



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. E.B., 2021 ONCA 875

DATE: 20211210

DOCKET: C67093

Strathy C.J.O., Hourigan and
    Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

E.B.

Appellant

David Midanik, for the appellant

Rebecca Schwartz, for the respondent

Heard: November 24, 2021

On appeal from the conviction entered on
    February 26, 2019 by Justice John McInnes of the Ontario Court of Justice.

By the Court:

[1]

The appellant appeals his conviction for sexual
    assault under s. 271 of the
Criminal Code
, R.S.C., 1985, c. C-46.
    There were two issues in the judge-alone trial: whether the complainant
    consented to the act of fellatio  the trial judge found she did not; and
    whether the alleged act of intercourse, which the appellant denied, had
    actually occurred  the trial judge found it had.

[2]

For the reasons that follow, we do not accept
    the grounds of appeal raised by the appellant and we dismiss the appeal.

A.

Background

[3]

The following brief summary will provide context
    for the analysis of the issues and the submissions.

[4]

The appellant, a 36-year-old general contractor
    and occasional drug dealer, sold the complainant small quantities of cocaine
    from time to time. The complainant was an 18-year-old university student. The
    appellant was charged with sexually assaulting her in the early hours of September
    23, 2016.

[5]

According to both the appellant and complainant,
    the appellant had texted the complainant on the previous evening and asked
    whether she wanted to meet for a drink. She replied affirmatively and asked him
    to bring some of his product. Prior to that occasion, they had met a few
    times, solely for brief drug transactions.

[6]

The appellant picked her up at her house and
    they drove to a local bar where they had a beer and a shot. After about 20 or
    30 minutes, they left the bar and the appellant drove to the parking lot of a
    school near the complainants house. She did a line of cocaine in the car.
    They got out of the car and smoked and chatted for a while. At this point,
    their stories diverged dramatically.

[7]

According to the complainant, after they got
    back into the car, the appellant grabbed her face and chin and began to kiss
    her aggressively. She tried to pull away and told him to stop. He told her not
    to worry, that they were just having fun. She continued to tell him to stop and
    tried to pull away. He started to undo his pants and she again asked him to
    stop. He placed his hand on the back of her head and pulled her down towards
    his penis and told her to suck it, or words to that effect. She resisted, but
    ultimately did what he asked. During the act, the appellant repeatedly said, I
    dont know what youre doing but it feels good.

[8]

At some point, she said, the appellant put his
    hand into her pants and touched her vagina. She said no, I dont want to and
    that she was on her period. He replied that it would feel amazing. She
    continued to protest, and he told her he would be gentle. He reclined the
    passenger seat, put the full weight of his body on top of her and forced his
    penis into her vagina. She attempted to close her legs, but he continued. He
    stopped, without ejaculating, after several minutes. He smoked a cigarette
    while she put on her pants and he told her that he would take her home.

[9]

On the appellants evidence, the fellatio was
    consensual and there was no intercourse. After they got back into the car, they
    talked for a while and then began to make out. They stopped and discussed
    where this was going and what [they] were expecting. They agreed that they
    were not looking for a relationship and would just see what happened. They
    continued to kiss and fondle one another. She rubbed his penis and he fondled
    her breasts. He took his penis out and she began to stroke it while he rubbed
    her vagina outside her jeans. She told him that she was on her period and did
    not usually give it up on the first date. He said that she should not worry,
    he was not trying to have sex with her and was not trying to force anything on
    her. The fondling resumed and he asked her to kiss his penis. She began to
    fellate him, while he began to grab her breasts harder and firmer. After
    about 10 minutes, the complainant indicated she did not want to continue and
    stopped. He expressed his disappointment and pulled up his pants while she sat
    back in her seat. There was an awkward silence, and the complainant said that
    the second or third date would be a little different, but for now she did not
    want to go further. He lit a cigarette and said okay, lets just call it a
    night.

[10]

Both parties agreed that the appellant then
    drove her home and kissed her when she got out of his car.

[11]

The complainant said that when she got home, she
    threw up in the bathroom. She did not awaken her parents because she was
    ashamed and did not want them to know about her drug use. She called a friend,
    K.M., who she knew worked night shifts, and told him she had been raped by [her]
    drug dealer. He offered to leave work and come to see her, but she told him
    she would call someone else. She called another friend, S.F., who she knew from
    university and he came to see her. They went to the school near her house and
    talked until early morning, consuming some cocaine and alcohol. After returning
    home, the complainant went to her room, removed her clothing, put it in the
    laundry bin, showered, slept briefly, and went to work at her morning lifeguard
    shift.

[12]

S.F. and K.M. confirmed the complainants
    disclosure of the sexual assault to them.

[13]

The following day, the appellant sent the
    complainant a text message. It stated: Hey, hows it going? I hope I wasnt
    too rough with you last night. I apologize, but its just youre too cutie.
    The complainant did not reply. There was no further communication from the
    appellant, and he threw away his cell phone after he found out the police were
    investigating him.

[14]

Within a day or two, the complainants mother
    observed that she had been behaving oddly and spoke to her. The complainant told
    her mother that she had been sexually assaulted by her drug dealer but asked
    her not to tell anyone about it. A few days later, the complainant disclosed to
    her father what had happened. He urged her to report it to the police and she
    did so later that day.

[15]

There were some significant omissions,
    inconsistencies, and falsehoods in the complainants description of the
    material events in her reports to the police and in her testimony at the
    preliminary hearing. In her initial report to the police, she was asked whether
    the appellant had put his penis in her mouth. She responded no. She also
    failed to mention it in her second police interview the next day. It was not
    until the preliminary hearing that she testified that the appellant had forced
    her to engage in fellatio. When asked at trial why she had not disclosed it
    earlier, she identified several reasons: she was ashamed about it and did not
    want to think about it; her memory was foggy; and she thought she could have
    prevented it because she could have kept her mouth closed, but she was just
    scared to.

[16]

The complainant also lied to her parents, to the
    police and at the preliminary hearing concerning her use of cocaine. When she
    reported the events to the police, she did not tell them that she was using
    cocaine that evening and instead told them that she was buying marijuana from
    the appellant. It was only at trial that she admitted she had used cocaine in
    the appellants car. She also lied at the preliminary hearing when she said
    that she did not use drugs with her friend S.F. when they went to the school
    near her home in the early morning hours following the incident.

B.

Trial Judges Reasons

[17]

At the conclusion of the trial, the trial judge
    ordered a transcript of the evidence. In lengthy oral reasons delivered
    approximately four months later, he found the appellant guilty of sexual
    assault beyond a reasonable doubt.

[18]

He found the complainant to be a very credible
    witness and believed her evidence concerning the incidents she described. Her
    account was internally consistent, clearly articulated, filled with small
    details that lacked the air of contrivance, inherently plausible, and quite
    simply it rang true. He found her reasons for not informing the police about
    the fellatio to be palpably authentic. The complainants lies about her
    cocaine use did not significantly impact his assessment of her credibility.
    Her omission had to be understood in context: she was clearly ashamed to reveal
    to her parents or the police that she used cocaine.

[19]

In contrast, the trial judge neither believed
    the appellants testimony that the complainant consented to sexual activity nor
    accepted his denial that the sexual activity included intercourse. The
    appellants evidence did not raise a reasonable doubt and the evidence that he
    did accept served to prove him guilty beyond a reasonable doubt.

[20]

We will address other aspects of the evidence
    and of the trial judges reasons in the course of our analysis of the grounds
    of appeal.

C.

Grounds of appeal

[21]

The appellant raises some ten individual grounds
    of appeal. Most of these grounds take issue with the trial judges acceptance
    of the essential features of the complainants evidence and with his conclusion
    that the appellants evidence did not raise a reasonable doubt.

[22]

For ease of reference, we group the appellants
    submissions under the following headings:

a.

the trial judge erred in the assessment of the
    evidence of the complainant and the appellant;

b.

the trial judge erred by failing to give himself
    a
Vetrovec
warning;

c.

the trial judge erred by failing to address the
    defence of honest but mistaken belief in consent;

d.

the trial judge erred in his application of the
    principles of
R. v. W.D.
, 2019 ONCA 120, 372 C.C.C. (3d) 293;

e.

there was a reasonable apprehension of bias; and

f.

as a result of the foregoing, the verdict was
    unreasonable.

D.

Analysis

(a)

Alleged errors in the assessment of the evidence

[23]

The appellants submissions under this heading
    essentially urge us to re-try him in this court, assess the credibility of the
    witnesses and make findings of fact based on our assessment of the evidence,
    draw our own inferences from the evidence, re-weigh the evidence, ignore the
    facts found by the trial judge and come to our own conclusions, all without the
    appellant having identified a palpable and overriding error in the trial
    judges assessment of the evidence.

[24]

As has been said many times, that is not our
    function.

[25]

Moreover, as Karakatsanis J., writing for the
    majority, recently observed in
R. v. G.F.
, 2021 SCC 20, 459 D.L.R.
    (4th) 375, at para. 81, a trial judges findings of credibility deserve
    particular deference. She added, at para. 82, that credibility findings must be
    assessed in light of the presumption of the correct application of the law,
    particularly regarding the relationship between reliability and credibility.
    What matters is not whether the judge used the words credibility and
    reliability, but whether the judge turned their mind to the relevant factors
    that go to the believability of the evidence. We are satisfied that the trial
    judge did so.

[26]

We turn to the errors asserted under this
    heading to explain our reasoning.

(i)

Misapprehension of the evidence

[27]

Under this ground, the appellant asks us to
    reject inferences the trial judge drew from the evidence or to draw our own
    inferences from the evidence in order to set aside the trial judges acceptance
    of the complainants evidence and his finding that the complainant did not
    consent to the act of fellatio.

[28]

The appellant refers, for example, to the
    alleged failure of the complainant to scream or try to escape when she
    believed that there was a person in the car [in the school parking lot] 50
    metres away while she said she was being raped. He also cites her failure to
    preserve any physical evidence of the assault.

[29]

He also submits that the trial judge should have
    inferred that she was not sexually assaulted because she did not wash when she
    got home, did not change out of the clothes she had been wearing and, instead,
    returned to the place of the assault and partied with S.F. The inference counsel
    wishes us to make, it seems, is that a sexual assault victim would immediately
    wash and change her clothes and would not voluntarily return to the place where
    she was assaulted.

[30]

These assertions invite the court to engage in
    stereotypical reasoning about how sexual assault complainants act or should act
    and ignore the complainants evidence of why she acted the way she did and the
    trial judges acceptance of her evidence.

[31]

As regards her conduct during the assault, the
    trial judge noted the complainants evidence that she was afraid: [M]y initial
    reaction was just to freeze. My initial reaction wasnt to run, it was just to
    stay where I was. I was frozen and I was scared of what to do next. I wasnt
    thinking straight. The trial judge accepted this evidence, finding that it was
    consistent with [his] understanding of the experience of many persons who have
    been sexually assaulted, experience which has come into common understanding in
    our legal system through acquired judicial experience.

[32]

As regards the complainants conduct after the
    assault, the trial judge accepted the complainants evidence that she did not
    want to report the incident to the police. She did not want her parents to know
    that she had been using cocaine and associating with a drug dealer, and she was
    afraid of the potential criminal consequences of her own cocaine use.

[33]

The trial judge was entitled to accept the
    complainants evidence on these matters. Having accepted that evidence, he was
    not bound to draw the inferences advanced by the appellant, some of which rely
    on stereotypical and discredited assumptions about the behaviour of victims of
    sexual assault. We would dismiss this ground of appeal.

(ii)

Uneven scrutiny of the evidence

[34]

The appellant raises a number of complaints
    under the ground of differential treatment of the evidence of the appellant
    and the complainant. Some of these are addressed under other grounds as well.
    The alleged errors in the trial judges reasoning include: a failure to address
    the reliability of the complainants evidence; rejecting the appellants
    explanations as implausible and illogical; and using stereotypes, common sense
    and demeanour evidence to accept the complainants evidence and reject the
    appellants.

[35]

Our response is brief. What matters in the trial
    judges assessment of the evidence is not whether the trial judge used the word
    reliability in their reasons, but whether the trial judge turned their mind
    to the relevant factors that go to the believability of the evidence in the
    factual context of the case, including truthfulness and accuracy concerns:
G.F.
,
    at para. 82. Here, the trial judge plainly did so.

[36]

Trial judges are entitled to draw inferences
    about the credibility of a witnesss account based on the witnesss demeanour,
    but must not place undue reliance on demeanour or use demeanour as a substitute
    for a reasoned consideration of the evidence. Here, the trial judge
    specifically stated that he was conscious of the potential pitfalls of
    over-reliance on demeanour evidence and, while he commented that the
    complainants testimony was palpably authentic, he gave numerous other
    reasons for his acceptance of her evidence.

[37]

We would dismiss this ground of appeal.

(iii)

Omissions and falsehoods in the complainants
    evolving disclosure

[38]

As noted earlier, the appellant asserts that the
    trial judge erred in his assessment of the complainants evidence by failing to
    consider that she lied to the police by not disclosing the fellatio and by
    lying about her cocaine use in her statement to the police and at the
    preliminary hearing.

[39]

As to the former, the trial judge identified the
    reasons the complainant gave for her delayed disclosure of the fellatio as
    opposed to the forced intercourse: she was embarrassed and felt she could have
    avoided it. As to the latter, the trial judge also identified the complainants
    explanation that she did not initially disclose her purchase and use of cocaine
    because she was ashamed about it, did not want her parents to find out about it
    and was afraid about the criminal law consequences. The trial judge addressed
    this issue at length in his reasons, noting that the complainant had lied at
    the preliminary hearing. He accepted the complainants evidence about why she
    did not disclose her drug use. While the trial judge was obviously aware of the
    significance of lying under oath, and might have found that the falsehoods
    impacted her credibility and reliability, he did not do so. Instead, he found that
    these falsehoods were explained persuasively by the complainant and therefore did
    not impact the complainants credibility or reliability on the central issues.
    He was entitled to accept her evidence and her explanation.

[40]

We would dismiss this ground of appeal.

(iv)

Motive to fabricate

[41]

The appellant submits that the complainant had a
    motive to fabricate her allegations. This theory was not advanced at trial and
    when the trial judge raised the issue during closing submissions, defence
    counsel said he was not asserting a motive to fabricate.

[42]

The trial judge found that there was nothing in
    the evidence to suggest any reason why the complainant would have falsely
    alleged sexual assault. He considered the evidence of her disclosure of the
    sexual assault to her two friends on the day of the events to refute a
    suggestion of recent fabrication, but he did not make a finding that the
    complainant had no motive to lie.

[43]

In this context, the appellant suggests that the
    complainant had two motives to fabricate: first, because she was concerned that
    the appellant would tell her friend, S.N. (who was not called as a witness),
    and she did not want word to get around that she had engaged in sexual
    activity with the appellant; and second, because she was afraid that her
    parents would find out that she was associating with the appellant, buying
    drugs from him and engaging in sexual activity with him.

[44]

In our view, these motives are speculative and
    illogical. The first was not raised at trial, was not put to the complainant in
    cross-examination and has no evidentiary foundation. The second is inconsistent
    with the evidence of the complainant, which the trial judge accepted. Moreover,
    it is illogical that the complainant would fabricate a complaint that her drug
    dealer sexually assaulted her if she did not want her parents to know about her
    drug use. The evidence of her gradual, reluctant disclosure  first to her
    friends, then to her mother, then to her father and finally to the police  is
    consistent with judicial experience. It is inconsistent with the motive
    advanced by the appellant.

[45]

We do not accept this ground of appeal.

(b)

Failure to give a
Vetrovec
caution

[46]

The appellant submits that the complainant lied
    to police, lied at the preliminary hearing, and lied at the trial itself. She
    was the key Crown witness and the trial judge should have instructed himself in
    accordance with
R. v. Vetrovec
, [1982] 1 S.C.R. 811 that her evidence
    should be approached with extreme caution.

[47]

We do not accept this submission. Judges are not
    required to import a
Vetrovec
caution into their reasons for judgment
     to do so would be pure formalism:
R. v. Snyder
, 2011 ONCA 445, 273
    C.C.C. (3d) 211, at para. 24. Here, the trial judge was plainly aware of the
    omissions, inconsistencies and falsehoods in the complainants prior statements
    and testimony. As detailed above, he gave cogent reasons for accepting her
    evidence in spite of these shortcomings. We would dismiss this ground of
    appeal.

(c)

Failure to consider honest but mistaken belief in consent

[48]

The appellant submits that there was an air of
    reality to the defence of honest but mistaken belief in consent in relation to
    the sexual activities other than intercourse. He acknowledges that the defence
    was not raised at trial. In closing submissions, the trial judge asked defence
    counsel to confirm that there was no suggestion here of reasonable steps or
    mistaken belief or anything like that, its just the defence is that she
    consented. Defence counsel replied, Yes. The trial judge adverted to this in
    his reasons and noted that, in any event, the defence would not have had any
    air of reality on the evidence before him.

[49]

Although this defence would not apply to the act
    of intercourse, which the appellant denied having occurred, he submits that the
    acceptance of the defence could have impacted the credibility and reliability
    of the complainants evidence concerning the intercourse.

[50]

In advancing this ground, the appellant relies,
    among other things, on: the appreciative comments made by the appellant to the
    complainant during the act of fellatio; the complainants failure to resist,
    scream, try to leave the car, during or after the incident [] even though her
    residence was nearby; and the finding that the appellant kissed the
    complainant when he dropped her off at her home.

[51]

We begin with the observations in
R. v.
    Barton
, 2019 SCC 33, [2019] 2 S.C.R. 579 that "a belief that silence,
    passivity or ambiguous conduct constitutes consent is a mistake of law, and
    provides no defence and that it is an error of law  not fact  to assume
    that unless and until a woman says "no", she has implicitly given her
    consent to any and all sexual activity: at para. 98, citing
R. v. Ewanchuk
,
    1999 SCC 711, [1999] 1 S.C.R. 330, at para. 51.

[52]

Again, some of the appellants submissions rely
    on discredited myths about how a sexual assault victim should behave. As we
    have noted earlier, the complainant explained that she did not try to escape
    the sexual assault because she was afraid, and she froze in the moment. The
    trial judge accepted this evidence, noting that it was consistent with acquired
    judicial experience concerning the reactions of persons who have been sexually
    assaulted.

[53]

Also referred to in
Barton
is s. 273.2
    of the
Code
, which places important limits on the defence of honest
    but mistaken belief in consent by providing that the accuseds belief that the
    complainant consented to the activity is not a defence where the accused did
    not take reasonable steps, in the circumstances known to him at the time, to
    ascertain that the complainant was consenting. The appellant gave no evidence
    that addressed this issue. Nor were questions put to the complainant on the
    issue.

[54]

Finally, there was no independent evidence to
    support an air of reality to honest but mistaken belief in consent. In the face
    of the conflicting accounts of the appellant and the complainant, this is not a
    case where the trial judge could cobble together some of the complainants
    evidence and some of the accuseds evidence to provide a sufficient basis for
    the defence: see
R. v. Park
, [1995] 2 S.C.R. 836, at para. 25. Trial
    counsel did not suggest this could be done and we heard no submissions from
    counsel for the appellant to suggest how it might be done. We see no basis for
    it and would dismiss this ground of appeal.

(d)

Error in
W.D.
Analysis

[55]

The appellant submits that the trial judge erred
    in failing to effectively apply the third part of
W.D.
and
    improperly using
R. v. D. (J.J.R.)
(2006), 215 C.C.C. (3d) 252 (Ont.
    C.A.), a sufficiency of reasons case, to bolster his conclusion.

[56]

We do not accept this submission. In his
    reasons, the trial judge accurately set out the applicable principles,
    including the presumption of innocence, the concept of reasonable doubt and the
    burden of proof. He accurately set out the test in
W.D
. In applying
    those principles, he stated that: (a) he did not believe the appellants
    evidence; (b) the appellants evidence did not leave him with a reasonable
    doubt; and (c) on all the evidence which he did accept, the Crown had proven
    the appellants guilt beyond a reasonable doubt.

[57]

We would dismiss this ground of appeal.

(e)

Reasonable apprehension of bias

[58]

The appellant submits that the trial judge
    displayed bias towards him by quoting directly from his evidence and by placing
    quotation marks around the crude descriptions of the sexual activity that the
    appellant provided in his testimony. He also complains that the trial judge
    demonstrated bias when he said that the defendants evolving explanation for
    sending [the text message the next day] lurched from one implausible
    explanation to another. Counsel for the appellant suggested that the use of
    the word lurched may have been a disparaging comment on the appellants stature
    or physique.

[59]

We do not accept these submissions. Quoting
    directly from the language of the witness is sometimes the best way of
    describing their evidence and the meaning conveyed by their words, instead of
    substituting less vulgar language. The trial judges use of the appellants own
    language, in this case, does not demonstrate bias.

[60]

We see no basis at all to the submission that
    the use of the word lurched demonstrates bias or some personal insult to the
    appellant. The trial judge used this expression, after quoting directly from
    the appellants evidence in chief and in cross-examination, to describe the
    appellants evolving explanation for saying I hope I wasnt too rough with
    you last night in his text to the complainant the following day. In his
    evidence in chief, the appellant said he sent the text because he felt badly
    for having used her a little bit: Like, she gave me a blow job and then I
    just kind of brushed her off and I sent her home. So I messaged her and I told
    her, Im sorry, I hope I wasnt too rough with you.

[61]

In cross-examination, the appellant was asked
    why he felt badly for using the complainant when he had testified in chief
    that he and the complainant had discussed what they were expecting out of the
    encounter, agreed that they were not looking for a relationship and decided to
    see what happened. The appellant acknowledged that had been the discussion and
    that they were going to have some fun and see where it went. The following
    questioning ensued:

Q. So in the morning you felt bad because she
    essentially gave you a blow job, you didnt do anything, and you didnt want to
    see her again? Thats why you felt bad?

A. Well, that and grabbing her breasts really
    firmly and hard. I kind of felt a little bit bad about that.

Q. But why? You were having fun, she was
    giggling. Why would you feel bad?

A. Maybe I was rough with her, I dont know.

As the cross-examination continued,
    the appellant acknowledged that the complainant never objected that he was
    touching her too hard, she never complained about it afterwards and everything
    seemed fine. His evidence shifted from sending the text because he was sorry
    that he had used her, to being concerned that he had squeezed her breasts too
    hard.

[62]

Lurched refers to an awkward or unsteady
    movement, a stagger, or a stumble. That was an apt description of the
    appellants attempts to explain his text message. After making this
    observation, the trial judge said:

I find that the text was sent because the
    defendant was aware of what he had done and was feeling out [the complainant]
    to gauge his jeopardy. In my view, the fact that he sent the message and the
    way in which it is worded is evidence that tends to confirm [the complainants]
    account and also undermines the defendants evidence denying that he sexually
    assaulted the complainant.

[63]

These were inferences the trial judge could
    reasonably have drawn from the evidence and in no way does his use of the word lurched
    demonstrate bias.

[64]

We do not give effect to this ground of appeal.

(f)

Unreasonable verdict

[65]

As we conclude that all the above grounds of
    appeal fail, the assertion that the verdict was unreasonable, which is
    predicated on these grounds, necessarily fails as well.

E.

disposition

[66]

For these reasons, the appeal is dismissed.

Released: December 10, 2021  G.R.S.

G.R. Strathy C.J.O.

C.W. Hourigan J.A.

David M. Paciocco J.A.


