2022 QCCA 439, 2022 QCCA 439

Ofter c. R. 2022 QCCA 439 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-007399-205 (500-01-184922-190) DATE: March 30, 2022 CORAM: THE HONOURABLE MARTIN VAUCLAIR, J.A. MICHEL BEAUPRÉ, J.A. FRÉDÉRIC BACHAND, J.A. CHAD OFTER APPELLANT – Accused v.

HER MAJESTY THE QUEEN RESPONDENT – Prosecutor JUDGMENT [ 1 ] The appellant appeals from a judgment rendered on September 2, 2020, by the Court of Quebec, Criminal and Penal Division, district of Montreal (the Honourable Yvan Poulin, J.C.Q., as he then was), which found the appellant guilty of sexual assault. [ 2 ] For the reasons of Vauclair, J.A., with which Beaupré and Bachand JJ.A., concur, THE COURT: [ 3 ] DISMISSES the appeal. MARTIN VAUCLAIR, J.A. MICHEL BEAUPRÉ, J.A. FRÉDÉRIC BACHAND, J.A.

Mtre Vincent Rose ME VINCENT ROSE AVOCAT For the Appellant Mtre Laurent-Alexandre Duclos-Bélanger DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For the Respondent Date of hearing: February 16, 2022

REASONS OF VAUCLAIR, J.A. [4] The appellant was found guilty of a sexual assault and he argues that the verdict is unreasonable. In his brief, he asks the Courtto review the evidence based on the test elaborated in R. v. Yebes, (SCC), [1987] 2 S.C.R. 168, p. 185 and R. v. S. (P.L.), (SCC), [1991] 1 S.C.R. 909. He explicitly abandoned his arguments on the issue of a miscarriage of justice.

However,he maintains that the judge erred in evaluating the evidence, and I will address these issues. [5] A verdict is unreasonable or cannot be supported by the evidence if it is one that a properly instructed jury acting judiciallycould not reasonably have rendered: R. v. Biniaris, 2000 SCC 15 , [2000] 1 S.C.R. 381, para. 36; R. v. R.P., 2012 SCC 22, [2012] 1 S.C.R. 746. [6] The test was expressed in terms of a verdict reached by a jury, but it is equally applicable to the judgment of a judge sitting attrial without a jury: R. v. Biniaris, 2000 SCC 15 , [2000] 1 R.C.S. 381, at para. 37. [7] In R. v.

S. (P.L.), Sopinka, J., for the majority, underlined what is not an unreasonable verdict: The appeal is a prognosis as to what a jury would do not on the basis of a version of the facts that the court determines was properlyadmissible, but on the basis of the evidence that was in fact before them. R. v. S. (P.L.), (SCC), [1991] 1 S.C.R. 909, p. 915 (emphasis added). [8] Justice Sopinka explained what the test entails: The exercise of this power is predicated on the accused having had a proper trial on legally admissible evidence accompanied byinstructions that are correct in law.

The Court of Appeal may disagree with the verdict but provided that the accused has had a trial inwhich the legal rules have been observed, no complaint can be upheld if there is, on the evidence, a reasonable basis for the verdict. R. v. S. (P.L.), (SCC), [1991] 1 S.C.R. 909, pp. 915–916. [9] This case is fact-driven. To find the verdict unreasonable, the appellant invites the Court to review credibility issues and, morespecifically, the complainant’s testimony, as well as the judge’s evaluation of his own testimony. While not impossible, the appellantfaces a difficult task: R. v.

Burke, (SCC), [1996] 1 S.C.R. 474, para. 7. As I will explain, he fails in his endeavour. [10] I see no errors, much less palpable and overriding errors, in the judge’s conclusions that the prosecution proved beyond areasonable doubt that the complainant did not consent to oral sex and was forced to do so.

[ 11 ] Overall, the appellant’s arguments are based on his own

interpretation of the evidence or, in other words, based on a version of the facts but not on the whole evidence that was before the trial judge. * [ 12 ] First, the appellant rests his appeal on the complainant’s testimony. He argues that she falsely testified about the meaning of Facebook messages and that, contrary to what she said at trial, it was she who had insisted on meeting with the appellant. He puts great weight on the complainant’s reaction when she realized that these messages, which she had deleted on her end, still existed.

The appellant characterizes this as a sudden and drastic change in her demeanour and as “aberrant behaviour”. He contends that the judge erred because he did not factor in that demeanour when evaluating the complainant’s credibility. [ 13 ] He also points to the complainant’s inconsistent conduct immediately after the assault and to her subsequent conduct that led to her formal complaint to the police. [ 14 ] I do not agree with the appellant that the Facebook messages can support his assertion that the complainant had insisted on meeting with him.

As for her reaction when she was confronted with the said messages, the judge did not ignore it. He did, in fact, mention at trial noticing it. Moreover, the complainant explained her reaction. It was for the judge to weigh the complainant’s reaction with the rest of the evidence. [ 15 ] The complainant also explained in detail her reaction after the sexual assault. She testified having been profoundly shocked by the way the appellant treated her right after their encounter and how ashamed she felt after the events. It took her time to come to grips with what effectively happened the night in question.

Again, it was for the judge to weigh the evidence. In the end, he concluded that “the delay in disclosing the details to the authorities cast no shadow on her overall credibility as it was coherently, rationally and logically explained”. The delay was, indeed, rationally and logically explained. [ 16 ] In his brief, to support what he identifies as a lack of candour from the complainant, the appellant wrongly sets the starting point for his reasoning on his own

interpretation of the complainant’s “reluctance” or “hesitations” in her testimony. Whether there was such “reluctance” or “hesitations” was for the judge to determine and the appellant does not point to any errors in the judge’s evaluation of the evidence. [ 17 ] In sum, there is no error on those issues on which this Court could intervene. ** [ 18 ] Second, the appellant suggests that his testimony was rejected without sufficient reason and based on a misapprehension of the evidence. He submits that his testimony at trial was honest and consistent.

It should, at least, have raised a reasonable doubt about his guilt. Again, there is no error in the judge’s evaluation. [ 19 ] Additionally, I do not believe that his testimony raised a reasonable doubt. The complainant’s undisputed reluctance to engage in any sexual activity beyond kissing and some fondling was clear from the appellant’s testimony.

Taking the appellant’s testimony at face value, given his acknowledgement of the numerous indicia of the lack of the complainant’s consent to more intrusive sexual activity, he is guilty of not having taken reasonable steps to ascertain her consent. [ 20 ] “Submission” definitely does not equate to “consent”. The sudden and radical change in the complainant’s mindset towards sexual activities at the time required a validation of her true consent. [ 21 ] It bears reminding that the appellant and the complainant were briefly coworkers before the latter contacted him on Facebook.

The “conversation” was obviously friendly and expressed a desire to meet. The appellant explained that, implicitly, he understood that it was for the purpose of sex. However, in cross-examination, he admitted that there was nothing explicit about this: Q. And you indicated that you felt that it was going to be casual hangout for the purpose of sex. In the text messages that we don’t have, was there ever mentioned that there would be sex? R. No, not explicitly.

There is no we’re going to have sex, no. [ 22 ] Upon the complainant’s arrival at his home, the appellant directed her to the basement and, within minutes, they began kissing. It went on for approximately 40 minutes. From the appellant’s narrative of the encounter, they did not discuss the sexual activities. Both admitted that kissing and fondling was obviously consensual. For everything else, in fact, the appellant adopted a trial-and-error approach based on his belief that the complainant had accepted the meeting for more intrusive sexual purposes.

This approach, however, only generated successive “errors”. [ 23 ] He explained that he tried to remove the complainant’s bra, but she refused. He tried a digital penetration, but she stopped him. He tried to roll down her leggings from behind, but she said no. She told him she did not want sexual intercourse. She told him she did not like it rough and asked him to stop pulling her hair.

Although he said that he stopped every time the complainant said no , he testified that he interpreted some of the refusal expressed by the complainant to mean, “no, not yet, maybe later”. [ 24 ] Apparently, the complainant’s many explicit refusals did not alert him to the need to question what the complainant really wanted out of this encounter. Notwithstanding her evident lack of interest in doing anything more than kissing, the appellant says she willingly gave him oral sex.

He admitted that there was no discussion prior to it happening, but he thought he asked her. [ 25 ] Rightly so, the appellant argues that when a partner agrees to engage in sexual activity A and B, one cannot presume the partner will consent to sexual activity C. He further argues, conversely, that if a partner refuses to engage in sexual activity A and B, one cannot presume the partner will not agree to sexual activity C. While this second proposition is also theoretically correct, for purposes of the criminal law, neither may it be presumed that consent is given to activity C.

[26] The appellant therefore contends that the trial judge erred when he wrote that “it would be irrational to conclude that thecomplainant would have abruptly moved away from her more reserved demeanour to freely and willingly give a blowjob to the accusedwhen prompted to do so”. [27] From the appellant's perspective, the absence of consent to oral sex cannot be presumed on the basis of the refusals to engage inother sexual activities and, thus, it was still possible to infer the complainant's consent.

Considering the appellant's testimony, thisargument triggers the “honest but mistaken belief in communicated consent”: R. v. Barton, 2019 SCC 33 , [2019] 2 S.C.R. 579,para. 92. Moldaver, J. explains that “communicated consent” is the key and that it “is intended to focus all justice system participants onthe crucial question of communication of consent and avoid inadvertently straying into the forbidden territory of assumed or impliedconsent”: Barton, para. 92. [28] In my view, the trial judge’s conclusion is correct and reasonable when read in context. [29] Again, consent cannot be presumed or implied: R. v.

Ewanchuk, (SCC), [1999] 1 S.C.R. 330, para. 103; R. v.Barton, 2019 SCC 33 , [2019] 2 S.C.R. 579, para. 98. Consent must be the “conscious agreement of the complainant to engagein every sexual act in a particular encounter” that may be communicated by words or conduct and may withdrawn at any time: Barton,paras. 88 and 91; R. v. A.E., 2022 SCC 4. [30] The Criminal Code specifically limits the availability of the defence of honest but mistaken belief in communicated consent.Reasonable steps to ascertain consent must be taken. In Barton, it was said that “[s]ection 273.2(

b) imposes a precondition to the defenceof honest but mistaken belief in communicated consent — no reasonable steps, no defence. It has both objective and subjectivedimensions: the accused must take steps that are objectively reasonable, and the reasonableness of those steps must be assessed in lightof the circumstances known to the accused at the time”: R. v. Barton, 2019 SCC 33 , [2019] 2 S.C.R. 579, paras. 104 and 122;R. v. A.E., 2022 SCC 4. The purpose of this requirement is to reject “the outmoded idea that women can be taken to be consenting unlessthey say ‘no’ ”: R. v.

Barton, para. 105. [31] Whether the reasonable steps to ascertain consent were taken is highly fact-specific: R. v. Barton, 2019 SCC 33 , [2019]2 S.C.R. 579, para. 106.

Although the Supreme Court was reluctant to draw an exhaustive list of what constitutes reasonable steps toascertain consent, it did say that “an accused cannot point to his reliance on the complainant’s silence, passivity, or ambiguous conductas a reasonable step to ascertain consent” and that “the more invasive the sexual activity in question and/or the greater the risk posed tothe health and safety of those involved, common sense suggests a reasonable person would take greater care in ascertaining consent”: R.v.

Barton, paras. 107–108. [32] That said, the judge’s conclusion pertaining to the irrationality of the appellant’s proposition is preceded by the words “in thespecific context of the present case”. Thus, the judge’s words are meant to be rooted in the evidence and they do not purport to be a hard-and-fast rule. [33] The evidence—either as a whole or looking at the appellant’s own testimony alone—supports the judge’s conclusion. It is clearfrom the appellant’s testimony that he comforted himself in his reading of the complainant’s state of mind.

Since, for him, the encounterwas for the purpose of sexual intercourse and nothing else, it must have been the same for the complainant. He had set his mind on thatpurpose and never looked back.

In his view, because she had agreed to engage in kissing, he was on his way to engaging in moreinvolved sexual activity, despite the many behavioural and verbal objections expressed along the way by the complainant. [34] Thus, even if the case were to rest on the appellant’s testimony, this testimony shows that there was either a complete failure totake reasonable steps to ascertain consent or there was reliance on the complainant’s ambiguous conduct.

As the Supreme Court said, noreasonable steps, no defence. [35] Finally, it is worth repeating that I see no error in the judge’s finding that the appellant forced the complainant. [36] I propose to dismiss the appeal. MARTIN VAUCLAIR, J.A.