Summary Conviction Appeal
Conlan J.
[1] In early September 2021, D.S. was charged with (i) unlawful confinement contrary to section 279(2) of the Criminal Code, R.S.C. 1985, c. C-46, as amended (“Criminal Code”), and (ii) sexual assault contrary to section 271 of the Criminal Code. [2] It was alleged that D.S. forcibly confined his former intimate partner in the front entrance of their home and then digitally penetrated her vagina without her consent. [3] A relatively short, simple, straightforward trial was held, with the complainant and the appellant both testifying. The fact that they had sexual activity on the date in question was not controversial. Where they parted ways was on (i) whether the complainant was confined at all (the appellant denied that), and (ii) whether the sexual activity was consensual (the appellant testified that it was). [4] The trial judge found that she neither accepted the appellant’s evidence nor was she left with a reasonable doubt by it. She then continued to find that the complainant was a credible and reliable witness and, based on her account of what happened, found that the appellant touched the complainant’s breasts, attempted to kiss her, rubbed her vagina, and digitally penetrated her vagina, all without the consent of the complainant. Further, the trial judge found that the appellant had coercively restrained the complainant against the wall and prevented her from leaving the home. The appellant was, therefore, convicted on both counts (paragraphs 30-35 of the written reasons for judgment). [5] In addition to ancillary orders, the appellant was later sentenced to 15 months in custody to be followed by 12 months of probation. The trial judge declined to impose a conditional sentence order (paragraphs 28-29 of the oral reasons for sentence). [6] D.S. appeals against his convictions and also seeks leave to appeal against his sentence. [7] For the following reasons, the appeal is dismissed. There is no basis for this Court to interfere with either the convictions or the sentence imposed. [8] I want to say something about Mr. Bartlett’s presentation of the appeal. This Court hears many summary conviction appeals. Mr. Bartlett argued the appeal very well on behalf of his client, with little to work with, most fairly and professionally. He did not overstate the submissions. He was loyal to the record. This Court is grateful for that.
I. Convictions Appeal
[9] There was no dispute at trial that, earlier on the offence date, there was a texts exchange between the complainant and the appellant, during which the appellant said that they should do something that evening for the last time, to which the complainant replied with a question, “like what”, and the appellant said “bang” (which everyone agrees referred to sexual intercourse), and the complainant responded “Omg no”. [10] It is alleged on behalf of the appellant that the trial judge misapprehended or misapplied that evidence in that she improperly used it to bolster the credibility of the complainant and impugn the credibility of the appellant, when in fact it could reasonably do neither because the texts were exchanged hours earlier than the alleged sexual assault and involved a different form of sexual activity (intercourse rather than digital penetration). [11] It is a creative argument, but, with respect, it cannot succeed. [12] It is true that the trial judge pointed to the texts exchange repeatedly in her reasons for judgment. It is also true that she treated the texts exchange as corroborative of the complainant’s evidence and inconsistent with the appellant’s evidence (paragraphs 4, 20, 28, and 32 of the reasons for judgment). [13] There was no misapprehension of the evidence, however. The trial judge recited the texts exchange accurately, word for word. The trial judge expressly averted to the facts that the texts (i) were exchanged hours earlier, and (ii) involved a proposition to “bang” as opposed to some other form of sexual activity that arose later that day (paragraph 28 of the reasons for judgment). [14] There was also no misuse or misapplication of that evidence by the trial judge. Nowhere in the reasons for judgment did the trial judge suggest, expressly or impliedly, that it was not possible to find consent on the part of the complainant at the home later that day simply because she clearly, in the texts exchange, did not consent to sexual activity earlier that day. [15] Viewing the reasons for judgment as a whole, which this Court must do, it is clear to me that the trial judge used the texts exchange as circumstantial evidence of the complainant’s pre-existing attitude about sex with the appellant. The texts exchange was not determinative of the verdict on the sexual assault offence, but the texts were confirmatory of the complainant’s evidence that she did not want to have sexual contact with the appellant and, on the other hand, inconsistent with the appellant’s evidence that she, at the time of the sexual assault, giggled when he suggested oral sex, signaling the start of her consent to engaging in sexual activity with him. [16] I agree entirely with Mr. Morrow, counsel for the Crown. There was nothing improper about how the trial judge used the evidence of the texts exchange. In fact, what happened here was similar to what occurred in R. v. Langan, 2019 BCCA 467, at paragraph 126, 452 D.L.R. (4th) 178, 383 C.C.C. (3d) 516, [2019] CarswellBC 3744, [2019] B.C.J. No. 2450 (QL), where Chief Justice Bauman of the British Columbia Court of Appeal, in dissent, referred to the Crown using an exhibit in that trial to demonstrate that “the accused could have had no expectation that prospective sex with the complainant was in the offing on the weekend”, and that was a significant factor in the trial judge’s credibility assessment. Chief Justice Bauman indicated nothing to the effect that there was anything improper about that. A majority of the Supreme Court of Canada allowed the further appeal for the reasons of Chief Justice Bauman, 2020 SCC 33, [2020] 3 S.C.R. 499, 396 C.C.C. (3d) 149, [2020] S.C.J. No. 33 (QL). [17] In summary, the trial judge neither misapprehended nor misapplied the evidence of the texts exchange between the complainant and the appellant. The appeal against the convictions must, therefore, be dismissed.
II. Sentence Appeal
[18] I agree with Mr. Bartlett that (i) it would have been preferable if the trial judge had expressly mentioned the lack of any criminal record for the appellant when she listed the mitigating factors at paragraph 25 of the oral reasons for sentence, even though she did acknowledge the lack of any criminal record at both paragraphs 7 and 13 of the reasons, and (ii) it would have been preferable for the trial judge to have dealt more extensively with the principles of restraint and rehabilitation in the reasons for sentence, even though she did quote section 718 of the Criminal Code, including the express reference to rehabilitation, at paragraph 20 of the reasons, and further, she in fact exercised restraint in that she imposed a sentence considerably less than the 18 months’ imprisonment to be followed by 3 years of probation sought by the Crown. [19] The trial judge gave thorough reasons for sentence, however. The standard is not perfection. [20] Taking the reasons as a whole, I do not accept the argument advanced by the appellant that the trial judge erred in law in ignoring the lack of any criminal record and/or in failing to account for the principles of restraint and rehabilitation. [21] Further, even if the trial judge did err, which I do not find, then that alone does not justify appellate intervention. The appellant must demonstrate that the error impacted the sentence imposed. R. v. Huang, 2020 ONCA 341, at paragraph 11, citing R. v. Lacasse, 2015 SCC 64, at paragraphs 11 and 44; and R. v. Suter, 2018 SCC 34, at paragraph 24. [22] The appellant physically restrained the complainant, his former intimate partner, against a wall in her own home, prevented her from leaving, groped her, and stuck his fingers inside her vagina, all without her consent. There is no suggestion that a sentence of 15 months in jail was an unfit sentence. It surely was not. [23] More to the point, there is no basis to conclude that the trial judge specifically mentioning the lack of any criminal record at paragraph 25 of the oral reasons for sentence and/or dealing more extensively with the principles of restraint and rehabilitation would have impacted the sentence imposed. [24] Our case is quite different than R. v. Ali, 2022 ONCA 736, 164 O.R. (3d) 81, [2022] O.J. No. 4754 (QL), relied upon by the appellant. It is indeed an error for a judge, in sentencing a first offender, to focus exclusively on general deterrence and to fail to consider individual deterrence and rehabilitation – paragraph 40 of Ali, supra, citing R. v. Batisse, 2009 ONCA 114, 93 O.R. (3d) 643, at paragraphs 32 and 34. But the trial judge in our case did consider individual deterrence, and she also considered restorative sentencing goals, and she specifically referred to those principles of sentencing at paragraphs 21 and 28 of the oral reasons for sentence. [25] In summary, the trial judge imposed a fit sentence on the appellant and committed no errors in the process of doing so. The sentence appeal must be dismissed.
III. Disposition
[26] I would accordingly dismiss the appeal.
Conlan J.
Released: November 29, 2024