



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    information that could identify the complainant or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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. Alboukhari, 2013
    ONCA 581

DATE: 20130927

DOCKET: C54425

Laskin, LaForme and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Omar Alboukhari

Appellant

Norman Boxall, for the appellant

Shawn Porter, for the respondent

Heard: April 29, 2013

On appeal from the conviction entered by Justice John A. McMunagle
    of the Superior Court of Justice, sitting without a jury, on October 15, 2010.

Epstein J.A.:

INTRODUCTION

[1]

On June 21, 2008, a group of young people, including the appellant and
    the complainant, S.R., went on a camping trip.  On the first night of the trip,
    the appellant and S.R., alone in a tent, engaged in sexual activity.  S.R. participated
    under the misapprehension that the man with whom she was having sex was her
    boyfriend, Donald Doucette, who was also on the camping trip.  The trial judge
    concluded that the appellant did not take reasonable steps, under the
    circumstances known to him, to ensure that S.R. knew it was him with whom she
    was having sex.  He therefore concluded that the appellant could not avail
    himself of the defence of honest but mistaken belief in consent and convicted
    him of sexual assault.

[2]

The issue on this appeal is whether the trial judge misapprehended certain
    evidence and if so, if it resulted in a miscarriage of justice or a legal
    error.  In my view, the trial judge misapprehended the evidence on several key
    issues central to his reasoning process, resulting in a miscarriage of
    justice.  I would therefore order a new trial.

background

[3]

There were seven people on the camping trip  four men and three women.
    Donald Doucette, Jamie Fisher and Shawn Lehn were roommates.  Mr. Fisher
    invited the appellant.  Mr. Doucette invited his girlfriend, S.R. who, in turn,
    invited two girlfriends, Marie Claire Bouchard and Lisa McBride.

[4]

Upon arrival at the campsite at about 8:00 p.m., the group set up the
    tents and built a campfire.  Mr. Doucette erected his tent, the larger of the
    two, closest to the fire.  While putting up the tents, everyone in the group
    started to drink except the appellant, who did not consume alcohol for
    religious reasons.

[5]

After dinner, Mr.
    Fisher, Mr. Doucette and the appellant went for a boat ride during which they engaged
    in guy talk.  Mr. Doucette expressed a desire to have sex with Ms. Bouchard,
    describing her as so hot and stating, I want to sleep with her.  Mr. Doucette
    then invited the others to make a play for S.R., saying, [y]ou can fuck my
    girlfriend if you want to.  The appellant concluded that Mr. Doucette and the
    complainant were not in a committed relationship.

[6]

By the time the men returned
    from the boat trip, the complainant, who by then had consumed a substantial
    amount of alcohol, was quite ill.
Mr. Doucette took S.R. to his tent and helped her, fully clothed, into a
    sleeping bag.  S.R. fell asleep immediately.

[7]

Shortly
    thereafter, the appellant joined S.R. in the tent, where the couple engaged in
    sexual activity that led to intercourse.  S.R. abruptly ended the sexual
    engagement when she realized that the man in the tent was the appellant, not
    Mr. Doucette.

[8]

The next day, the
    complainant reported the matter to the police and the appellant was charged
    with sexual assault.

THE EVIDENCE

[9]

There were five Crown witnesses at trial: the complainant, Mr. Fisher,
    Mr. Doucette, Mr. Lehn and Ms. McBride.  The appellant was the only witness for
    the defence.   Given that the testimony of the complainant and that of the
    appellant differed on several key issues, I find it helpful to summarize their
    respective accounts of the events in question.

[10]

The
    complainant testified that she had never met the appellant before the night in
    question.  She also admitted that on that night she drank to excess, as a
    result of which she vomited and retired to Mr. Doucettes tent early.  Her next
    recollection was of being awakened by someone, whom she believed at the time to
    be Mr. Doucette, attempting to have vaginal sexual intercourse with her.  When
    this attempt was unsuccessful, S.R. proceeded to perform oral sex on him, after
    which they engaged in vaginal sexual intercourse in what is known as the missionary
    position.

[11]

The
    complainant testified that she believed she was having sex with her boyfriend,
    Mr. Doucette.  However, she stated that it was pitch black in the tent and
    that she could not see the face of the man with whom she was having sex.  While
    the complainant had no memory of how long the sexual activity lasted, she
    testified that she called out Don on five separate occasions.  S.R. stated
    that it was only when she spoke into Dons ear and told him that she loved
    him that the appellant responded by saying shut up, Im not Don.  At that
    point, the complainant became distraught, pushed the appellant off of her, and
    ran out of the tent.

[12]

The
    appellant testified that he had never previously met the complainant. He stated
    that upon returning from the boat trip with Mr. Fisher and Mr. Doucette, he took
    a few minutes to unload a beer cooler from the boat and was not at the campsite
    when the complainant vomited.  He admitted that he was later told that the
    complainant was not feeling well, but said he had no reason to infer that she
    had vomited or that her illness was caused by excessive alcohol consumption.  The
    appellant testified that shortly after they returned from the boat trip, Mr. Doucette
    suggested that the appellant should go to bed and led him to the tent in which
    the complainant was sleeping.  The appellant described the visibility in the
    tent as very good.  He stated that he could see S.R.s face and assumed she
    could see his.

[13]

The appellant testified that when he lay down in the tent, he asked the complainant
    if she was feeling alright.  The complainant maneuvered her body toward him and
    pressed against him in a sexually suggestive manner.  They kissed for 20 to 30
    seconds.  The appellant then asked S.R. to perform oral sex on him. She
    obliged.  A few minutes later, they assumed the missionary position and engaged
    in vaginal intercourse for about 20 minutes.

[14]

The appellant testified that toward the end of the sexual activity, the
    complainant called out [o]h, Don. He was shocked by this utterance, and
    immediately replied, [w]hat? I am not Don. The appellant stated that the
    complainant then cupped his face in her hands and stated, [o]h Don, I love you
    so much. The appellant responded more firmly that he was not Don, at which
    point the complainant pushed him away and stumbled out of the tent.

THE TRIAL JUDGES REASONS

[15]

Consent was not at issue  it was clear that the complainant did not
    consent to have sex with the appellant.  The issue was whether the defence of
    honest but mistaken belief in consent was open to the appellant.  Citing s.
    273.2 of the
Criminal Code
, the trial judge properly identified the
    only disputed issue as whether the appellant was able to demonstrate, in the
    circumstances known to him at the time, that he had taken reasonable steps to
    ascertain that the complainant was consenting to have sex with him.

[16]

In his extensive reasons for judgment, the trial judge noted, at para.
    14, that
[i]n this case, it is
    clear that the credibility of the witnesses is the central issue before this
    Court.
After setting out the evidence, the
trial judge summarized his assessment of the veracity of the witnesses.  Citing
    demeanour and internal and external consistencies, the trial judge concluded, at
    para. 129, that Ms. McBride, Mr. Lehn and Mr. Fisher were not only credible,
    but also reliable.  While not completely rejecting
Mr. Doucettes
    evidence, the trial judge described him as being self-serving and evasive,
    adding that he preferred the evidence of Ms. McBride, Mr. Lehn and Mr. Fisher when
    it conflicted with that of Mr. Doucette.

[17]

At
    para. 131, the trial judge described the complainants evidence as having been
    given in a clear, thorough, straightforward and non-evasive or argumentative
    manner.  He accepted her version of events without qualification.

[18]

The trial judge then turned to the evidence relating to the appellants
    defence that he took reasonable steps, in the circumstances, to ensure he had
    the complainants consent.

[19]

Relying primarily on S.R.s testimony and other inferences he drew from
    the evidence, the trial judge made a number of findings relevant to the
    circumstances known to the appellant at the time he had sex with S.R.

[20]

He found that the appellant was present when the complainant vomited and
    was therefore aware that she was intoxicated.  The trial judge, accepting
    S.R.s testimony that she was awakened to find a man attempting to vaginally
    penetrate her, found that it was the appellant who initiated sexual contact.

[21]

The degree of visibility in the tent was an issue the trial judge described,
    in para. 69, as the most important piece of evidence in the case and crucial
    to the Court moving to the ultimate decision.  He rejected the appellants
    evidence that there was good visibility and found that it was pitch dark in the
    tent.  Finally, the trial judge held that during the sexual encounter, the
    complainant called out the name Don at least five times and heard no response
    from the appellant until after the fifth utterance.

[22]

The
    trial judge relied heavily on this courts decision in
R. v. Crangle
,
    2010 ONCA 451, 256 C.C.C. (3d) 234, leave to appeal to S.C.C. refused, [2010]
    S.C.C.A. 300, a case in which the complainant had intercourse with her
    boyfriends identical twin brother. In that case, the accused knew that the complainant
    had an on-going sexual relationship with his twin brother, that she had fallen
    asleep, intoxicated, in his brothers bed and that the bedroom was pitch dark. Further,
    from the accuseds perspective, he had no reason to believe that the
    complainant would ever consent to sexual intercourse with him.  This court
    agreed with the trial judges conclusion that in such circumstances the accused
    had to make his identity perfectly clear to the complainant.

[23]

Here,
    the trial judge viewed the analogy between
Crangle
and this case as obvious.  In the light of the circumstances known to the
    appellant, the trial judge concluded that for identical reasons to those set
    out in
Crangle
, he would make
    the identical finding that the reasonable steps analysis required the
    appellant to make his identity perfectly clear to the complainant (at paras.
    159, 167).   Because the appellant failed to do so, the trial judge reasoned
    that he could not avail himself of the defence of honest but mistaken belief in
    consent.

ISSUES ON APPEAL

[24]

There
    are two issues on appeal:

i)

Did the trial judge misapprehend or fail to consider material evidence?

ii)

If so, did the evidentiary errors result in a miscarriage of justice under
    s. 686(1)(a)(iii) of the
Criminal Code
or a legal error under s.
    686(1)(a)(ii) of the
Criminal Code
?

[25]

In
    cases in which it is alleged that a misapprehension of evidence has resulted in
    both a miscarriage of justice and a legal error, this court has previously
    stated that the proper procedure is to consider first whether there was a
    miscarriage of justice, and only proceed to consider whether there was a legal
    error if the answer to the first question is negative: see
R. v.

Morrissey
(1995), 22 O.R. (3d) 514 (C.A.), at p. 540.  Because I conclude that the trial
    judges misapprehensions of the evidence created a miscarriage of justice and
    would order a new trial on that basis, there is no need to go on to consider whether
    there was a legal error warranting a new trial.

ANALYSIS

The
    Applicable Legal Principles

(1)

Misapprehension of Evidence

[26]

A
    misapprehension of evidence includes a failure to consider evidence relevant
    to a material issue, a mistake as to the substance of the evidence, or a
    failure to give proper effect to evidence: see
R. v. Morrissey
, at p. 538.

[27]

This
    courts decision in
Morrissey
and
    the Supreme Courts decision in
R. v. Lohrer
,
    2004 SCC 80, [2004] 3 S.C.R. 732, are the leading cases on the misapprehension
    of evidence resulting in a miscarriage of justice.  In order to result in a
    miscarriage of justice, the misapprehension must relate to evidence central to
    the finding of guilt.  In
Morrissey
,
    Doherty J.A. summarized the test as follows, at p. 541:

Where a trial judge is mistaken as to the substance of material
    parts of the evidence and those errors play an essential part in the reasoning
    process resulting in a conviction then, in my view, the accuseds conviction is
    not based exclusively on the evidence and is not a true verdict. Convictions
    resting on a misapprehension of the substance of the evidence adduced at trial
    sit on no firmer foundation than those based on information derived from
    sources extraneous to the trial.  If an appellant can demonstrate that the
    conviction depends on a misapprehension of the evidence then, in my view, it
    must follow that the appellant has not received a fair trial, and was the
    victim of a miscarriage of justice.  This is so even if the evidence, as
    actually adduced at trial, was capable of supporting a conviction.

[28]

The
    Supreme Court has repeatedly emphasized that the misapprehended evidence must be
    central to the trial judges reasoning.  If the trial judge would inevitably
    have come to the same conclusion without the misapprehended evidence, there is
    no miscarriage of justice: see
R. v.
    Sinclair
, 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 56-57. Therefore,
    an error in the assessment of the evidence will amount to a miscarriage of
    justice only if striking it from the judgment would leave the trial judges
    reasoning on which the conviction is based on unsteady ground:
Sinclair
, at para. 56.

[29]

For
    this reason, in
Lohrer
, Binnie
    J. described the
Morrissey
standard
    as stringent, and set out the analytical process as follows, at para. 2:

The misapprehension of evidence must go to the substance rather
    than to the detail. It must be material rather than peripheral to the reasoning
    of the trial judge. Once those hurdles are surmounted, there is the further
    hurdle (the test is expressed as conjunctive rather than disjunctive) that the
    errors thus identified must play an essential part not just in the narrative of
    the judgment but in the reasoning process resulting in a conviction.

[30]

Put
    more simply, an appellate court must ask itself whether the trial judge failed
    to direct him or herself to the relevant issues or erred in the appreciation of
    evidence in a manner that could have affected the outcome:
Lohrer
, at paras. 7-8. However, the focus
    is on the impact of the misapprehension on the fairness of the trial, not on
    whether the result could or would have been different (
R. v. Iamkhong
, 2009 ONCA 478, 250 O.A.C.
    220, at para. 52; and
Morrissey
,
    at p. 541). If the misapprehension rendered the trial unfair, there is a
    miscarriage of justice, even if other evidence was capable of supporting a
    conviction:
Morrissey
, at p. 541.
     If an accused demonstrates that there has been a miscarriage of justice, he or
    she need not show that the verdict cannot be supported by the evidence.

[31]

The
    application of the
Morrissey/Lohrer

test to this appeal involves assessing the effect of any misapprehended
    evidence that directly informed the trial judges finding of guilt or the
    credibility assessment on which the guilty finding was based.

[32]

Jurisprudence
    provides guidance as to how the
Morrissey/Lohrer
test has been applied in similar factual situations.

(a)     Evidence on which the trial judge directly based the
    finding of guilt

[33]

In
    cases in which the misapprehension relates to evidence on which the trial judge
    directly based his or her finding of guilt, the reviewing court must determine
    the extent to which the misapprehended evidence underpinned the conviction.  If
    the misapprehension relates to a key piece of direct or circumstantial
    evidence, it is more likely to have tainted the trial judges reasoning
    process.

[34]

R. v. Bains
, 2012 ONCA 305, 291 O.A.C.
    135, illustrates this principle. In
Bains,
the appellant had been
    convicted of possession of stolen property after he was found with stolen
    refrigerators.  A major point of contention was whether the accused knew the
    refrigerators had been stolen.  In concluding that the accused knew they were
    stolen, the trial judge relied in part on evidence that the refrigerators were bought
    and delivered at night.  However, the evidence was that the refrigerators were
    bought and delivered during business hours.  The timing of the sale and
    delivery was one of the factors that the trial judge concluded added up to
    proof beyond a reasonable doubt that the refrigerators were stolen property.  Although
    there was other evidence that supported the conviction, the court held that
    there had been a miscarriage of justice because the misapprehension coloured
    the trial judges view of the other circumstantial evidence.  A new trial was
    therefore ordered.

[35]

In
    contrast, if the misapprehension relates to an issue that was not central to
    the trial judges conclusion or if the other evidence would inevitably have led
    to the same conclusion, there is no miscarriage of justice.  In
Sinclair
,
    the accused was convicted of manslaughter. The trial judge proceeded on the
    basis that the Crown's theory that Mr. Sinclair and two others had planned to
    go out together to commit a robbery was evidence of such a plan.  Mr. Sinclair argued
    that this misapprehension underpinned the trial judge's conclusion that Mr.
    Sinclair was at the scene of the crime. LeBel J. concluded that even if the
    trial judge misapprehended the evidence, she inevitably would have found that
    Mr. Sinclair was at the scene of the crime on the basis of the other
    circumstantial evidence that she did accept. Moreover, the trial judge attached
    little importance to this supposed plan to commit a robbery, and it was not
    central to her reasoning (at para. 57). Therefore, the Supreme Court held that
    there was no miscarriage of justice.

(b)        Evidence that informed the
    trial judges credibility assessment

[36]

In cases in which the
Morrissey/Lohrer

test applies to a misapprehension of evidence that is used to assess
    credibility, it can be more challenging to ascertain whether there has been a
    miscarriage of justice because of the difficulty in determining the basis of
    credibility findings.  Ultimately, the decision as to whether a miscarriage of
    justice has occurred turns on the extent to which the misapprehended evidence
    played a role in the trial judges credibility assessment.

[37]

If
    the trial judge concluded that the accused was giving dishonest testimony but overlooked
    evidence that confirmed the accuseds evidence, there may be a miscarriage of
    justice.  In
R. v. R.G.L.
(2004), 186 O.A.C. 355 (C.A.), appeal quashed, 2005 SCC 18, [2005] 1 S.C.R. 288,
    the defendant was accused of sexually assaulting his friends young daughter.   Credibility
    was essential to the case. One of the two factors the trial judge relied upon
    in concluding that the accused was not credible was his testimony that he had
    never helped the complainant get ready for bed, tucked her into bed or checked
    on her at night.  The trial judge concluded that the accuseds evidence on this
    point was not credible.  However, in so doing, he overlooked evidence given by
    the complainant and her sister, which was consistent with the accuseds
    testimony on this point.  A majority of this court concluded that the
    misapprehension of this evidence called the trial judges credibility findings
    into question, which in turn cast doubt on the finding of guilt.  A new trial
    was ordered.  See also:
R. v. J.C.
(2000), 131 O.A.C. 230 (C.A.); and

R.
    v. A.D.
, 2000 BCCA 346, 140 B.C.A.C. 19.

[38]

Similarly,
    if the trial judge mischaracterized parts of the accuseds evidence that were
    central to the assessment of credibility, there is more likely to be a
    miscarriage of justice: see
R. v. C.L.Y.
,
    2008 SCC 2, [2008] 1 S.C.R. 5; and
Whitehouse
    v. Reimer
(1980), 34 A.R. 414 (C.A.).

[39]

In
    contrast, if the trial judge misapprehended certain pieces of evidence, but
    that evidence was not essential to the credibility assessment, there is no
    miscarriage of justice: see Rothman J.A.s dissenting reasons in
R. v. C.R.

(1992), 49  Q.A.C. 37,
     which were adopted by the Supreme Court in reversing the majoritys holding,
    [1993] 2 S.C.R 226.  See also
Iamkhong
,
    at para. 55.  A trial judges credibility finding is not rendered unfair even when
    it is based on one or two dubious examples.  Rather, the significance of an
    error must be assessed by reference to its impact on the fairness of the trial:
    see
Morrissey
, at p. 541; and
Lohrer
, at paras. 1-2.

(2)

Reasonable Steps

[40]

A
    complainants apparent consent to sexual activity may provide an accused
    charged with sexual assault with a defence.  Since the identity of an
    individuals sexual partner is an inseparable component of consent to sexual
    activity, s. 273.2(b) of the
Criminal Code
requires that reasonable steps be taken to ascertain that the individual is
    consenting to have sex with the accused.   The accused may rely on the defence
    that he honestly but mistakenly believed that the complainant was consenting to
    have sex with him.  However, that defence is not available if the accused did
    not take reasonable steps, in the circumstances known to him, to ascertain
    consent.

[41]

The Manitoba Court of Appeal has described the approach to determining
    if the accused has taken reasonable steps to ascertain consent as a
    quasi-objective test:
R. v. Malcolm
,
    2000 MBCA 77, 147 C.C.C. (3d) 34, at para. 24, leave to appeal to S.C.C.
    refused, [2000] S.C.C.A. No. 473.  In
Malcolm
,
    the court set out a useful approach to the determination, as follows, at para.
    24:

First, the circumstances known to the accused must be
    ascertained. Then, the issue which arises is, if a reasonable man was aware of
    the same circumstances, would he take further steps before proceeding with the
    sexual activity? If the answer is yes, and the accused has not taken further
    steps, then the accused is not entitled to the defence of honest belief in
    consent. If the answer is no, or even maybe, then the accused would not be
    required to take further steps and the defence will apply.

[42]

Thus,
    while reasonable steps are assessed from an objective point of view, this
    assessment is informed by the circumstances subjectively known to the accused.  The
    accused is not under a positive obligation to determine all of the relevant
    circumstances; rather, the assessment is based on the circumstances actually
    known to him or her at the time:
R. v.
    Darrach
(1998), 38 O.R. (3d) 1 (C.A.), at p. 89,  affd on other
    grounds 2000 SCC 46, [2000] 2 S.C.R. 443.

[43]

What
    is required in terms of reasonable steps depends on the facts. As the British
    Columbia Court of Appeal stated in
R. v.
    G.(R.)
, at para. 29:

[Section] 273.2(b) clearly creates a proportionate relationship
    between what will be required in the way of reasonable steps by an accused to
    ascertain that the complainant was consenting and "the circumstances known
    to him" at the time. Those circumstances will be as many and as varied as
    the cases in which the issue can arise, and it seems to me that the section
    clearly contemplates that there may be cases in which they are such that
    nothing short of an unequivocal indication of consent from the complainant, at
    the time of the alleged offence, will suffice to meet the threshold test which
    it establishes as a prerequisite to a defence of honest but mistaken belief.

[44]

The
    accuseds mistaken belief in consent need not be reasonable in order for the
    defence to be available. As Morden A.C.J.O. stated in
Darrach
, at p. 90, [w]ere a person to
    take reasonable steps, and nonetheless make an unreasonable mistake about the
    presence of consent, he or she would be entitled to ask the trier of fact to
    acquit on this basis.

The
    Application of these Principles to this Case

Did
    the trial judge misapprehend or fail to consider material evidence?

[45]

The
    appellant submits that the trial judges reasonable steps analysis was based,
    to a large extent, on findings that were not supported by the evidence.  The
    trial judges assessment of the appellants credibility was also heavily
    influenced by instances of misapprehended evidence.  The appellant argues that the
    trial judges evidentiary errors and faulty credibility analysis undermine the
    legitimacy of his reasonable steps analysis.

[46]

Crown
    counsel does not dispute that the trial judge misstated the evidence in certain
    respects, but argues that these misstatements did not result in a miscarriage
    of justice. The Crown argues that any misapprehensions did not undermine the
    essential aspects of the trial judges reasoning process.

[47]

The
    Crown points to several findings that support the trial judges reasonable
    steps analysis.  In particular, the Crown relies on the finding that the
    complainant called out the name Don several times during the sexual activity
    and that the appellant failed to respond.  This finding, based on the trial
    judges rejection of the appellants evidence, significantly influenced his
    conclusion that the appellant did not take reasonable steps, a conclusion
    reinforced by other findings that the Crown submits are supported by the
    record.

[48]

In my view, the trial judge misapprehended the evidence in relation
    to five issues.  These misapprehensions coloured his assessment of the
    appellants credibility and led him to make certain factual findings relating
    to the reasonable steps analysis  specifically, the circumstances known to the
    appellant at the time he engaged in sex with S.R.

(a)

The Appellants Knowledge of
    S.R.s Illness

[49]

The
    trial judge found that the appellant was with S.R. when she vomited, a fact
    that the trial judge stated was of crucial importance to this Court.

[50]

In making this finding, the trial judge specifically rejected the appellants
    evidence that he was down at the dock struggling with a heavy beer cooler at
    the time when the complainant was throwing up on Ms. McBrides feet (at para.
    167).  He concluded that it makes little sense that Mr. Alboukhari would bring
    a heavy beer cooler by himself up to the campsite (at para. 60).  Instead, the
    trial judge accepted that everyone was around the campfire when S.R. vomited, saying
    that all the other witnesses stated that [the appellant] was at the campfire
    at the time the complainant vomited.  As further support for this conclusion,
    he relied on Mr. Fishers evidence that the appellant was present at the
    campfire when the complainant threw up and that Mr. Doucette told the appellant
    that S.R. was so wasted.

[51]

These
    are not correct statements of the evidence.  While some Crown witnesses assumed
    that the reason for S.R.s illness was common knowledge, none of them stated
    that the complainant witnessed the complainant vomit.  Both Ms. McBride and the
    complainant testified that they could not remember if the appellant saw S.R.
    vomit.  More importantly, the record shows that Mr. Fisher, Mr. Doucette and
    Mr. Lehn all supported the appellants testimony that he was not present when
    S.R. vomited.  Although not mentioned in the reasons, Mr. Lehn testified that
    when the complainant vomited, the other three men were still on the boat and
    did not get back to the campsite for another 20 minutes. In keeping with this
    testimony, the evidence of both Mr. Fisher and Mr. Doucette suggested that
    while they heard that the complainant had vomited or saw evidence to that
    effect, they did not actually witness her doing so.  Because Mr. Fisher, Mr.
    Doucette and the appellant were on the boat together and returned to the
    campfire around the same time, their testimony supports the appellants
    evidence on this point.  Contrary to the trial judges recitation of the
    evidence, at no time did Mr. Fisher state that the appellant was present when S.R.
    threw up or that Mr. Doucette told the appellant that S.R. was wasted.

[52]

The
    trial judge relied on this misapprehended evidence both in determining the
    circumstances known to the appellant and in assessing his credibility. At para.
    167, the trial judge made it clear that the appellants knowledge that S.R. had
    vomited from excessive alcohol consumption was one factor that informed the
    reasonable steps analysis. Moreover, in rejecting the appellants testimony on
    this point, the trial judge concluded that the appellant was lying about this
    issue of crucial importance  a conclusion that factored into his ultimate
    credibility assessment.

(b)

The Visibility in the Tent

[53]

The trial judge also misapprehended the evidence relating to
    the visibility inside the tent  an issue he identified as the most important
    piece of evidence in the case.

[54]

The
    trial judge, rejecting the appellants claim that the visibility in the tent
    was very good and that you could see everything clearly, found that it was
    pitch dark inside the tent.  In coming to this conclusion, he stated, at para.
    92, that the appellants evidence about the visibility in the tent was
    completely unsupported by all of the other witnesses.  Again, the trial judge
    was incorrect in his recitation of the evidence.

[55]

The trial judge stated that Mr. Fisher described the inside of the tent
    as being pitch black.  This was not Mr. Fishers evidence. Mr. Fisher did testify
    that an hour after the incident he went back into the tent and turned off his
    flashlight to test the lighting.  He said it was, at this point, very dark in
    the tent.  Mr. Fisher could not recall whether he conducted this lighting test
    before storm clouds came in.

[56]

The trial judge also stated that Mr. Doucette claimed that
    the visibility inside the tent was practically non-existent.   This was not Mr.
    Doucettes evidence.  In fact, Mr. Doucette did not describe the lighting
    conditions in the tent.

[57]

Further with respect to visibility, the trial judge said
    that all the Crown witnesses described the campfire as having been reduced to
    burning coals by the time of the incident.  The record does not support this
    statement.  Mr. Lehn testified that the fire still had a little bit of flame. 
    S.R. testified that when she ran out of the tent, the campfire was still burning. 
    Ms. McBride said she could not remember whether the campfire was still going or
    not.

[58]

On their own, these misstatements might not significantly
    undermine the trial judges important finding about the visibility inside the
    tent. However, in my view, the fact that the trial judge also failed to take
    into account direct evidence about the visibility in the tent seriously weakens
    his conclusion that the tent was pitch dark.

[59]

I
    refer to the testimony of Mr. Fisher and Mr. Doucette about their ability, upon
    entering the tent immediately following the incident, to see the appellant and
    discern his state of dress.  Under cross-examination about what he saw when he
    went into the tent after S.R. emerged, screaming, Mr. Fisher was asked about
    the look on the appellants face.  He responded by saying, He  he  he just
    kept  well the look on his face I wouldnt say is  a little surprised.  Mr.
    Fisher also testified that when he entered the tent, the appellant was wearing
    his boxers and putting on his pants.  Similarly, upon entering the tent shortly
    after Mr. Fisher, Mr. Doucette testified that he was able to see that the
    appellant was fully clothed.  These observations are direct evidence that the
    tent was not in fact pitch dark.  For some reason, the trial judge appears to
    have ignored this uncontradicted evidence  direct evidence that supported the
    appellants assertion that visibility was good enough for him to see the complainants
    face.

[60]

Furthermore,
    the trial judge did not refer to the evidence of the moonlight or of the ease
    with which the others were able to move around the campsite without flashlights
     evidence that also supported the appellants testimony.

[61]

These
    misapprehensions were critical to the trial judges reasonable steps analysis. 
    Based on his erroneous view of the evidence, the trial judge concluded that the
    tent was too dark for the complainant to discern the identity of her sexual
    partner.  Based on this conclusion, the trial judge found, at paras. 167-68,
    that the appellant was required to make his identity perfectly clear in order
    to satisfy the reasonable steps requirement.

[62]

In
    addition to the importance attached to this visibility finding in terms of
    circumstances known to the appellant for the purposes of the reasonable steps
    analysis, the trial judge also relied on it in concluding that the appellant
    was not a credible witness.  Based on his erroneous view of the evidence, the
    trial judge dismissed the appellants evidence on this point as a convenient
    truth. Significantly, the trial judge stated that the contradiction between
    the accuseds evidence and that of the other witnesses on this issue was one
    that [was] crucial to the Court moving to the ultimate decision.

(c)

The Appellants Timeline of Events

[63]

The
    trial judge also rejected the appellants timeline of events.  At para. 147 of
    his reasons, the trial judge concluded that no other witnesss evidence
    supported the appellants timeline because both Mr. Fisher and Mr. [Doucette]
    claim that they were out on the boat for anywhere between 20 minutes and an
    hour-and-a-half, before they heard the moans and ultimately the screams that
    came from the tent.  I do not see how this evidence conflicts with the
    appellants timeline. Mr. Fisher testified that when he and Mr. Doucette were
    on the boat, they were approaching the shore when they heard the cries.  As the
    trial judge noted, Mr. Fisher estimated that this second boat trip lasted 20 to
    30 minutes.  This evidence is consistent with the appellants testimony that the
    sexual activity lasted for 25 to 30 minutes, at the end of which S.R. began
    crying and screaming.

[64]

I
    further note that the trial judge, at para. 147, stated that no other testimony
    supported the appellants evidence pertaining to the time when various events
    took place on the night in question.  Yet at para. 113, the trial judge commented
    that Mr. Lehns evidence supported the appellants timeline.

[65]

Also at para. 147, the trial judge rejected the appellants evidence
    that the sexual activity began immediately. Seemingly by way of explanation, he
    noted that by [the appellants] own admission, he was sitting around the
    campfire for anywhere from five to 10 minutes before entering the tent. It is
    unclear how this explains the trial judges rejection of the appellants evidence
    on this point: the appellant testified that sexual activity began virtually
    immediately after he entered the tent. I fail to understand the relevance of
    the fact that he sat around the campfire first.

[66]

Although the misapprehensions concerning the appellants evidence as to
    the timing of various events did not directly affect the trial judges
    reasonable steps analysis, they did factor into his credibility assessment.  The
    trial judge said, at para. 147, that the accuseds evidence about the timeline
    of events was a major difficulty the Court has with the accuseds evidence.

(d)

The Physical Differences between
    the Appellant and Mr. Doucette

[67]

In
    my view, the trial judge also erred by inferring that other differences between
    the appellant and Mr. Doucette would not have been detectable given the lack of
    visibility in the tent.  This inference was not supported by the evidence and led
    him to dismiss the significance of two physical differences between the
    appellant and Mr. Doucette

[68]

Of
    particular concern, in my view, is the manner in which the trial judge dealt
    with the difference in body type between the two men.  The evidence established
    that Mr. Doucette is 59 and, in June of 2008, weighed 200 lbs.  The appellant
    is approximately the same height but considerably smaller.  At the time, the
    appellant weighed 155 lbs.  The relevance of this evidence is clear especially
    given the fact that while engaged in sexual intercourse the appellant was on
    top of S.R., in the missionary position, for about 20 minutes.

[69]

The trial judge assigned little weight to this substantial difference in
    body mass, saying, at para. 152, that clearly the accused is a smaller man
    physically compared to Mr. [Doucette] by approximately fifty pounds or more.  
    However, in a pitch black tent, this size difference would be very difficult to
    ascertain and almost impossible to do so visually given the lack of light.

[70]

A
    trier of fact may draw factual inferences from the evidence.  However, the
    inferences must be logically available from a fact or group of facts
    established by the evidence.  Otherwise it is speculation.

[71]

In
    the absence of any other evidence, I fail to see how the visibility in the tent
    would have affected S.R.s ability to perceive the significant differences in
    body type between Mr. Doucette and the appellant. The trial judges inference that
    such a size difference could not be appreciated in the dark was based on speculation. 
    He therefore erred in not assigning any value to this evidence.

[72]

Furthermore,
    the trial judge made no mention of a second difference between the appellant
    and Mr. Doucette  their hair.  Mr. Doucette has a receding hairline, while the
    appellants hair is thick and curly.  Given S.R.s evidence that when the man
    in the tent was on top of her engaging in vaginal intercourse, she took his
    face into her hands, this evidence is relevant and should not have been
    ignored.

[73]

The
    trial judges failure to consider the physical differences between the
    appellant and Mr. Doucette created a situation whereby he considered the
    circumstances known to the appellant through a lens that presented an
    incomplete picture.

(e)

The Reliability of S.R.s Evidence

[74]

I
    now turn to two critical findings made by the trial judge: first, that S.R. was
    awakened by the appellants attempt to have vaginal intercourse with her; and
    second, that the complainant called out Don five times during the sexual
    activity.  Both of these findings appear to have been based on the trial
    judges preference of S.R.s evidence over that of the appellant.  He found
    S.R. to be credible but for various reasons, some of which I have referred to
    above, rejected the appellants evidence.

[75]

The
    difficulty I have with these two findings is that the trial judge ignored
    factors that called into question S.R.s reliability as a witness  a witness
    who was testifying as to specific details of a brief sexual encounter while she
    was intoxicated and that had taken place years earlier.  While the trial judge
    mentioned that S.R. admitted that her memory of certain details were hazy, it
    does not appear that he considered whether this affected her reliability.  In
    my view, the trial judge attributed an inappropriate capacity for recollection
    of detail to the complainant. First, he made no mention of S.R.s intoxication
    in terms of its effect on her ability to observe and recollect the details of
    what took place when she and the appellant were alone in the tent.  Furthermore,
    and importantly, he overlooked the fact that S.R. gave three different accounts
    of how the sexual contact started. Mr. Fisher testified that he heard the
    complainant say that she had initiated sex with the appellant.  At the
    preliminary inquiry, the complainant testified that she woke up to someone
    nudging her and trying to wake her up.  Finally, at trial, she testified that she
    was awakened by the appellants attempting to have vaginal intercourse with
    her.

[76]

The
    trial judges failure to consider the factors that negatively affected the
    complainants reliability undermines the trial judges findings about how sex
    was initiated and the number of times S.R. called out Don.  Further, in my
    view, these findings are also undermined because the trial judges disbelief of
    the appellant rested on misapprehensions of evidence.

[77]

Before
    concluding, I make one last comment.  I observe that the trial judges finding that
    the appellant initiated sexual contact while the complainant was still asleep
    is potentially significant as, by itself, it would support a conviction for
    sexual assault.  However, for unknown reasons, this point was not argued at
    trial or on appeal.  That said, on the basis of the above analysis, I conclude
    that this finding is significantly weakened by the various errors I have
    identified and cannot be relied upon.

CONCLUSION

[78]

In
    my view the stringent test established in
Morrissey
and
Lohrer
is met in this case.

[79]

As
    the Manitoba Court of Appeal set out in
Malcolm,
the starting point of the reasonable steps analysis is the circumstances known
    to the accused. On the trial judges findings of fact, the relevant circumstances
    were as follows: in a pitch dark tent the appellant initiated sexual contact
    with a woman he barely knew, who was intoxicated and who called out her
    boyfriends name many times during the course of the sexual encounter.  However,
    as explained above, these findings are undermined by the trial judges evidentiary
    misapprehensions. And, as I have said, in my view the trial judge further erred
    in starting his reasonable steps analysis from a point at which evidence relevant
    to the circumstances known to the appellant had been erroneously omitted.  I
    refer to the physical differences between him and Mr. Doucette  differences that
    could have been detected regardless of the visibility in the tent.

[80]

Given
    my conclusion that the trial judges starting point for the reasonable steps
    analysis was unsound,
Crangle
simply does not apply.  In
Crangle
,
    the trial judges findings concerning the circumstances known to the accused were
    supported by the record.  Based on those findings, it was obvious that a
    reasonable man would have made his identity perfectly clear before engaging
    in sexual relations with the complainant.

[81]

Here,
    because the trial judges reasonable steps analysis was fundamentally flawed, the
    conviction cannot be trusted as it is not based exclusively on the evidence.

DISPOSITION

[82]

For
    these reasons, I would allow the appeal, set aside the conviction and order a
    new trial.

Released:

SEP 27 2013                                    Gloria
    Epstein J.A.

JL                                                    I
    agree John Laskin J.A.

I
    agree H.S. LaForme J.A.


