



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C. 2014, c. 25, s. 22(2),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    shall not be published in any document or broadcast or transmitted in any way.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. Crespo, 2016 ONCA 454

DATE: 20160610

DOCKET: C59193

Laskin, Cronk and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Fernando Crespo

Appellant

Najma Jamaldin, for the appellant

Mary-Ellen Hurman, for the respondent

Heard: March 8 and 9, 2016

On appeal from the conviction entered by Justice Michael
    J. Epstein of the Ontario Court of Justice, on December 12, 2013 and from the
    sentence imposed on July 23, 2014.

B.W. Miller J.A.:

(1)

Overview

[1]

After a two-day trial before a judge alone, the appellant Fernando
    Crespo was convicted of the sexual assault of P.I., a friend of a woman he had begun
    dating one month earlier. He was sentenced to 15 months imprisonment, plus 18
    months probation. Because the appellant is a permanent resident of Canada and
    not a citizen, a consequence of the sentence is that he will be subject to
    removal from Canada at the conclusion of his custodial sentence. The appellant
    appeals from both conviction and sentence.

[2]

For the reasons that follow, I would dismiss both the conviction and
    sentence appeals.

(2)

Background

[3]

The appellant and L.I. had just begun dating. L.I. arranged an evening
    out so that she could introduce the appellant to her friend P.I. and P.I.s
    partner, O.B. After a night of heavy drinking and dancing, the four went to the
    appellants apartment. The appellant, P.I., and O.B. were all heavily
    intoxicated. L.I. was less so. At some point in the evening, P.I. was feeling
    unwell and went to lie down on the bed in the appellants bedroom. O.B. went
    with her. P.I. fell asleep on the bed, with O.B. beside her. O.B. later ended
    up asleep on the floor beside the bed.

[4]

L.I. and the appellant engaged in some foreplay in the living room
    before L.I. decided to go home. She went to check on P.I. in the bedroom, and found
    her asleep on her stomach with her dress hiked up. L.I. pulled P.I.s dress
    back down over her underwear, and then went to catch a taxi. The appellant walked
    L.I. to the taxi, and then returned to the apartment.

[5]

Shortly thereafter, P.I. was awakened by the feeling of the appellant on
    top of her, engaging in sexual intercourse. P.I. was still drunk and
    disoriented, and it took her a minute to realize that it was the appellant who
    was having sex with her, and not O.B. When she realized it was the appellant, she
    exclaimed and pushed him off. He left the room calmly and went to sleep on the
    couch in the living room. She tried to waken O.B., without initial success. She
    then sent the first of a series of text messages to L.I., telling her that she
    had just been raped by the appellant. She was eventually able to awaken O.B. The
    appellant and O.B. exchanged words and O.B. and P.I. left the apartment.

[6]

The appellant was convicted of sexual assault.

(3)

Issues

[7]

The appellant advances three main grounds on his conviction appeal.
    First, that the trial judge erred in finding that P.I. did not consent to sex
    with him. Second, that the trial judge erred in not considering the defence of
    honest but mistaken belief in consent. Third, that the trial judge erred by admitting
    into evidence text messages from P.I., L.I., and the appellant. With respect to
    sentence, the appellant submits that the trial judge erred in not considering
    the immigration consequences to the appellant in sentencing and failing to
    consider a conditional sentence.

(4)

Discussion

(1)

The defence of consent

[8]

The appellant argues that the trial judge erred in rejecting the
    appellants defence that P.I. consented to having sex with him. The appellant
    argues that it was a palpable and overriding error for the trial judge not to have
    considered L.I.s evidence of P.I.s attempted seduction of the appellant earlier
    in the evening and other material evidence said to undermine P.I.s claim not
    to have consented.

[9]

The insurmountable obstacle to this submission is the trial judges
    finding that P.I. was asleep when the appellant commenced intercourse, and thus
    lacked the capacity to consent at that time. Her prior conduct is therefore
    irrelevant to the question of whether she consented. On the facts as found by
    the trial judge, she could not have consented. The trial judge committed no
    error in rejecting the appellants defence of consent.

(2)

The defence of honest but mistaken belief in consent

[10]

Although
    the appellant did not, at trial, advance the defence of honest but mistaken
    belief in consent, he now argues that there was an air of reality to the
    defence and that the trial judge erred by not considering it. I do not agree that
    there was a sufficient factual foundation for this defence, as required by
R.
    v. Ewanchuk
, [1999] 1 S.C.R. 330, at paras. 41-49, and would not give
    effect to this ground of appeal for the reasons set out below.

[11]

Unlike
    the defence of consent, it is possible for the defence of honest but mistaken
    belief in consent to be made out in circumstances where the complainant was
    asleep (or otherwise incapable of consenting) but appeared to be awake and
    consenting:
R. v. Esau
, [1997] 2 S.C.R. 777, at paras. 17-25. However,
    establishing this defence requires more than a bare assertion from the accused
    that the complainant was an active and willing participant:
R. v. Park
,
    [1995] 2 S.C.R. 836, at para. 20. A bare assertion, however, is all that the
    appellant provided.

[12]

The
    appellant argues that the circumstances of the case support his belief that P.I.
    was not asleep, but awake and in a blacked-out state when he sat down on the
    bed beside her. She initiated sexual activity with him, he says, and they
    engaged in sexual intercourse while she remained in a blacked-out state. Her
    amnesiac state accounts for her lack of memory of the commencement of sexual
    activity.

[13]

The
    appellant argues that P.I.s lack of memory of the initiation of sexual
    activity is as consistent with P.I. participating in sexual activity in a
    blacked-out state as it is with P.I. having been asleep.  As an evidential
    matter, he objects that P.I. simply has no memory of the incident and therefore
    no evidence to give as to whether she was an active and willing participant. The
    only evidence on that point, the appellant says, is his own and it should be
    accepted because no one else observed what was happening and his evidence was
    thus uncontradicted.

[14]

This
    evidential submission is deeply troubling. Were we to give effect to it, it
    would make the defence of honest but mistaken belief in consent
prima facie
available whenever a victim was asleep at the time of an assault, and the
    accused provided self-serving and unanswerable testimony as to the appearance
    of consent.  This would be a dangerous expansion of the doctrine and I would
    reject it.

[15]

The
    appellants main submission is that the trial judge erred by failing to
    consider that P.I. could have been awake but in a blacked-out state, actively engaging
    in sexual activity with the appellant, and thus leading him to reasonably
    believe that she was consenting.

[16]

For
    this argument, the appellant relies heavily on
R. v. Garciacruz
, 2015
    ONCA 27, 320 C.C.C. (3d) 414, an appeal concerning the sufficiency of a trial
    judges reasons. In
Garciacruz
, this court held that the trial judges
    factual findings were equally consistent with the complainant having remained
    asleep throughout intercourse, as with the alternative inference that the
    complainant consented to intercourse in a state of amnesia (at para. 67).

[17]

Garciacruz
,
    however, is readily distinguished from the present case. Significantly, the
    complainants evidence in
Garciacruz
supported the conclusion that she
    was in a blacked-out state well in advance of sexual activity with the accused,
    and remained in that state until she awoke the next morning. On the
    complainants evidence, everything went black after she had a few sips of gin
    and tonic at a bar, and she had only a few scattered and vague recollections
    thereafter (at para. 48). She was not intoxicated. She had virtually no memory
    of events between leaving the bar and waking up the next morning, including
    walking out of the bar, getting into a taxi, and going to the accuseds
    apartment, in the company of the accused and her cousin (at para. 56).

[18]

This
    court held in
Garciacruz
that the evidence supported two possible
    inferences: either the complainant was asleep at the time of sexual intercourse
    and did not consent, or she was in an amnesiac state from earlier in the
    evening, fell asleep, continued in the amnesiac state when she awoke, and then actively
    engaged in sexual intercourse with the accused while retaining no memory of it.
    The trial judges error in
Garciacruz
was a failure to give reasons that
    would have allowed this Court to determine whether the trial judge had considered
    the latter possibility, and his reasons for not accepting that it raised a
    reasonable doubt.

[19]

Unlike
Garciacruz
, the trial judges factual findings in this case foreclose
    the argument that the appellant advances. The factual findings in this case do
    not support the conclusion that P.I. was in an amnesiac or blacked-out state at
    any point in the evening prior to lying down and going to sleep on the
    appellants bed. There was a finding that she had some lapses in her memory due
    to alcohol consumption, and some disagreement with other witnesses about what
    occurred that evening. However, neither of these findings supports a conclusion
    that P.I. was in an amnesiac state. Unlike the complainant in
Garciacruz
,
    P.I. was aware of events and circumstances until the point that she fell
    asleep. And unlike the complainant in
Garciacruz
, she specifically
    remembered lying down to fall asleep and being awakened by the appellant having
    sex with her. She remembered doing many things immediately thereafter: trying
    to awaken O.B., texting L.I., calling her mother.

[20]

The
    appellants difficulties with the defence of honest but mistaken belief in
    consent do not stop there. The defence is only available where an accused has taken
    reasonable steps to ascertain consent: s. 273.2(b) of the
Criminal Code
(R.S.C. 1985, c. C-46)
;
Esau
,
    at para. 49. On the appellants evidence, the complainant looked him in the
    eyes, wrapped her legs around him, and helped him to remove his pants. The
    accused argues that this interaction amounts to having taken reasonable steps
    to ascertain consent. The trial judge, however, rejected the appellants evidence
    that this interaction occurred. There is no basis for appellate interference
    with this finding.

[21]

The
    appellants evidence was rejected by the trial judge on its own terms, and not
    simply because it conflicted with the complainants evidence. There were ample
    grounds to do so. The trial judge held:

The accused was an extremely poor witness. He was almost
    comically evasive when confronted with obvious inconsistencies [] I cannot
    accept his trial evidence that he remembered the complainant giving her consent
    in light of the contrary position he took with his friends and with police [] He
    swore to police on the lives of those he loved that he had no recollection. He
    says that was a lie. His evidence about the pills and the drink was so
    convoluted and evasive as to be unbelievable []

I simply do not believe the accused nor does his evidence raise
    a reasonable doubt in my mind. Moreover, on all the evidence I am satisfied
    that he came upon the complainant in the bedroom, observed that she was passed out
    and took advantage of her.

[22]

In
    light of these factual findings, the trial judge was not obliged to consider whether
    the appellant had an honest but mistaken belief in consent as that defence
    simply had no air of reality.

(3)

Admissibility of text messages

[23]

Text
    messages between L.I. and P.I., the appellant and L.I., and P.I. and the
    appellant were admitted into evidence with the appellants consent. The
    appellant brought a fresh evidence motion on appeal to introduce an affidavit
    from his defence counsel at trial stating that the appellant only consented to
    the admission of the text messages for the purposes of refreshing memory and
    for impeachment on cross-examination. He did not consent to the admission of P.I.s
    texts for the truth of their contents.

[24]

The
    appellant argues that the conviction rests on the texts, which are hearsay
    evidence and ought not to have been admitted, notwithstanding that trial
    counsel did not object to their use, and indeed made extensive use of them in
    cross-examination.

[25]

I
    would accept the fresh evidence, but it does not alter my conclusion on the
    admissibility and alleged misuse of the text messages. The difficulty with the
    appellants submission is that all the witnesses testified and adopted the
    statements made in the texts, with the exception of one text from P.I. that she
    could not recall having sent. The hearsay objection therefore falls away.

[26]

The
    appellant further objects that the trial judge erred by improperly relying on
    some of the text messages as prior consistent statements to bolster the
    credibility of P.I. A review of the trial judges reasons, however, does not
    support this argument. In any event, as noted above, the trial judge rejected
    the appellants evidence on its own terms.

(4)

Sentence

[27]

The
    appellant received a sentence of 15 months in custody. He appeals on the basis
    that the sentence is overly lengthy and disproportionate when considered in
    conjunction with the immigration consequences of the sentence. He also argues
    that the sentencing judge erred by failing to consider a conditional sentence. The
    appellant is an Ecuadorian national, and he introduced fresh evidence that he faces
    deportation at the conclusion of the custodial portion of his sentence.

[28]

Although
    the sentencing judge imposed the sentence requested by the defence, defence
    counsel did not appear to be alive to the immigration issue, and did not bring
    it to the attention of the sentencing judge. The appellant relies on the
    judgment of this court in
R. v. Nassri
, 2015 ONCA 316, 125 O.R. (3d)
    578, for the proposition that sentencing judges can take into account
    immigration consequences when sentencing.

[29]

The
    difficulty with the appellants submission is that, by operation of s. 36(1)(a)
    of the
Immigration and Refugee Protect Act
, S.C. 2001, c. 27, the
    appellant will face deportation if he receives any custodial sentence of six months
    or longer. However, a custodial sentence of less than six months, or a
    conditional sentence, would be manifestly unfit for the circumstances of this
    offender and this offence on the facts as found by the trial judge. As the
    Crown argues, consideration of immigration consequences cannot justify an
    otherwise inadequate sentence:
R. v. Freckleton
,
2016 ONCA 130.

[30]

I
    see no basis upon which to interfere with the sentence imposed, and I would
    decline to do so.

(5)     Disposition

[31]

For
    the reasons given, I would grant leave to admit the fresh evidence concerning
    the admission of text messages, and the fresh evidence related to the sentence
    appeal. I would dismiss both the appeal as to conviction and as to sentence.

Released: BWM  JUN 10 2016

B.W. Miller J.A.

I agree. John Laskin
    J.A.

I agree. E.A. Cronk
    J.A.


