R v Biesenthal, 2024 SKCA 10

Restriction on Publication An order has been made in accordance with s. 486.4(1) of the Criminal Code directing that any information identifying the complainant shall not be published. Court of Appeal for Saskatchewan Docket: CACR3701 Citation: R v Biesenthal , 2024 SKCA 10 Date: 2024-02-07 Between: Mitchell Biesenthal Appellant And His Majesty the King Respondent Before: Leurer C.J.S., Tholl and McCreary JJ.A. Disposition: Conviction and sentence appeals dismissed Written reasons by: The Honourable Madam Justice McCreary In concurrence: The Honourable Chief Justice Leurer The Honourable Mr.

Justice Tholl On appeal from: CRM-ES-00019-2021, Estevan (Sask KB) Appeal heard: January 15, 2024 Counsel: Jeffery Deagle for the Appellant Erin Bartsch for the Respondent McCreary J.A. I. INTRODUCTION [ 1 ] On October 21, 2022, after a trial by judge and jury, Mitchell Biesenthal was convicted of one count of sexual assault. Thereafter, he was sentenced by the trial judge to three years’ incarceration. [ 2 ] Mr. Biesenthal appeals his conviction, arguing that it is founded on a reversible error of law or a miscarriage of justice.

He also appeals his sentence, contending that the trial judge committed an error in principle or a palpable and overriding error in rendering her findings of fact at sentencing. [ 3 ] I am not persuaded that the trial judge erred in a way that affected the verdict in this case or the sentence that was imposed. For the reasons that follow, I would grant leave for the sentence appeal, but ultimately dismiss both the conviction appeal and the sentence appeal. II. FACTS A. The evidence [ 4 ] Mr. Biesenthal and the complainant met at a house party in a rural Saskatchewan in October of 2020.

The complainant testified that in the late hours of the party, she and Mr. Biesenthal were left alone together in the main area of the house as others went to bed. At Mr. Biesenthal’s invitation, the complainant agreed to dance. She testified that they did this for a short time before Mr. Biesenthal pushed her onto the couch and began kissing her face, and then touched her breasts and vagina in a rough manner. [ 5 ] The complainant testified that Mr. Biesenthal left her on the couch for a moment to turn off the lights. She described her state of mind at that point as being in shock, stating: “I was gone.

Zoned out. Done. Physically, yeah, I was still there”. The complainant said that, after he had turned out the lights, Mr. Biesenthal returned to the couch, unbuckled his pants, and engaged in forced sexual intercourse with her. She testified that she was entirely passive as the intercourse continued for about 15 to 20 minutes. It ended when the complainant’s sister entered the room, at which time Mr. Biesenthal rolled off the complainant and the complainant then rushed to the bathroom. [ 6 ] The complainant testified that she did not consent to any of the sexual activity.

After she left the bathroom, she told her sister she was leaving and departed. The complainant disclosed the assault to her sister the next day. [ 7 ] The complainant’s sister also testified at the trial. She said that she was in a bedroom not far from the living area when she heard a loud “bang” from the living area. She had been in the bedroom for at least 40 minutes at that time. She went to check on her sister and saw Mr. Biesenthal and the complainant lying on the floor together. She saw that each of them had their pants pulled down. When she entered the area, Mr.

Biesenthal immediately rolled off the complainant. The complainant’s sister said that the complainant looked frightened, and she “popped up” and ran to the bathroom.

[ 8 ] The complainant’s sister testified that she was certain from what she observed of her sister and Mr. Biesenthal’s bodies and their clothing that they had not simply been kissing on the living room floor. [ 9 ] The complainant’s sister later exchanged text messages with Mr. Biesenthal on Snapchat. Those text messages were exhibited as evidence at trial. In the exchange, Mr. Biesenthal apologized for his conduct, saying “I’m usually not like that. I get consent all the time.

I will find a way to make up for it”. [ 10 ] The defence called two witnesses, Caleb Culbertson, at whose home the assault is alleged to have occurred, and Mr. Biesenthal. [ 11 ] Mr. Culbertson, a friend of Mr. Biesenthal, testified that the house party was at his home. He said he had been contacted by the police during the investigation but chose not to give a witness statement. He testified that he did not witness any signs of sexual assault that night. He said he had been in the bedroom with the complainant’s sister for about 40 minutes while Mr. Biesenthal and the complainant were alone together.

He testified that the complainant’s sister left the room briefly to get a glass of water and about 20 minutes later, the complainant came to the bedroom to tell her sister she was leaving. He said that the complainant did not seem upset at that time, only tired. He could not remember if he had heard any loud banging noise from the living area when he was in the bedroom that night. [ 12 ] Mr. Biesenthal denied that a sexual assault had taken place. He said that he and the complainant were alone in the living area of the house, and he asked her if she wanted to dance.

He testified that as the song ended, they shared a mutual kiss. They danced to another song, kissed again, and then moved to the couch to “make out”. Mr. Biesenthal said that all the kissing was consensual, and that the activity did not progress beyond kissing. He denied touching the complainant’s breasts or vagina and he denied that intercourse occurred. He testified that when the complainant’s sister left the bedroom, she saw them lying on the couch and making out. He said that the complainant giggled when her sister entered the room, and he then rolled from the couch to the living room floor. [ 13 ] Mr.

Biesenthal admitted that he had exchanged Snapchat messages with the complainant’s sister. He testified that he did not know what he was apologizing for and that any apology he offered was simply to placate the complainant’s sister. He did not mean to admit to any criminal wrongdoing. [ 14 ] In

summary, both Mr. Biesenthal and the complainant testified that kissing had occurred; however, the complainant said it was not consensual and that Mr. Biesenthal had also touched her breasts and vagina and engaged in vaginal intercourse without her consent. In contrast, Mr. Biesenthal’s evidence was that the only sexual activity that occurred was consensual kissing, and that nothing else happened. B.

The charge, verdict and sentencing [ 15 ] In the charge to the jury, the trial judge instructed the jury to decide whether the Crown had proven the essential elements of the sexual assault offence beyond a reasonable doubt based on two categories of sexual activity: (1) kissing; or (2) the more invasive acts of touching the complainant’s breasts and vagina and penile penetration.

The trial judge instructed the jury that it could only reach a verdict of “guilty” or “not guilty”, but that it could reach a “guilty” verdict based on non-consensual kissing alone, even if it rejected the complainant’s evidence that the more invasive non-consensual sexual acts had occurred. The jury was also instructed that it could reach a “guilty” verdict if it found that the non-consensual sexual touching and sexual intercourse had occurred, regardless of its decision respecting whether the kissing that took place was consensual. [ 16 ] The jury found Mr.

Biesenthal guilty on the single count of sexual assault. [ 17 ] Following the jury’s verdict, the trial judge undertook an analysis pursuant to s. 724 of the Criminal Code to determine the facts upon which Mr. Biesenthal would be sentenced. She relied on the relevant portions of s. 724 , which provide: Jury 724(2) Where the court is composed of a judge and jury, the court (

a) Shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty; and (

b) May find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact. Disputed Facts

(3) Where there is a dispute with respect to any fact that is relevant to the determination of a sentence, … (

d) subject to paragraph (e), the court must be satisfied on a balance of probabilities of the existence of the disputed fact before relying on it in determining the sentence; and (

e) the prosecutor must establish, by proof beyond a reasonable doubt, the existence of any aggravating fact or any previous conviction by the offender. [ 18 ] The trial judge undertook to identify the facts that were essential to the jury’s verdict. In her fact-finding fiat dated February 14, 2023 [ Fact-Finding Fiat ], she stated as follows: [13] In order to have convicted Mr. Biesenthal of the offence of sexual assault, the jury had to have rejected Mr. Biesenthal’s evidence, or found that it, in light of the evidence as a whole, did not raise a reasonable doubt.

Further, in order to have accepted the Crown proved, beyond a reasonable doubt, that Mr. Biesenthal was guilty of sexual assault, they had to have accepted some or all of [the complainant’s]

evidence. [14] On [the complainant’s] evidence, the entire incident was a single, uninterrupted transaction. It began when Mr. Biesenthal pushed her over the couch and kissed her face. It moved to touching and ultimately to intercourse. Contrary to Mr. Biesenthal’s suggestion, getting off the couch to turn off the lights, if that did occur, is not a sufficient break to consider these two as distinct transactions. [15] It is inconceivable, on [the complainant’s] evidence, the jury would have been convinced beyond a reasonable doubt that Mr.

Biesenthal kissed [the complainant] without her consent but had a reasonable doubt that non-consensual intercourse occurred. This would be an artificial assessment and an unreasonable one in the circumstances of [the complainant’s] evidence. [16] Therefore in accordance with s. 724(2)(

a) and the jurisprudence arising that provision, I find that Mr. Biesenthal committed a sexual assault in the manner described by [the complainant]. That is, the act of sexual intercourse formed part of the sexual assault, along with the kissing and touching described by [the complainant]. [ 19 ] The trial judge noted that while she made the finding in accordance with s. 724(2) (

a) of the Criminal Code , which required her to accept as proven the facts that were essential to the jury’s verdict of guilt, she would also find the same facts pursuant to s. 724(2) (b), which allowed her to determine facts independently that were not expressed or implicit in the jury verdict. She proceeded under s. 724(2) (

b) to find that the sexual assault of which Mr. Biesenthal was convicted consisted of him engaging in non-consensual kissing, touching and vaginal intercourse. She determined that she did not believe Mr. Biesenthal’s evidence and, in particular, that it was unbelievable given the evidence of the complainant’s sister that she saw Mr. Biesenthal and the complainant with both of their pants down. She also referenced the evidence of Mr. Biesenthal’s Snapchat message that he was “usually not like that and get[s] consent all the time”. She rejected the evidence of Mr.

Culbertson, who had testified that he had not observed anything material and that the night was unremarkable. She accepted the complainant’s evidence and the evidence of her sister, finding that the complainant’s evidence was compelling, detailed and consistent, and was corroborated by the complainant’s sister’s account. [ 20 ] On these findings of fact, the most material being that forced vaginal intercourse occurred, the trial judge sentenced Mr. Biesenthal to three years’ incarceration and made several ancillary orders. III. ISSUES [ 21 ] Mr.

Biesenthal says that, in relation to the conviction, the trial judge erred by: (

a) delivering a jury charge that described two discrete sexual offences but not providing the jury with the option of discrete verdicts for the two modes of sexual assault described in the charge; and (

b) denying his application pursuant to s. 601 of the Criminal Code to amend the indictment and particularize the offences to conform with her jury charge. [ 22 ] In relation to his appeal against sentence, Mr. Biesenthal says that the trial judge erred by: (

a) delivering a decision pursuant to s. 724 of the Criminal Code that was inconsistent with the charge to the jury; and (

b) failing to conduct an evidentiary hearing pursuant to s. 724(3) of the Criminal Code on disputed facts. IV. ANALYSIS A. No error in the jury instructions [ 23 ] Mr. Biesenthal argues that the trial judge erred in law by delivering a jury charge that provided two discrete sexual offences – one for kissing, and the other for touching and penile penetration – but then failing to provide the jury with the option of giving discrete verdicts for each offence. [ 24 ] With respect, I do not agree that the trial judge particularized two separate counts of sexual assault in her jury charge.

On the contrary, she itemized two kinds of sexual touching that, if the jury was satisfied had happened, would each allow the jury to find that a single offence of sexual assault had occurred. [ 25 ] In her charge, the trial judge did not refer to two separate offences of sexual assault. Rather, she referred to the allegation that Mr.

Biesenthal touched the complainant’s genitals and breasts, and vaginally penetrated the complainant with his penis, as “this type of touching”, and she referred to the allegation that non-consensual kissing had occurred as “touching of this type”, “this type of touching” and of “this offence involving this type of touching”. On one occasion only, she inadvertently used the term “offences”, but quickly corrected herself and said that she meant to say “events”. She was careful not to refer to the distinct types of touching as separate offences. [ 26 ] Mr.

Biesenthal contends that the jury should have been given two verdict options – (1) guilty or not guilty on the basis of kissing without consent; and (2) guilty or not guilty on the basis of touching of the breasts and vaginal area and intercourse without consent – but says that the jurors should have been instructed that they could only convict on one of the two options.

With respect, this argument is unsound because, if the jury accepted the whole of the complainant’s evidence, it would have been possible to find that both the kissing without consent and the more intrusive touching and intercourse without consent had occurred. The non-consensual kissing and the non-consensual touching and penile penetration could not be characterized as separate offences of sexual assault because the allegation of multiple types of touching arose from the same event.

The trial judge’s instructions respected the well-established principle that a jury only communicates its ultimate verdict, not the route by which it has determined its conclusion: R v Gauthier (1996), 108 CCC (3d) 231 (BCCA) at paras 14–19 . Thus, the trial judge did not err when she particularized for the jury that finding that any one of several

different types of non-consensual, intentional touching had occurred would result in a verdict of guilty of sexual assault. B. No error in refusing to amend the indictment [27] Mr. Biesenthal argues that the trial judge erred in law by refusing his application, pursuant to s. 601 of the Criminal Code, toamend the indictment to contain two separate counts of sexual assault (one for non-consensual kissing, the second for non-consensualtouching and intercourse). It is a complete answer to this ground of appeal that Mr. Biesenthal did not make a formal application to amendthe indictment.

However, even if he had, the trial judge would not have erred by refusing to do so. [28] As I have already explained, the complainant’s allegations arose from a single sequence of events between the same partieswithin a short time frame. The indictment as charged conformed with the complainant’s evidence. The single count charged could not,without error, have been particularized to give the jury a verdict option other than “guilty” or “not guilty”. I note, also, that this argumentruns afoul of ss. 581(1) and 583(

f) of the Criminal Code, which allow the Crown to lay a charge concerning a single “transaction”,without needing to particularize each discrete act that makes up the transaction: see R v Hulan (1969), (ON CA), [1970]1 CCC 36 (Ont CA). [29] Thus, the trial judge did not err when she did not amend the indictment. C. The error under s. 724(2)(

a) of the Criminal Code is inconsequential [30] Mr. Biesenthal argues that the trial judge erred by finding facts pursuant to s. 724(2)(

a) of the Criminal Code that wereinconsistent with the jury charge. As noted, that provision directs that when the court is composed of a judge and jury, the judge “shallaccept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty”. In this case, Mr.

Biesenthal contends thatthe trial judge erred when she concluded, pursuant to her inquiry under s. 724(2)(a), that “on [the complainant’s] evidence”, it was“inconceivable” that the jury would have been convinced that he kissed the complainant without her consent but then had a reasonabledoubt respecting whether non-consensual intercourse occurred. [31] I agree, and the Crown concedes, that this finding is inconsistent with the jury charge. The jury was instructed that it could findMr.

Biesenthal guilty of sexual assault if it determined beyond a reasonable doubt that the complainant did not consent to the kissing. Thejury was also instructed that it could come to this finding regardless of its decision respecting whether the other non-consensual touchingand vaginal intercourse had occurred.

The jury was further instructed that it could accept all, none, or some of the complainant’s evidence. [32] It follows that it was not implicit from the jury’s guilty verdict that the jury accepted the whole of the complainant’s evidence,or that it did not have a reasonable doubt respecting whether the touching or sexual intercourse had occurred, or had occurred withoutconsent, but was certain that non-consensual kissing had occurred.

On the contrary, the jury was instructed that it could find Mr.Biesenthal guilty in one of several different ways. [33] While I agree that the trial judge erred in her finding under s. 724(2)(a), it is my view that the error is of no consequence in thecircumstances of this case. This is because the trial judge went on to conduct an independent fact-finding under s. 724(2)(

b) of theCriminal Code. As set out above, that provision allows a judge, after a jury verdict, to “find any other relevant fact that was disclosed byevidence at the trial to be proven, or hear evidence presented by either party with respect to that fact”. [34] As already noted, in this case, after the judge had concluded that it was “inconceivable” that the jury would have beenconvinced that Mr.

Biesenthal kissed the complainant without her consent but then had a reasonable doubt respecting whether non-consensual intercourse occurred, she went on and stated that she “would find the same in accordance with s. 742(2)(b) [sic] which permitsme to determine facts that were not expressed or necessarily implicit in the jury verdict” (Fact-Finding Fiat at para 17). After havingidentified her authority to make such findings, the trial judge independently reviewed the evidence from trial. She concluded that neitherMr. Biesenthal’s nor Mr. Culbertson’s evidence was credible.

She accepted all the complainant’s evidence, noting that it was corroboratedby what the complainant’s sister had witnessed and, to a minor extent, by the Snapchat texts. On the whole of this evidence, she found thatthe kissing, touching and penile penetration had all occurred without the complainant’s consent. [35] Because the trial judge made these independent findings of fact under s. 724(2)(b), it is inconsequential that she erred in herinitial reliance on s. 724(2)(a). Her findings of fact were reasonably available from the evidence, and I see no error here. D.

No evidentiary hearing under s. 724(3) of the Criminal Code is necessary [36] Mr. Biesenthal’s final ground of appeal is that the trial judge erred in law by failing to conduct an evidentiary hearing pursuantto s. 724(3) of the Criminal Code. There is no merit to this ground of appeal. There was no need for the trial judge to conduct anevidentiary hearing to find the facts that she did under s. 724(2)(

b) of the Criminal Code because all the evidence that was relevant to theallegations was canvassed at the trial where all the witnesses to the allegations gave evidence-in-chief and were cross-examined. There isno suggestion that there was any other relevant evidence available that was not canvassed at trial. V. CONCLUSION [37] In conclusion, the trial judge did not err in her instructions to the jury and ultimately made no error in her independent fact-finding. It follows that Mr. Biesenthal’s appeals must be dismissed. [38] In accordance with the terms of his release order, Mr.

Biesenthal shall surrender himself to the RCMP Detachment at Estevan,Saskatchewan on or before February 9, 2024, at 4:00 p.m. “McCreary J.A.”

McCreary J.A. I concur. “Leurer C.J.S.” Leurer C.J.S. I concur. “Tholl J.A.” Tholl J.A.