


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), (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    that could identify the complainant or a witness shall not be published in any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, 172,
    172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or
    347,

(ii)  an
    offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent
    assault on female), 156 (indecent assault on male) or 245 (common assault) or
    subsection 246(1) (assault with intent) of the
Criminal Code
, chapter
    C-34 of the Revised Statutes of Canada, 1970, as it read immediately before
    January 4, 1983, or

(iii) an
    offence under subsection 146(1) (sexual intercourse with a female under 14) or
    (2) (sexual intercourse with a female between 14 and 16) or section 151
    (seduction of a female between 16 and 18), 153 (sexual intercourse with
    step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent
    or guardian procuring defilement) or 167 (householder permitting defilement) of
    the
Criminal Code
, chapter C-34 of the Revised Statutes of Canada,
    1970, as it read immediately before January 1, 1988; or

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

(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 complainant of the right to
    make an application for the order; and

(b)  on application made by the complainant, the prosecutor
    or any such witness, 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).

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. Steeves, 2012
    ONCA 106

DATE: 20120216

DOCKET: C53101

Goudge, Epstein JJ.A., and Newbould J. (
ad hoc
)

BETWEEN

Her Majesty the Queen

Appellant

and

Mykel Steeves

Respondent

Andreea Baiasu, for the appellant

Louis P. Strezos and Shannon O’Connor, for the respondent

Heard: January 17, 2012

On appeal from the order of the summary conviction appeal
    court by Justice Gary W. Tranmer of the Superior Court of Justice, dated
    December 6, 2010, allowing an appeal from the conviction entered by Justice Paul
    H. Megginson of the Ontario Court of Justice on January 6, 2009.

Goudge J.A.:

[1]

The respondent was convicted of sexual assault after a trial in
    the Ontario Court of Justice.  The summary conviction appeal court (the SCAC)
    allowed his appeal and ordered a new trial.  The Crown now asks this court for
    leave to appeal and, ultimately, to restore the conviction.  It seeks to base
    its appeal on the proposition that the SCAC erred in finding a misapprehension
    of the evidence by the trial judge.

[2]

In
R. v. R.(R.)
(2008), 90 O.R. (3d) 641, this court
    articulated the test for leave.  It has two branches.  The Crown acknowledges
    that the first branch  that the legal issue raised by the appeal has
    significance to the administration of justice beyond the particular case  does
    not apply here.  Rather, it relies on the second branch, which requires that
    the merits of the appeal appear very strong.  While
R.(R.)
arose in
    the context of a convicted appellant seeking leave, I will proceed on the basis
    that the second branch of the test applies
mutatis mutandis
where it
    is the Crown seeking leave to appeal to this court.

[3]

The Crown argues that the test is met here because the SCAC was
    clearly wrong in finding that the trial court misapprehended the evidence of
    the complainant about whether or not, in the encounter with the respondent, she
    consented to the activity at the beginning but said no to his subsequent
    advances.

[4]

The evidence at trial was that the encounter during which the
    alleged sexual assault occurred began with the respondent suggesting to the
    complainant that they take a nap in his room.  They each told very different
    stories about what happened then.  They were the only ones present. 
    Credibility was the central issue at trial.  While the trial judge rejected the
    respondents evidence, he found the complainant credible and convicted the
    respondent.

[5]

The trial judge held that the complainants evidence was that
    while she did not initiate the conduct of a sexual nature, she consented to it
    in the early stages, when it involved kissing and some touching externally.  He
    found that she never said that it was not consensual at the start.  Later,
    particularly once the respondents penis came out of his shorts, she began a
    series of some eleven protestations of no.

[6]

The SCAC found that the trial judge misapprehended the
    complainants evidence by finding that she was consistent in saying that the
    early parts of the sexual conduct were consensual, and that she never said it
    was not consensual at the start.  I agree with the SCAC.

[7]

There is no doubt, as the SCAC acknowledged, that in
    cross-examination the complainant said she consented at the beginning. 
    However, the SCAC points persuasively to a number of passages in her video
    statement to the police (which was before the trial judge) and in her evidence
    in chief, which were very clear that she did not consent from the very
    beginning.

[8]

Several excerpts from her evidence in chief are enough to make
    the point.  She said that the first physical contact was the respondent
    touching her legs, something that left her shocked.  She then testified as
    follows:

Q.      The touching, the gliding on your leg what was the next
    thing that happened?

A.      He started kissing me.

. . .

Q.      Kissing you where?

A.      On my lips.

Q.      Okay.  Do you see that coming?

A.      Yes.

Q.      Okay so tell us about that?  Was there any discussion
    about kissing?

A.      There was no discussion about kissing it just  I guess
    it just happened.

Q.      Okay who started that; who kissed who?

A.      He kissed me.

Q.      What was your reaction to that?

A.      Again I was shocked.

Q.      Okay.  Why were you shocked?

A.      Because he has a girlfriend.

Q.      Sorry?

A.      Because he has a girlfriend.

Q.      Did you say anything about that?

A.      Yes I did.

Q.      What did you say?

A.      Ah you have a girlfriend; this is not right.

. . .

Q.      Did you want him to kiss you?

A.      No.

Q.      In your mind was it okay; if he would have asked would
    you have said thats fine go ahead?

A.      If he would have asked I would have said no.

[9]

Since
R. v. Ewanchuk
, [1999] 1 S.C.R. 330, the law has
    been clear that in sexual assault, the absence of consent is assessed
    subjectively.  The actual state of mind of the complainant towards the touching
    at the time it occurred is determinative.  Against this standard, there can be
    absolutely no doubt that the passages quoted above constitute evidence of the
    complainants lack of consent in the early part of the sexual encounter.

[10]

In cross-examination, the complainant gave a contradictory account
    of the early part of the sexual encounter in which she agreed that she
    consented at the beginning.  The inconsistency between her two versions of
    events is clear.  The trial judge, however, proceeded to assess her credibility
    on the basis that no such inconsistency existed.

[11]

The SCAC was correct in concluding that the trial judge
    misapprehended the complainants evidence in a way that was very important to
    the central issue in this trial and in ordering a new trial as a consequence.

[12]

We see no error, let alone a clear error in the decision from
    which the Crown seeks leave to appeal.

[13]

Leave is therefore denied.

Released: February 16, 2012  STG

S.T.
    Goudge J.A.

I
    agree G.J. Epstein J.A.

I
    agree Newbould J. (ad hoc)


