Court File and Parties

COURT FILE NO.: CR-23-0003-AP DATE: 2024-02-02 CORRECTION DATE: 2024-02-12

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – Mason Nanibush

Counsel: K. Vakiparta, for the Crown P. Socka, for Mason Nanibush

HEARD: October 3, 2023

CORRECTED REASONS FOR DECISION - SUMMARY CONVICTION APPEAL

Non-Publication Ban is added on first page and back page Date corrected in line 2 of paragraph [1] to December 19, 2022

Stothart, J.

[1] On June 22, 2022, Justice B. Oldham found Mason Nanibush guilty of sexual assault contrary to s.271 of the Criminal Code of Canada. On December 19, 2022, Mr. Nanibush was sentenced to a 12-month conditional sentence order followed by a 15-month probation order. Ancillary orders were made under SOIRA and for the provision of a DNA sample under the Criminal Code.

[2] Mason Nanibush appeals from his conviction for sexual assault. The Crown appeals from the sentence imposed.

Overview

[3] The complainant (“G.B.”) and Mason Nanibush (“Mason”) were involved in a brief relationship during the summer of 2020. At the time, the complainant was 16 and Mason was 21.

[4] On August 27, 2020, the complainant G.B. and Mason engaged in consensual sexual activity in a backyard tent. The activity escalated to sexual intercourse, during which time G.B. withdrew her consent. The issue at trial was whether Mason continued to have sexual intercourse with the complainant after she communicated her lack of consent.

[5] The trial judge accepted the evidence of the complainant, rejected the evidence of the appellant, found that she was not left in doubt by the appellant’s evidence and concluded that, based on all of the evidence she was satisfied beyond a reasonable doubt that the appellant continued the sexual activity beyond what was permissible, and found the appellant guilty of sexual assault.

The Facts

[6] During the summer of 2020, G.B. lived with her friend, Misko McAllister Pegahmagabow (“Misko”) in an apartment located in Wasauksing First Nation.

[7] On August 26, 2020, G.B. was hanging out with Mason, her friend Misko, and Misko’s friend Gabriel Gabin Welling (“Gabe”) at the apartment.

Evidence of the complainant G.B.

[8] According to G.B., she and Mason had an argument that day and agreed to break up. The plan for that evening was that Mason would sleep on a couch in the apartment and G.B. would sleep outside in a tent. The tent was located just outside the apartment.

[9] G.B. testified that at around 11:00 p.m. or 12:00 a.m. she went out to the tent and went to sleep. At some point, it could have been around 3:00 a.m., she woke up and Mason was lying behind her, cuddling her. G.B. testified that she was fine with cuddling, and agreed in cross-examination that she probably turned towards Mason and probably kissed him. She also agreed that Mason could have moved on top of her, and they could have been kissing, cuddling, and touching each other and that she was okay with that.

[10] G.B. testified that Mason began having sexual intercourse with her and she was not okay with that. She told Mason no, started to push him away and a person, most likely Gabe, called out the window, at which point Mason got off and she went inside. She testified that she said “stop”, “get off” and “please don’t”. G.B. testified that the sexual intercourse lasted a minute or a few minutes. G.B. testified that she did not consent to the sexual intercourse.

[11] In cross-examination, G.B. agreed with the suggestion that she moved her legs to enable Mason’s penis to come into contact with her vagina. She also agreed that once they started having sexual intercourse, she said “no, I don’t wanna do this” and had second thoughts about the relationship and what they were doing and did not want to do it anymore.

[12] In cross-examination, it was suggested that almost immediately after she said “no, stop, I don’t want to do this” Gabe called out “hey what’s going on out there” and Mason stopped right away. G.B. did not agree with this suggestion. She testified she had started out objecting with a lower voice, and then got louder and that’s when Gabe heard and asked if they were okay. Mason stopped only after Gabe called out. G.B. testified that she was mad at Mason because she had been pushing him and asking him to stop. She agreed that she continued to yell at him after the intercourse stopped, telling him to leave. She then got up and left.

[13] G.B. testified that Misko and Gabe went outside and told Mason he had to leave. Mason asked to use the bathroom and went inside the apartment. At some point while he was inside the apartment, Mason told G.B. to hit him, and she did.

[14] G.B. testified that she told her social worker “Liz” about what happened either the next day or the day after in the apartment building parking lot. Liz told her she should go to the police, but G.B. was not comfortable with that because she had never experienced something like this before.

[15] In cross-examination, G.B. testified that she did not tell Liz that she had slapped Mason in the tent, and he had a nosebleed. She also denied that she told Liz that Misko and Gabe had to drag Mason off of her.

Evidence of Misko McAllister Pegahmagabow (“Misko”)

[16] Misko testified that the group were hanging out at the apartment. At some point G.B. was not feeling well and decided to go outside and nap. Later Mason ended up going outside as well.

[17] Misko testified that she was sitting in her bedroom and heard G.B. asking Mason to stop and then heard her screaming or yelling “no” and repeating herself. Misko testified that the tent was basically right outside her bedroom window.

[18] In cross-examination, Misko testified that she heard G.B. yelling no and then screaming. She could not say word for word what G.B. was yelling. She remembered G.B. saying “can you stop, like stop” and then heard her say “No”. This took place for a couple of minutes and then Gabe stuck his head outside and said something, asking G.B. if she was okay or something like that. After that she did not hear anything. G.B. then came inside and told them what happened.

[19] Misko testified that Mason came into the apartment about an hour or so later and they told him to leave because G.B. had told them what he did. Mason denied what happened, so they weren’t sure and asked him to leave because they did not want G.B. to feel unsafe. Misko described G.B. as on the verge of crying and shaky.

[20] When asked when this took place, Misko testified that she could not remember, that it was probably around midnight, it was later at night, and it was really dark out. She agreed that it was like middle of the night dark out. She testified that G.B. had probably been out in the tent for maybe two or three hours, and then she came back in. She was not sure when Mason went out to the tent and was not sure if Mason went out to the tent with G.B.

[21] In cross-examination, Misko testified that when they kicked Mason out, it was starting to become more like the morning, like 3:00 or 4:00 in the morning.

Evidence of Gabriel Gabin Welling (“Gabe”)

[22] Gabe testified that the group had been hanging out and drinking at the apartment. At one point he was in the bedroom with Misko and heard G.B. outside in the tent say “stop” or “stop Mason get off me” or something like that. At first, he thought they were just hearing things. He then heard it a few more times so he went to the window and called G.B.s name and asked if she was okay. G.B. responded “Gabe?” and then she came into the apartment crying about five minutes later.

[23] Gabe testified that he assumed that this was between 12:00 and 2:00 a.m. He could not say if G.B. and Mason went out to the tent together or separately. Gabe testified that he heard the commotion probably about 30 minutes to an hour later.

[24] Gabe testified that he saw G.B. slap Mason in the face, but Mason’s nose did not bleed.

Evidence of Liz Graf (“Liz”)

[25] Liz Graf (“Liz”) is a Child and Youth Worker with the Children’s Aid Society. She testified that she spoke to G.B. on August 28th at 1:00 p.m. in a parking lot area. At the time she did not take notes.

[26] After speaking with G.B., she contacted a childcare worker and G.B. gave her permission to contact the police.

[27] Liz sent an e-mail to the Ontario Provincial Police on August 28th. In the e-mail, she wrote that G.B. said she had been yelling very loudly and hit Mason in the face with her hand causing his nose to bleed. She also wrote that G.B. said she was yelling very loudly and Misko and Gabe came out to see what was going on and they were able help G.B. get Mason off of her. Mason was then kicked out of the house. Liz testified that this was not verbatim what G.B. told her.

Evidence of Mason Nanibush (“Mason”)

[28] Mason testified that he had been hanging out with the group at the apartment. At one-point G.B. said she was going to bed, and he told her he would be out there in a bit.

[29] Mason testified that he went out to the tent about 10 to 20 minutes later and G.B. was asleep. He tried cuddling her and she cuddled him back. Mason testified that G.B. rolled over and they started kissing, touching and caressing each other. He then rolled on top of her, and they continued caressing and kissing each other. G.B. then spread her legs open, he put his penis into her vagina, and they started having sex.

[30] Mason testified that he knew G.B. wanted to have sexual intercourse because she spread her legs open and it was mutual, they were both doing it.

[31] Mason agreed that G.B. verbally communicated her revocation of consent to sexual intercourse to him. Because the timing of this revocation of consent is a key aspect of this appeal, I will set out the appellant’s evidence on this issue.

[32] In his examination-in-chief, Mason described how the intercourse ended, as follows:

Question: and did, did you, did you finish or complete the act of sexual intercourse? And, and by that I mean, like, like did you ejaculate? Answer: No. Question: And why not? Answer: I was told to get off her, she said “no” and she said “stop” Question: Okay, and what did you do when she said that? Answer: I stopped moving my penis inside her and I rolled off her Question: And how long after she told you to stop did it take for you to stop moving your penis and, and roll off her, how long do you think that took? Answer: A second or less, sir. Question: Okay. And so you roll off, tell us, sir, how are you now positioned, the two of you, when you roll off, how are you now positioned in relation to one another? Answer: I am on my back, she has not gotten up, she’s yelling at me and she leaves the tent, after she hears Gabe call out her name.

[33] In cross-examination, Mason described how the intercourse ended, as follows:

Question: Okay. And so at some point when your, your penis is placed inside her, your evidence is she said stop right? Answer: yes Question: And, and you immediately, I think the word my friend kept on using was immediately rolled off her, right? Answer: Mm-hmm Question: Yes? Answer: Yes. Question: Okay. So let me get this straight. You and she are what you’re saying are engaged in sexual intercourse, consensual sexual intercourse. Answer: Yes Question: You’ve got an erection, you don’t ejaculate, you’re not, you haven’t reached ejaculation yet, but she says stop and, and you immediately stop. Is that what you would like the court to believe today? Answer: Sir, yes, I immediately stopped. Question: Cause you’d agree with me if she said stop more than once, that’s not immediate, the getting off, right? If she had to say it more than once, you didn’t immediately get off her in that case, right? Answer: Right, but… Question: If, if she said – okay, sorry. Answer: It’s all right. Sorry sir. (There is discussion at this point about interrupting the witness. Court invites accused to finish his answer.) Court: Go ahead, Mr. Nanibush, finish your answer. Answer: Yes, so what happened was I said it happened like a second afterwards, right. When she did say stop, I stopped moving my penis immediately, right, but I was confused, or shocked at the moment, understanding, but I rolled off her when she said it. Question: Okay, Cause earlier you had told us – my friend had, my learned friend Mr. Lakie had asked “How, how long do you think that took” he said, question “what did you do when she said that?” Answer, “I stopped moving my penis inside her and rolled off her” Question, “how long do you think that took?” Answer, “a second or less” So… Answer: yea. Question: …now you’re telling us you were a little confused by that and so what, what was it, was it, was it still a second or less? Answer: Yes (indiscernible). Question: Okay. And so you’d agree with me if, if she had to say it more than once, “stop” more than once, that, that, that, that wasn’t a second or less that you got off her, correct? Answer: no, I did get off her in a second or less. Question: Okay. I’m going to suggest to you that she did say stop more than once. Answer: Yes, she did. Question: All right, just, can you just bear with me I just, I just want to make a note. Okay, she told you to stop in a lower voice and she repeated it and her voice got louder as she repeated it. Is that a fair way of describing things? Answer: yes Question: and Gabe remembered words to the effect of, “stop, stop Mason, get off me” and that she had said. Do you recall if she said “get off me”? Answer: Yes, she did, but I was already off her at the time. Question: Okay. So she told you to get off her, but you were already off when she said that, is that… Answer: That’s when she, when she was progressively getting louder sir. Question: Okay. Now, I, I wasn’t quite clear about your evidence with respect to Gabe, Gabe had, excuse me, called out her name “G--”? Answer: Mm-hmm Question: Okay. Sorry, Mr. Nanibush, you have to answer like a… Answer: yes Question: …a yes, or no, of some kind of answer. Answer: I’m sorry, I’m sorry Question: That’s fine. That’s fine. But she’s saying, “stop, get off” and is it at that stage that Gabe calls out or does he, does he call out after she leaves the tent? Answer: No, it was in the middle of it. Question: It was in the middle of it. Answer: Yes Question: So she had already said stop at least once when Gabe called out? Answer: She said “get off me” and that’s when Gabe called out… Question: Okay Answer: …when she progressively got louder. Question: Okay. So she had said “stop” she had said “get off me” and then Gabe, and then Gabe called out her name, is that… Answer: Yeah Question: …have I got the sequence right? Answer: Yes, yes.

[34] The timing of when the sexual intercourse stopped was raised again in cross-examination. At this point, Mason testified as follows:

Question; Okay. Okay. And when I asked you that she had, she had said to you to stop, how many times do you recall she told you to stop? Answer: She told me to stop twice and that’s when I got off, the first one I was confused about, the second one I was like this is legit, so I got off and then the next couple times, like, she’s just mad at me and telling me to, like, “get off” right, and then – yeah, I was already off and she’s freaking out at me and that’s when she went, - that’s like, you know, Gabe intervened when she [sic] heard that – when he heard that and then she went inside. Question: Okay. Answer: Yeah. Question: So just the way you’ve explained it now, at least four times she told you to get off. She said the words to you, “get off”. Answer: Yeah, yeah.

[35] Mason testified that he left the tent within seconds of G.B. and went into the apartment to grab his things. When he went in the apartment G.B. argued with him, and Misko and Gabe told him to leave. Mason agreed that G.B. said things like “how the fuck could you do that to me”. Mason agreed that G.B. slapped him in the face. He left and went to his friend’s place.

The Conviction Appeal

[36] The appellant submits that the trial judge made three errors at his trial. These errors can be summarized as follows:

a. The trial judge materially misapprehended Mason’s evidence as to the timing of the call-out by Gabe; b. The trial judge failed to relate the conflicting evidence of the complainant and Liz to the Crown’s burden of proof; and c. The trial judge unevenly scrutinized the evidence, taking a strict and critical approach to the appellant’s evidence but not to the complainant’s evidence.

Principles of Law

The Standard of Review

[37] It is well established that under s.686(1)(a) of the Criminal Code there are three possible bases upon which an appeal may be allowed. They are:

(a) The verdict is unreasonable or cannot be supported by the evidence; (b) There was a wrong decision made on a question of law; and (c) There has been a miscarriage of justice.

[38] The jurisdiction of a summary conviction appeal court to review a trial judge’s findings of fact is very limited. A summary conviction appeal judge is not entitled to retry the case nor is a summary conviction appeal judge entitled to substitute his/her own view of the evidence for that of the trial judge. A summary conviction appeal judge has no basis upon which to interfere with the trial judge’s findings unless they are unreasonable or they are not supported by the evidence: R v. Smit, 2012 ONCA 524 at para. 67.

[39] The factual findings of a trial judge are entitled to deference. An appellate court can only interfere with such findings 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 may interfere: R v. Clark, 2005 SCC 2 at para. 9; R v. Sheahan, 2017 ONCA 159 at para. 12.

Findings of Credibility

[40] Trial judges are uniquely placed to assess the credibility of witnesses and their findings of credibility at trial attract significant deference on appeal unless a palpable and overriding error can be shown: Regina v. G.F., 2021 SCC 20 at para. 99; Regina v. Dinardo, 2008 SCC 24 at para. 26; Regina v. Gagnon, 2006 SCC 17 at paras. 10-11.

[41] An appellate court cannot interfere with an assessment of credibility unless it is shown that the assessment cannot be supported on any reasonable review of the evidence: R v. R.P., 2012 SCC 22 at para. 10.

Misapprehension of Evidence

[42] A mere misstatement or inaccuracy in a trial judge’s treatment of evidence does not constitute reversable error. An appellate court will only interfere where the misapprehension is of substance rather than detail, is material rather than peripheral to the trial judge’s reasoning, and the error plays an essential part of the reasoning process, not just of the narrative: R v. S.R., 2022 ONCA 192 at para. 14; R v. Cloutier, 2011 ONCA 484 at para. 60.

[43] A misapprehension of evidence renders a trial unfair and results in a miscarriage of justice where the trial judge is “mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction”: R v. Morrisey, [1995] O.J. No. 639 at para. 93.

[44] Where the alleged misapprehension is respecting evidence used to assess the credibility of an accused or witness, the decision whether a miscarriage of justice has occurred turns on the extent to which the misapprehended evidence plays a role in the trial judge’s credibility assessment. If a trial judge mischaracterizes parts of an accused’s evidence that were central to the assessment of credibility, there is more likely to be a miscarriage of justice: R v. S.R., at para. 15.

Analysis

Did the trial judge misapprehend the evidence?

[45] The appellant submits that the trial judge misapprehended his evidence with respect to when in the sequence of events Gabe called out of the window to see if G.B. was alright. Specifically, he submits that the trial judge misapprehended his evidence with respect to Gabe calling out “in the middle of it” which she took to mean in the middle of sexual intercourse, as opposed to in the middle of the entire series of events that took place inside the tent, but after he had already rolled off of the complainant.

[46] The appellant submits that the trial judge’s misapprehension of his evidence on this point formed part of her credibility assessment and was one of the reasons she rejected his evidence. This in turn led to a miscarriage of justice.

[47] In her review of the evidence, the trial judge noted that the appellant’s evidence changed between in-chief and cross-examination. The appellant’s evidence in-chief was that when G.B. told him to stop, he stopped moving his penis immediately and rolled off the complainant “within a second or less”. In cross-examination, the appellant agreed that G.B. told him to stop more than once and that he had stopped moving his penis when she first told him to stop, because he was shocked or confused, and it was not until she told him to stop again, in a louder voice, that he rolled off of her.

[48] At para. 19 of her reasons for decision, the trial judge refers to the appellant’s evidence in cross-examination about the timing of when Gabe called out. This is within the context of the appellant’s agreement that Gabe would have heard words to the effect of “stop, stop, get off of me”. The trial judge summarized the appellant’s evidence on this issue as follows:

When the Crown tried to clarify saying “So she’s saying stop get off and is it at, that stage when G.W. calls out or does he call out after she leaves the tent. This time [Mason] testified that this was “in the middle of it”. The Crown then asked “So she had already said stop at least once when [Gabe] called out”. [Mason] answered “She said get off me and that’s when [Gabe] called out”. [Mason] confirms this sequence which means that [Mason] was not off G.B. when she said get off, because he is still “in the middle of it” when [Gabe] called out which was after G.B. said to get off him”.

[49] The appellant’s evidence at trial, which I have reproduced earlier, confirms the trial judge’s summary of his evidence. The appellant agreed in cross-examination that Gabe called out after G.B. had said “get off me”.

[50] With respect to the appellant’s evidence regarding “in the middle of it”, his answer on this point was to a question posed by the Crown about whether G.B. had left the tent when Gabe called out. The appellant testified that G.B. was saying “stop, get off” in the “middle of it” and went on to clarify that G.B. had said “stop” and “get off me” and then Gabe called out her name. The appellant never clarified what he meant when he used the term “in the middle of it” in cross-examination or in re-examination.

[51] The trial judge was in the best position to observe and interpret the appellant’s evidence and to assess his credibility when he provided this evidence. A review of the trial judge’s reasons demonstrates that she accurately set out the appellant’s evidence. The trial judge’s interpretation of the appellant’s evidence when he used the words “in the middle of it” to mean “during the sexual activity” was a finding that was available to her, having observed the appellant’s testimony. A transcript does not capture all aspects of a witness’ evidence. It is for this reason a trial judge’s findings and interpretation of the evidence should be given deference on appeal.

[52] In any event, the trial judge was clearly alive to the appellant’s position that when Gabe called out, he was already off of the complainant. The trial judge sets this out in para. 39 of her reasons:

[Mason] acknowledges that G.B. got progressively louder and that she continued to say no and stop after he stopped. [Mason] testified that when [Gabe] heard G.B. say “M get off me” he was already off her. That is not credible in light of all the other evidence. Not only does it not make sense that G.B. would continue to say “get off me”, if [Mason] was already off her, but it is not supported by the evidence of [Misko] and [Gabe]. They both testified that G.B. came in right after [Gabe] called out. Neither of them testified that they heard her continue to cry out, or that they felt that they needed to take any further action. Everyone, including [Mason] testified that they could hear clearly as the tent and the open window were in close proximity.

[53] I find that the trial judge did not misapprehend the appellant’s evidence on this issue. She correctly set out his evidence at trial. She understood that his position was that he had already stopped and was physically off of the complainant when Gabe called out. Ultimately the trial judge rejected the appellant’s evidence on this point having regard to the totality of evidence at trial that she accepted and found that it made no sense that G.B. would be telling the appellant to get off of her if he was already off of her.

Did the trial judge err in applying the burden of proof to Liz Graf’s evidence?

[54] The appellant submits that the trial judge treated the case as a credibility contest and did not properly apply the Crown’s burden of proof beyond a reasonable doubt to the evidence of Liz Graf.

[55] The appellant submits that the evidence of Ms. Graf was exculpatory in that it provided evidence that the complainant had given a different account of the events than that which she testified to at trial. As such, the trial judge was required to address whether the evidence of Liz Graf, even if not accepted, still left her with a reasonable doubt as to the accused’s guilt.

[56] The complainant testified and acknowledged that she spoke to Ms. Graf, who was her CAS worker at the time. She testified that she did not go into detail with Ms. Graf and could not recall what she had said. In cross-examination she denied that she told Ms. Graf that she slapped the appellant in the tent and denied that she told Ms. Graf that Gabe and Misko had to drag the appellant off of her.

[57] The evidence of Liz Graf was that she spoke to the complainant in the parking lot of the apartment building. She made no notes during her conversation with the complainant. She then contacted a childcare worker and the police. She made phone calls and sent e-mails. She later made notes on August 31st, using the e-mails that she had sent out earlier. Ms. Graf testified that her e-mails and notes were not verbatim and set out her recollection of what the complainant told her.

[58] In cross-examination, Ms. Graf agreed that in an e-mail sent to the police on August 28th, she wrote:

[G.B.] said she was yelling very loudly and hit him in the face with her hand, she caused his nose to bleed. Since she was yelling loudly, the residents of Jessica’s house came out to see what was going on. Misko came out and another male who was staying at the home. They were able to help get [G.B.] and get Mason off her. Mason was then kicked out of the house. [G.B.] said he walked off the property. [G.B.] said he was drunk.

[59] The trial judge was clearly alive to the inconsistency between the complainant’s evidence at trial and what Ms. Graf wrote to the police in an e-mail and later wrote in her notes. The trial judge considered this evidence in six paragraphs, setting out accurately the evidence on this issue. Ultimately the trial judge accepted the complainant’s evidence that she did not tell Ms. Graf that she had slapped the appellant while inside the tent or that Misko and Gabe came outside and physically removed the appellant off of her.

[60] In accepting G.B.’s evidence on this point, the trial judge noted that the complainant was unshaken in her evidence at trial about the series of events. The trial judge noted that there was no suggestion in any of the evidence that the appellant had been slapped inside the tent or that Gabe and Misko went outside to the tent and pulled the appellant off of the complainant.

[61] The trial judge went on to find that Ms. Graf may have misunderstood or misreported what the complainant told her. The trial judge found that the report about Misko and Gabe providing assistance to stop the incident may have been about their providing assistance by calling out, which stopped the incident. The trial judge noted that Ms. Graf did not provide any evidence about the level of detail provided by the complainant, nor did she testify that she asked for details or clarification from the complainant. These inferences were available to the trial judge to make.

[62] The appellant points to para. 36 of the trial judge’s reasons. In that paragraph, the trial judge notes that G.B. ultimately gave a statement to Detective Nicholson on September 1, 2020, and that there was no indication that the claim that Mason had to be pulled off of her was repeated to the police.

[63] The appellant correctly points out that the complainant’s statement was not entered as evidence at trial and therefore the trial judge could not rely on whether the complainant made this claim or not during her police statement in her assessment.

[64] In my view, the trial judge’s comments are likely linked to defence counsel’s submissions during the evidence of Liz Graf. Defence counsel told the court that the complainant had not said this in her recorded statement to the police on September 1st. It is apparent that the trial judge understood this to be an admission by the defence on this issue and used it in that fashion.

[65] Even if this rises to the level of an error on the part of the trial judge, I find that her comments on this issue do not form an integral part of her analysis. The trial judge had already set out why she accepted the evidence of the complainant and found that Ms. Graf’s notes, which also included this impugned remark, may have been based on a misunderstanding or a misreporting of what the complainant told her.

[66] With respect to the appellant’s submission that the trial judge failed to address whether Ms. Graf’s evidence, even if not accepted, nevertheless left her with a reasonable doubt, one must go on to read the remainder of the trial judge’s reasons for decision.

[67] The trial judge correctly set out the test to be applied in assessing credibility at para. 29 of her reasons for decision. In that paragraph, the trial judge specifically refers to R v. W.(D)., [1991] 1 S.C.R. 742 and directs herself that if she believed the evidence of the accused, she must acquit; if she did not believe the evidence of the accused but was left in reasonable doubt by it she must acquit; and even if she was not left in doubt by the evidence of the accused she must go on to ask herself whether, on the basis of the evidence she did accept, she was convinced beyond a reasonable doubt by the evidence of the guilt of the accused.

[68] Further, at the conclusion of the trial judge’s reasons, at paras. 42 and 43, the trial judge specifically found that she accepted the complainant’s evidence; that she rejected the accused’s evidence; that the accused’s evidence did not raise a reasonable doubt; and that on all of the evidence she was satisfied beyond a reasonable doubt that the appellant continued the sexual activity beyond what was permissible.

[69] A review of the trial judge’s reasons for decision, as a whole, demonstrates that she correctly applied the Crown’s burden of proof beyond a reasonable doubt and specifically found that having considered all of the evidence she was satisfied of the appellant’s guilt beyond a reasonable doubt. “All of the evidence” would necessarily have included the evidence of Ms. Graf, which the trial judge did not accept for reasons she had already explained.

Did the trial judge assess the evidence of the complainant and the appellant unevenly?

[70] Counsel for the appellant concedes that this is a “notoriously difficult” ground of appeal to succeed on because a trial judge’s credibility determinations are entitled to a high degree of deference and courts may be skeptical of what may be a veiled attempt to have an appellate court re-evaluate credibility: R v. Kiss, 2018 ONCA 184 at para. 83.

[71] To show uneven scrutiny, an appellant must point to something in the reasons of the trial judge or elsewhere in the record which make it clear that the trial judge applied different standards in assessing the evidence of the complainant and the accused. Where the imbalance is significant enough the deference normally owed to a trial judge’s credibility assessment may be displaced: R v. Howe (2005), 192 C.C.C. (3d) 480 (Ont.C.A.) at para. 59; R v. Kiss, 2018 ONCA 184 at para. 83.

[72] Assessing credibility is not a science. The Supreme Court of Canada has recognized that it is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various version of events. That is why, in the absence of a palpable and overriding error by the trial judge, his/her perceptions should be respected: R v. Gagnon, 2006 SCC 17 at para. 20.

[73] Where credibility is a determinative issue, deference is in order and intervention will be rare. There is no general requirement that the reasons be so detailed that they allow an appeal court to retry the entire case on appeal. There is no need to prove that the trial judge was alive to and considered all of the evidence or answered each and every argument of counsel: R v. Dinardo, 2008 SCC 24, at para. 30.

[74] A trial judge’s reasons are not to be viewed on a stand-alone, self-contained basis. The sufficiency of reasons is judged not only by what the trial judge has stated, but by what the trial judge has stated in the context of the record, the issues and the submissions of counsel at trial: R v. M.(R.E.) (2008) SCC 51 at para. 37.

[75] A trial judge’s reasoned rejection of a challenge to credibility does not constitute uneven scrutiny: R v. A.J., 2024 ONCA 31.

[76] On this issue of uneven scrutiny, the appellant submits that the trial judge:

a. Found that minor variations in the appellant’s evidence between examination- in-chief and cross-examination harmed the appellant’s evidence but placed no weight on greater variations in the complainant’s evidence; b. ignored evidence that corroborated the appellant’s evidence as to timing and only considered the evidence that supported the complainant; and c. used any rejection of the appellant’s evidence to undermine his credibility while not using her rejection of the complainant’s evidence to undermine her credibility.

Variations in the evidence

[77] With respect to the first point, the trial judge found that the appellant’s evidence changed significantly between examination-in-chief and cross-examination. A review of the trial record supports this. In chief, the appellant testified that the complainant told him to stop, and he immediately stopped. In cross-examination this gradually changed to: the complainant telling him to stop; the appellant pausing his actions but remaining on top of the complainant in a state of confusion; and then the complainant telling him to stop again at which time he rolled off of her.

[78] A review of the complainant’s evidence demonstrates that while she agreed to many of the detailed suggestions put to her in cross-examination in leading questions, none of these agreements were inconsistent with her evidence-in-chief. The complainant maintained that the initial sexual contact was consensual and that when sexual intercourse began, she revoked her consent.

[79] A trial judge’s reasoned rejection of a challenge to credibility does not constitute uneven scrutiny. In this case the trial judge provided detailed reasons for why she accepted the evidence of the complainant and why she rejected the evidence of the appellant.

Timing

[80] With respect to the issue of timing, the appellant concedes that when, exactly, the sexual activity occurred during the evening was a peripheral issue at trial.

[81] In the circumstances of this peripheral issue, any imbalance in the evidence is of no assistance to the appellant. I note that the evidence at trial demonstrated that no one could say precisely what time the complainant went to the tent, and what time the incident occurred outside in the tent. They all agreed that the events occurred at night when it was dark out.

[82] The appellant submits that the trial judge’s treatment regarding the timing demonstrates an uneven scrutiny of the evidence in that the trial judge ignored evidence that corroborated his evidence on the issue of timing and only relied on those portions of the evidence that were inconsistent with his on this issue.

[83] It is important in the circumstances of this case to note that there are three time periods at issue: when the complainant went out to the tent; when the appellant went out to the tent; and when the incident occurred inside the tent.

[84] The trial judge found that the appellant’s evidence around timing did not track well with the rest of the evidence. The appellant testified that he went out to the tent 10-20 minutes after the complainant left the apartment. He provided no evidence as to when the incident occurred. The trial judge noted that Misko testified that the incident occurred 2-3 hours after the complainant went out to the tent. This substantially corroborated the complainant’s evidence.

[85] The appellant claims that Gabe’s evidence corroborated his and the trial judge should have considered it. In fact, Gabe’s evidence was not corroborative of the appellant’s evidence. Gabe testified that he believed the gap in time between the appellant being outside in the tent and the incident to be about half an hour to one hour. The appellant gave no evidence with respect to how much time elapsed between going out to the tent and the incident.

[86] In the end, I am not satisfied that the trial judge’s treatment of this peripheral issue demonstrates that she engaged in an uneven scrutiny of the evidence.

Uneven approach to the rejection of the complainant and accused’s evidence

[87] The appellant submits that there were two examples where the trial judge accepted the evidence of other Crown witnesses (Misko and Gabe) and rejected the complainant’s evidence, and this should have affected her overall assessment of the complainant’s evidence. The appellant provides two examples:

a. the complainant could not recall telling Misko that she was not feeling well and was going to bed but agreed it was possible; b. the complainant testified that she continued to yell after the appellant was off of her, which was inconsistent with the evidence of Misko and Gabe.

[88] It must be remembered that a trial judge may accept none, all, or part of a witness’ evidence. Not every rejection of evidence will necessarily damage a witness’ credibility. It is entirely open to a trial judge to accept the evidence of one witness or the evidence of another.

[89] With respect to the first example, the complainant agreed that she could have told Misko that she was going to bed and not feeling well. This was not an inconsistency, nor did it require the judge to reject the complainant’s evidence.

[90] With respect to the second example, the complainant was asked in cross-examination whether she had been pushing the appellant and telling him to stop. She agreed. The complainant was then asked “and you kept yelling at him after the intercourse stopped, right” to which the complainant responded “Mm-hmm. Asking him to leave”. The complainant was not asked to place this yelling in time, specifically in relation to when Gabe called out to G.B.

[91] It is unclear whether G.B. continued to yell after Gabe called out or whether her yelling took place before Gabe called out. What the trial judge properly focused on was the illogicality in the appellant’s evidence that G.B. was yelling at him to “get off” when he was already off of her and beside her.

[92] A trial judge is under no obligation to resolve every conflict in the evidence adduced at trial. A trial judge is not required to address each and every inconsistency. Deference is owed to a trial judge’s credibility findings unless they cannot be supported by a reasonable review of the evidence: R v. Gibson, 2021 ONCA 530 at para. 57; R v. Slatter, 2018 ONCA 962 at para. 102.

[93] I am not satisfied that these examples demonstrate uneven scrutiny of evidence.

The Sentence Appeal

[94] Following conviction, the appellant was sentenced to a conditional sentence order of 12 months followed by probation for 15 months. This sentence was imposed after factoring in pre-trial credit for 54 days of pre-sentence custody and strict bail conditions.

[95] The Crown appeals from the sentence imposed by the trial judge in this case on the basis that the sentence unreasonably departed from the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of the offender.

[96] The Crown further submits that the sentence was insufficient to achieve the paramount objectives of denunciation and deterrence for the offence of sexual assault.

[97] Mr. Nanibush, as the respondent on the sentence appeal, submits that the sentence imposed was fit. He submits that the trial judge carefully crafted a sentence to address the unique factual circumstances in this case. In doing so, she balanced the need for denunciation and deterrence with the respondent’s prospect for rehabilitation.

[98] In the alternative, Mr. Nanibush submits that if I find that the sentence imposed was demonstrably unfit or was the product of an error in law, that incarcerating him at this point, given he has served most of the conditional sentence, is not required in the circumstances.

[99] It is well established that the sentence imposed by a trial court is entitled to considerable deference from appellate courts. Absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, an appellate court should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit: R v. Proulx, 2000 SCC 5 at para. 123.

[100] As stated in R v. Shropshire, [1995] 4 S.C.R. 227 (S.C.C.) at para. 46:

An appellate court should not be given free rein to modify a sentencing order simply because it feels that a different order ought to have been made. The formulation of a sentencing order is a profoundly subjective process; the trial judge has the advantage of having seen and heard all the witnesses whereas the appellate court can only base itself upon a written record. A variation in the sentence should only be made if the court is convinced that it is not fit. That is to say, that it has found the sentence to be unreasonable.

[101] In this case, the Crown proceeded summarily. By virtue of this election, the maximum available sentence was 18 months incarceration.

[102] In R. v. Proulx, the Supreme Court noted that there are four criteria for a conditional sentence:

a. The offender must be convicted of an offence that is eligible for a conditional sentence; b. The court must impose a term of imprisonment that is less than two years; c. The safety of the community would not be endangered by the offender serving the sentence in the community; and d. A conditional sentence would be consistent with the fundamental purpose and principles of sentencing as set out in ss.718 to 718.2.

[103] There is no dispute that the first three criteria were met in this case. The Crown takes issue with the fourth criterion and submits that the imposition of a conditional sentence in this case was demonstrably unfit and inconsistent with the fundamental purpose and principles of sentencing, specifically the need to denounce and deter offenders in cases of sexual assault.

[104] Having reviewed the trial judge’s reasons for sentence, I cannot find that she erred in principle, failed to consider a relevant factor or overemphasized a relevant factor. The trial judge clearly understood and considered the position of the Crown and defence and applied the principles of sentencing as set out in ss.718 to 718.2.

[105] The trial judge clearly understood that the offence of sexual assault was serious. She turned her mind to, and adopted, the holding of the Supreme Court of Canada in R v. Friesen, 2020 SCC 9, that all forms of sexual assault are serious acts of violence that lead to profound physical and psychological harm to victims.

[106] The trial judge referred to the aggravating circumstances in this case, which included that the sexual assault was committed against a young, aboriginal female under the age of 18 years, and in circumstances where there was a breach of trust due to the intimate partner relationship between the complainant and the accused.

[107] The trial judge also referred to the mitigating circumstances in this case, which included that the accused was a young aboriginal male with no prior criminal record, who expressed remorse, and who had a number of relevant Gladue factors to be considered.

[108] The trial judge referred to the Supreme Court of Canada decision in R v. Proulx, which held that conditional sentences are jail sentences that are served in the community as opposed to in custody. Further, that a conditional sentence may serve the sentencing principles of deterrence and denunciation.

[109] The trial judge acknowledged that conditional sentence orders are not the norm with respect to sexual assault offences.

[110] Ultimately, having turned her mind to the circumstances of this case and this offender, the trial judge found that a conditional sentence addressed the need for denunciation and deterrence, while at the same time reflecting the principles of restraint and rehabilitation.

[111] Counsel referred to a number of cases where custodial sentences were imposed and a number of cases where conditional sentences were imposed following convictions for sexual assault. What these cases demonstrate is that sentencing is a profoundly subjective process that requires a trial judge to balance the particular circumstances of the case; the particular circumstances of the offender; and the fundamental principles and objectives of sentencing. What they also demonstrate is that in some circumstances, and with respect to some offenders, a conditional sentence may be a fit sentence, even for an offence for which denunciation and deterrence are paramount considerations.

[112] Having reviewed the trial judge’s careful and thoughtful reasons with respect to sentencing in this case, I cannot conclude that she made any error in principle. Further, I cannot conclude that the sentence imposed was demonstrably unfit.

Conclusion

[113] For the above reasons, the appeal against conviction and the appeal sentence are both dismissed.

The Honourable Madam Justice S.K. Stothart Released: February 2, 2024 Correction Release Date: February 12, 2024