) ) HER MAJESTY THE QUEEN Prosecutor/Respondent – v. –, 2013 ONSC 7490

CITATION : R. v. S.B., 2013 ONSC 7490 COURT FILE NO.: 42/12 DATE: 2013-12-04 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN Prosecutor/Respondent – and – S.B. Accused/Appellant ) ) ) ) ) ) ) )))) Cameron Peters, for the Crown Craig Parry, for the Appellant ) ) HEARD: November 15, 2013 at Woodstock Information contained herein that may identify the complainants shall not be published in any document or broadcast or transmitted in any way, pursuant to s. 486.4(1) of the Criminal Code of Canada Appeal by the accused from the conviction entered on September 12, 2012 by Marietta L. D.

Roberts J. of the Ontario Court of Justice, and from the sentence imposed on December 5, 2012 HEENEY R.S.J.: [ 1 ] The accused appeals from his conviction on three counts of sexual assault, contrary to s. 271 of the Criminal Code . On the first count, he was found by the trial judge to have had forcible sexual intercourse with his girlfriend, C.K., in early November, 2010. They continued to date thereafter until their breakup in early January, 2011, after the accused failed to assure Ms. K. that he still loved her.

The allegations were reported to the police in May of 2011. [ 2 ] Counts two and three involve another complainant, L.M., with whom the accused also had a relationship. They had both played basketball in high school, and began seeing each other during the second semester of the 2010/2011 school year. On the first occasion, shortly before March Break of 2011, the accused was found by the trial judge to have anally penetrated the complainant without her consent while they were parked near the Woodstock Dam, following an episode of consensual fellatio. They continued to see each other thereafter.

In May of 2011 she visited the accused in his bedroom at his parents’ home. After voluntarily removing her own pants, she “spooned” with the accused on his bunk bed, such that his penis was against her buttocks, which were clothed only in a thong. The accused was found by the trial judge to have again had anal intercourse with this complainant shortly thereafter without her consent. She went to the police after having made contact with the other complainant, Ms.

K. [ 3 ] The accused freely admitted having engaged in the sexual acts described by both complainants, but testified that they were consensual. [ 4 ] The accused was sentenced to 12 months incarceration on count one, plus 8 months and 7 months incarceration respectively on counts two and three. These sentences were ordered to run consecutively, resulting in a total sentence of 27 months. Mr. Parry, for the accused, did not pursue the sentence appeal, and conceded that if the convictions stand, the sentence was within the appropriate range. [ 5 ] Mr.

Parry also conceded at the outset that he is not arguing that the verdicts are unreasonable and cannot be supported by the evidence, notwithstanding references to that ground of appeal in his factum. He concedes, in other words, that there is evidence upon which a properly instructed trier of fact could convict. Rather, he bases this appeal on two grounds: misapprehension of the evidence by the trial judge, and the failure to give reasons that are amenable to appellate review. [ 6 ] To her credit, the trial judge extensively reviewed the evidence over the course of 25 pages of transcript.

Her review of the applicable legal principles was appropriate and she fully canvassed the submissions of counsel. However, it is the analysis leading to the three verdicts of guilty that, the accused submits, is fatally flawed. [ 7 ] With respect to the first count involving the complainant C.K., she and the accused had been dating for close to two years.

On the night in question, they had been to a party, where she drank three beers. She testified that she was intoxicated. The accused wasdriving and did not drink. The complainant said she fell asleep on the drive home. When she awoke, the vehicle was parked in one ofthe driveways at her rural residence, and the accused was trying to take off her pants. She testified that he proceeded to have sexualintercourse with her against her will.

The accused agreed that they had had sexual intercourse, but testified that it was entirelyconsensual. [8] The trial judge’s reasons concerning count one consist entirely of the following, at p. 46 of the Appeal Book: My findings are as follows: with respect to the charge dealing with Ms. K., I find that the defendant’s explanation is not believable. Hisevidence does not raise in my mind a reasonable doubt and that, indeed, he he (sic) agrees that his recollection is not as good as it couldbe.

He indicated, as well, that he knew she had been drinking, he knew she was tipsy, that indeed, her comments to him at the time hisevidence was, he asked her and she’s the one who got the condom out and opened it up, I find that it is clear that she was upset. Herevidence is that she tried to stop him, that she slept on the way home and that she was drunk.

He knew of her state of mind and I findthat she could not have been (sic) operating mind to give the appropriate consent and indeed, his post offense conduct, even followingher to the house, and the various text messages makes it clear that he did not have an honest but mistaken belief in that consent and thedefendant will be found guilty on that charge. [9] In R. v. Morrissey, (ON CA), [1995] O.J.

No. 639 (C.A.), Doherty J.A. explained what the phrase“misapprehension of the evidence” means, at para. 83: A misapprehension of the evidence may refer to a failure to consider evidence relevant to a material issue, a mistake as to the substanceof the evidence, or a failure to give proper effect to evidence. [10] At para. 93 he explained when a misapprehension of the evidence will result in a miscarriage of justice: When will a misapprehension of the evidence render a trial unfair and result in a miscarriage of justice?

The nature and extent of themisapprehension and its significance to the trial judge's verdict must be considered in light of the fundamental requirement that a verdictmust be based exclusively on the evidence adduced at trial. Where a trial judge is mistaken as to the substance of material parts of theevidence and those errors play an essential

part in the reasoning process resulting in a conviction then, in my view, the accused'sconviction is not based exclusively on the evidence and is not a "true" verdict. Convictions resting on a misapprehension of the substanceof the evidence adduced at trial sit on no firmer foundation than those based on information derived from sources extraneous to the trial.If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow thatthe appellant has not received a fair trial, and was the victim of a miscarriage of justice.

This is so even if the evidence, as actuallyadduced at trial, was capable of supporting a conviction. [11] The Supreme Court of Canada in R. v. Harper (1982), (SCC), 65 C.C.C. (2d) 193 at 210 stated the sameprinciple in the following terms: An appellate tribunal has neither the duty nor the right to reassess evidence at trial for the purpose of determining guilt or innocence. Theduty of the appellate tribunal does, however, include a review of the record below in order to determine whether the trial court hasproperly directed itself to all the evidence bearing on the relevant issues.

Where the record, including the reasons for judgment, disclosesa lack of appreciation of relevant evidence and more particularly the complete disregard of such evidence, then it falls upon thereviewing tribunal to intercede. [12] The central issue at trial was consent. It is apparent from the reasons of the trial judge that she dealt with that issue by findingthat the complainant lacked the capacity to consent, and therefore there was no consent. This would appear to explain why, in her reviewof the law, she extensively quoted from the decision of the Supreme Court of Canada in R. v.

J.A., 2011 SCC 28 , [2011] 2S.C.R. 440. That case involved a complainant who was, with her consent, choked into unconsciousness by the accused, as a means ofenhancing their mutual sexual experience. In short, the court held that an unconscious person cannot consent to sexual activity. [13] In this case, the complainant testified that she had consumed three beers over 2 ½ hours, and was feeling intoxicated and verytipsy. As already noted, she fell asleep on the ride home, and awoke to find the accused trying to undo her pants. [14] However, she went on to describe in detail everything that transpired afterward.

She described how the accused removed herclothing and his own. She said “no, I don’t want to. No, please stop” over and over. She started crying really loudly and wasscreaming, and was worried that the neighbours would hear. She physically resisted by attempting to press her knees together, butdescribed how the accused used his knee to force her legs apart. She described how, after he was finished, he left the car and disposed ofthe condom across the road. At no time did she testify that she was unable, by reason of her consumption of alcohol, to consent orwithhold consent to the sexual act.

To the contrary, her testimony can lead to no other conclusion than that she was fully capable ofmaking the decision not to consent, and that she expressed that lack of consent loudly and clearly both in words and through her physicalactions. [15] This case is indistinguishable from R. v. Jenson, (ON CA), [1996] O.J. No. 1514 (C.A.).

At paras. 13 to15, Rosenberg J.A., in allowing the appeal from conviction, said the following: On the record in this case, no jury acting judicially could reasonably find that the complainant was so intoxicated by the combination ofalcohol and drugs that she lacked the minimal capacity required to consent (or withhold her consent) to the sexual activity. I do not seethis issue as one turning on the trial judge's assessment of credibility so as to require special deference to the findings of credibility.

Tothe contrary, it is the complainant's own evidence that negatives any reasonable basis for a finding of lack of capacity. The complainantmade it clear that although she was drunk or "stoned" she was alert and in her own words knew what was going on. The complainanttestified to a recollection of the events and even though the trial was some five years after the incident she provided details both as to theactual assault and the surrounding circumstances. The only other evidence on this issue was the appellant's statement to the police some two and half years after the offence where the

appellant described the complainant as being "too drunk", so "he didn't finish" and the complainant's testimony that she thought shemight have imagined the assault until the appellant confirmed it several days later when he told her that they "made love". Where consent is in issue the actual state of mind of the complainant is determinative. The approach is subjective. The appellant'sstatement to the police cannot, in the circumstances of this case, serve as a reasonable foundation for a finding that the complainantlacked the requisite capacity.

The appellant's statement was brief, equivocal and made several years after the events. Even if thestatement could be read as an assertion that the complainant lacked the requisite capacity, it was at best an assertion of a "belief" in lackof capacity to consent. Consent, and capacity to consent, are mental states experienced only by the complainant and against theappellant's equivocal statement stood the complainant's uncontradicted evidence as to her own state of mind. [16] To the same effect is R. v. B.B., [1997] O.J.

No. 2688 (C.A.), where the court said the following, at paras. 1 – 3: The trial judge convicted the appellant on the basis of his conclusion that the complainant lacked the capacity to consent. In coming tothis conclusion, it is apparent that the trial judge misconstrued the complainant's evidence. The complainant did not testify that she was rendered incapable of consenting by reason of her alcohol consumption. Rather, shedescribed in some detail how the appellant removed her clothing against her will and despite her repeated protestations, he proceeded tohave intercourse with her.

In other words, according to the complainant, she was fully aware of the appellant's conduct and she made itknown to him that she was not consenting. Contrary to the complainant's version, the appellant testified that the complainant fullyconsented to the sexual activity. It follows, in our view, that the central issue in the case was not whether the complainant lacked the capacity to consent, but whether shein fact consented.

Having regard to the reasons for judgment, we cannot be certain that the trial judge directed his mind to this issue.Accordingly, the verdict cannot stand. [17] I arrive at the same conclusion. No reasonable jury, acting judicially, could reasonably find that the complainant was sointoxicated by the combination of alcohol that she lacked the minimal capacity to consent. The central issue was not capacity butconsent.

I cannot be certain that the trial judge directed her mind to this issue. [18] The reasons reflect a rather conclusory adverse credibility finding against the accused, based on one isolated admission that hehad a terrible memory, and expressly rejected his claim that he honestly believed that the complainant was consenting. Significantly,however, the trial judge made no finding that there was no consent, which is, of course, an essential element of the offence. This is notsurprising, since the conviction was based upon a lack of capacity to consent, rather than a lack of consent itself.

Had the trial judgeturned her mind to the issue of consent, she would have had to make a finding as to the credibility of the complainant. Had she done so,several key pieces of evidence would have had to be addressed. [19] The first of those is her evidence, given in examination-in-chief at pg. 73 of the transcript of May 24, 2012, where she said thefollowing: I remember telling him if he was nice to me and paid attention to me at the party, then he would have sex afterwards. [20] This is highly relevant evidence that relates to her willingness to engage in consensual sex with the accused later that sameevening.

While it would be open to the trial judge to have considered it and concluded that the complainant had changed her mindduring the course of the evening, or to have otherwise minimized the impact of this evidence, the fact remains that it cried out forjudicial consideration and analysis in the decision-making process. [21] Furthermore, it is highly relevant to the assertion of the accused that he honestly believed she was consenting, yet it was notconsidered by the trial judge on that issue.

The only evidence expressly relied upon by the trial judge in rejecting that defence was hispost-offence conduct in following the complainant to her house in his car after the incident, and “various text messages”. [22] To understand what is meant by following the complainant to her house, some background is required. She lives at a ruralproperty which has two driveways, one of which leads to the house and the other, 50 metres away, which leads to the workshop (“thesecond driveway”).

She testified in cross-examination that when she and the accused would arrive home after a date, she wouldnormally suggest that they pull into the second driveway so they “could fool around” before she went into the house. [23] On the night in question, the accused pulled the car into this second driveway, which is where they had sexual intercourse. The complainant testified that after the accused disposed of the condom and returned to the car, she got out of the car and walked theshort distance to her house. The accused followed her in his car.

She arrived at her house, went in, and the accused drove away. [24] It is unclear why the trial judge found this to be post-offence conduct from which an inference of guilt could be drawn. Shedid not articulate a reason and none is apparent. The complainant did not suggest that she was being chased to the house or pursued orthreatened in any way. To the contrary, she admitted on cross-examination that she told the police officer that the reason he followed herwas that he was concerned about her getting in, considering how much she had had to drink. [25] As Mr.

Peters, for the Crown, correctly observes, the Supreme Court of Canada in R. v. White, 2011 SCC 13 , [2011]1 S.C.R. 433 at para. 31 clarified that post-offence conduct should be treated like any other type of circumstantial evidence. However,this means that if the trier of fact is relying on circumstantial evidence to convict, she must be satisfied beyond a reasonable doubt thatthe only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty: R. v.

Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42 at par. 33. [26] Here, it is difficult or impossible to articulate a rational inference from this circumstantial evidence that points to guilt. Themost obvious rational inference to be drawn from this evidence is similar to the one offered by the complainant herself: that, given thefact that it was late at night and dark out, and that the complainant had been drinking, the accused followed her to her house to ensurethat she got safely inside. I conclude that the trial judge’s reliance on this evidence as circumstantial evidence of guilt amounts to a

misapprehension of the evidence. [ 27 ] The other item of circumstantial evidence relied upon by the trial judge as post-offence conduct is the “various text messages”. Again, it is difficult to be certain as to what evidence she was referring to, because several text messages were spoken about during the evidence. Counsel have referred to only two that have apparent relevance. [ 28 ] The first was a text conversation with Ms. K.’s. best friend, C.R. After the accused became aware that Ms.

K. was making allegations of sexual assault against him and spoke about going to the police to lay charges, the accused paid an unexpected visit to C.R. When asked why he came, he explained that he wasn’t going to see her for a long time and asked for a hug. Within half an hour of his departure, he had a text conversation with Ms. R., in which he asked whether she knew Ms. K. was bringing him up on charges. She said she did. He then explained that he had wanted a hug because he knew he was going to jail.

During the course of that same conversation, he also asked “Well, who do you think they’ll believe, me or C.?” [ 29 ] Presumably, the trial judge drew the inference that the accused thought he was about to go to jail because he knew he was guilty of sexual assault. However, when people are charged with a serious criminal offence, they often go to jail pending trial, irrespective of whether they are ultimately found guilty or not. Indeed, that is precisely what happened to the accused.

He spent three days in jail following his arrest before being released on a recognizance. [ 30 ] To draw such an inference, though, would be to fail to consider that statement in the context of the rest of the same conversation. In asking who she thinks they will believe, himself or Ms. K., he is making the clear assertion that their stories are in conflict. That is far from an admission of guilt and in fact points to the opposite rational inference. [ 31 ] The only other text message that might have been in the trial judge’s mind is one between the accused and the other complainant L.M.

Reference was made in that discussion to the allegations of Ms. K., but the accused described them as “bullshit”. Obviously, no rational inference of guilt can be drawn from such an assertion. [ 32 ] Once again, I am satisfied that the trial judge’s reliance on this evidence as circumstantial evidence of guilt amounts to a misapprehension of the evidence.

Both errors relating to post-offence conduct played an essential role in the decision-making process, since that evidence was expressly relied upon by the trial judge in rejecting the defence of honest but mistaken belief in consent. [ 33 ] Another piece of evidence relevant to the credibility of the complainant is her admission, on cross-examination, that when she reported the incident to the police, she said “no force had been used”. In her description of the assault at trial, she described the accused physically forcing her legs open while she tried to keep her knees together.

She explained the contradiction by saying that she understood “force” to mean hitting or punching. Once again, it would have been open to the trial judge to have considered that explanation and accepted it. The problem is that it was not considered at all. [ 34 ] Although the accused relies on several other pieces of relevant evidence that should have been considered on the issue of the credibility of Ms. K., had that issue been considered at all, it is necessary only to refer to one more: motive to fabricate. [ 35 ] The accused and Ms. K. continued to date and have a relationship following this incident.

They began to drift apart, though, in part because the father of the accused was diagnosed with cancer and the accused was going through a rough time. In early January, 2011, Ms. K. spoke with the accused on the telephone and asked him if he even cared about her anymore. When he responded “I don’t know”, she broke off their relationship. [ 36 ] The accused, however, wanted to reconcile thereafter, and Ms. K. was still considering it. But by the end of January, she had found someone else, and wanted the accused to stop contacting her. He persisted.

Finally, in a February Facebook conversation she got angry and complained, for the first time, that he had sexually assaulted her in November of 2010. [ 37 ] In May, 2011, the complainant learned that the accused had been romantically pursuing her best friend C.R. She didn’t like it. She admitted in cross-examination sending a message to the accused threatening that if he continued to do so, she was going to go to the police and have him criminally charged with rape. [ 38 ] On re-examination, Ms.

K. explained that she had gone into “protection mode” regarding her friend, and did not want to see the same thing happen to Ms. R. as had happened to her. However, that is completely at odds with how Ms. R. described her conversation with Ms. K. At pg. 17 of the transcript of May 23, 2012, Ms. R. said: “She basically just asked me, please don’t. It upsets me and I know he’s only trying to do this to get back at me.” [ 39 ] Once again, this is relevant evidence that demanded consideration by the trial judge on the issue of the credibility of C.K.

It was not considered because the central issue of the credibility of Ms. K. was not considered. I conclude, to use words from Harper ( supra ), that this amounts to a “failure to consider evidence relevant to a material issue”. [ 40 ] For all of these reasons, the conviction on count one cannot stand, and a new trial must be ordered. [ 41 ] The reasons of the trial judge regarding count two are similarly brief, and can be set out here in full: With respect to the charge of Ms. M. at the dam, and that is the one in March, I make the finding that at the beginning, she said no. She agreed to the kissing.

She then agreed that she was prepared to complete the oral sex and she did. She said that she said no to the anal intercourse. There’s no question that she rolled over and was on her back but she did not take her pants down, I find that her evidence that she tried to stop, she said no and that she was required to strike him to get him to stop. That her evidence was she knew he was upset and that he was loud and aggressive during this period of time.

I find that the evidence of the defendant does not raise in my mind a reasonable doubt and that the Crown has proved beyond a reasonable doubt all elements of the offence and that the defendant did not have an honest but mistaken belief in the consent of Ms. M. The defendant is guilty as charged. [ 42 ] As already noted, this complainant L.M. had a relationship with the accused through their mutual interest in basketball. At the

time of the incident giving rise to count two in March of 2011, they were “hanging out” together on a regular basis, which mostlyinvolved driving around in his car and texting each other daily. On the night in question, he suggested that they park at the Woodstockdam. They began to “make out”, i.e. kiss. This was the first time they had done so, and the complainant “was okay with that”. [43] Then the accused asked the complainant to give him “a blow job” i.e. perform oral sex on him. She did not want to but hepersisted.

Finally, as found by the trial judge, she agreed to perform oral sex, and did so for 5 to 10 minutes. The accused did notejaculate. [44] According to the accused, he then suggested that they engage in anal sex. The complainant did not recall any discussionabout anal sex, but she did admit that, in response to the accused’s request, she pulled the lever on the seat she was occupying so that itwas flat, rolled over on to her stomach and grabbed the back portion of the fully reclined seat with her hands, with her knees bent. Shedid this while the accused was seated beside her with an exposed and erect penis.

She had no explanation as to why she spontaneouslyassumed what objectively appears to be a position appropriate for the commencement of anal sex. [45] She testified that the accused pulled down her pants and got on top of her. She attempted to turn quickly around but wasprevented from doing so because he was holding her back. He inserted his penis into her anus. She said she began asking him to get offher. Finally, she elbowed him and he withdrew. [46] The accused testified that, after she performed oral sex on him, he broached the topic of anal sex. She had earlier told him shewas a virgin.

In response to his suggestion that they engage in anal sex, she fully reclined her seat and turned herself over onto her handsand knees. He commenced by rubbing his penis against her buttocks before eventually inserting it into her rectum. During intercoursehe continued to kiss her. He asked “Is that okay? Do you want to stop?”, to which she replied “No. It feels a little weird, but it’s okay.” After several minutes he asked if he could ejaculate inside of her. She said “no”.

He withdrew and did not ejaculate. [47] The accused argues both that there has been a misapprehension of the evidence, and that the reasons of the trial judge areinsufficient. [48] Courts are required to give reasons that deal with and resolve the live issues in the case. A decision that simply announcesthe result does not tell the accused why he was convicted, nor does it afford an appellate court the ability to review the trial judge’sdecision and determine whether the reasoning process was erroneous.

The principles at play are fully discussed by Charron J. in R. v.Dinardo, 2008 SCC 24 , [2008] 1 S.C.R. 788 at paras. 24 – 27: In R. v. Sheppard, [2002] 1 S.C.R. 869, 2002 SCC 26, this Court confirmed that courts have a duty to give reasons. Reasons serve manypurposes; in particular, they explain the court's disposition of the case and facilitate appellate review of findings made at trial. Thecontent of the duty will, of course, depend upon the exigencies of the case. As this Court has noted, "the requirement of reasons is tied totheir purpose and the purpose varies with the context" (Sheppard, at para. 24).

Sheppard instructs appeal courts to adopt a functional approach to reviewing the sufficiency of reasons (para. 55). The inquiry should notbe conducted in the abstract, but should be directed at whether the reasons respond to the case's live issues, having regard to the evidenceas a whole and the submissions of counsel (R. v. D. (J.J.R.) (2006), (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.), atpara. 32). An appeal based on insufficient reasons will only be allowed where the trial judge's reasons are so deficient that they foreclosemeaningful appellate review: Sheppard, at para. 25.

At the trial level, reasons "justify and explain the result" (Sheppard, at para. 24). Where a case turns largely on determinations ofcredibility, the sufficiency of the reasons should be considered in light of the deference afforded to trial judges on credibility findings.Rarely will the deficiencies in the trial judge's credibility analysis, as expressed in the reasons for judgment, merit intervention onappeal. Nevertheless, a failure to sufficiently articulate how credibility concerns were resolved may constitute reversible error (see R. v.Braich, [2002] 1 S.C.R. 903, 2002 SCC 27, at para. 23).

As this Court noted in R. v. Gagnon, [2006] 1 S.C.R. 621, 2006 SCC 17, theaccused is entitled to know "why the trial judge is left with no reasonable doubt": Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling ofimpressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. That is whythis Court decided, most recently in H.L., that in the absence of a palpable and overriding error by the trial judge, his or her perceptionsshould be respected.

This does not mean that a court of appeal can abdicate its responsibility for reviewing the record to see whether the findings of fact arereasonably available. Moreover, where the charge is a serious one and where, as here, the evidence of a child contradicts the denial of anadult, an accused is entitled to know why the trial judge is left with no reasonable doubt. [paras. 20-21] Reasons "acquire particular importance" where the trial judge must "resolve confused and contradictory evidence on a key issue, unlessthe basis of the trial judge's conclusion is apparent from the record" (Sheppard, at para. 55).

Here, the complainant's evidence was notonly confused, but contradicted as well by the accused. As I will now explain, it is my view that the trial judge fell into error by failing toexplain how he reconciled the inconsistencies in the complainant's testimony on the issue of whether she invented the allegations. I alsoconclude that the trial judge's failure to provide such an explanation prejudiced the accused's legal right to an appeal. [49] With great respect, the reasons of the trial judge with respect to the evidence of the accused are entirely conclusory.

Theconclusion was announced that the evidence of the accused does not raise any reasonable doubt, without even referring to what evidencehe gave or giving any insight into why that evidence was summarily rejected. While one may assume that the trial judge’s earlierreliance on the admission of the accused that he has a poor memory was still operative, the other reasons given for rejecting thetestimony of the accused on count one (post-offence conduct) have no relevance here.

In the end, the accused has no way of knowingwhy he was disbelieved. [50] The critical point is that the evidence of the accused was corroborated in many respects by the evidence of the complainantherself. The result is that the testimony of the complainant that she did not consent is confused and contradictory, and calls for judicial

analysis. [ 51 ] Furthermore, as with count one, the trial judge engaged in no analysis as to the credibility of the complainant. Once again, there are several pieces of evidence that are highly relevant to her credibility as well as that of the accused. [ 52 ] The first is the spontaneous assumption by the complainant of a physical position receptive to the commencement of anal sex. The trial judge did refer to it in her reasons, erroneously stating that “she rolled over and was on her back”. I accept that the reference to “back” was probably a misstatement, and that the trial judge intended to say “stomach”.

However, more is required than mere reference to this evidence. Some analysis is clearly called for, because it bears directly on the complainant’s credibility as well as the honest belief of the accused in consent. [ 53 ] The accused testified that when he suggested anal sex, her response was to recline her seat and assume the appropriate position. One could objectively view this as body language entirely consistent with consent. The complainant did not recall any discussion about anal sex. Most importantly, however, she did testify that she rolled onto her stomach in response to the accused’s request for sex.

She said, in examination-in-chief: “As I was sitting there, he kept asking me to have sex with him and he asked me to roll over onto my stomach.” Shortly thereafter, she pulled the lever of her seat to recline it fully, rolled over onto her hands and knees, and the act of anal sex began. [ 54 ] There is other highly relevant evidence that also relates directly to the credibility of the complainant’s assertion that she did not consent, as well as to the credibility of the accused’s assertion that he believed the complainant was consenting.

The complainant agreed that, during the act of sex, the accused asked her how it feels. Her response was not one of opposition to what was going on. Instead, she said it felt “weird”. This corroborates the evidence of the accused on this point. As a matter of common sense, one would not expect a person who is sexually violating the anus of his victim, knowing that she was not consenting to the act, to be particularly concerned how it felt to her. [ 55 ] In the same vein, the complainant corroborated the evidence of the accused that he asked her whether he could ejaculate inside of her, and that she said “no”.

Once again, as a matter of common sense it is incongruous that a sexual predator, who is knowingly performing anal sex against the will of his victim, would bother to seek permission to ejaculate, and then fully abide by the wishes of his victim that he not do so. [ 56 ] Even the fact that anal, as opposed to vaginal, sex was engaged in can lead to an inference that supports the accused’s evidence that it was consensual. As noted, the complainant had earlier told him that she was a virgin. Engaging in anal sex could be seen as a sign that he respected her virginity and did not want to violate it.

Without intending to be flippant, one might observe that, all things considered, if the accused was a rapist he was an exceedingly considerate one. [ 57 ] There is another piece of evidence that is highly relevant to the credibility of the complainant. She engaged in a long distance internet relationship with one A.P. She apparently told him about what happened at the Woodstock dam, because he confronted the accused and claimed that he had raped Ms. M. The accused confronted Ms. M. about this accusation.

He testified that she told him that she did not feel she had been raped. [ 58 ] When cross-examined on this point, Ms.

M. agreed that it is possible she did tell the accused that she did not feel she had been raped. [ 59 ] This amounts, therefore, to uncontradicted evidence of a prior statement by the complainant that arguably contradicts her evidence at trial that she did not consent. [ 60 ] I conclude that there has been a misapprehension of the evidence in that the reasons of the trial judge demonstrate a lack of appreciation of relevant evidence, and more particularly the complete disregard of such evidence, relating to the central issue of consent, which itself turns on the credibility of the complainant and the accused. [ 61 ] Furthermore I conclude that the reasons of the trial judge are insufficient.

They foreclose meaningful appellate review because no reasons at all were given for summarily rejecting the testimony of the accused, and because no reasons were given for apparently accepting the evidence of the complainant, despite the presence of conflicting evidence that demanded analysis. [ 62 ] For these reasons, the conviction on count two cannot stand, and a new trial is ordered. [ 63 ] With respect to count three, the reasons of the trial judge are, once again, brief, and are fully set out here: With respect to the situation in May at his home, I make the finding that the complainant agreed to some of the sexual acts, but did not agree to the anal sex.

She said no, she pulled away, even though she cuddled back to him, he took that as a yes he didn’t ask her until after he had tried the anal sex again and she said no again and he stopped then. The defendant knew or ought to have known or was reckless that she did not want to have anal sex. That he continued on two occasions to attempt that sexual act. I find that the complainant was pulled back towards him and that he attempted, on the second occasion with an erect penis to enter her anus and not until after that started did he do anything until she said no. He didn’t ask ahead of time.

The cuddling, as indicated by the Supreme Court of Canada, is not sufficient to be consent to this specific sexual act that is complained of. There’s no question that she agreed to some sexual acts which included cuddling, touching and kissing but not to the act that is complained of. And I find that the defendant did not have an honest but mistaken belief in that consent and the defendant will be found guilty of that charge as well. [ 64 ] Following the Woodstock dam encounter, the accused and Ms. M. continued to have a relationship.

Between that incident and the one which gave rise to count three, they hung around together about 10 times. Although she initially denied that she and the accused would park and “make out”, she agreed that she told the police in her interview of May 27, 2011 that “there would be times where we would go stop by an abandoned building or something and we would just make out for a little bit…” [ 65 ] Since the accused lived in Drumbo, and was no longer attending school, they had to specifically make arrangements to meet,

as they were not likely to bump into each other. On the date of the alleged second offence, the complainant got a ride from her brother to the home of the accused, arriving at about 8 p.m.. Their intention was to introduce her to his parents, who were home at the time. After doing some chores in the barn, they went into the accused’s bedroom, where they began kissing. The complainant “felt okay” about that. [ 66 ] The complainant testified that the accused turned on the television, climbed onto the top bunk, and invited her to join him.

She did, and they watched television from that position, in a “spooning” position. The accused began running his hands up and down her body. She then took off her own pants and resumed her position, so that her buttocks, clothed only in thong underwear, were nestled up against the penis of the accused, who was still clothed at this point. [ 67 ] She testified in chief that he asked her if she wanted to have anal sex and she said “no”. In cross-examination, however, she agreed that she had said “no, not yet”. She rolled over so they were facing each other and continued to kiss, and then she rolled back again.

She said she moved further away from the accused, and then he pulled her back a few times. Then he pulled down his pants. She asked him what he was doing, and he “just said that he was going to lay there and that he wasn’t going to force me into anything”. After a few minutes, she said he pulled her in, pulled her underwear off to the side, and forced her to have anal sex with him. She tried to turn around and asked him what he was doing and he really didn’t say anything. She said she told him to stop, but he did not. [ 68 ] After a couple of minutes he stopped.

On cross-examination she testified that she did not put her pants back on at that point. Instead, they continued kissing and touching each other. She admitted that he was trying to be particularly gentle with her. [ 69 ] There are several items of relevant evidence which, the accused submits, should have been considered by the judge in addressing the issue of consent but were not. For purposes of this appeal it is necessary to consider only one. [ 70 ] The complainant was interviewed by the police a couple of weeks after this event.

In discussing what happened on the bed in the bedroom of the accused, she said this: So I thought we were just going to be talking and then we ended up laying down to watch TV and he ended up convincing me to have anal sex with him. But this time, I didn’t, like, physically try and stop him at all because I saw what he was like last time and figured it would just be worse. So I made it seem like it was consensual… [ 71 ] This statement was put to her on cross-examination.

She agreed having made the statement, and further agreed that “it’s a fair description of what happened in his bedroom that day”. [ 72 ] It is difficult to imagine evidence that is more relevant to the central issue of consent. In stating that the accused convinced her to have anal sex, she is stating that she arrived at the point of agreement. It is also difficult to imagine evidence that is more relevant to the central issue of the honest belief of the accused that he was consenting.

In stating that she made it seem like it was consensual, she is admitting that it was entirely reasonable for the accused to believe that she was consenting to the act. [ 73 ] This evidence cries out for consideration and analysis by the trial judge. Instead, it was not mentioned at all in the chain of reasoning that led to a finding of guilt. The trial judge arrived at her findings that the complainant did not consent and that the accused did not have an honest but mistaken belief in her consent, while completely disregarding this highly relevant evidence.

This amounts, in my view, to a miscarriage of justice, and it falls to this court to intervene. [ 74 ] For these reasons, the convictions on all counts are set aside and a new trial is ordered. [ 75 ] The accused is directed to appear before the Ontario Court of Justice at Woodstock on Tuesday December 10, 2013 at 10 a.m. in courtroom #4 for the purpose of setting a new trial date. If this date is unworkable, counsel may agree on a different date. “T. A. Heeney R.S.J.” Regional Senior Justice T. A. Heeney Released: December 4, 2013 CITATION: R. v. S.B., 2013 ONSC 7490 COURT FILE NO.: 42/12 DATE: 2013-12-04

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – S.B. REASONS FOR JUDGMENT HEENEY R.S.J. Released: December 4, 2013.