


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    that could identify the complainant or a witness shall not be published in any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. Orwin, 2017 ONCA 841

DATE: 20171102

DOCKET: C62759

Watt, Epstein and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jacob Stephen Orwin

Appellant

Robert F. Goddard, for the appellant

Jill Witkin, for the respondent

Heard: September 7, 2017

On appeal from the conviction entered on October 28, 2015
    and from the sentence imposed on February 17, 2016 by Justice Brian W. Abrams of
    the Superior Court of Justice, sitting without a jury.

By the
    Court:

[1]

The appellant appeals his conviction of a single count of sexual assault
    and the sentence imposed upon him for that conviction.

[2]

At the conclusion of oral argument, we announced that the appeals from
    conviction and sentence would be dismissed for reasons to be provided at a
    later date. Our reasons follow.

The Background Facts

[3]

The principals were involved in a short-term casual sexual relationship.
    At the time of the events with which we are concerned, the appellant was 23,
    the complainant 18.

[4]

Feeling stressed about her impending move out-of-province to attend
    school, the complainant went over to the appellants home one evening. The
    couple shared some wine and went to bed. Neither was fully clothed. No sexual
    activity occurred.

[5]

The following morning, the complainant was still stressed. The appellant
    offered to give her a massage to alleviate her stress. The complainant agreed
    that he could do so. As the complainant lay on her stomach, the appellant began
    to massage her back. From this point, the accounts of the principals diverge.

[6]

According to the complainant, she made it clear to the appellant, by
    what she said and what she did, that she did not consent to him touching her buttocks,
    either over or beneath her underwear. Nor did she consent later when he
    penetrated her anus, first with his finger and then with his penis. When the
    appellant stopped anal penetration, the complainant rolled over, said what the
    fuck and walked into the bathroom. There, she noticed bite marks, scratches
    and hand marks on her body. She decided to leave.

[7]

When the complainant returned to the bedroom from the bathroom, the
    appellant asked dont you want to finish me off. She declined. She was upset,
    but told the appellant, in response to his question, that she was fine.

[8]

The day after the incident the complainant sent a text message to the
    appellant. She told him that she had not consented to the anal intercourse. He
    responded: I feel as though I raped you. Later that same day, the complainant
    reported the assault to the police.

[9]

Two months later, the appellant sent the complainant a Facebook message
    asking her if she had gone to the police.

[10]

The
    appellant, relying on his own testimony, advanced consent as his principal
    defence. But he also argued that he should be found not guilty because he
    honestly but mistakenly believed that the complainant consented to anal
    intercourse.

[11]

The
    appellant grounded his claim of honest but mistaken belief in consent on what
    he interpreted were positive signs from the complainant. She moaned with
    pleasure. She did not say no. Her body language was consistent with her physical
    reaction during consensual intercourse on previous occasions. The appellant
    claimed that they had had consensual anal intercourse on several prior
    occasions.

[12]

The
    appellant recalled that the complainant seemed somewhat off after the anal
    intercourse occurred, although she said she was fine. After she made her
    allegation via text message, the appellant began to wonder whether her moans
    reflected pain, not pleasure.

[13]

The
    appellant explained that the facially inculpatory Facebook and text messages he
    sent the complainant after the events were meant to reflect his empathy for
    her. They were not admissions of guilt.

The Appeal from Conviction

[14]

On
    the appeal from conviction, the appellant contends that the trial judge made
    three errors:

i.

he failed to give effect to the defence of honest but mistaken belief in
    consent by failing to consider, at all or adequately, evidence from the
    complainant that tended to support this defence;

ii.

he applied a stricter standard of scrutiny to the testimony of the
    appellant than to the evidence of the complainant; and

iii.

he misapprehended the appellants evidence about his characterization of
    the complainants moans during anal intercourse.

Ground #1: Mistaken Belief in Consent

[15]

On
    the issue of consent, the appellant acknowledges that the versions of events
    provided by him and by the complainant are irreconcilable. The trial judge, as
    he was entitled to do, rejected the appellants account and accepted that of
    the complainant. But where the judge foundered, the appellant says, was in his
    failure to consider whether a reasonable doubt could arise from a viable set of
    facts cobbled together to constitute a defence of mistaken belief in consent.

[16]

The
    appellant points to several items of evidence that he says the trial judge
    failed to take into account in connection with the defence of honest but
    mistaken belief in consent:

i.

the complainants description of the appellants demeanour after anal
    intercourse had occurred;

ii.

the complainants expressed self-doubt about the appellants knowledge
    of consent during the anal intercourse;

iii.

the complainants unhurried departure from the appellants home after
    anal intercourse had occurred;

iv.

the double cancelled date;

v.

the lack of anal soreness on the part of the complainant; and

vi.

prior consensual anal intercourse between the parties.

[17]

The
    cumulative effect of these several items of evidence, the appellant says,
    provided an evidentiary foundation for the defence of honest but mistaken
    belief in consent. The trial judges failure to consider the cumulative effect
    of this evidence in his determination that the defence of honest but mistaken
    belief in consent lacked an air of reality was an error of law undone only by
    ordering a new trial.

[18]

We
    do not give effect to this ground of appeal.

[19]

We
    begin our consideration of this ground of appeal with the well-established
    principle that, in giving reasons for judgment in a criminal case, a trial
    judge is not required to refer to each and every morsel of evidence admitted at
    trial:
R. v. R.E.M
., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 20. It
    necessarily follows that, without more, the simple failure of the trial judge
    to refer to a specific item or feature of the evidence does not constitute
    legal error or render the reasons insufficient to permit meaningful appellate
    review.

[20]

In
    our assessment of this claim of error we must also keep in mind several
    features of what criminal law practitioners and judges describe as the
    defence of honest but mistaken belief in consent.

[21]

The
    defence of mistake is simply a denial of
mens rea.
It does not
    impose any burden of proof upon an accused. Applied to the issue of consent in
    cases such as this, honest but mistaken belief is an argument that the Crown
    has failed to prove beyond a reasonable doubt that the accused knew that the
    complainant was not consenting to the sexual activity in question:
R. v.
    Ewanchuk
, [1999] 1 S.C.R. 330, at para. 44;
R. v. L.S.
, 2017 ONCA
    685, at paras. 37 and 39.

[22]

For
    an accuseds conduct to be morally innocent, the evidence must show that he
    believed that the complainant communicated consent to engage in the sexual
    activity alleged to constitute the
actus reus
of the offence: here,
    anal intercourse. Speculation by an accused about what was going on in a
    complainants mind affords no defence:
Ewanchuk
, at para. 46. Further,
    an accuseds belief that silence, passivity, or ambiguous conduct constitutes
    consent is a mistake of law, and thus provides no defence:
Ewanchuk
,
    at para. 51.

[23]

A
    final point concerns the limitation on mistaken belief in consent imposed by s.
    273.2 of the
Criminal Code
. A mistaken believe in consent cannot arise
    from an accuseds own recklessness, wilful blindness, or a failure to take
    reasonable steps, in the circumstances known to the accused at the time of the
    sexual activity, to ascertain that the complainant was consenting.

[24]

Turning
    to the evidence advanced by the appellant to found his claim of honest but
    mistaken belief in consent, we are satisfied that neither individually nor
    cumulatively can they ground his denial of
mens rea.

[25]

Taking
    first the complainants evidence about the appellants demeanour after anal
    intercourse had occurred. To the extent that this evidence is offered to
    describe the appellants state of mind at the time of anal intercourse  that
    is to say, his belief that she was consenting  it is inadmissible speculation.
    Further, it is at odds with the appellants later text and Facebook messages acknowledging
    his recognition that he had done something wrong. What is more, a fair
    construction of the appellants text messages reveals recklessness on his part,
    a state of mind that negates the availability of honest but mistaken belief in
    consent as a defence.

[26]

In
    her testimony, the complainant was very clear that she communicated her lack of
    consent to anal intercourse unequivocally by her words and conduct the morning
    the offence occurred. The relevant time for consent, likewise honest but
    mistaken belief in consent, is at the time of the sexual activity said to be consensual.
    The complainants self-doubt about the timing of the prior communication of
    non-consent was of no real relevance to the availability of the defence now
    advanced.

[27]

The
    appellant makes two further claims. First, that evidence that the complainant
    waited for the appellant to complete his shower before leaving belied her claim
    of a hurried departure. Second, that the appellants suggestion that his text message
    cancelling a date the complainant claimed she had previously cancelled called
    into question the reliability of the complainants recollection of events.

[28]

These
    claims can be considered together. At best, these pieces of evidence were
    relevant to the complainants credibility as a witness. Neither relates to the
    reliability of her evidence denying consent. Neither alone nor together can
    they provide an evidentiary foundation for an antecedent belief in consent. Nor
    can the reliability of the complainants evidence be measured or diminished by
    what the appellant later did.

[29]

No
    expert evidence was adduced about the likelihood of anal soreness after forced
    anal intercourse. In the absence of such evidence, no adverse inference can be
    drawn about the complainants credibility or the reliability of her evidence of
    what occurred. Further, it is difficult to see how this after-the-fact
    discovery of a physical condition could have had any influence on the appellants
    contemporaneous state of mind.

[30]

The
    appellant and complainant differed about how many times they had previously had
    anal intercourse. The complainant insisted, as she wrote in a text message to
    the appellant, that she had previously told him that she wasnt okay with
    anything anal. We are unable to see how any inconsistency on this issue could
    assist the appellant in establishing an air of reality for the defence of
    honest but mistaken belief in consent. The complainants consent to anal intercourse
    in the past cannot be used to support the appellants claim of mistaken belief
    in consent:
R. v. Barton
, 2017 ABCA 216, 38 C.R. (7th) 316, at paras.
    169 and 254.

[31]

In
    rejecting this ground of appeal we are also mindful that the appellant clearly
    based his defence on consent and testified that the complainant was a willing
    partner. The complainants version was one of unmistakable resistance. The
    issue was one of credibility, of consent or no consent:
R. v. Park
,
    [1995] 2 S.C.R. 836, at para. 26.

Ground #2: Uneven Scrutiny

[32]

The
    appellant also complains that the trial judge applied a more demanding level of
    scrutiny in his assessment of the appellants evidence and credibility than he
    did when considering the evidence and credibility of the complainant.

[33]

This
    argument, or some variation of it, has become a staple in appeals from
    conviction in judge alone trials where the evidence sets the word of the
    complainant, on the one hand, against the denial of the accused, on the other,
    with the result contingent upon the trial judges credibility assessments. This
    is a difficult argument to advance successfully. An appellant must do more than
    show that a different trier of fact could have decided credibility differently.
    Or that the trial judge left something out that she could have said in
    assessing the respective credibility of the principals. Or that the trial judge
    failed to set out, in express terms, legal principles relevant to that
    credibility assessment. To succeed the appellant must point to something in the
    trial judges reasons, or perhaps elsewhere in the trial record, that makes it
    clear that the trial judge applied different standards in assessing the
    evidence of the appellant and the complainant:
R. v. Howe
(2005), 192
    C.C.C. (3d) 480 (Ont. C.A.), at para. 59.

[34]

In
    this case, the appellant says that the uneven scrutiny argument is made out
    because the trial judge rejected as incredible the appellants account of
    honest but mistaken belief in consent on the basis of:

i.

the appellants failure to correct the complainants text message that
    she had previously told him that she wasnt okay with anything anal;

ii.

the short-term nature of their relationship, which had an expiry date;
    and

iii.

the inculpatory contents of the appellants text messages sent shortly
    after the events that formed the subject-matter of the charge.

But, in deciding that the complainants account of non-consensual
    anal intercourse was credible, failed to take into account:

i.

her failure to correct the appellants text message cancelling their proposed
    date to point out that she had already cancelled it;

ii.

her characterization of the short-term nature of their relationship; and

iii.

the portions of the appellants text messages that were consistent with
    his claim of honest but mistaken belief in consent.

[35]

We
    decline to give effect to this ground of appeal.

[36]

In
    our view, a fair reading of the trial judges reasons, taken as a whole, fails
    to reveal the flaw claimed by the appellant.

[37]

The
    first complaint of uneven scrutiny focuses on the text messages sent by the
    appellant and complainant shortly after the events that formed the subject-matter
    of the charge. To be more specific, the appellant complains that the trial
    judge considered his (the appellants) failure to correct the complainants message
    that she wasnt okay with anything anal as telling against his credibility,
    but failed to consider the complainants omission to correct the appellants
    message cancelling the Saturday night date as impeaching her credibility.

[38]

Apart
    altogether from the absence of any obligation of a trial judge to articulate a
    consideration of every item of evidence adduced in a criminal trial and record
    findings of fact about it, we see a world of difference between the two omissions.
    On the one hand, the appellant failed to respond to a text message that
    essentially accused him of a crime. His failure to respond in the circumstances
    could be considered an admission by silence. On the other hand, the complainants
    failure had to do with something that was to occur, if at all, well after the
    alleged offence and was of no real relevance to the issues in dispute. The
    complainant was cross-examined about the omission. This provided the trial
    judge with the opportunity to assess her responses and their impact on her credibility
    and the reliability of her evidence. That he did not consider the omission as
    worthy of mention does not amount to uneven scrutiny.

[39]

The
    second submission about uneven scrutiny faults the trial judge for considering
    the short-term nature of the relationship between the principals in his
    assessment of the credibility of the appellant, but not that of the
    complainant.

[40]

Once
    again, we see a difference in the significance of the evidence to the issues in
    the case. It was common ground that the relationship was a casual sexual
    relationship, characterized by the parties as fuck buddies. It had an expiry
    date  the complainants imminent departure from the province to pursue her
    education elsewhere.

[41]

The
    complainants characterization of the relationship is of no relevance to her
    credibility when she said that she did not consent to anal intercourse. Such a
    characterization cannot support an inference from past conduct that she is more
    likely to have consented, especially to conduct which she had previously opposed,
    or that she was less worthy of belief.

[42]

On
    the other hand, the appellants evidence that the relationship had an expiry
    date could support an inference, when considered along with the balance of his
    evidence about his sexual preferences for anal intercourse and his analysis of
    what his sexual partner means by no, which tended to rebut his claim of
    honest but mistaken belief in consent by showing that he was reckless or
    wilfully blind about the complainants consent.

[43]

The
    final allegation of uneven scrutiny is that the trial judge considered only the
    inculpatory portions of the appellants text messages and not those portions
    that are said to be exculpatory. Nothing in the reasons of the trial judge
    suggests that he failed to consider the messages as a whole. In our view, when
    considered as a whole, there is little exculpatory about these messages. For
    the most part, anything that appears exculpatory on its face demonstrates
    either that the appellant was reckless as to whether the complainant was
    consenting to anal intercourse, or that he failed to take reasonable steps, in
    the circumstances as he knew them, to determine that the complainant was
    consenting.

Ground #3: Misapprehension of Evidence

[44]

The
    final ground of appeal against conviction is that the trial judge misunderstood
    or misapprehended the appellants evidence about the complainants moans during
    anal intercourse. It is common ground that the trial judge was wrong to
    conclude that the appellant
admitted
that the complainant was moaning
    in pain during anal intercourse.

[45]

It
    is elementary that not every misapprehension of evidence will result in a
    miscarriage of justice and thus require a new trial. The test on appellate
    review of claims of misapprehension of evidence is stringent. The misapprehension
    must relate to material parts of the evidence. The error must play an essential
    part in the reasoning process of the trial judge resulting in the conviction:
R.
    v. Morrissey
(1995), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 221;
R. v.
    Lohrer
, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2. Said in another way,
    an error in the assessment of 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:
R. v. Sinclair
,
    2011 SCC 40, [2011] 3 S.C.R. 3, at para. 56.

[46]

We
    do not dispute that the trial judge relied upon this misapprehension of
    evidence to reject the appellants defence of honest but mistaken belief in
    consent. That said, the trial judge advanced several reasons for rejecting this
    defence:

i.

the appellants view of his sexual relationship with the complainant as
    having an expiry date and soon-ending;

ii.

the appellants self-proclaimed proclivity for anal sex;

iii.

the complainants express rejection of the appellants sexual advances
    by words and conduct the morning of the alleged offence;

iv.

the aggressive nature of the appellants conduct;

v.

the appellants contemporaneous text messages, which confirmed the
    complainants version of events and more accurately described the events than the
    revisionist account the appellant advanced at trial; and

vi.

the appellants Facebook message to the complainant two months later
    questioning whether she had gone to the police, sent to curry sympathy with the
    complainant by suggesting that he had already suffered enough.

[47]

In
    the result, we are not satisfied that the trial judges misapprehension of the
    evidence caused a miscarriage of justice requiring the order of a new trial.

[48]

For
    these reasons we dismissed the appeal from conviction.

The Appeal from Sentence

[49]

At
    trial, Crown counsel (not. Ms. Witkin) sought a penitentiary sentence of 3 and
    ½ years. Trial counsel for the appellant (not Mr. Goddard) sought a reformatory
    sentence of 9 months followed by a period of probation.  The trial judge
    imposed a sentence of imprisonment of two years less one day, followed by one
    year of probation.

[50]

The
    appellant alleges four errors in the trial judges sentencing decision. He
    submits that the trial judge erred:

i.

in considering that the offence involved abuse of the appellants spouse
    or common-law partner as an aggravating factor on sentence under s.
    718.2(a)(ii) of the
Criminal Code
;

ii.

in considering that the offence involved abuse of the appellants
    position of trust in relation to the complainant as an aggravating factor on
    sentence under s. 718.2(a)(iii) of the
Criminal Code
;

iii.

in failing to apply the parity principle of s. 718.2(b) of the
Criminal
    Code
; and

iv.

in failing to accord sufficient weight to the appellants mental health
    struggles, including his bipolarity.

[51]

We
    approach our consideration of the fitness of the sentence imposed in this case
    mindful of the highly deferential standard of review applicable in sentencing
    cases. Except where the sentencing judge has made an error of law or of
    principle that has an impact on the sentence imposed, we may not vary the
    sentence unless it is demonstrably unfit:
R. v. Lacasse
, 2015 SCC 64, [2015]
    3 S.C.R. 1089, at para. 11.

[52]

For
    an error of law or of principle to be material, the error must have affected
    the sentence determination in something more than just an incidental way. And
    the error must be an error in law; an error in principle; a failure to consider
    or accord sufficient weight to a relevant factor; or erroneous consideration of
    an aggravating or mitigating factor:
Lacasse
,

at para. 44.

[53]

A
    sentence is demonstrably unfit if it unreasonably departs from the fundamental
    principle of proportionality in light of the individual circumstances of the offence
    and offender, and the acceptable range of sentence for similar offences
    committed in similar circumstances by similar offenders:
Lacasse
, at
    paras. 52-55.

[54]

In
    his reasons for sentence, the trial judge identified several aggravating
    factors:

i.

abuse of a spouse or common-law partner;

ii.

abuse of a position of trust in relation to the complainant;

iii.

the significant impact of the offence on the complainant; and

iv.

the gratuitous violence inflicted on the complainant.

[55]

The
    trial judge also considered several mitigating factors:

i.

the appellant was a youthful first offender;

ii.

the impact of the conviction on the appellants employment and
    employability;

iii.

the appellants rehabilitative prospects; and

iv.

the appellants mental health issues.

[56]

The
    trial judge accurately identified the appropriate range of sentence for the
    appellant and his offence. He imposed a sentence at the low end of that range.
    In these circumstances, we cannot say that the trial judge paid no or
    insufficient heed to the appellants status as a youthful first offender, his
    rehabilitative prospects or the principle of parity.

[57]

The
    trial judge considered the appellants abuse of his spouse or common-law
    partner as an aggravating factor, even though he appears to have acknowledged
    that the complainant was neither. This was an error, whether of law or of
    principle is of no great moment. The trial judge rightly considered the
    appellants abuse of trust as an aggravating factor in accordance with the
    decision in
R. v. C.R.
,

2010 ONCA 176, 260 O.A.C 52, at para.
    85. In the circumstances of this case, we are unable to see how his erroneous
    consideration of abuse of a spouse or common-law partner had any impact on the
    sentence imposed in light of his appropriate consideration of the effect of the
    abuse of trust as an applicable aggravating factor.

[58]

Nor
    are we persuaded that the trial judge gave insufficient weight to the
    appellants compromised mental condition as a mitigating factor. The record
    does not support any nexus between the appellants bipolarity and his
    commission of the offence: see,
R. v. Barham
, 2014 ONCA 797, at para.
    8.

[59]

In
    the result, we granted leave to appeal sentence but dismissed the appeal, from
    sentence.

conclusion

[60]

The
    appeals from conviction and sentence are dismissed.

Released: Nov 2, 2017

David Watt J.A.
Gloria Epstein J.A.
David Brown J.A.


