Court File and Parties

Court File No.: CR-22-00015843-0000
Date: 2025-02-28
Ontario Superior Court of Justice

Between:
His Majesty the King
and
MacCartny Tayler, Defendant

Appearances:

• Taylor Potts, for the Crown
• MacCartny Tayler, Self-Represented
• Andrew Stastny, Amicus

Heard: January 29, 2025, and written submissions

Publication Restriction Notice

Pursuant to subsection 486.4 of the Criminal Code, there is a ban on disclosing the name of any person involved in the proceedings as a party or a witness or any information likely to identify any such person. This ruling complies with this restriction so that it can be published.

Section 669.2 Reasons

Regional Senior Justice Edwards

Overview

[1] Mr. Tayler has been convicted of one count of sexual assault. He was acquitted on another count of sexual assault. The evidence at trial consisted of the evidence of the complainant who I will refer to as AB. The evidence portion of the trial took one day. The Crown completed its closing submissions on November 2, 2023. The trial judge adjourned the matter ultimately to November 16, 2023 to allow Mr. Tayler time to prepare and make his closing submissions to the court. The matter was then put over to January 8, 2024 for reasons. Ultimately oral reasons were provided by the trial judge on February 5, 2024. The matter was then put over for sentencing submissions to March 27, 2024 to set a date for sentencing. On March 27, 2024 the trial judge adjourned the date for sentencing to May 13, 2024.

[2] When the matter came before the court on May 13, 2024 this matter came before me at which time I advised counsel that the trial judge was unwell and unlikely to be able to complete the sentencing in this matter. Mr. Tayler did not attend. A bench warrant with discretion was issued. When the matter came back before me on May 29, 2024 the matter was adjourned to July 24, 2024 to allow time for the pre-sentence report to be prepared. On July 24, 2024 Mr. Tayler again did not appear.

[3] On July 24, 2024 I raised with the Crown concerns about the facts upon which the court would be asked to impose sentence. I indicated I was inclined to appoint Amicus as Mr. Tayler was self-represented.

[4] The trial judge has now retired. It falls to me to decide whether to invoke the provisions of s. 669.2 and to impose sentence on Mr. Tayler. Amicus has been appointed. Written submissions have been provided to the court by both the Crown and Amicus that address concerns this court has raised regarding the facts upon which this court would impose sentence and whether there are ambiguities in the trial judge’s reasons that could cause this court to direct a mistrial.

The Indictment

[5] The indictment charged Mr. Tayler as follows:

• Count 1: That between November 1, 2019 and November 30, 2019 Mr. Tayler committed a sexual assault on AB contrary to s. 271 of the Criminal Code of Canada (the “Code”).
• Count 2: That between June 1, 2020 and August 30, 2020 Mr. Tayler committed a sexual assault on AB contrary to s. 271 of the Code.

Evidence at Trial

[6] As it relates to Count 1 the essence of the evidence of AB was that she was asleep when she awoke to find Mr. Tayler digitally penetrating her vagina. Her evidence is summarized by the trial judge as follows:

She said that sometime between August and December of 2019 when she was laying down, she realize – she saw that the sun was out. It was either the morning or the afternoon. She laid down on the bed. She had fallen asleep. She said she laid down for a nap and then she felt his hands were “inside my vagina”. She said she was angry. She said to “what the hell are you going” or to that – or to that effect. He removed his fingers and told me that I had said it was okay. (Transcript Reasons for Judgment, p. 12) (emphasis added)

[7] As it relates to Count 2 the essence of the evidence of AB is summarized in the trial judge’s reasons as follows:

At the other Oshawa address where she moved to November to December of 2019, she stayed until October/November of 2020. This is the second incident. After this incident she went to Durham Regional Police, I am assuming the sexual assault squad, spoke to Elaine Duguay(ph) who is a constable there. She said she was having a hard time mentally during that time. She indicated that she woke up and Mr. Tayler’s sitting – he said he wanted to have sex or did she want to have sex. She said she was frozen in fear. He decided I was saying okay. He inserted his penis in her, thrusted a few times. He saw I was limp, that is A.B. He pulled his penis out and went to the washroom where she believed he finished himself, as she put it. (Transcript Reasons for Judgment, p. 13-14)

Trial Judge’s Reasons

[8] The trial judge’s reasons are 32 pages in length. The first 10 pages of his reasons reflect a review of the chronology of the case in the Superior Court of Justice. The next 12 pages is the trial judge’s review of the evidence of AB. The trial judge’s analysis for why he acquitted Mr. Tayler occupies one paragraph which I reproduce below:

I am not satisfied beyond a reasonable doubt on Count 1 that Mr. Tayler sexually assaulted A.B. I need not go further. That is not to say that I find A.B. to have actively or purposely misled the court because if I did, I could use her credibility and reliability on that count to infect other counts before the court. But I am simply not satisfied beyond a reasonable doubt that that count has been proven. (Transcript Reasons for Judgment, p. 24)

[9] As for Count 2 for which Mr. Tayler was convicted the trial judge’s analysis occupied approximately one page of the transcript which I reproduce in its entirety below:

The second count is a different story. This is the count where it is alleged that Ms. A.B. woke up to being penetrated by Mr. McCartney’s penis – Mr. Tayler’s penis, I should say, and after feeling him thrust inside of her she – that jarred her, and he got up and went to the washroom. I am satisfied, having observed her and her evidence, and in the context of Mr. Tayler’s submissions to the court and Ms. Potts, that that event did occur and I am satisfied in finding that Ms. A.B. did not consent to it because she was not in a position to consent to it and that the Crown has proven that – beyond a reasonable doubt that she did not consent on the second count in the indictment.

I looked carefully when I did this at the text message, as far as credibility and reliability goes. I looked carefully at her statement to the police in general, that is the short version that was produced to me, and again as I said, I was careful in assessing her demeanor before the court. Demeanour itself is no basis upon which a court should enter a conviction, but it is one of the things the court can look at.

I find A.B., on Count 2, was direct, was fair in her evidence, admitted things that may have been inconsistent, like the sun being up or down and was telling the court the truth. I have not vested my decision simply in finding that she gave good evidence because sometimes well-meaning witnesses, and/or witnesses who prevaricate or did not tell the truth can act well. That was not the case with her. And under all the circumstances I arrive at the conclusion that she was truthful, credible, reliable in her evidence as it related to the penile insertion in her vagina without her consent because she woke up to him inside of him and was not able to consent. (Transcript, p. 25-26) (emphasis added)

The Issue Before the Court

[10] Given that the trial judge has now retired it falls to me to decide whether the facts found by the trial judge are such that this court can impose the appropriate sentence in connection with the finding of guilt on one count of sexual assault.

[11] With the greatest of respect to the trial judge I believe he has conflated the evidence of AB as it relates to Count 1 and Count 2 of the indictment. While the reasons of the trial judge as it relates to the acquittal provide little to no insight into why he ultimately concluded that the Crown had not proven its case beyond a reasonable doubt his reasons for conviction on Count 2 are problematical. I say they are problematical because the trial judge appears to have conflated the evidence of AB as it relates to Count 2.

[12] The trial judge convicted Mr. Tayler on Count 2 because he believed the evidence of AB. The problem arises when he convicts Mr. Tayler because he accepts the evidence of AB that she could not have consented to the penile penetration because she was asleep. The trial judge’s own review of the evidence makes clear that AB was asleep with respect to the events relating to Count 1 and she was awake with respect to the events relating to Count 2.

[13] It is noteworthy that in assessing the credibility of AB as it relates to Count 2 the trial judge commented on AB being fair in her evidence and “admitting things that may have been inconsistent, like the sun being up or down and was telling the truth”. The problem with this analysis is that AB’s evidence about the sun being out was in relation to the events relating to Count 1, not Count 2. Again, it appears the trial judge has conflated the evidence between Count 1 and Count 2.

Position of the Crown

[14] As it relates to the issue of whether the court is in a position to impose sentence based on the reasons of the trial judge and the evidence of AB the Crown argues that this court should not direct a mistrial and should impose a sentence of 3 years.

[15] The Crown argues that any lingering concerns arising out of the trial judge’s reasons can be addressed by Mr. Tayler on appeal. Alternatively, the Crown suggests that the Crown will not rely on any aggravating facts in relation to the state of AB’s level of consciousness at the time of the sexual assault. Simply put the Crown argues that the court should impose the appropriate sentence for someone convicted of sexual assault involving penile penetration.

[16] The essence of the Crown’s position is that it is clear from the trial judge’s reasons that he convicted Mr. Tayler of sexual assault. The fact that he may have conflated the evidence he relied upon to convict is irrelevant to the fact that there was a sexual assault involving penile penetration which is evident from the fact the trial judge believed AB as it relates to Count 2 of the indictment.

[17] It is worth noting that the Crown quite fairly in her written submissions agrees that the trial judge made two errors in his reasons. In that regard I reproduce paras. 24–27 of the Crown’s written submissions:

24. The Crown played two of these audio recordings, which were entered as Exhibit 1, as reflected in the transcript of A.B.’s evidence. The Crown then showed A.B. screenshots of text messages which were entered as Exhibit 2.

25. His Honour erred by referring to Exhibit 1 as A.B.’s police statement. Beginning at p 14, His Honour noted:

She also had again, to refresh her memory, her statement to the police officer. She indicated that the night before she told him she did not want sexual intercourse. She said she was finicky about being sexually active and he took that as being that she did not want sex. Exhibit 1 was entered in the proceedings, and that was her statement reduced to the DVD – a DVD format to police.

She was shown a photo which was a text message which was marked as Exhibit 2 in these proceedings and she said the grey bubble portion of the photo, the text, was him and the green one was her. And she read out the text message to the court. She indicated that she had taken this text message from a screenshot of the phone.

26. The audio recordings entered as Exhibit 1 were that of Mr. Tayler, in which he refers to a conversation he and A.B. had in relation to having sex. His Honour noted this in the underlined portion of the above passage of his judgment.

27. Respectfully, His Honour was incorrect in that A.B. had to refresh her memory by way of her police statement. The transcript of the evidence is clear that the only media played or referred to at this point in A.B.’s evidence were two audio recordings and screenshots of text messages. The confusion may have stemmed from A.B.’s testimony that she provided audio recordings to the officer in charge, Detective Constable Elaine Duguay.

P 13, L 18, Transcript.

[18] The Crown argues that the trial judge’s reasons read together with the evidence of AB leaves no doubt that AB was not in a coherent and conscious state when Mr. Tayler engaged in non-consensual sexual intercourse and as such this court can and should impose the appropriate sentence that would otherwise have been imposed by the trial judge.

[19] As it relates to the question of whether this court should declare a mistrial the Crown’s position is that a mistrial would be an entirely inappropriate remedy. It is argued that this court must show deference to the decision of the trial judge just as this court would have to defer to the decision of a jury when imposing sentence. Specifically it is argued that the trial judge after a jury verdict may sentence an accused on facts different from the facts found by the jury as long as the essential elements of the offence have been met.

[20] From a procedural perspective the Crown asks this court to take note of the delay in imposing sentence; a delay largely caused by Mr. Tayler who did not attend court when required and only is in attendance now because he is in custody on unrelated charges. The Crown also asks this court to consider the impact of a mistrial on AB who has been waiting now for nearly 44 months to have this matter resolved.

Written Submissions from Amicus

[21] Because Mr. Tayler is self-represented and because it was this court that raised concerns about the trial judge’s reasons, I appointed Amicus to assist the court.

[22] By reference to a decision of the British Columbia Court of Appeal, R. v. Roper, 2019 BCCA 68, Amicus suggests that in the situation presented to this court the new judge exercising the discretion provided by s. 669.2 of the Code must sentence the accused person on the “basis of the findings that led to the conviction.” It is argued that if those findings are not easily discerned or if as in this case the trial judge may have misapprehended or conflated the evidence between counts then this court ought to be very cautious and reluctant to proceed under s. 669.2.

[23] Amicus notes in his written submissions that the Crown has conceded in its written submissions that the trial judge did in fact err in some limited fashion by conflating the evidence between counts and that it simply is not possible to “sanitize” the reasons of the trial judge to the point where this court can impose sentence.

[24] While Amicus does not disagree with the Crown that any errors in the trial judge’s reasons might be cured in the Court of Appeal, it is argued this simply is not appropriate where the trial judge on the face of his reasons has misapprehended the evidence during a crucial part of his judgment. If this court cannot make sense of the trial judge’s reasons and be satisfied that there is a clear pathway to move forward, free of irregularities then Amicus argues this court should not exercise its discretion under s. 669.2(1) to impose sentence – leaving the only other remedy being a mistrial.

Analysis

[25] It is not surprising that there is not a large body of case law that has interpreted s. 669.2 of the Code. In R. v. Gionet, 2016 ONSC 6894 Templeton J. dealt with a somewhat similar situation as occurred in this case. The trial judge had retired, and Templeton J. was faced with a motion for a mistrial. What differentiates Gionet from Mr. Tayler’s case is that the trial judge in that case had released a detailed and complete set of reasons. In denying the mistrial motion Templeton J. dealt at some length with the appearance of justice being an essential element in any trial. At paragraphs 31-34 Templeton J. stated:

[31] In R. v. Kokopenace, the Supreme Court of Canada affirmed a prior reference by the Court in R. v. Barrow, "[h]e also emphasized another key point: the importance — the “crucial” importance — of the appearance of justice, namely “the public perception of the fairness of the proceedings."

[32] The appearance of justice concerns the effect of the proceedings as they would appear to the average citizen. It concerns the public perception of the fairness of the proceedings.

[33] On a Motion such as this, the court looks at the impression of justice that would be given to other people.

[34] It is axiomatic that at its core, justice is the "legal or philosophical theory by which fairness is administered". The appearance of justice concerns the public manifestation and impression of the implementation of justice.

[26] In Mr. Tayler’s case the public would be justifiably upset if his case was dismissed on what some might describe as a technicality. On the other hand, members of the public might be equally concerned to learn that the trial judge may have misapprehended some of the evidence and convicted Mr. Tayler on the basis of evidence conflated between Count 1 and Count 2.

[27] A mistrial is a remedy of last resort. It has sometimes been referred to as the nuclear weapon in the hands of the trial judge. A mistrial should only be declared if there is no other remedy available to prevent a miscarriage of justice.

[28] The leading decision from the Supreme Court of Canada as it relates to the jurisdiction of a trial judge to declare a mistrial is R. v. Burke, 2002 SCC 55. At para. 75 the Court stated:

In declaring a mistrial, the trial judge therefore turns his or her mind to the question of whether a mistrial is needed to prevent a miscarriage of justice. This determination will necessarily involve an examination of the surrounding circumstances. Injustice to the accused is of particular concern, given that the state with all its resources acts as the singular antagonist of the individual accused in a criminal case. This factor should be balanced against other relevant factors, such as the seriousness of the offence, protection of the public and bringing the guilty to justice….

[29] I entirely agree with Crown counsel that there has been an inordinate amount of delay in this matter much of which is directly attributable to the actions of Mr. Tayler. I also agree with Crown counsel that the court should consider the impact of declaring a mistrial on AB. To declare a mistrial will deprive AB of closure and require her to testify should the Crown decide to re-prosecute this matter. Having reviewed the victim impact statement of AB filed as part of the sentencing submissions, I am very much alive to the impact these proceedings have had on AB. I also equally have no doubt that to put AB back into the witness box will only further exacerbate AB’s recovery.

[30] What happened in this case was not the fault of any of the parties and was certainly not the fault of anyone associated with this case. At the end of the day, I have to be satisfied that I can sentence Mr. Tayler on the basis of the reasons of the trial judge read in conjunction with the evidence of AB. Regrettably in my view it would not be appropriate to proceed to sentence Mr. Tayler on the record as it presently exists.

[31] While the Crown is correct that the Court of Appeal may address the concerns I have raised regarding the obvious errors in the trial judge’s reasons, my responsibility is to determine if the trial judge’s reasons, read in conjunction with the evidence of AB, are such that this court can impose the punishment authorized by law in the circumstances. In coming to the ultimate conclusion that I do in this case it is worth repeating the obvious; it is not the role of this court to sit as an appellate court in its review of the trial judge’s reasons. The role of this court is to impose sentence except if there is such an ambiguity in the trial judge’s reasons which cannot be reconciled with the evidence of AB. In my view for the reasons set forth above the conflation of the evidence and the errors in the trial judge’s reasons are such that it would not be appropriate to impose sentence. As such a mistrial is directed. This matter is remitted for a new trial.

Edwards

Released: February 28, 2025