R v Englot, 2022 SKCA 129

Restriction onPublication An order has been made in accordance with s. 486.4(1) of the Criminal Code directing that anyinformation identifying the complainant shall not be published. Court of Appeal for Saskatchewan Docket: CACR3527 Citation: R v Englot,2022 SKCA 129Date: 2022-11-08Between:Tyson EnglotAppellantAndHis Majesty the KingRespondentBefore: Caldwell, Schwann and Tholl JJ.A. Disposition: Appeal dismissedWritten reasons by: The Honourable Mr. Justice CaldwellIn concurrence: The Honourable Madam Justice Schwann The Honourable Mr.

Justice ThollOn appeal from: CRM 208 of 2019 (Sask QB), ReginaAppeal heard: October 20, 2022Counsel: Foster Weisgerber, K.C., for the Appellant Kelly L. Kaip for the Respondent Caldwell J.A. I. INTRODUCTION [1] Tyson Englot appeals against his conviction for sexual assault, contrary to s. 271 of the Criminal Code (see R v Englot (12November 2021) Regina, CRM 208/2019 (Sask QB) [Trial Decision]).

He abandoned several of his grounds of appeal and, under theremaining grounds, he asserts that the verdict is unreasonable and that there was a miscarriage of justice, in each case by reason of the trialjudge’s handling of the evidence and his assessments of witness credibility. Specifically, he says that the trial judge: (

a) failed to consider memory difficulties that had been acknowledged by two Crown witnesses (but chiefly in respect of JoshuaMamela) when finding that their testimony was reliable; (

b) failed to consider the “significance of the testimony” of a defence witness (Dmytro Procyk) and how his evidencecontradicted the evidence of Crown witnesses; (

c) misconstrued his statement to the police, wherein he had stated that the complainant was “being a whore”, and erred byfinding an inconsistency between his police statement and his testimony at trial; and (

d) failed to place the appropriate weight on inconsistencies in Mr. Mamela’s testimony. [2] I am not persuaded by Mr. Englot’s arguments that the trial judge erred in these ways and, therefore, I would dismiss theappeal. II. BACKGROUND [3] The fact that sexual activity took place between Mr. Englot and the complainant was admitted at trial and the specifics of thatactivity are not material to the allegations of error. As the trial judge understood, the sole issue in the trial was whether the complainanthad consented to the sexual activity. There was, on that issue, contradiction between Mr.

Englot’s recounting of consensual sexual activitythat ended without interruption and the testimony of Mr. Mamela who said that he had interrupted the sexual activity and had stopped itbecause the complainant was unconscious. The complainant testified that she had no memory of the event. [4] Although the law is not at issue in this appeal, it is important to understand that an unconscious person cannot consent tosexual activity (Criminal Code, s. 273.1(2)(a.1)). Given that identity and the occurrence of sexual activity had been admitted, it fell to thetrial judge to resolve the conflict between Mr.

Englot’s evidence of consent and Mr. Mamela’s evidence of unconsciousness under theframework set forth in R v W.(D.), (SCC), [1991] 1 SCR 742. That is, the verdict in this case depended on whether thetrial judge accepted Mr. Englot’s evidence that the complainant was conscious and had consented (or whether it left him in reasonabledoubt) and, if he rejected that evidence, whether he accepted Mr. Mamela’s evidence that the complainant was unconscious and wasconvinced beyond a reasonable doubt by all the evidence he accepted that Mr. Englot was guilty of sexual assault. III. STANDARDS OF REVIEW

[5] To succeed in his appeal as he has framed it, Mr. Englot must establish error in the trial judge’s findings about his and Mr.Mamela’s credibility. Whether a witness is credible is a question of fact (R v R.P., 2012 SCC 22 at para 10, [2012] 1 SCR 746). Thestandard of review on questions of fact requires that Mr.

Englot establish an error of fact that shakes the soundness of the verdict, whetherbecause the error renders the verdict unreasonable (R v Biniaris, 2000 SCC 15 at para 36, [2000] 1 SCR 381) or because the error fatallyundermines the process by which the trial judge reached the verdict (R v Sinclair, 2011 SCC 40 at para 53, [2011] 3 SCR 3; R v Lohrer,2004 SCC 80, [2004] 3 SCR 732). But, at a high level, this Court may reject assessments of credibility only where they “cannot besupported on any reasonable view of the evidence” (R v Burke, (SCC), [1996] 1 SCR 474 at para 7).

Furthermore, whenconducting an inquiry into factual error, this Court is not permitted to “second-guess the weight to be assigned to the various items ofevidence” (Housen v Nikolaisen, 2002 SCC 33 at para 23, [2002] 2 SCR 235). [6] Put more directly, the overarching question for the Court in this appeal is whether the trial judge’s findings on witnesscredibility, because they are findings of fact that are essential to the verdict, are plainly contradicted by the evidence he relied upon insupport of those findings or are incompatible with the evidence that was not otherwise contradicted or rejected by the trial judge (R vBeaudry, 2007 SCC 5 at paras 62–63, [2007] 1 SCR 190).

IV. ANALYSIS [7] As noted, where an accused testifies, the R v W.(D.) framework advises trial judges to consider whether they believe theevidence of the accused or, if they do not believe that evidence, whether they are nonetheless left in reasonable doubt by it. In either case,the judge must acquit. If the judge does not acquit at that point in the analysis, they must go on to ask themselves whether, on the basis ofthe evidence that they do accept, they are convinced beyond a reasonable doubt of the accused’s guilt. Mr.

Englot does not take issue withthe fact that the trial judge approached his decision-making under this framework or with how he applied the burden and standard of proofunder it. He challenges the trial judge’s findings of credibility, principally with respect to himself and Mr. Mamela. A. Mr. Englot’s credibility [8] When assessing Mr. Englot’s credibility and his narrative of the relevant events, the trial judge found that his testimony wasinconsistent with what he had earlier said to the police and inconsistent with or contradicted by the testimony of other witnesses. Atbottom, the trial judge disbelieved Mr.

Englot’s testimony on several critical points that were relevant to his credibility and that wereprobative of the issue of consent. [9] In this appeal, Mr. Englot alleges that the trial judge misapprehended his statement to the police, wherein he had said that thecomplainant was “being a whore” because she had worn a bikini to her party (Trial Decision at paras 70 and 73). He also says the judgefailed to consider that Mr. Procyk’s testimony contradicted the evidence of Crown witnesses. Mr.

Englot asks this Court to set aside theverdict because these alleged errors undermine the trial judge’s assessment of his credibility and the credibility of his evidence aboutconsent. [10] In the Trial Decision, the trial judge found that Mr. Englot’s statement to the police that the complainant was “being a whore”was “starkly different in tone and intention” than was his testimony at trial (at para 72). In his testimony, Mr. Englot had said he used theepithet to explain to the police why he felt the complainant, who had been wearing a bikini, had been inappropriately attired for a houseparty.

The judge interpreted Mr. Englot’s explanation as an attempt to persuade the court that he was “only trying to convey helpful adviceto [the complainant], offered in the spirit of assistance to her” (at para 71). The judge found, however, that Mr. Englot’s statement to thepolice “invoked the long-discarded rape myth that a complainant may be responsible for sexual assault by reason of her appearance orstyle of dress” (at para 76).

This type of reasoning is, as the trial judge stated, “simply wrong” and “has no place in Canadian law” (at para77). [11] Contrary to his argument on appeal, the trial judge did not reject Mr. Englot’s at-trial explanation for having made that remarkbecause the judge found there was a rape myth embedded within it. He rejected the explanation because it was inconsistent with Mr.Englot’s casting of the epithet. While Mr.

Englot argues that the judge could not have contrasted the “tone and tenor” of his oraltestimony with that of a written transcript of his statement to the police (Trial Decision at para 71), the trial judge did not do that. Rather,the judge observed that the transcript was “starkly different in tone and intention” and that it “carried no such connotation of helpfuladvice or assistance to [the complainant]” (at para 72, emphasis added).

These inferences about the statement were open to the judge todraw from the transcript and, from my review of the record, they are not plainly contradicted by the evidence in question. [12] For completeness, I note that the trial judge rejected Mr. Englot’s evidence of consent for many reasons, not just hisapprehension of the police statement. For example, the judge did not accept Mr. Englot’s testimony about the complainant being soberbecause he found it was in direct conflict with Mr. Englot’s statement to the police and with the testimony of several witnesses in the trial,including the complainant. While Mr.

Englot submits that one of these witnesses, Jason Maurer, was confused about his own alcoholconsumption, that does not bolster the reliability of Mr. Englot’s evidence about the complainant’s sobriety. The judge also disbelievedMr. Englot’s evidence about his own level of intoxication, finding that he had told the police that he was “pretty drunk” and “annihilated”but that he had downplayed his drunkenness in his in-court testimony by denying he was “drunk at all” (Trial Decision at paras 56 and57). [13] Closer to the issue of consent, the trial judge rejected Mr.

Englot’s evidence that the complainant had been flirtatious, hadhugged, groped and kissed him, and had spent time with him in a hot tub. The judge noted that each of the Crown and defence witnesseswould have had an opportunity to observe that behaviour occurring but none of them had testified to it having occurred, including Mr.Procyk, who was called by the defence. In this regard, the trial judge concluded that Mr.

Englot’s “evidence of receiving special attentionfrom [the complainant] was fabricated” (Trial Decision at para 66). [14] I am not convinced by the argument in this appeal that, when reaching his conclusion about Mr. Englot’s fabrication of histestimony, the trial judge failed to consider the “significance” of Mr. Procyk’s evidence about having seen Mr. Englot talking to thecomplainant (and Mr. Mamela) or that that evidence contradicted the Crown’s evidence. When summarising the evidence in this regard,

the trial judge stated that “the reason not a single witness observed even one of [Mr. Englot’s] mentioned points of interaction with [the complainant] is because they did not happen” (at para 65, emphasis added). As I understand the judge’s reasons, he found that there was no evidence that the complainant had shown Mr. Englot the “special attention” to which he had testified, not that there had been no interaction at all between Mr. Englot and the complainant. Placed in its proper context, there is no basis upon which to conclude that the judge misapprehended Mr.

Procyk’s testimony or failed to consider it in his assessment of Mr. Englot’s credibility. [ 15 ] On the whole, I am not persuaded that the trial judge’s assessment of Mr. Englot’s credibility “cannot be supported on any view of the evidence” ( R v Burke at para 7 ). B. Mr. Mamela’s credibility [ 16 ] When the trial judge turned to the Crown’s evidence under the R v W.(D.) framework, he properly reminded himself that he was still required to determine whether the Crown had met its “obligation to prove beyond a reasonable doubt each element of the charged offence” ( Trial Decision at para 83).

As noted, at this stage, Mr. Englot’s guilt largely depended on the judge’s assessment of Mr. Mamela’s credibility and the reliability of his evidence that the complainant was unconscious. [ 17 ] When reviewing Mr. Mamela’s testimony, the trial judge addressed and rejected each of Mr. Englot’s arguments against finding that Mr. Mamela was a credible witness. And, because he accepted, ultimately, Mr. Mamela’s evidence about interrupting Mr. Englot engaging in sexual activity with the complainant while she was unconscious, the trial judge found Mr. Englot guilty of sexual assault. [ 18 ] In this appeal, Mr.

Englot must establish error in the trial judge’s findings about Mr. Mamela’s credibility to raise thereby the spectre of reasonable doubt about whether the complainant was unconscious. He makes two broad allegations in that regard, namely, he says that the judge failed to consider admitted frailties in Mr. Mamela’s memory and that the judge misapprehended the significance of what Mr. Englot sees as multiple inconsistencies in Mr. Mamela’s testimony. 1. Mr. Mamela’s memory [ 19 ] As noted, the trial judge addressed and rejected all of the arguments Mr. Englot now remakes in this appeal about Mr.

Mamela’s credibility. This includes the argument that Mr. Mamela’s testimony was unreliable because he had admitted to having memory problems in stressful situations, resulting from an employment-related, post-traumatic stress disorder. While acknowledging that concern, the trial judge found there was “nothing in the evidence to suggest that [Mr. Mamela’s] memory of the events…was impacted in any way for this reason” (at para 92). [ 20 ] Having reviewed the transcript, I find that Mr.

Mamela’s testimony about relevant events was clear and seemingly unaffected by the memory frailties that he acknowledged he had experienced at other times. The judge adequately explained why Mr. Englot’s concerns with Mr. Mamela’s testimony did not affect his assessment of Mr. Mamela’s overall credibility. While Mr. Englot underscores that Mr. Mamela had admitted to experiencing stress-induced memory issues and that this was a stressful situation, he failed to show to this Court where the trial judge’s finding that PTSD had not affected Mr.

Mamela’s memory on the issue of consent was plainly contradicted by the evidence the judge had relied upon in support of that finding or was incompatible with the evidence that was not otherwise contradicted or rejected by the trial judge. For this reason, I am not convinced that there is a proper basis to interfere with the trial judge’s finding that Mr. Mamela’s PTSD had not affected the reliability of his evidence. 2. Inconsistencies in Mr. Mamela’s evidence [ 21 ] In the Trial Decision , the trial judge evaluated each of the ten allegations of inconsistency in Mr. Mamela’s testimony that Mr.

Englot had identified and found that nine of them were “either not inconsistent, not material, or are explained” (at para 95). In his factum, Mr. Englot said the judge erred by failing to place the “appropriate weight” on those inconsistencies. In oral submissions, he broadened his arguments but he has still not persuaded me that the judge erred in his assessments of any those allegations of inconsistency. I will briefly address a few of them. [ 22 ] The trial judge found that, after Mr.

Mamela had seen the complainant being escorted upstairs in a drunken state, he had told a group of people who were gathered in the complainant’s kitchen, including Mr. Maurer, that he was going to check on her. He checked on her three times and, during the last time, he found Mr. Englot in a “sexual position” with the complainant. In front of the trial judge, Mr. Englot argued that it could not have happened that way because Mr. Maurer had testified to having already left the party before the first time Mr. Mamela said he was going to check on the complainant. In the appeal hearing, Mr.

Englot identified a slightly different concern, arguing that the testimony of these two witnesses was inconsistent because, when asked whether he remembered the conversation, Mr. Maurer replied, “no” and then said, “I don’t recall”. However, even with Mr. Englot’s reworked argument, I do not see the error in the trial judge’s handling of this matter. Regardless of whether Mr. Maurer was not there or did not remember the conversation, the judge was satisfied that “Mr. Mamela believed he told Mr. Maurer of his intention to check on [the complainant] when he told other people. I accept that if Mr.

Maurer was not present at that time, it was an honest and understandable mistake on Mr. Mamela’s part” ( Trial Decision at para 100). That is, the trial judge accepted that Mr. Mamela had told a group of people that he was going to check on the complainant. If Mr. Maurer was part of that group, then there was no mistake on Mr. Mamela’s part when identifying him as being there. But, even in that circumstance, Mr. Maurer’s lack of recollection of the conversation does not establish error in the trial judge’s finding that the conversation occurred. [ 23 ] At trial, Mr. Englot argued that Mr.

Mamela’s description of what he had seen when and after he interrupted the sexual activity had changed over time and that aspects of it were inexplicable. In his oral argument in this appeal, Mr. Englot submitted that the trial judge ignored some of these points or that they were not given sufficient weight in the judge’s assessment of Mr. Mamela’s credibility. There is no merit to the contention that the trial judge ignored these arguments. He addressed each of them categorically in the Trial Decision , writing: [98] On these items, Mr.

Mamela was subject to a lengthy cross-examination which often focused on very specific details of the

evening. He was asked about the precise placement of the blanket on the bed [item (vi)]; the precise order that statements or comments were made between him and Mr. Englot when he first walked into the bedroom [item (vii)]; the precise order of physical actions between the two of them [items (viii) and (ix)]; and whether Mr. Mamela had left Mr. Englot in the bedroom or whether he stayed upstairs while Mr. Englot dressed. In his testimony, Mr. Mamela explained he was shaken, surprised and angry by what he saw. He stated that, once he came upon Mr. Englot on top of [the complainant], “everything moved quickly”.

In this context, I conclude this category of alleged inconsistencies is not material. Further, I conclude the existence of any inconsistency is explained by Mr. Mamela’s characterization of himself as “shaken, surprised and angry”. I therefore give no effect to Mr. Englot’s submission about this category of alleged inconsistencies. As to their weight, I am not prompted by Mr. Englot’s arguments on appeal to second guess the trial judge’s decision not to attribute probative value to these points in his assessment of Mr. Mamela’s credibility. [ 24 ] Under another argument, Mr. Englot submits that Mr.

Mamela’s testimony about where in the house he had waited for Mr. Englot after he had interrupted him does not match with Mr. Procyk’s recollection of that event. I agree that there are points of difference in their narratives but I do not see an incompatibility in the evidence of what Mr. Mamela said and what Mr. Procyk said had happened. It is arguable, in my assessment, whether the differences even amount to a contradiction on central matters. Relatedly, Mr. Englot says that the trial judge failed to address Mr. Procyk’s evidence about hearing female voices upstairs when Mr.

Mamela said that only he, the complainant and Mr. Englot were upstairs. However, from the questions the trial judge asked of counsel during closing submissions, it is clear he was aware of this evidence and it seems that that evidence was equivocal as to whether Mr. Procyk and Mr. Mamela were speaking about the same point of time. So, while I accept that there are differences between what Mr. Mamela and Mr. Procyk described, I find no error in the trial judge’s conclusion that those differences were not material to the reliability of Mr.

Mamela’s narrative. [ 25 ] Lastly, the tenth allegation made at trial of frailty in Mr. Mamela’s evidence, which the trial judge found might be an inconsistency, was that Mr. Mamela had told the police that he and the complainant had “cuddled together”. If Mr. Mamela had made that statement, it would be “plainly incorrect” because he testified at trial that he had not met the complainant in person before the night in question (at para 102). When addressing this alleged inconsistency, the judge wrote: [103] However, Mr. Mamela testified he did not recall telling this to police.

Instead, he testified he told this to Mr. Englot in order to entice Mr. Englot to “tell me more”. I understood his testimony to mean Mr. Mamela wanted to encourage Mr. Englot to make further admissions about his actions toward [the complainant]. From the portion of the videotaped statement played in court during Mr. Mamela’s cross-examination, I understood Mr. Mamela’s explanation to be that he was telling police of his conversation with Mr. Englot. [104] Mr. Mamela’s videotaped statement to police on this point was not tendered into evidence. In these circumstances, I am not able to conclude that Mr.

Mamela’s testimony was materially inconsistent with his statement to police. [ 26 ] As I understand the Trial Decision , the trial judge found that he lacked the evidence necessary to conclude on a balance of probabilities whether there was an inconsistency between Mr. Mamela’s testimony at trial and his statement to the police. While this is Mr. Englot’s strongest argument of inconsistency, I am not persuaded that the trial judge erred in his handling of it.

In any event, I would not second guess the weight the judge assigned to the evidence relevant to the issue and I observe no palpable error in the judge’s finding that an inconsistency had not been established on the evidence. [ 27 ] When he brought all of this together at the close of trial, Mr. Englot’s counsel told the trial judge that “it’s implicit in our submissions, My Lord, that Mr. Mamela has fabricated this—this version of events...” Mr. Englot’s strategy in this regard is entirely understandable since his and Mr. Mamela’s description of matters relevant to the issue of consent were irreconcilable.

However, given that circumstance, the nits Mr. Englot now picks from the trial judge’s handling of Mr. Mamela’s credibility and testimony do not shake his overall finding that Mr. Mamela was a credible witness. Notably in that regard, the trial judge separately rejected Mr. Englot’s contention that Mr. Mamela had a motive to lie by writing: [114] While Mr. Englot correctly points out that he has no onus to establish a motive for Mr. Mamela to fabricate the allegation, Mr. Englot submits such a motive existed because of Mr. Mamela’s romantic interest in [the complainant]. Although not explicitly argued, Mr.

Englot’s submission appears rooted in the notion that Mr. Mamela was jealous of the attention Mr. Englot received from [the complainant]. Again, I do not accept this submission. [115] I accept Mr. Mamela had some level of romantic interest in [the complainant] and that he wanted to “see where things went” with her. The evidence establishes that they maintained reasonably frequent contact with each other in the summer of 2018 [i.e., prior to the sexual assault]. [116] However, I do not accept that Mr. Mamela fabricated his testimony—and concocted a very serious allegation against Mr.

Englot— because he was jealous Mr. Englot had intimate contact with [the complainant]. Aside from the conjecture manifest in Mr. Englot’s argument on this point, there is no evidence Mr. Mamela was jealous of Mr. Englot. [ 28 ] At the end of the day, the trial judge found Mr. Mamela had been truthful and accepted his evidence, summarising those conclusions in this way: [117] After considering all the evidence, I accept Mr. Mamela’s testimony.

When viewed in the context of the evidence of all witnesses, I conclude he was doing his best to tell the truth as he remembered it. [118] As set out above, I do not accept the argument that Mr. Mamela’s evidence should be discounted or disregarded because of his diagnosis with PTSD, or because of any or all of the alleged inconsistencies flagged by Mr. Englot. I do not accept this evidence is not credible or unreliable for any of the reasons advanced by Mr. Englot. After hearing his testimony and observing his answers throughout a long and detailed cross-examination, I conclude he was telling the truth.

While I accept Mr. Mamela appeared frustrated with some of the detailed questions put to him in cross-examination, I conclude his frustration was sometimes warranted. [119] After carefully reviewing the evidence, I conclude Mr. Mamela was genuinely concerned about the well-being of [the complainant] throughout that evening. I accept his evidence as to what he observed that night, and what he observed in [the complainant’s]

bedroom. And, on the basis of all the evidence that he accepted, the trial judge was satisfied beyond a reasonable doubt that Mr. Englot was guilty of sexual assault. [ 29 ] In short, because I conclude that the trial judge’s findings that Mr. Mamela was credible and that his evidence on the issue of consent was reliable are not plainly contradicted by the evidence the trial judge relied upon in support of those findings and those findings are not incompatible with the evidence that was not otherwise contradicted or rejected by the judge, I must reject the allegations of error. V.

CONCLUSION [ 30 ] On the sole issue in the trial, the trial judge found that the evidence established beyond a reasonable doubt that the complainant was unconscious (i.e., that she was legally incapable of consenting) when Mr. Englot engaged in sexual activity with her. The trial judge, therefore, convicted Mr. Englot of sexual assault contrary to s. 271 of the Criminal Code . [ 31 ] For the reasons given, I conclude that Mr. Englot has failed to establish that the guilty verdict is unreasonable or that the process of reaching that verdict was fatally flawed. Accordingly, I would dismiss this appeal. [ 32 ] Mr.

Englot’s judicial interim release order shall expire two days following the date of these reasons. He shall turn himself in to the Regina Provincial Correctional Centre prior to its expiry. “Caldwell J.A.” Caldwell J.A. I concur. “Schwann J.A.” Schwann J.A. I concur. “Tholl J.A.” Tholl J.A.