



WARNING

The President of the panel
    hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under
    ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the
Criminal
    Code
shall continue. These sections of
the Criminal Code
provide:

486.4(1)       Subject to subsection (2), the
    presiding judge or justice may make an order directing that any information
    that could identify the victim or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)      any of the following offences;

(i)       an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED:
    S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)      two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in paragraph (a).

(2)      In proceedings in respect of the offences
    referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)      at the first reasonable opportunity,
    inform any witness under the age of eighteen years and the victim of the right
    to make an application for the order; and

(b)      on application made by the victim, the
    prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice may
    make an order directing that any information that could identify the victim
    shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other
    than an offence referred to in subsection (1), if the victim is under the age
    of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of
    their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

(3)      In proceedings in respect of an offence under
    section 163.1, a judge or justice shall make an order directing that any
    information that could identify a witness who is under the age of eighteen
    years, or any person who is the subject of a representation, written material
    or a recording that constitutes child pornography within the meaning of that
    section, shall not be published in any document or broadcast or transmitted in
    any way.

(4)      An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community.
2005, c.
    32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29;
    2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.

486.6(1)       Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)      For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION:
R. v.
    Kaczmarek, 2021 ONCA 771

DATE: 20211101

DOCKET: C68073 & C68410

Watt, Pardu and Trotter JJ.A.

DOCKET:
    C68073

BETWEEN

Her Majesty the Queen

Respondent

and

David Kaczmarek

Appellant

DOCKET:
    C68410

AND BETWEEN

Her Majesty the Queen

Respondent

and

Terrell Sullivan

Appellant

Michael Hayworth, for the appellant David Kaczmarek

Mindy Caterina, for the appellant Terrell Sullivan

Samuel Greene, for the respondent Crown

Heard: June 29, 2021 by video conference

On appeal from the convictions entered by Justice John A.
    Desotti of the Superior Court of Justice, dated February 13, 2019, and from the
    sentence imposed on Terrell Sullivan

on May 3, 2019.

Trotter J.A.:

A.

INTRODUCTION

[1]

After a day of heavy drinking with some girlfriends, the complainant
    found herself in a strangers apartment, being sexually assaulted by the
    appellants.

[2]

Shortly before, the complainant was in another apartment unit in the
    same building. She left that apartment, shoeless and heavily intoxicated, in
    search of her friend. The complainant had a vague recollection of being in an
    elevator with the two men, and then being in the apartment. The next thing she
    remembered was being sexually assaulted by the appellants while she was being held
    down on a couch. The complainant told them to stop on more than one occasion.
    When they eventually did, she fled the apartment.

[3]

The appellants were found guilty of sexual assault. The trial judge
    found that the complainant lacked the capacity to consent, and she did not
    agree to the sexual activity with either man. He sentenced them both to three
    years imprisonment.

[4]

The appellants appeal their convictions. They attack various aspects of
    the trial judges reasons for judgment. Mr. Kaczmarek also appeals his
    conviction on the basis that he received ineffective assistance from his trial
    counsel. Mr. Sullivan appeals his sentence.

[5]

The following reasons explain why I would dismiss the conviction appeals
    and Mr. Sullivans sentence appeal.

B.

FACTUAL OVERVIEW

(1)

Introduction

[6]

At the time of the offences, the complainant was 19 years old, 52
    tall, and weighed 100 lbs.

[7]

It was not disputed at trial that the appellants engaged in sexual
    activity with the complainant, at the same time. Neither could be excluded as
    the sources of DNA found in the complainants vagina (Mr. Sullivan) or mouth (Mr.
    Kaczmarek).

[8]

The contentious issues at trial were whether: (1) the complainant had
    the capacity to consent to the sexual activity; (2) she agreed to the sexual
    activity; and (3) the appellants had an honest but mistaken belief that the complainant
    consented. Neither appellant testified, but as discussed below, Mr. Kaczmarek
    now contends that, despite his wishes, trial counsel prevented him from doing
    so.

(2)

At A.B.s Apartment

[9]

The days events started out at the apartment of A.B., the complainants
    best friend. Another friend, K., came to the apartment at 9:30 a.m. and the two
    went to the LCBO and purchased an assortment of alcohol. The two women started
    drinking as they walked back to the apartment. A.B. said the complainant joined
    them at noon; the complainant said it was 3:00 p.m., although she was not sure.
    Both acknowledged having memory problems because of their alcohol consumption.
    Nonetheless, they both testified that they drank a lot of alcohol, including
    shots of liquor. Neither was keeping track of how much was consumed, but they
    were very intoxicated.

(3)

Shelby and Austins Apartment

[10]

After spending time at A.B.s apartment, the three women left and went
    to a nearby park, where they continued drinking. They eventually walked to
    another building where their friends Shelby and Austin had an apartment. They
    arrived between 4:00 p.m. to 5:30 p.m. A.B. testified that all three women were
    drunk. She described the complainant as being hammered.

[11]

At the apartment, A.B. had a conversation with a male guest in a
    bedroom, while the complainant socialized with others. At some point, K. left
    the apartment. The complainant described K. as having gone missing and
    remembered leaving the apartment, by herself, to look for her.

[12]

Someone told A.B. that the complainant left the apartment without her
    shoes. A.B. went looking for her. When she could not find the complainant, she
    went back to her own apartment. As discussed below, she was summoned back to
    Shelby and Austins at 7:40 p.m. that night.

(4)

The Sexual Assault

[13]

The complainant gave a fragmented account of what transpired after she
    left Shelby and Austins apartment. When asked what happened next, she
    testified, I suppose I was abducted. I dont know. The complainant continued:

I guess we ended up upstairs. We mustve taken the elevator. I
    dont know how I got up there. I dont even know how I met them. Just ended
    upstairs and then from there, its kind of blank.

The complainant explained that she has a fear of
    elevators, so she was confused as to how she ended up in the elevator in the
    first place.

[14]

The complainant remembered being on a balcony and having something to
    drink in the apartment, but she did not know whether it was alcohol. She said
    the appellants forced themselves on me. She was with Mr. Kaczmarek and Mr. Sullivan
    disappeared into what she surmised was his room or the washroom, but then
    came back to the living room. The complainant testified:

I dont remember how it started. I was blackout. I dont
    remember anything
and then I came to
or sobered up and realized what was
    happening as it was happening. (emphasis added).

[15]

The complainant said she was bent over, face down on a sofa. She was
    penetrated from behind by both appellants. While it was happening, the
    complainant tried to get up but she was being pushed down into the sofa by Mr. Kaczmarek,
    who was behind her. The complainant testified she said stop when I had one
    behind me penetrating me from behind, and I had one in my mouth. She believed
    that Mr. Kaczmarek was the former; Mr. Sullivan the latter. She was unable to
    say how often or how loudly she asked them to stop. The complainant said one of
    them (Mr. Sullivan) finished or got done first and walked away; then the
    other one (Mr. Kaczmarek) got done or finished or gave up, I dont know, got
    up, walked away.

[16]

The complainant fled the apartment as soon as she could and ran down the
    stairs, trying to find Shelby and Austins apartment. She did not know what
    floor she was on, or how many floors she had to descend to get back to their
    apartment. When she eventually found the apartment, someone called A.B. and
    asked her to return. This was at 7:40 p.m. A.B. ran back to Shelby and Austins
    apartment barefoot. It took her roughly 20 to 25 minutes to get there.

[17]

According to A.B., the complainant was a mess, curled up in a ball on
    the bathroom floor, crying uncontrollably and hyperventilating. A.B. and the
    complainant were driven back to A.B.s apartment, where A.B. eventually
    persuaded the complainant to call the police. The police arrived at A.B.s
    apartment at 11:05 p.m. and spoke to the two women. The complainant was taken
    to the hospital for examination.

(5)

The Note in the Apartment

[18]

The complainant was cross-examined about a note that was found in the
    apartment where she was assaulted. It contained the complainants contact
    details. It was not in her handwriting. The complainant could not remember
    providing this information to either appellant. She said that the email address
    sort of looked like hers. It was an admitted fact at trial that Mr. Kaczmarek
    gave this note to the police. He told an officer that he had changed part of
    the phone number on the note from 666 to 888 because he was not
    comfortable with those numbers in his apartment.

(6)

The Complainants Statement

[19]

The complainant was cross-examined on a statement she gave to the police
    on the night she reported the assault. In the course of making this statement,
    she said I must have said yes to the first guy because there was one guy and
    we were getting it on and I dont remember saying anything like stop. She also
    said she would not have agreed to the other person joining in.

[20]

The complainant testified that she made this statement because I dont
    remember if I said yes or not, but it was happening so  I dont remember.

(7)

The Trial Judges Reasons

[21]

As discussed in more detail below, the trial judge first addressed the
    issue of the complainants capacity to consent to having sex with the
    appellants. He accepted her evidence that she was unconscious and only realized
    what was happening when she came to. The trial judge went on to conclude
    that, based on the complainants evidence that she asked the appellants to stop
    after she came to, she did not agree to the sexual activity that subsequently
    occurred. Lastly, the trial judge rejected the claim that the appellants had an
    honest but mistaken belief that the complainant consented to the sexual
    activity.

C.

THE CONVICTION APPEAL

(1)

Capacity and Consent (Mr. Kaczmarek & Mr. Sullivan)

(a)

Introduction

[22]

Both appellants submit that the trial judge erred in various ways in
    concluding that the complainant lacked the capacity to consent, and that she
    did not agree to the sexual activity with the appellants. Although they
    initially appealed the trial judges rejection of their claim of mistaken
    belief in consent, the appellants abandoned this ground during the hearing of
    the appeal.

[23]

In order to succeed, the appellants must establish that the trial judge
    erred in relation to both the issues of capacity to consent and whether the
    complainant agreed to the sexual activity with the appellants. In my view, this
    appeal can be disposed of on the issue of capacity alone.

[24]

The appellants submit that the trial judge erred in addressing the issue
    of capacity before determining whether the complainant consented to the sexual
    activity with the appellants. The appellants contend that the evidence fell
    short of proving that the complainant lacked the capacity to consent, largely
    because it came from two unreliable witnesses: the complainant and A.B. In order
    to make a finding of incapacity, more evidence was required, from other
    witnesses. The appellants also submit that the trial judge erred by equating
    the complainants lack of memory with a lack of capacity. Lastly, they also
    submit that the trial judge reversed the burden of proof. I would reject each
    of these arguments.

(b)

Evidence of the Complainants Intoxication

[25]

Before delving into these issues, I highlight the evidence concerning
    the complainants sobriety that day. The evidence of her condition at the time
    of the sexual activity comes from the complainant alone. However, the
    complainants consumption of alcohol and her sobriety before and after the
    incident are informed by the evidence of both the complainant and A.B.

[26]

As noted above, alcohol was purchased by A.B. and K. around 9:30 a.m.
    that day. A.B. and the complainant were imprecise about how much they consumed.
    However, they both described drinking enough alcohol to make them extremely
    intoxicated. As the complainant said: I was drinking all afternoon. I was
    already blackout drunk. I was walking around barefoot, without a cellphone and
    no one with me.

[27]

On a scale of one to ten, she said it was ten  Ive never been
    blackout drunk in my life except for that day. By the time she got to the
    hospital, she said it was a four. She agreed with the suggestion that
    blackout describes kind of not knowing whats occurring until you come-to. As
    noted, when the police asked her if she could have agreed to sexual activity
    with them, she said, Well, its possible. I was completely blackout drunk so.

[28]

A.B. said the complainant was very drunk or hammered before she left
    the apartment in search of K. When A.B. returned to Shelby and Austins after
    the 7:40 p.m. call, she described the complainant as a mess. A.B. could not
    understand what the complainant was trying to tell her because she was not
    making sense.

[29]

The other witness who testified about sobriety was a police officer who
    responded to the 911 call. He did not notice any overt signs of impairment in
    relation to either woman. However, that was at 11:05 p.m., well after the
    incident.

(c)

The Order of the Trial Judges Findings

[30]

The appellants submit that the trial judge erred in addressing the issue
    of capacity before deciding whether the complainant agreed to the sexual
    activity with the appellants. They say this ran afoul of the Supreme Court of
    Canadas holding in
R. v. Hutchison
, 2014 SCC 19, [2014] 1 S.C.R. 346,
    at para. 4. The appellants submit that this decision requires a trial judge to address
    the issue of consent before considering questions of capacity.

[31]

However, in
R. v. G.F.
, 2021 SCC 20, 71 C.R. (7th) 1, at para.
    50, the court clarified that
Hutchison
was concerned only with
    apparent consent and whether consent had been vitiated; it has nothing to do
    with incapacity. Karakatsanis J. wrote, at para. 24, that when a trial
    involves the issues of capacity and whether the complainant agreed to engage in
    the sexual activity in question, the trial judge is not necessarily required
    to address them separately or in any particular order as they both go to the
    complainants subjective consent to sexual activity.

[32]

The trial judge made no error in the order in which he chose to address
    these issues.

(d)

The Finding of Incapacity Was Reasonable

[33]

The appellants submit that the trial judge erred in how he approached
    the issue of capacity. First, they submit that he wrongly equated the
    complainants lack of memory with incapacity. Moreover, they submit that the
    trial judges finding of incapacity was unreasonable and not supported by the
    evidence. I disagree with both submissions.

[34]

The trial judge did not equate lack of memory with incapacity. The trial
    judge referred to this courts decision in
R. v. C.P.
, 2019 ONCA 85,
    373 C.C.C. (3d) 244, affd 2021 SCC 19, 71 C.R. (7th) 118, noting that, the
    appellate court affirmed the oft stated position that an inability to remember
    something does not necessarily mean that the person was acting without
    capacity.

[35]

More generally, the trial judge did not err in how he conceptualized the
    issue of capacity. He reviewed numerous appellate decisions, including the
    decision of the Nova Scotia Court of Appeal in
R. v. Al-Rawi
, 2018
    NSCA 10, 359 C.C.C. (3d) 237, in which Beveridge J.A. held that capacity to
    consent involves an operating mind capable of appreciating the nature and
    quality of the sexual activity; knowing the identity of the person or persons
    wishing to engage in the sexual activity; or understanding she could agree or
    decline to engage in, or to continue, the sexual activity: at para. 66.

[36]

The trial judge accepted the complainants description of her own
    sobriety, including that she was blackout drunk, which he found to be a
    vivid and descriptive expression capturing the level of intoxication she was
    experiencing. He ultimately found that the complainant had lost consciousness
    at some point and only regained consciousness after the sexual activity was
    already happening. As the trial judge said:

Forgetting for the moment that she told the two accused to stop,
    but did not know how many times she told them to stop or how loud or if they
    heard her. Her initial involvement in this sexual activity came about because
    of her gross intoxication, her blackout.
To wake up or become conscious
    and then to find oneself engaged in a sexual activity with strangers, as did
    the complainant, S.D. when there is no independent memory of the how, when or
    why of this sexual activity, is certainly by every objective reasoning, an
    indication of the incapacity of a complainant
. [Emphasis added.]

[37]

The trial judges reasons are in accord with Supreme Court of Canada
    jurisprudence concerning capacity to consent to sexual activity: see
R. v.
    J.A.
, 2011 SCC 28, [2011] 2 S.C.R. 440, at paras. 3, 34-37, 66;
C.P.
,
    and
R. v. Barton
, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 88.

[38]

The principles in these cases were recently discussed in
G.F.

The court underscored that, at its base, the capacity to consent requires
    that the complainant have an operating mind capable of understanding each
    element of the sexual activity in question: the physical act, its sexual
    nature, and the specific identify of their partner: at para. 55. Karakatsanis
    J. also provided the following summary, at paras. 57-58:

In sum, for a complainant to be capable of providing subjective
    consent to sexual activity, they must be capable of understanding four things:

1. the physical act;

2. that the act is sexual in nature;

3. the specific identity of the
    complainants partner or partners; and

4. that they have the choice to refuse
    to participate in the sexual activity.

The complainant will only be capable of providing subjective
    consent if they are capable of understanding all four factors.
If the Crown
    proves the absence of any single factor beyond a reasonable doubt, then the
    complainant is incapable of subjective consent and the absence of consent is
    established at the
actus reus
stage.
    There would be no need to consider whether any consent was effective in law
    because there would be no subjective intent to vitiate.
[Emphasis added.]

[39]

The court reiterated what was confirmed in
J.A.
: an
    unconscious complainant could not provide contemporaneous consent: at para.
    56. This proposition was at the heart of the trial judges finding on
    incapacity.

[40]

The evidence supported the trial judges conclusion that at some point
    during the incident with the appellants, the complainant lost consciousness and
    was incapacitated. It was open to the trial judge to accept the evidence of the
    complainant and A.B. on the complainants general level of intoxication that
    day, and the complainants own description of her level of cognition at the
    time of the sexual activity. Equally, he was entitled to reject the submission
    that the complainant and A.B. were unreliable witnesses.

[41]

The appellants point to other cases in which the complainants
    incapacity was proved through evidence independent of the complainant. In
C.P.
,
    for instance, the complainants incapacity was proved through the observations
    of a friend, who came upon the complainant immediately after sexual intercourse
    had occurred. The complainant
had
    been vomiting, she could not get up, and she was incapable of communicatin
g
.

[42]

C.P.
must be placed in context. In that case, the complainant
    did not testify because she had
no
memory of the event. As such, a
    self-report about her level of sobriety was unavailable; the information had to
    come from other sources.

[43]

In this case, the complainant had fragmented memories. She was able to
    narrate her own situation, but only to a point. The trial judges incapacity
    finding hinged on his acceptance of the complainants evidence that she only
    realized what was happening to her when she came to. By definition, before
    she came to, she was in a state of unconsciousness, incapable of consenting
    due to a complete lack of agency.
[1]

[44]

The appellants submit that more was required to prove incapacity, such
    as objective evidence of the complainants condition at the time. They point to
    the fact that there was no evidence of profound intoxication after the event,
    such as vomiting. This submission amounts to an insistence that the
    complainants evidence had to be corroborated. Such a requirement was pruned from
    the law of sexual assault many years ago:
Criminal Code
, R.S.C. 1985,
    c. C-46, s. 274; Hamish C. Stewart,

Sexual Offences in Canadian Law
(Toronto: Carswell, 2021), at 7:1, 7:8 and 7:9. It is not resurrected simply
    because of the evidentiary challenges that sometimes accompany incapacity
    cases. Complainants are capable of self-authenticating their own incapacity, as
    the complainant did in this case.

[45]

In any event, the complainants evidence did not stand alone. The
    evidence of A.B. provided important context for the complainants evidence. She
    gave evidence of the complainants highly intoxicated condition both before and
    after the incident with the appellants. As noted above, in the aftermath, A.B.
    described the complainant as crying uncontrollably, hyperventilating, and not
    making any sense in describing what happened to her. A.B. said that she was
    just a mess.

[46]

Based on all of the evidence, it was open to the trial judge to find
    that the complainant lacked the capacity to consent to engage in sexual activity
    with the appellants.

(e)

The Burden of Proof Was Not Reversed

[47]

The appellants point to certain passages in the trial judges reasons
    that they say are indicative of the reversal of the burden of proof. However,
    when viewed as a whole, it is clear that the trial judge did no such thing.

[48]

On the issue of incapacity, the trial judge said: The onus is correctly
    stated to be on the Crown to establish that the complainant, S.D. was so
    intoxicated that she was incapacitated at the material time to engage in the
    sexual activity that occurred. Once the trial judge accepted the complainants
    evidence that she came to and only became aware of the sexual activity as it
    was happening, a finding of incapacity was inevitable. The complainants
    evidence stood uncontradicted on this issue. The appellants did not seriously
    challenge the evidence relating to the complainant or A.B.s alcohol
    consumption and their self-reports of being very intoxicated. Instead, they
    relied on this evidence to assert that both women were unreliable witnesses,
    leaving room for reasonable doubt.

[49]

To the extent that the trial judge made references to the absence of
    evidence at various points in his reasons, he did so partly in the context of
    addressing the mistake of fact in consent issue. More broadly, the trial judge
    did not err in pointing out the absence of evidence contradicting the
    complainants account. These statements did not amount to a reversal of the
    burden of proof, especially in light of the trial judges statement set out
    above.

(f)

Conclusion

[50]

The trial judge appropriately articulated the test for incapacity. His
    findings were sound. Accordingly, I would dismiss this ground of appeal. In the
    circumstances, it is not necessary to evaluate the trial judges conclusion
    that the complainant did not agree to the sexual activity in question.

(2)

Ineffective Assistance of Counsel (Mr. Kaczmarek)

(a)

Introduction

[51]

Mr. Kaczmarek submits that he wished to testify in his own defence but
    was prevented from doing so by trial counsel.

[52]

Mr. Kaczmarek submits that he had an exculpatory narrative he wished to
    share. He relies on his statement to the police in which he said the
    complainant was not as intoxicated as she claimed, and that she was a willing
    participant in the sexual activity with himself and Mr. Sullivan. Mr. Kaczmarek
    submits his trial counsel repeatedly discouraged him from testifying and that
    his reasons for giving this advice reflect incompetence. In the end, trial
    counsel usurped his decision and prevented him from testifying.

[53]

Mr. Kaczmarek has failed to establish that his trial counsel provided
    incompetent legal advice, or that he countermanded his decision to testify.
    Trial counsels concerns about Mr. Kaczmareks anticipated performance as a
    witness were well-founded. Moreover, the fresh evidence admitted on appeal
    suggests that Mr. Kaczmarek followed his trial counsels advice not to testify,
    but then regretted his decision when it did not work out as he had hoped. By
    the time he changed his mind, it was too late; the trial was over and
    sentencing submissions had been completed. An application to reopen would have
    been futile.

[54]

Reaching this conclusion, however, is not without its challenges. This
    is another ineffective assistance of counsel (IAC) case where trial counsel
    failed to obtain written instructions from a client concerning the decision to
    testify: see
R. v. Trought
, 2021 ONCA 379, 156 O.R. (3d) 481,
    at paras. 76-78. Unfortunately, in order to resolve the relevant issues on
    appeal, resort must be made to the duelling affidavits and cross-examinations
    of Mr. Kaczmarek and trial counsel. Although failure to obtain written
    instructions is not necessarily an indicium of ineffectiveness, it presents
    challenges for appellate review. It is also in tension with the strong
    presumption of competence in favour of counsel:
R. v. Archer
(2005),
    202 C.C.C. (3d) 60 (Ont. C.A.), at paras. 140-42.

(b)

The Competing Accounts

(i)

Mr. Kaczmarek

[55]

Mr. Kaczmarek was 31 years old at the time of the offence; he was 33 at
    trial. It is known from his Pre-Sentence Report (PSR) that he has a criminal
    record that includes convictions for offences of dishonesty and offences
    against the administration of justice. All of his convictions were registered
    after the offence in this case.

[56]

Mr. Kaczmarek was in a car accident in 2007 and sustained significant
    injuries, including head trauma. This resulted in an acquired brain injury and
    memory loss. He reported to the author of the PSR that he has suffered mental
    health problems and has been hospitalized. He was assessed as having
    schizoaffective disorder and bipolar disorder and has been taking medications
    for many years. The PSR also indicates that Mr. Kaczmarek has a long history of
    alcohol, cannabis, cocaine, and methamphetamine use. He may have been using the
    latter at the time of the offence.

[57]

Mr. Kaczmarek swore an affidavit in support of his IAC claim and
    submitted to cross-examination. He agreed that he spoke to trial counsel before
    his police interview and was advised to exercise his right to remain silent. He
    did not. In cross-examination, he acknowledged that he should have heeded that
    advice.

[58]

Mr. Kaczmarek recalled that he spoke with trial counsel a number of
    times about whether he would testify at trial. He claims that, after the
    complainant finished testifying (on January 31, 2019), he insisted that I
    wished to testify because I had a significantly different version of events
    that I wanted the trial judge to consider. He said that his trial counsel told
    him that he would not look good on the stand because he tended to trail
    on with [his] words and would not look credible on the stand. In
    cross-examination, Mr. Kaczmarek acknowledged, And I do talk. I am a
    conversationalist. Mr. Kaczmarek swore that trial counsel also told him that
    his drug use and mental illness would harm his credibility.

[59]

Mr. Kaczmarek said that he protested several times against my trial
    counsels refusal to abide by wish to testify during our discussion but,
    despite my serious misgivings about my trial counsels advice, eventually felt
    that this a discretionary decision to be made by my trial counsel. He denied
    ever being told that the decision was his to make. However, in
    cross-examination on his affidavit, Mr. Kaczmarek admitted that at a meeting on
    February 1, 2019, the day after the complainant testified, he met with trial
    counsel who advised him not to testify and he replied okay. He testified that
    in my head I was thinking Ill wait til its my turn to testify. He
    acknowledged that this was never conveyed to trial counsel. He said that trial
    counsel told him I have a couple of tricks up my sleeve.

[60]

In his statement to the police, Mr. Kaczmarek denied ever penetrating
    the complainant vaginally. He said that he only had oral sex with the
    complainant. In his affidavit, Mr. Kaczmarek alleged that his trial counsel
    failed to challenge the complainant on whether Mr. Kaczmarek penetrated her
    vaginally and about whether she was drunk that night. During his
    cross-examination, he was shown excerpts from the trial transcripts that show
    that she was questioned about these issues. He acknowledged he was wrong and
    said the errors were the result of the challenges of preparing his affidavit
    during the COVID-19 pandemic.

(ii)

Trial Counsel

[61]

Trial counsel, a lawyer with 45 years experience in criminal
    litigation, was representing Mr. Kaczmarek in respect of other criminal matters
    when he was charged with the sexual assault in this case. When Mr. Kaczmarek
    was arrested, trial counsel spoke with him for about 30 minutes and repeatedly
    advised [him] to exercise his right to silence and say nothing because he
    thought he would make inculpatory statements.

[62]

Trial counsel swore that he met with Mr. Kaczmarek approximately five
    times before trial. They often spoke about whether Mr. Kaczmarek would testify.
    Trial counsel told him that the decision was his to make, but advised him that
    it was not in his best interest to do so. Trial counsel explained that Mr.
    Kaczmarek tended to ramble and made statements regarding his relationship[s]
    with women that were not helpful to his case.

[63]

Trial counsel formed this opinion from his experience in representing
    Mr. Kaczmarek at a previous sexual assault trial. Mr. Kaczmarek testified
    in his own defence. Although he was acquitted, the trial judge (who was not the
    trial judge in this case) found Mr. Kaczmarek to be not credible. Trial counsel
    said that his client had done poorly during his examination-in-chief and just
    went to pieces in cross-examination. Trial counsel said, He just  he
    rambles, and theres no reeling him in. He was confident that he could keep
    his client on track during examination-in-chief but predicted that things would
    deteriorate in cross-examination. Mr. Kaczmarek has a tendency to want to
    please other people and makes admission  some of them are detrimental. Trial
    counsel referenced Mr. Kaczmareks police statement, in which he said,
    when the complainant and Mr. Sullivan became intimate, he (Mr. Kaczmarek)
    threw in a couple of moves.

[64]

Trial counsel explained that another reason he thought it was
    inadvisable for his client to testify was that Mr. Kaczmareks statement
    differed from Mr. Sullivans police statement. Mr. Sullivan said that both men
    had penetrated the complainant vaginally, just as she had described in her
    evidence. Trial counsel was under the impression that, if his client testified,
    Mr. Sullivan would also testify. This would be damaging to his client who
    maintained that he never penetrated the complainant vaginally.

[65]

Despite advising Mr. Kaczmarek multiple times not to testify, trial
    counsel said, Up until the close of the Crowns case at trial, I believed [Mr.
    Kaczmarek] would disregard my advice and testify in order to portray himself in
    what he thought would be a positive light. Trial counsel agrees that he spoke
    with Mr. Kaczmarek after the complainant testified (on January 31, 2019) and
    his client said he wanted to testify. Trial counsel repeated his advice. That
    evening, trial counsel told counsel for Mr. Sullivan that he expected his
    client to testify.

[66]

The following morning (February 1, 2019) trial counsel spoke to Mr. Kaczmarek,
    who was in good spirits. Trial counsel said, He was smiling, and seemed
    confident. He told me he had thought the matter over and decided to follow my
    advice and not testify. In cross-examination, trial counsel said that his
    client told him, you never led me wrong. Im going to take your advice.
    However, he denied telling Mr. Kaczmarek that he had a couple of tricks up his
    sleeve.

[67]

Neither appellant called a defence. The trial judge heard submissions on
    February 4 and 7, 2019. The trial was adjourned while the trial judge took the
    matter under reserve. On February 13, 2019, the trial judge found both
    appellants guilty. In his affidavit, trial counsel said that, upon hearing the
    verdict, Mr. Kaczmarek immediately said that he wished to testify. Trial
    counsel said, That was the first and only time [Mr. Kaczmarek] told me to call
    him to testify. I told him it was not possible to do so at that stage, because
    the trial was over, and he would have to appeal if he wished to challenge the
    verdict.

[68]

Prior to trial counsels cross-examination, he sent an email to the
    Crown to advise that he had in fact not been in attendance for the verdict; an
    agent appeared on his behalf. He said that the incident he had previously
    described occurred once sentence was passed. This too was incorrect. In
    cross-examination, he said that he received these instructions after sentencing
    submissions were made (on April 4, 2019), not upon the passing of
    sentence. This is supported by trial counsels contemporaneous note, in which
    he wrote client now wants to testify. Told him too late. Didn't understand.
    Had to appeal.

[69]

Trial counsel disputes many of the claims in Mr. Kaczmareks affidavit.
    He did not reference his clients drug use and mental health challenges when
    attempting to dissuade him from testifying. Trial counsel only learned of this
    clients mental illness when reading the PSR. Moreover, contrary to Mr.
    Kaczmareks contention, he did prepare his client to testify. When trial
    counsel believed that his client would disregard his advice about testifying,
    he told him that he should have his prior statement straight in his mind and
    stick to it. Given Mr. Kaczmareks previous performance as a witness, trial
    counsel thought it would be fruitless to conduct a dry run of his testimony.

[70]

Trial counsel disputes the allegations of an inadequate
    cross-examination of the complainant. He contends that he challenged her on the
    important aspects of her evidence, including the sequence of events, who did
    what, and her level of intoxication. As he points out, counsel for Mr. Sullivan
    pursued similar lines of questioning. The two lawyers coordinated their efforts
    in defending the case.

[71]

Mr. Kaczmarek contends that trial counsel ought to have moved to re-open
    the case so that he could testify. Trial counsel testified that he didnt
    think there was any hope of reopening at that stage of the proceedings (i.e.,
    at the conclusion of sentencing submissions).

[72]

As noted above, trial counsel did not obtain written instructions from
    Mr. Kaczmarek about whether he would testify. Trial counsel said that,
    when his client told him that he would follow the advice not to testify, they
    were due back in court and his client (who was in custody) was hustled out of
    the room where they met. There was no time to obtain instructions. He also said
    that obtaining written instructions slipped [his] mind. He further said that,
    because he had a long-standing relationship with the appellant, he did not feel
    uncomfortable in not obtaining written instructions.

[73]

Lastly, trial counsel volunteered in cross-examination that he suffers
    from a medical condition that affects his memory. However, he said that it did
    not affect his memory about anything to do with this case. It has never caused
    him to think he remembered things that did not actually happen.

(c)

Analysis

[74]

The applicable legal principles for ineffective assistance of counsel
    claims are well-established. To succeed, Mr. Kaczmarek must establish: (1) the
    facts material to the claim of ineffective assistance on a balance of
    probabilities; (2) that the representation provided by counsel fell below the
    standard of reasonable professional assistance in the circumstances; and (3)
    the ineffective representation resulted in a miscarriage of justice:
R. v.
    G.D.B.
, 2000 SCC 22, [2000] 1 S.C.R. 520, at paras. 26-27;
R. v.
    Joanisse
(1995), 102 C.C.C. (3d) 35, at pp. 43-46.

[75]

The decision whether to testify at a criminal trial belongs to the
    accused person: G. Arthur Martin, The Role and Responsibility of the Defence
    Advocate (1969-1970), 12:4 Crim. L.Q. 376, at pp. 386-87;
Trought
, at
    paras. 46-47. The Crown concedes that, if [Mr.] Kaczmarek can prove trial
    counsel disregarded an instruction to call him to testify, or never advised him
    of his right to make that decision, his IAC claim should prevail. This is
    based on the acknowledgement that the decision is fundamental and the
    prejudice arising from its loss is obvious.

[76]

In making the decision whether or not to testify, an accused person is
    entitled to competent advice from counsel. In
R. v. K.K.M.
, 2020 ONCA
    736, Doherty J.A. said, at para. 91: An accused is denied his right to choose
    whether to testify when counsel actually makes the decision, or when counsel
    provides no advice or advice that is so wanting, as to preclude the accused
    from making a meaningful decision about testifying.

[77]

This court has struck a cautious tone when considering a claim that
    trial counsel usurped or compromised an appellants decision to testify, noting
    that there is sometimes a strong motive to fabricate such an allegation after
    being convicted and sentenced to jail:
Archer
, at paras. 140-42;
R.
    v. Nwagwu
, 2015 ONCA 526, at paras. 11-12.

[78]

Applying these principles to this case, I am of the view that Mr.
    Kaczmarek has not established on a balance of probabilities that his desire to
    testify was overridden by his trial counsel, nor that the advice he was given
    was wanting.

[79]

As the Crown points out, Mr. Kaczmarek has a criminal record that is
    relevant to his credibility. Moreover, Mr. Kaczmarek proved himself to be a
    poor historian of what occurred at trial, and this undermines his ineffective
    assistance of counsel claim. As noted above, in cross-examination on his
    affidavit, he was forced to back off of two allegations of incompetence leveled
    against his trial counsel: (a) that trial counsel failed to question the
    complainant about her assertion that Mr. Kaczmarek had vaginal intercourse with
    her; and (b) that trial counsel failed to question the complainant on her
    degree of intoxication that night.

[80]

Additionally, Mr. Kaczmareks apparent understanding of the nature of
    the decision to testify changed over time. At one point he said that he thought
    it was a matter in the discretion of his trial counsel; at other times he
    said that he was simply waiting until it was his turn to testify. Beyond the
    contradiction, the latter claim is difficult to accept. Although Mr. Kaczmarek
    faces certain challenges in his life as detailed in the PSR, he presented as an
    intelligent person in his cross-examination on his affidavit. Moreover, he had
    already been through a different sexual assault trial at which he testified in
    his own defence.

[81]

This case differs from
Trought
, in which the IAC claim turned
    on the appellants understanding of the legal niceties of a blended
voir
    dire
, or
R. v. Faudar
, 2021 ONCA 226, in which the IAC
    claim concerned the appellants understanding of the complex doctrine of
    constructive possession. In this case, Mr. Kaczmareks assertion that he
    believed he could testify after he had already been convicted is implausible.
    It is telling that his direction to trial counsel came at the end of sentencing
    submissions, where the Crown had requested a sentence of three to five years
    imprisonment. The circumstances reflect a change of heart, not confusion.

[82]

Trial counsels evidence, however, was not without its shortcomings. As
    detailed above, he waivered on when he received Mr. Kaczmareks unequivocal
    instructions that he wished to testify. To review, he originally said it was
    immediately after verdict, but then remembered that he was not in court that
    day. Secondly, he said that it was after sentence was imposed on May 3, 2019,
    but that also turned out to be inaccurate. Ultimately, he remembered that the
    discussion occurred following sentencing submissions on April 4, 2019.

[83]

Nonetheless, trial counsel was consistent on the content of the exchange
    with Mr. Kaczmarek. Perhaps most importantly, this exchange was documented in
    trial counsels file. This is strong confirmation of trial counsels testimony
    that this was the first time he received clear instructions that his client
    wished to testify.

[84]

On appeal, Mr. Kaczmareks submits that, having received these
    instructions at the end of sentencing submissions, trial counsel should have
    moved to re-open the proceedings to provide his client with an opportunity to
    testify. After all, the case was adjourned for a month while the trial judge
    reserved his decision.

[85]

There can be no doubt that the trial judge, sitting without a jury, had
    jurisdiction to re-open the trial, vacate the finding of guilt, and permit a
    defence to be led. However, this power may only be exercised in exceptional
    circumstances:
R. v. Lessard
(1976), 30 C.C.C. (2d) 70 (Ont. C.A.),
    at p. 73;
R. v. Griffith
, 2013 ONCA 510, 116 O.R. (3d) 561, at paras.
    12-17. Trial counsel was aware of this line authority. However, in
    cross-examination, he said that such an application would have been hopeless.

[86]

Trial counsel was undoubtedly correct. The timing of the request would
    likely have been viewed as an attempt to reverse a tactical choice to not
    testify. In
R. v. Tortone
(1992), 75 C.C.C. (3d) 50 (Ont.
    C.A.), revd in part, but not on this point, [1993] 2 S.C.R. 973, Goodman J.A.
    wrote, at p. 57: It would be disastrous to the due administration of justice
    if an accused were permitted to wait until after a verdict has been rendered
    before making a decision as to whether he wished to give evidence in his
    defence, except in the most exceptional circumstances.

[87]

In all of the circumstances, I would accept trial counsels account of
    the instructions he received from his client about his desire to testify. Trial
    counsel did not usurp his clients decision on this fundamental issue.

[88]

On the related issue of whether trial counsel provided competent advice
    about whether Mr. Kaczmarek should testify, it is my view that his
    recommendations were sound. Trial counsels professional opinion that his
    client would not perform well was based on two factors: (a) his observations of
    his clients testimony, as well as the trial judges credibility findings, at a
    previous sexual assault trial; and (b) his concerns with his clients statement
    to the police in this case. Both were legitimate factors to take into account.

[89]

I have already discussed above, how counsel drew upon his earlier
    experience and observations at Mr. Kaczmareks previous sexual assault trial.
    It cannot be said that reliance on his clients previous testimony rendered his
    advice incompetent. Indeed, counsel for Mr. Kaczmarek on appeal did not
    question trial counsels reliance on this factor.

[90]

Mr. Kaczmareks statement to the police is somewhat more complicated. It
    is true that the statement is exculpatory on certain issues, but it is concerning
    in other respects, both in form and in substance. During the interview, Mr.
    Kaczmarek demonstrated some of the same qualities that trial counsel described
    with respect to his testimony at the previous sexual assault trial. He tended
    to go on and on when giving his answers. He was voluble and tangential. Recall,
    Mr. Kaczmarek participated in this interview in the face of advice given to his
    counsel that he should exercise his right to remain silent.

[91]

Some of Mr. Kaczmareks comments in his statement were unhelpful to his
    cause. As noted above, he described a scenario in which the complainant and Mr. Sullivan
    were intimate and then he, threw in a couple of moves. Trial counsel
    testified that he still did not know what his client meant by his expression. Nonetheless,
    this trivializing expression was alarming in the face of the complainants
    serious allegation.

[92]

More importantly, Mr. Kaczmareks statement was at odds with Mr. Sullivans
    statement in an important respect. Mr. Sullivan said that the two men switched
    places and Mr. Kaczmarek did penetrate the complainant vaginally. Mr. Kaczmarek
    contends that DNA analysis confirms his version of events in that his DNA was
    found only in the complainants mouth, whereas Mr. Sullivans DNA was found in
    her vagina. However, the absence of Mr. Kaczmareks DNA in the complainants
    vagina does not confirm that he did not vaginally penetrate her; it merely
    fails to confirm that he did.

[93]

Thus, trial counsel had legitimate concerns that if his client testified
    in a manner consistent with his statement, it would likely result in Mr.
    Sullivan testifying in a manner consistent with his statement, undermining Mr.
    Kaczmareks position.

[94]

Accordingly, I am of the view that trial counsels legal advice that Mr. Kaczmarek
    should not testify was sound.

[95]

I would dismiss this ground of appeal.

D.

APPEAL AGAINST SENTENCE (MR. SULLIVAN)

[96]

Mr. Sullivan appeals his sentence of three years imprisonment. The
    appeal, however, is contingent on this court finding that the trial judge erred
    in concluding that the complainant lacked the capacity to consent, but
    upholding his finding of a lack of consent in fact. The appellant submits that
    continuing sexual activity after consent has been withdrawn is materially
    different and less morally blameworthy than engaging in sexual activity with
    someone who never consented in the first place, or who lacked the capacity to
    consent.

[97]

Strictly speaking, it is unnecessary to address this argument because I
    would uphold the trial judges finding on the capacity issue. However, I would
    reject Mr. Sullivans submission that his moral blameworthiness would somehow be
    reduced because he continued sexual activity after consent was withdrawn, as
    opposed to no consent being present in the first place.

[98]

This issue was considered in
R. v. Garrett
, 2014 ONCA 734. In
    that case, the complainant initially consented to kissing. However, the
    situation soon evolved into one of non-consensual intercourse, during which the
    complainant repeatedly told Garrett to stop, but to no avail. In allowing the
    Crowns sentence appeal, this court held that failing to stop when in these
    circumstances, constitutes demeaning behaviour and contemptuous disregard for
    the personal integrity of the complainant and engages the predominant
    sentencing principles of denunciation and deterrence: at para. 19. The court
    added that, the complainants initial consent to kissing does not render less
    serious the subsequent non-consensual intercourse: at para. 20.

[99]

Beyond this issue, the trial judges reasons for sentence reveal no
    error. Mr. Sullivans long-standing struggles, which include addiction and
    mental health issues, were properly considered by the trial judge.

[100]

Ultimately, the
    sentence imposed properly reflected Mr. Sullivans moral blameworthiness for
    his part in the concerted sexual exploitation of an extremely intoxicated young
    woman who was a stranger to the appellants. This type of predatory conduct must
    be met with a sentence that emphasizes deterrence and denunciation.

[101]

I would dismiss
    the appeal from sentence.

E.

CONCLUSION AND DISPOSITION

[102]

I would dismiss
    the appeals from conviction. I would grant leave to appeal to Mr. Sullivan to
    appeal his sentence but dismiss the sentence appeal.

Released: November 1, 2021 D.W.

Gary Trotter J.A.

I agree. David Watt J.A.

I agree. G. Pardu J.A.





[1]
Section 273.1(2)(a.1) of the
Criminal Code
provides that no consent is obtained if the complainant is unconscious. This
    provision was enacted after the appellants trial (S.C. 2018, c. 29, s.
    19(2.1)) but it reflects the common law.


