



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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.A.P., 2022 ONCA 134

DATE: 20220214

DOCKET: C68636

Fairburn A.C.J.O., Doherty and
    Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

E.A.P.

Appellant

Colleen McKeown, for the appellant

Nicole Rivers, for the respondent

Heard: February 8, 2022 by
    video conference

On appeal from the conviction entered by
    Justice G.P. Renwick of the Ontario Court of Justice on December 19, 2019.

REASONS FOR DECISION


[1]

The appellant was convicted of sexually
    assaulting X.F. The trial was short. There were three witnesses. There was one
    main issue in dispute. X.F. said she did not consent to sexual intercourse with
    the appellant. He testified she did.

[2]

The appellant appeals conviction only.

[3]

X.F. and the appellant had met at a car rally.
    X.F. modelled at those rallies. She placed an ad on Instagram, looking for a
    location for a photoshoot. The appellant offered his house. X.F. agreed to meet
    him at the house. The appellant picked her up and they drove to a local Walmart
    to buy some drinks. From there, they proceeded to the home.

[4]

The appellant and X.F. both testified they had
    sexual intercourse at the appellants home. According to him, it was consensual
    and was the culmination of a series of consensual sexual contacts that began
    when he and X.F. were walking around Walmart. According to the appellant, he
    had his arm around X.F.s waist and, on one occasion, touched her buttocks.
    X.F. acknowledged that this occurred. Although it made her feel somewhat
    uncomfortable, she did not say anything or move away from the appellant.

[5]

X.F. testified the appellant made sexual
    advances after they arrived at his house. At one point, she told him she was
    fine with kisses, but nothing else was going to happen. The appellant persisted
    in his advances. After about 40 minutes, X.F., who was becoming upset, told the
    appellant she had no interest in having sex with anyone and nothing was going
    to happen.

[6]

According to the appellant, he told X.F. that he
    wanted to make love with her and she said, thats fine but that she would not
    see him again.

[7]

X.F. testified that she eventually made her way
    out of the bedroom to the bathroom. The appellant followed. He picked X.F. up
    and placed her on the countertop. A couple of minutes later, he carried her to
    the bed. The appellant did not ask permission to do any of these things. X.F.
    did not tell him he could not do any of these things.

[8]

X.F. testified, that when the appellant put her
    on the bed, she told him her pants were not coming off. She also told him that
    if he attempted to have sex with her, she would never speak to him again. She
    told the appellant she did not want to have sex or bang. She was crying.

[9]

The appellant proceeded to insert his penis into
    X.F.s vagina. A short time later, he stopped and said he was sorry.

[10]

According to the appellant, X.F. never said she
    did not want to have sex. To the contrary, when he told her he wanted to make
    love to her, she nodded and said, thats fine. She was not crying and she did
    not raise any objection to his actions. She told him everything was okay
    while they were having sex. He stopped when it seemed to him that they were not
    connecting emotionally.

[11]

Immediately after the sexual intercourse, X.F.
    asked the appellant to take her home. She testified the appellant admitted he
    should not have had sex with her. Later that night, the appellant and X.F.
    exchanged text messages. He apologized, indicating that when he held her, it
    just felt right. X.F. told him he had to get better control of himself.

[12]

The day after the alleged rape, X.F. spoke with
    her foster mother and told her she had been raped. Her foster mother took her
    to the hospital. X.F. was seen by Social Services and the police took a
    statement later that day. According to X.F.s foster mother, X.F. was very
    upset when she spoke to her foster mother. In fact, her foster mother testified
    she had never seen X.F. so upset.

[13]

The trial judge reviewed the evidence of the
    complainant and the appellant at some length. The central findings by the trial
    judge are set out below (at para. 39):

In the end, on the critical parts of his
    testimony, I do not accept as true what the defendant said about X.F.s
    purported consent to have intercourse that night. Instead, I find as a fact
    that X.F. specifically told the defendant that her pants were to stay on and
    she did not want to bang or have sex. Despite her clear words, the
    defendant chose to disregard her wishes and took advantage of her physically
    because she was smaller, younger, and did not protest when he pursued his
    desires: (para. 31). There was no vibe that X.F. exuded to permit the
    defendant to engage in intercourse with her. I accept the defendants evidence
    that his statement I want to make love was said. X.F. did not deny this.
    However, she never agreed to this, she never said it was fine for him to act
    on his wishes and she did not give consent, nor say or do anything from which
    consent could reasonably be inferred. To the contrary, I find the complainant
    was clear that she was not interested in having sexual intercourse with the
    defendant and he simply chose to disregard her stated intentions.

grounds of appeal

Ground #1: The alleged undue reliance on X.F.s
    demeanour when assessing her credibility

[14]

Trial judges reasons must be examined as a
    whole, having regard to the live issues at trial, the evidentiary record and
    the arguments. They must also be examined, bearing in mind the trial judges
    assumed knowledge of the operative legal principles and the trial judges understanding
    of the fact-finding role.

[15]

Where error is alleged, it is incumbent on the
    appellant to demonstrate that error, not merely a possible error, or an
    ambiguous turn of phrase capable of being read on appeal as a misapprehension
    of the law or a misunderstanding of the evidence:
R. v. G.F.
, 2021 SCC
    20, at paras. 68-72.

[16]

When, as in this case, the challenge on appeal
    is to the trial judges credibility findings, appellate courts have repeatedly
    acknowledged the advantaged position of trial judges and approached arguments
    about credibility errors with strong deference to the trial judges findings:
G.F.
,
    at paras. 81-82. As observed in
G.F.
, credibility assessments are not to
    be overturned simply because a surgical parsing by the appellate court of the
    trial judges reasons reveals an imperfect or summary expression on the part
    of the trial judge:
G.F.
, at para. 76.

[17]

The trial judge made several references to
    elements of the complainants demeanour in his assessment of her credibility.
    Read as a whole, however, we cannot say those references demonstrate that the
    trial judges reliance on demeanour was undue. The trial judge addressed
    several other factors that were also relevant to credibility. He noted:

·

X.F.s evidence of the overall narrative was
    largely unchallenged;

·

her evidence was internally consistent;

·

she gave her evidence in a balanced way,
    acknowledging parts of the narrative which potentially assisted the appellant;

·

she had a very good recollection of collateral
    detail; and

·

her foster mothers evidence that X.F. was very
    upset the following morning was confirmatory of her version of events.

[18]

Counsel for the appellant submits that the
    finding that X.F.s evidence was balanced was no more than a finding that she
    did not exaggerate her evidence, or make allegations that were worse than the
    ones she did make. We read the finding that the evidence was balanced as a
    finding that X.F. told her story frankly and in a manner which did not suggest she
    was shaping her evidence to put herself in the best light, or the appellant in
    the worst light. X.F. acknowledged facts that were not helpful to her, and
    offered some support for the appellants position. A finding properly rooted in
    the evidence that there are strong
indicia
of candour and
    forthrightness in a witnesss testimony, are positive features of that
    witnesss evidence, capable of supporting a finding that the witnesss evidence
    is credible.

[19]

We accept that the mere absence of deliberate
    exaggeration by a witness does not make the witness more credible. In our view,
    however, the trial judges description of X.F. as giving balanced evidence
    went well beyond a mere finding that she did not deliberately exaggerate her
    evidence.

[20]

Counsels argument that the trial judge failed
    to deal with inconsistencies between the complainants evidence and her
    statement to the police is not borne out by the record. There was one
    inconsistency identified by counsel. X.F. used different language in her
    statement and in her testimony when describing her reaction to the appellants
    advances at Walmart. To the extent that the two versions are inconsistent, the
    failure by the trial judge to expressly deal with this one inconsistency in no
    way undermines the overall force of the reasons. This kind of microscopic
    review of a trial judges credibility assessments is exactly what the Supreme
    Court has cautioned against in several cases, including
G.F.

[21]

Demeanour certainly factored into the trial
    judges assessment of credibility. No one suggests that it should not have. The
    appellant has not satisfied us that the trial judges consideration of
    demeanour was undue.

Ground #2: Did the trial judge take an overly
    narrow view of how consent can be communicated?

[22]

The trial judge clearly and unequivocally accepted
    the evidence of X.F. that she told the appellant more than once that she did
    not want to have sex with him and was not consenting to sexual intercourse. The
    trial judge equally clearly and unequivocally rejected the appellants evidence
    that X.F. had communicated her consent to have sex with him by telling him
    thats fine when he asked if he could make love to her. Therefore, the
    verdict in no way turned on how consent could or could not be communicated. On
    the findings, there was no consent to sexual intercourse of any kind
    communicated by X.F.

[23]

The appellant nonetheless argues that, in
    rejecting the appellants testimony, the trial judge erred by relying upon an
    overly narrow view of how consent can be communicated. Specifically, based on
    the appellants acknowledgements that he had repeatedly touched the complainant
    in sexually suggestive ways throughout the evening without asking permission,
    the trial judge said, one of the main problems I have with the defendants
    testimony is that the defendant made assumptions about the level of physical
    contact X.F. wanted with him and mistook her silence or acquiescence as
    consent. It is clear from the decision, as a whole, that the trial judge
    reasoned that the appellants testimony about the communication that occurred
    relating specifically to sexual intercourse was implausible, given his pattern
    of behaviour relating to consent throughout the evening. We see no error in
    this reasoning. It does not reveal an overly narrow view of how consent can be
    communicated but instead, constitutes a pattern of conduct that the trial judge
    was entitled to rely upon.

Ground #3: Did the trial judge reverse the
    burden of proof on the question of mistaken belief in consent?

[24]

The trial judge began his reasons with a full
    and accurate description of the Crowns burden of proof. Near the end of his
    reasons, after finding that X.F. did not consent, the trial judge said:

I have considered whether on all of the
    evidence it is established that the defendant could have reasonably held an
    honest but mistaken belief in consent. In light of the factual findings I have
    come to, this defence also fails.

[25]

The appellant submits that the above-quoted
    passage wrongly puts the onus on the appellant to establish a reasonable but
    mistaken belief in consent. There is some merit to the appellants submission,
    if the above-quoted passage is considered in isolation from the trial judges
    earlier, more detailed description of the burden of proof.

[26]

In any event, on the trial judges findings of
    fact, all of which stand given our rejection of the first ground of appeal,
    there was no air of reality to a claim of an honest and reasonably held belief
    in consent. On the trial judges findings, there was sexual intercourse in the
    face of repeated refusals by X.F. to consent to sexual intercourse.

conclusion

[27]

As indicated at the end of argument, the appeal
    is dismissed.

Fairburn A.C.J.O.

Doherty J.A.

David M. Paciocco J.A.


