R. v. W.A.R., 2013 BCSC 1767

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. W.A.R., 2013 BCSC 1767 Date: 20130925 Docket: 27186-1 Registry: Prince Rupert Between: Regina Respondent v. W.A.R. Appellant RESTRICTION ON PUBLICATION: PURSUANT TO S. 486.4(2) C.C.C. Before: The Honourable Mr. Justice R. Punnett On appeal from: An order of the Provincial Court of British Columbia dated July 25, 2012 and January 3, 2013 ( R. v. W.A.R. , Prince Rupert Registry 27186-1) Reasons for Judgment Counsel for the Appellant: B.A. Martland Counsel for the Respondent: O.J. Dudley Place and Date of Hearing: Prince Rupert, B.C.

August 21, 2013 Place and Date of Judgment: Prince Rupert, B.C. September 25, 2013 [ 1 ] On July 25, 2012 the appellant W.A.R. was convicted in Provincial Court of sexual assault under s. 271(1) (

b) of the Criminal Code . He was later sentenced to 18 months in prison and two years probation. He now appeals his conviction on the basis that it was unreasonable and not supported by the evidence, and further, that material mistakes by the trial judge as to the substance and effect of the evidence resulted in a miscarriage of justice. Alternatively he submits that the Crown did not prove that the complainant did not consent. In the event his conviction appeal is unsuccessful he appeals his sentence as well.

Background [ 2 ] On May 29, 2010 the appellant and six others, including the complainant, were at the residence of J.M. All were drinking and the majority of them, including the complainant and the appellant, had been binge drinking for several days. [ 3 ] At trial the Crown called four witnesses: a police officer, the complainant, and M.B. and R.T., who were both present at the drinking party on May 29. Both the complainant and M.B. had very limited memories of the day in question. As the trial judge indicated, this meant that “[t]he case for the Crown really stands or falls on the evidence of [R.T]”.

As she had participated in the drinking, her level of intoxication and its impact on the credibility and reliability of her evidence were an issue at trial. [ 4 ] R.T. testified that she had been engaged in three or four days of binge drinking prior to May 29. However, she denied that she was drunk on May 29, stating that that the alcohol had not had any effect on her that day. On cross-examination defence counsel asked a number of further questions on this point: Q. Now you indicated to my friend that you were not affected by the alcohol, is that right? A. Yeah. Q.

Well I’m going to suggest to you that you actually were affected by that alcohol, that you had been binge drinking for a few days now and that you actually were affected by the alcohol, correct? A. At the time I wasn’t drunk though. Q. But you were affected by the alcohol, correct? A. I guess you could say that.

Q. Okay, would you say that? A. No. Q. Pardon me? A. No. Q. No? So your evidence is then the day in question you were drinking but you were not affected by the alcohol. A. Yeah. … Q. Are you able to say of how many of the Silent Sam’s with pop you had, was it more or less than five, more or less than ten? A. I don’t know but it wasn’t much. [ 5 ] She testified that at some point during the afternoon of May 29 the complainant went to sleep in one of the two bedrooms in the house and that an hour or two later J.M. and M.B. took the appellant, who was “trying to pass out in the bathroom”, into the other bedroom.

About 15 minutes later R.T. went to check on the complainant. She found the door closed but not locked and when she entered she saw the complainant passed out on the bed, wearing only a shirt, with the appellant on top of her with his pants down. She stated that the complainant was on her back with her feet or legs hanging off the bed, not moving, while the appellant was moving like he was “having sex with her”. The complainant appeared to be sleeping.

R.T. initially stated that the appellant had his penis in the complainant’s vagina, although when asked to clarify this point she would only confirm that he had his pants down. [ 6 ] R.T. testified that she then nudged the appellant to get off the complainant for “a minute or two” but when he did not respond she yelled for M.B. who came into the room, “got him off of her and took him out of the room”. According to R.T., M.B. then escorted the appellant out of the house. [ 7 ] R.T. testified that she and M.B. then returned to their drinking in the kitchen.

They did not wake up the complainant, who woke about an hour later and came into the kitchen. R.T. said that the complainant expressed some confusion to the group in the kitchen as to why her pants were off. R.T. testified that she then told the complainant “what had happened” -- that is, what she had seen in the bedroom -- and that the complainant was shocked and left the premises. [ 8 ] The complainant’s testimony was somewhat limited as she was “really drunk” and had been “drinking for days”.

Of the day in question, she only remembered “drinking” in the kitchen in the afternoon and then “waking up” in the middle of the bed in one of the bedrooms at “probably about midnight”. She noticed nothing unusual when she woke up. She was wearing her jeans, shirt and sweater. She then went to the living room and “just started drinking again” with J.M. There was no one else in the house and she thought the others had probably gone home.

She went home at about three o’clock in the morning. [ 9 ] The complainant did not think anything had happened to her until four days later, when R.T. informed her that the appellant had had sex with her. She acknowledged that M.B. had mentioned something about the incident prior to that point but had not provided her with the full details. As a result of this delay, she did not contact the police until 5:20 a.m. on Friday, June 4, 2010.

She was intoxicated at the time and the police declined to interview her until later that day when she was sober. [ 10 ] The complainant testified that she had not given the appellant any indication that she was agreeable to having sexual contact with him and could not think of any reason why the appellant would think she was. She denied consenting to any sexual contact with him and stated that she had never been interested in him that way and had not given him any reason to think that was the case. She admitted to having had sex the night before with M.B.

R.T. also testified that on May 28, while the complainant was passed out on a couch, the appellant was trying to hug her. As a result, J.M. asked the appellant to leave. [ 11 ] The only other witness called from those who had attended the party was M.B., the individual who, according to R.T.’s testimony, had removed the appellant from off of the complainant. However while he recalled that he was present that night and that he had been drinking “too much”, he had no recollection of entering the bedroom or of removing the appellant.

He stated that he had been drinking for at least 10-12 days during that time period, “all day every day” and as a result his memory of the day in question was “completely blank”. He had no recollection of either the complainant or R.T.’s level of sobriety or drunkenness on that day.

Issues on Appeal [ 12 ] The appellant submits that the conviction should be set aside on one of three grounds: a. it is unreasonable and cannot be supported by the evidence; b. the trial judge misapprehended the evidence, resulting in an unfair trial and a miscarriage of justice; c. alternatively, the Crown failed to prove that the complainant did not consent. [ 13 ] The Crown in response submits that there was evidence upon which a properly instructed jury could reasonably have convicted the appellant of the offence charged; that the trial judge did not misapprehend the evidence; and that even if this Court was to find that he misapprehended the evidence, it did not result in a miscarriage of justice.

They also seek to uphold the trial judge’s decision on the issue of consent. [ 14 ] As noted above, if the appellant is not successful in his conviction appeal, he also appeals his sentence.

Law

Summary Conviction Appeals [15] Appeals from

summary conviction are brought pursuant to s. 813 of the Criminal Code, which provides that the defendant mayappeal his conviction and his sentence to this Court. The powers of the court on appeal, including on

summary conviction appeal, are setout in s. 686(1) of the Code (see s. 822(1)). The relevant portions of that provision read as follows: 686.

(1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or notcriminally responsible on account of mental disorder, the court of appeal (

a) may allow the appeal where it is of the opinion that (

i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence, (ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or (iii) on any ground there was a miscarriage of justice; … [16] The court may dismiss the appeal where it is “not decided in favour of the appellant on any ground mentioned in paragraph (a)”(s. 686(1)(b)(ii)). [17] On appeal the judge does not have the duty or right to reassess the evidence at trial.

That said the court is to review the recordbelow “in order to determine whether the trial court has properly directed itself to all of the evidence bearing on the relevant issues”(Harper v. The Queen, (SCC), [1982] 1 S.C.R. 2 at 14). Further, as indicated below, in some cases it may be necessaryto probe the evidence in order to determine if any of the tests for overturning a conviction have been met. Unreasonable Verdict [18] The Supreme Court of Canada set out the test for determining whether a verdict is unreasonable and unsupported by theevidence in R. v.

Yebes, (SCC), [1987] 2 S.C.R. 168 at 186: “The Court must determine on the whole of the evidencewhether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered.” The test requires that theappeal court “re-examine and to some extent reweigh and consider the effect of the evidence” in order to determine whether it is capableof supporting the conviction. [19] Justice Romilly set out a definition for “acting judicially” in HMTQ v.

Pomeroy, 2007 BCSC 142: [33] "Acting judicially" means, in addition to acting dispassionately, applying the law, and adjudicating on the basis of the recordalone, reaching a conclusion that does not conflict with the bulk of judicial experience. The appeal court is to look through the lens ofjudicial experience, importing its knowledge of the law and the expertise of the courts gained through the judicial process over the years,not simply his or her own personal experience and insight. [20] The test set out in Yebes is equally applicable to a trial by judge alone: R. v.

Biniaris, 2000 SCC 15 at para. 37. [21] The crux of the appellant’s submissions on this point is that the trial judge erred in his treatment of R.T.’s evidence in a mannerthat wrongly “bolstered both her reliability and credibility as a witness”, thereby rendering his reliance on her evidence unreasonable. Asindicated in R. v.

Burke, (SCC), [1996] 1 S.C.R. 474 at para. 5, “special concerns arise in cases such as this where thealleged ‘unreasonableness’ of the trial court's decision rests upon the trial judge's assessment of credibility.” [22] In such cases the court must keep in mind that the trial judge is in a much better position than an appeal court when it comes toassessing the credibility of witnesses; as such, those decisions are owed greater deference.

Indeed, in advancing his argument theappellant acknowledges that the trial judge had the benefit of seeing and hearing the witnesses and therefore was in the best position tomake findings of credibility. [23] While a court may find a decision unreasonable on the basis that “the assessment of credibility made at trial is not supported bythe evidence”, it should do so only in “rare instances” (Burke at paras. 5, 7).

Miscarriage of Justice [24] The appellant further submits that the trial judge “was mistaken as to the substance of some of the evidence.” He says that theseerrors were central to the judge’s reasoning process and thus resulted in a miscarriage of justice under s. 686(1)(a)(iii). [25] Doherty J.A. in R. v. Morrissey (1995), (ON CA), 97 C.C.C. (3d) 193 at 220, 22 O.R. (3d) 514 (C.A.),defined a misapprehension of the evidence as “a failure to consider evidence relevant to a material issue, a mistake as to the substance ofthe evidence, or a failure to give proper effect to evidence” (at 218).

He then set out the test for determining whether such amisapprehension would result in a miscarriage of justice, at p. 221: … … The nature and extent of the misapprehension and its significance to the trial judge’s verdict must be considered in light of thefundamental requirement that a verdict must be based exclusively on the evidence adduced at trial. Where a trial judge is mistaken as tothe substance of material parts of the evidence and those errors play an essential

part in the reasoning process resulting in a conviction,then, in my view, the accused's conviction is not based exclusively on the evidence and is not a "true" verdict. …

[Emphasis added] [ 26 ] This approach was adopted by the Supreme Court of Canada in R. v. Lohrer , 2004 SCC 80 at para. 2 , where the Court indicated that “[t]he misapprehension of the evidence must go to the substance rather than the detail. It must be material rather than peripheral to the reasoning of the trial judge.” The Court emphasized that the misapprehension must play an “essential part” in the reasoning of the court before it results in a miscarriage of justice (at para. 8). Discussion [ 27 ] These two grounds of appeal are closely tied together in the appellant’s submissions.

In essence, he claims that the trial judge made a number of errors in dealing with R.T.’s testimony, either misconstruing, misstating, or misunderstanding it, and thereby falsely bolstered her credibility as a witness. He submits that the verdict was as a result unreasonable and that this misapprehension of evidence resulted in a miscarriage of justice. [ 28 ] The appellant submits that issues with R.T.’s testimony are particularly material given the trial’s resolution came down to the evidence of a single witness.

The appellant alleges that “inconsistencies and problems of a glaring nature were overlooked [by the trial judge]. Deficiencies were explained away or ignored. There was no search for meaningful corroboration, of the sort that would instil confidence in a story presented with considerable uncertainty by the witness.” [ 29 ] To begin, the appellant submits that the trial judge misconstrued the evidence regarding R.T.’s level of sobriety.

The trial judge stated in his reasons that R.T. had been drinking for “a day or so” prior to the events in question when in fact the evidence was that “binge drinking” as practiced by the group usually lasted “three or four days” and that she had been at J.M.’s house for two days before May 29. The appellant also notes that the trial judge said he accepted that on the evidence of “some of the others” R.T. had been drinking less than the rest who were present.

However, he submits that no one testified to that except the complainant who stated that R.T. might have showed up later in the day. [ 30 ] The appellant says the trial judge’s comments on these points do not reflect the evidence and are an example of him misconstruing the evidence in a manner that placed R.T. in a better light than she should have been placed in.

The appellant also suggests the trial judge relied on the latter finding to corroborate R.T.’s evidence that she had been drinking less than the others, thereby bolstering her reliability and credibility as a witness. [ 31 ] The appellant also notes that the trial judge accepted that it “could fairly be said” that on cross-examination R.T. acknowledged that the alcohol she drank “would have affected her but she was still not drunk”, thereby abandoning the claim made on direct that she was unaffected by the alcohol.

In fact, on cross-examination R.T. maintained that she was not affected by the alcohol she had been drinking. Again the appellant submits this misapprehension of the evidence by the trial judge inured to the benefit of R.T. and to the detriment of the appellant. [ 32 ] The appellant summarizes his position on the relationship between the findings of fact related to alcohol and the assessment of R.T.’s credibility as follows: The trial judge ultimately accepted [R.T.]’s evidence, on whose evidence he knew the case stood or fell.

It is apparent from his reasons that he did so partly because he thought the evidence corroborated her assertion that she was drinking less than the others, and believing that [R.T.] had acknowledged the obvious fact that the alcohol would have had an effect on her -- a point relevant to both her credibility and, especially, her reliability as a witness and the weight that could properly be placed upon her evidence. [ 33 ] The Crown concedes that neither of the other witnesses made any direct statement about the level of R.T.’s alcohol consumption.

However, there was evidence that could support R.T.’s statement that she had less to drink than the others. The complainant in cross-examination indicated that while she had been binge drinking for three days, she was not in the company of R.T. except for some of the day in question. She also indicated that R.T. had arrived at J.M.’s house later in the day on May 29.

She did not specifically recall whether R.T. was drinking that day; instead, she assumed she had “since she was there”, a statement the Crown suggests is best interpreted to mean “because she was at a drinking party.” [ 34 ] It was open to the trial judge in the circumstances to take into account what the complainant and M.B. said about their own state of intoxication and their resulting lack of recollection and to contrast that with the evidence of R.T. On that basis, one could reasonably conclude that R.T. was not as intoxicated as the others.

The trial judge’s misstatement -- that R.T. acknowledged the effect of the alcohol -- does not lead to the conclusion that he misunderstood the evidence respecting her level of intoxication.

In addition there is nothing to indicate that the trial judge relied on the impugned misstatement when making his overall assessment of R.T.’s credibility. [ 35 ] The appellant then submits that the trial judge failed to address a number of inconsistencies in R.T.’s testimony that raised questions respecting the reliability of her evidence. [ 36 ] On examination in chief R.T. initially testified that she checked on the complainant about ten minutes after the appellant was taken to the other bedroom. Later in her examination in chief the following exchange occurred: Q.

Can you estimate how much time went by that you saw [the appellant] on top of [the complainant]? A. Ten – fifteen minutes. Q. Pardon? A. Ten – fifteen minutes. Q. How did that -- how did he stop or what stopped [the appellant] from being on top of the [complainant]?

A. When [M.B.] went through. The Court: Pardon me? A. When [M.B.] went through the bedroom. [Crown Counsel] Q. And what did [M.B.] do? A. Asked him to get off of her. Q. And that was after fifteen minutes? A. Yeah Q. Why did it take so long? A. I don’t know. [ 37 ] The trial judge addressed this issue again at the conclusion of R.T.’s evidence: Q. I have about three questions. [R.T.], when asked one of the questions you said [the appellant] was on top for ten or fifteen minutes. Was that from – you say it was ten or fifteen minutes. Was that from when you first came in and saw him until [M.B.] l took him out?

Was it that long or is that how long from when he went into the other bedroom? A. That’s how long from when he went into the other bedroom. Q. How long was it from when you went into the bedroom and saw him there until [M.B.] escorted him out of the house? A. It was like a minute or two. [ 38 ] The Crown then sought further clarification: Q. …I’m just wondering if the answer was, in terms of timing from getting to the room and then escorting out, was that one – was the answer one minute? The Court: Yes, I believe so A.

I thought that was – The Court: From when you went into the room until [M.B.] came and escorted him out is that – A. Yeah The Court: How long was that? A. It was one minute or two before I called [M.B.] and then [it?] took him a few minutes to get him out. [ 39 ] Defence counsel then asked the following: Q. [R.T.], it appeared that from the time you first walked in, based on your evidence, to check on [the complainant] until you called for [M.B.] to come in, how long did that take. A.

From when I went in – Q. [F]rom when you first went in to check on [the complainant], based on your evidence, your sister had asked you to go and check on [the complainant], right? A. Yeah Q. So from the time that you first go into check on [the complainant] and you see the incident you described to the court until [M.B.] comes in how long does that take? A. Like a minute or two. [ 40 ] The appellant submits that R.T.’s answer on direct was unambiguous and was to the effect that she had seen the appellant on top of the complainant for 10-15 minutes.

He argues that the trial judge’s question was a leading question and lead to a significant change in her evidence, a question that the Crown would not have been permitted to ask on re-examination. He submits that the trial judge failed to deal with this issue in his reasons for judgment. [ 41 ] The difficulty with this submission is it is clear that all involved found the original answer on direct examination implausible, as it clearly was, and sought clarification -- presumably in order to clarify what appeared to be a clearly erroneous answer. The original question itself was not clear.

Three time periods were involved: the time from the appellant going to the other bedroom until R.T. went in, the time the appellant was on top of the complainant and the time it took to get him off her. Both the initial question on direct examination and the follow up question (“[a]nd that was after fifteen minutes?”) did not clearly differentiate between these timeframes.

Further, it is not clear from her answers what timeframe R.T. herself understood the questions to be referring to. It appears from the transcript that those present at trial saw it as a clarification of a misunderstanding rather than as a changing of her evidence. [ 42 ] The appellant next raises the issue of R.T.’s initial evidence on direct, where she stated that she had seen the appellant’s penis in the complainant’s vagina. Immediately after that statement the following exchange took place: Q. Did you -- are you sure about that? A. Yeah. Well his pants were down Q. Pardon? A.

I said well his pants were down. [ 43 ] On cross-examination: Q. No[w] you never actually saw any sexual intercourse correct? A. I guess not. [ 44 ] Re-examination by Crown: Q. So my friend’s question was he put to you that you didn’t see sexual intercourse, and you said “I guess not”. What did you mean by I guess not? A. I don’t know, I guess I didn’t see anything. Q. Pardon? A. I don’t know, I guess I didn’t see anything. Q. Now when I asked you questions earlier about what you did see, are you saying that you did see those things or are you changing your answers about those things?

A. [no audible response] [ 45 ] The appellant argues that this was a striking change in her evidence on the central point at issue. Given that change he submits that R.T. was not a witness whose evidence alone could be accorded sufficient weight to ground a conviction.

He submits that while the trial judge said that R.T. “acknowledged that it might not have been” sexual intercourse he failed to address the issue of the change in her testimony. [ 46 ] I note that R.T.’s original assertion that she saw the appellant’s penis in the complainant was not an unreasonable statement given the position of the appellant and the complainant, the state of their clothing and the movements of the appellant. Counsel then clarified what she saw with further questions and indeed the questions of the Crown noted above sought clarification as to whether she was making a retraction.

Unfortunately R.T.’s response was inaudible but the trial judge must have determined it was not a wholesale retraction of her evidence but instead an acknowledgement that she might not have seen actual genital contact. [ 47 ] The appellant also raises the lack of corroboration, noting that there was none with respect to the evidence of the assault and that M.B. had no recollection of removing the appellant from the complainant.

The appellant notes that the trial judge said “I am not sure that [M.B.] recalls having sex with the complainant the night before so the fact that [M.B.] does not recall removing” the appellant “to my mind does not really indicate that that did not happen”. However there was no evidence as to whether M.B. recalled sex with the complainant or not because he was never asked. The appellant submits the judge relied on speculation, not fact, in concluding that M.B.’s inability to recall the event did not mean that it did not happen.

As M.B. had been drinking for days and his memory of the day in question was “blank”, the trial judge’s comment is not unreasonable. It appears the judge was using the phrase “I am not sure that [M.B.] recalls having sex with the complainant the night before” as an indirect way of referencing the fact that M.B. had almost no memory of the time in question. The trial judge was not addressing a situation where a witness would be expected to recall events and did not.

This was not a situation where the witness’s inability to recall the situation in question went unexplained. [ 48 ] Further, as set out in Morrissey , “[w]here a phrase in a trial judge’s reasons is open to two

interpretations, the one which is consistent with the trial judge’s presumed knowledge of the applicable law must be preferred over one which suggests an erroneous application of the law” (at pp. 203-204). In this case the trial judge should be presumed to know that his decisions must be based on evidence, not speculation. The

interpretation given above is as a result preferable. [ 49 ] Finally, the appellant submits that R.T.’s evidence was in direct conflict with the complainant’s. R.T. testified that the events occurred in the afternoon, that the complainant came out of the bedroom with her pants off, and that the complainant then went home.

The complainant says she did not wake until midnight, that she was fully dressed at that point and that she did not go home until 3:00 a.m. [ 50 ] This evidence was in fact not contradictory given the complainant had no memory from the time she went to sleep until the early morning hours of the next day. The only possible contradiction relates to the issue of when the complainant left the house. Even that is not contradictory as R.T.’s evidence was that after the complainant awoke in the afternoon R.T. “thought” the complainant had gone home. [ 51 ] The appellant summarizes his position as follows:

It is respectfully submitted that although the learned trial judge watched, listened to and believed [R.T.], his analysis was flawed by material mistakes as to the substance of the evidence, including: the extent to which [R.T.] had been “binge drinking” in the days leading to May 29; that there was evidence from “some of the others” that [R.T.] had been drinking less than the others on May 29; and that [R.T.] had acknowledged that alcohol affects her, rather than maintain that she was unaffected by the alcohol she consumed.

It is apparent from the reasons of the learned trial judge that those mistakes played a material role in his willingness to accept [R.T.’s] evidence -- evidence on which the case stood or fell. Simply put, the mistakes in this case ran entirely in favour of the Crown. The case is unleavened by any “pro-defence” mistakes or misinterpretations.

The trial judge also failed to address two important internal inconsistences in the evidence of [R.T.], namely: that she first said she directly observed sexual intercourse, and then said she did not; and that she first said she observed the appellant on top of [the complainant] for ten to fifteen minutes, and then radically changed that answer in response to a leading question.

The trial judge addressed the inconsistency between the evidence of [R.T.] and [M.B.] by relying on a fact of which there was no evidence: that [M.B.] seemed to be unable to recall having slept with [the complainant] the night before May 29. Finally, it is respectfully submitted that the learned trial judge dealt with the contradictory nature of [R.T.’s] evidence as compared to [the complainant’s] in a way that was, at best, purely speculative, had no foundation in the evidence, and did not succeed in resolving the inconsistencies. At worst, it amounted to an unreasonable finding of fact.

The trial judge generally failed to subject [R.T.’s] evidence to the degree of scrutiny required in the circumstances of the case. The result was an unsafe verdict. This Court can, well within the limits of appellate disadvantage, and relying on its accumulated judicial experience, conclude that [R.T.’s] evidence could not reasonably have borne such weight as to safely support a conviction. [ 52 ] The trial judge enjoys both a legal and an actual advantage over an appellate court when assessing the credibility of witnesses.

The trial judge can give context to the evidence through his assessment of the manner of expression and demeanour of the witness. These factors cannot be informed by a reading of a transcript. As indicated in Burke , that advantage must be respected unless the trial judge has unreasonably ignored clearly relevant considerations in assessing credibility. [ 53 ] The thrust of the appellant’s submission is that the trial judge’s “mistakes” lead to a favourable assessment of R.T.’s credibility. However, the alleged “mistakes” are based on the appellant’s

interpretation of the transcript evidence, an

interpretation that gives no weight to the assumption that the trial judge knows the law and has a unique opportunity to assess the evidence. The appellant’s criticisms fail to recognize the factors that form the basis for the deference due to the trial judge. In this case, the trial judge’s reasons indicate that he based his findings of credibility on these intangible factors: “I found [R.T.] to be a fairly credible witness.

I think it can be summed up: I watched her; I listened to her; I believed her.” [ 54 ] In my view for the reasons given the record provides evidence to support the judge’s assessment of the credibility of R.T. As a result I cannot say that the conviction was unreasonable. [ 55 ] Further, I am not satisfied that any of the alleged errors discussed above amounted to a misapprehension of the evidence. I do not find that any of the impugned statements amounted to “a mistake as to the substance of the evidence,” as described in Morrissey .

It is not this Court’s duty to dissect, parse or microscopically examine the reasons of a trial judge ( Morrissey at pp. 204-205). While the trial judge may have misstated some of the evidence, taken as a whole his reasons do not demonstrate that he misunderstood the substance of the evidence. [ 56 ] Even if I am incorrect in finding that the trial judge did not misapprehend the evidence, in my view any such misapprehensions were not material and as a result did not lead to a miscarriage of justice.

The comments of the Supreme Court of Canada in Lohrer are on point: 5 In the course of his argument, the appellant mentioned a number of other alleged errors and inconsistences in the trial judgment including his view that the trial judge had not adequately recognized the inconsistences in the complainants’ evidence. However, what the trial judge said was that there were no “major” inconsistencies in their evidence, a conclusion with which we agree.

In any event he evidently did not consider the inconsistencies, which he recognized, to be fatal to the complainants’ credibility on the material issues in dispute. [ 57 ] None of the misapprehensions raised by the appellant played an “essential part” in the trial judge’s reasoning. As such, they do not rise to the level required to find a miscarriage of justice under the standard set out in Lohrer .

Lack of Consent [ 58 ] The appellant alleges that the trial judge erred in concluding that the evidence established beyond a reasonable doubt that the complainant did not consent to the sexual contact that occurred. [ 59 ] His argument is that as the complainant has no memory of any sexual contact between herself and the appellant, and as she could not remember ever suggesting she was interested or not interested in him, there is no evidence of the complainant’s state of mind.

[60] The appellant points out that the trial judge found that “at the time that [R.T.] observed things, [the complainant] was eitherunconscious or asleep and had no capacity to consent”, then further stated that “[e]veryone thought that [the complainant] was in theroom asleep or passed out” and that there was “nothing to show that was not her state throughout”. [61] The appellant submits that the burden was on the Crown to show “that was her state throughout”.

He submits that in taking thisapproach, the trial judge reversed the burden of proof by presuming a fact that should have been taken as unproved until it wasestablished by the Crown. [62] The appellant further submits that as a result the Crown did not have to account for anything the complainant may have said tothe appellant on the issue of consent, or for the complainant’s state of unconsciousness during the time that she was in the bedroom. Law [63] A conviction for sexual assault requires proof that the complainant did not consent to the sexual contact. Lack of consent is anelement of the offence.

As such, the burden is on the Crown. [64] The Supreme Court of Canada held in R. v. J.A., 2011 SCC 28, that performing a sexual act on an unconscious person whoconsented to those acts prior to being rendered unconscious is an assault. The definition of consent in the Code permits the withdrawal ofthat consent at any time and that is not possible if a person is unconscious. Discussion [65] It is the appellant’s position that the trial judge reversed the onus of proof with regards to consent. However, that is not whatoccurred here.

In assessing the evidence on the issue of lack of consent the trial judge was entitled to consider whether there was anyevidence to the contrary. That is something a trial judge must ask in assessing the evidence. [66] The fact that the complainant recalls nothing from the time she went into the bedroom until the early morning hours of thefollowing day does not mean a trial judge cannot be satisfied on all of the evidence before him that the lack of consent has been provenbeyond a reasonable doubt.

The evidence here consisted of the testimony of R.T., who said that when she saw the appellant on thecomplainant the complainant was not capable of consenting.

In addition, the complainant’s high level of intoxication, the complainant’sexpressed lack of interest in sexual relations with the appellant, and the lack of any evidence that she had changed her position respectingthe appellant provided a further basis for the trial judge’s finding that the complainant did not consent. [67] As a result I decline to interfere with the trial judge’s finding that there was no consent. [68] The appeal of conviction is dismissed and the conviction is affirmed. I now turn to the sentence appeal.

Sentence Appeal [69] At the appellant’s sentencing the Crown sought a sentence of three years. Defence counsel sought a conditional sentence orderof 18 months with probation to follow. Counsel made their submissions on the basis of their respective positions. [70] It was not until the conclusion of counsel’s submissions that the trial judge raised the issue that because the Crown hadproceeded summarily the maximum sentence available under s. 271(1)(

b) of the Criminal Code was 18 months. [71] While counsel for both sides acknowledged that this was correct, they made no further submissions on the issue. The trial judgethen imposed a sentence of 18 months in jail plus 24 months probation. [72] On appeal the Crown seeks to uphold the sentence as fit. The appellant acknowledges that a conditional sentence order wouldnot be appropriate in this case but submits that in the circumstances a proper sentence would have been 12 months plus a period ofprobation.

They also request that the probation period of 24 months with a curfew throughout be shortened or, alternatively, that thecurfew period be reduced to 8-12 months. [73] The role of an appellate court on a sentence appeal is distinct from that of a trial court. In R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227, the Supreme Court of Canada concluded: 46. … The formulation of a sentencing order is a profoundly subjective process; … A variation in the sentence should only be made ifthe court of appeal is convinced it is not fit.

That is to say, that it has found the sentence to be clearly unreasonable. … 50. … Unreasonableness in the sentencing process involves the sentencing order falling outside the “acceptable range” of orders … [74] In R. v.

M. (C.A.), (SCC), [1996] 1 S.C.R. 500 at para. 90, the Supreme Court of Canada explained that“absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal shouldonly intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit.” [75] The appellant submits that it was an error for the sentencing judge not to consider other similar

summary conviction cases, as herelied on the only case referred to by counsel, which involved proceedings by indictment. The appellant relies on R. v. Lequiere, 2006BCSC 668, where Dillon J. said the following: [62] In this case, the sentencing judge erred by not considering other similar

summary conviction cases. Although cases that haveproceeded by indictment may be relevant, consideration of only those cases in the case at bar resulted in overemphasis on a relevantfactor, namely the range of appropriate sentence in indictable cases. The overemphasis of a relevant factor is also a reviewable error.

[ 76 ] Lequiere provides an extensive analysis of the proper approach to sentencing where the Crown has decided to proceed summarily for sex assault under s. 271(1) (b). Dillon J. concluded that in

summary proceedings the Crown’s decision to proceed summarily should be taken as an indicator of the prosecutor’s opinion of the severity of the crime (at paras. 35 and 46), although there may in some cases be other reasons for the election. The election is a significant factor and affects the appropriate range of sentence. However, she also held that the maximum sentence on

summary conviction is not reserved for the worst case/worst offender (para. 58). [ 77 ] As the appellant notes, Lequiere describes a series of cases at paras. 66-79 that show the range of sentences in

summary proceedings where the sexual assault involves intercourse. The sentences in those cases range between 6-18 months and include a number of conditional sentences. The appellant emphasizes that because the trial judge was only given one case relating to an indictable proceeding involving a more serious event, he did not have the benefit of these types of

summary proceeding sentences for comparison. In fairness counsel do acknowledge that the court was not given authorities providing a range for either indictable or

summary conviction sentences. [ 78 ] In addition to emphasizing the Crown’s decision to proceed summarily, counsel submits that 12 months in jail is a more appropriate sentence due to the appellant’s significant cognitive impairment and the applicability of the Gladue factors. [ 79 ] The Crown relies on the case of R. v.

L.M., 2008 SCC 31 , for the principle that maximum sentences are not reserved for the “abstract case of the worst crime committed in the worst circumstances.” Rather, the “judge’s decision will continue to be dictated by the fundamental principle that a ‘sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender’” (para. 22).

Where the court is considering imposing the maximum sentence, it must ask whether the sentence is “reasonable having regard to the circumstances and the objectives of sentencing” (para. 23). [ 80 ] In further support of the sentence, the Crown notes that the appellant has been previously convicted of a similar offence.

They also emphasize the aggravating factors in the case, including the fact that the complainant was vulnerable, drunk and incapable of indicating her lack of consent. [ 81 ] The trial judge in this case held that a conditional sentence order was not appropriate because of doubts that the appellant would comply with the terms and because such an order would put the safety of the community at risk. He then said: [20] In imposing a sentence, I must consider both deterrence of the accused and deterrence of the community.

I must consider denunciation, and denunciation is not just something that is to W.A.R. but it is something that the community needs to be aware of. The community needs to know that this type of offence is treated seriously. Others in the community need to know that if they commit this type of offence, there are serious ramifications. [21] Because of his limited intellectual ability, W.A.R. is not going to be deterred by whatever sentence I impose other than it may make it more difficult for him to commit further offences.

He is going to have limited appreciation of any denunciation, but the community is going to be aware, and that message must be sent to the community. [22] The Crown initially sought a sentence of three years for this and provided authority from the Court of Appeal that that was an entirely appropriate type of sentence for these circumstances. They provided case authority where the Court of Appeal had approved a sentence for a virtually identical type of offence. Because the Crown proceeded summarily in this matter, the maximum sentence that can be imposed is 18 months.

Although the circumstances, as such, may not be otherwise appropriate for the maximum sentence, protection of the community I think requires that I impose a sentence that has W.A.R. under supervision to the longest extent that the law permits. [ 82 ] While the trial judge did not have before him a range of

summary conviction sentences he did have before him an indictable conviction case that he noted was for “virtually an identical type of offence”. As noted by Dillon J. in Lequiere , “it is not an error to consider cases that have been tried by indictment in addition to the ones that have proceeded summarily. It may even be required when a sentence at the high end of the range or at the maximum is under consideration” (para. 65). [ 83 ] While it was an error to proceed without

summary conviction sentencing decisions, the issue on appeal remains whether or not the sentence was fit. [ 84 ] The sentence imposed is at the high end of the range for a

summary conviction for sexual assault where there was intercourse. Notwithstanding that, it was, as is evidenced from the authorities reviewed in Lequiere , within the range. In this case the complainant was unconscious and vulnerable. The appellant took advantage of her condition and carried out a serious sexual assault. A number of the cases reviewed in Lequiere involved sexual assaults on complainants who were either sleeping or intoxicated. In two of those cases the offender received the maximum sentence of 18 months in prison.

In cases where the sentence was in the 14-15 month range the court noted a number of personal mitigating factors. In this case, the trial judge instead found the appellant to be a significant danger to society and emphasized the need for denunciation. [ 85 ] In my view it cannot be said that the sentence is “demonstrably unfit.” It fell within the range of sentences for sexual assault on

summary conviction. The fact that it is the maximum permitted is not in and of itself the issue. Taking into account the circumstances of this case I agree that deterrence and denunciation are the primary goals. Despite the fact that the trial judge did not have the benefit of

summary conviction sentencing authorities I cannot conclude that the sentence of 18 months and the period of probation and curfew is unfit. [ 86 ] The sentence appeal is dismissed. “Punnett J.”