



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    any information that could identify the complainant or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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. A.P., 2013 ONCA 344

DATE: 20130528

DOCKET: C54307

Weiler, Blair and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

A.P.

Appellant

Jill Copeland, for the appellant

Robert W. Hubbard, for the respondent

Heard: January 9, 2013

On appeal from the conviction entered on May 3, 2011 by
    Justice Michael G. Quigley of the Superior Court of Justice, sitting without a
    jury.

Rouleau J.A.:

OVERVIEW

[1]

The appellant was convicted of sexually assaulting his wife after a
    trial in the Superior Court of Justice. The appellant and the complainant were
    the only witnesses at trial, and testified to similar, yet critically different
    stories. The appellant and the complainant agreed that they had engaged in
    dominant/submissive sexual role playing over the course of their relationship;
    the appellant candidly admitted that on the night in question, he and his wife had
    sex; and he also agreed that the complainant wife had said no to the
    appellants request for sexual intercourse that night. The appellant stated,
    however, that the complainants verbal refusal to consent to sexual intercourse
    formed part and parcel of their standard sexual role playing, and argued that
    either she actually consented to sex or that he had an honest but mistaken
    belief in her consent. In contrast, the complainant testified that her husband
    perpetrated a violent sexual assault upon her, in full knowledge of her
    unwillingness to participate.

[2]

The trial judge convicted the appellant, finding the complainant to be the
    more credible of the two witnesses. The appellant appeals his conviction on the
    basis that the trial judge misapplied the principles outlined by the Supreme
    Court of Canada in
R. v. W.(D.)
, and erred by placing the burden of
    proof on the appellant and in his analysis of whether he was left with a
    reasonable doubt as to the appellants guilt. For the reasons that follow, I
    allow the appeal and order a new trial.

FACTS

[3]

The appellant and the complainant met in 1997. They started dating
    shortly thereafter and their relationship gradually became sexual. They married
    on December 31, 2003. They have two children, the first born in October 2005
    and the second in September 2007.

[4]

The appellant testified that while his and the complainants sexual
    relationship was initially conventional, it became increasingly imaginative
    over time. The complainant expressed an interest in bisexuality. They had an
    open relationship for a period. They experimented with bondage. And they explored
    sexual role playing of a dominant/submissive nature. Except for one particular
    occasion, the appellant always played the dominant role and the complainant
    always played the submissive role. The appellant testified that when the
    complainant played the submissive role, she adopted a quiet, subservient voice.
    Both the complainant and the appellant testified that role playing had been a
    significant part of their sexual relationship, but their evidence conflicted regarding
    the nature of the role playing and the frequency with which the role play occurred
    over the course of their relationship.

[5]

The appellant testified that one of their role playing scenarios, the
    teacher/student scenario, was played out one to three times a week, both when
    he and the complainant were dating and after their marriage. The appellant
    would portray a teacher character and the complainant would be his student. The
    appellant would find some aspect of his students performance wanting and the
    complainant would try to remedy the situation with sexual favours.

[6]

The appellant testified that he and the complainant also enjoyed acting
    out an assailant/victim sexual scenario throughout their relationship. He
    viewed this as a variation of dominant/submissive role play, similar to the
    teacher/student scenario in which they routinely engaged. When in his
    assailant character, the appellant used a gruff, aggressive, and demanding
    tone of voice. He testified that they began performing this more aggressive
    scenario when the complainant disclosed to him that she had been sexually
    assaulted as a pre-teenager and, although she did not like that experience,
    there were aspects of it that she wished to explore further. In the course of
    cross-examination, the appellant was asked to provide specific instances when
    this type of scenario was played out and the appellant was only able to specify
    two: a failed attempt on the first night of their honeymoon and a
    daddy/daughter episode in December 2007.

[7]

In his testimony, the appellant stated that he and the complainant had
    agreed on a safe word  cabbage  to ensure that these games did not surpass
    either of their comfort levels. The appellant stated that it had not been used
    after 2003.

[8]

The complainant acknowledged in her testimony that she had engaged in
    sexual role play with the appellant, including an attempt early on to explore
    bondage, but only at his instigation. Before their marriage, the role playing
    included the appellant taking on an aggressor personality and barking out
    orders for her to obey. She testified, however, that role playing was limited
    to situations of domination and submission such as the teacher/student
    scenario. According to the complainant, the appellant favoured scenarios where
    he caught a young girl off her guard, but she submitted to demands and agreed
    that she in fact wished to convey sexual favours. The complainant explained
    that the appellant wanted scenarios where she was a willing participant
    because, according to the complainant, being unwilling would be against his
    kink. The complainant testified that the role play largely ceased after she
    and the appellant got married.

[9]

The complainant also testified that the appellant had repeatedly
    discussed with her his desire to explore more aggressive role playing scenarios
    or rape scenarios, but that she adamantly refused any use of force or to feign
    unwillingness to participate in sex. The complainant testified that this was
    because she had been sexually assaulted as a pre-teenager and was deeply
    uncomfortable with the idea of reliving such a traumatizing experience. The
    complainant maintained that she and her husband had never agreed on a safe
    word, because it was unnecessary given that aggressive sex was unacceptable to
    her in all cases.

[10]

There
    were photos tendered in evidence that depicted the complainant in scenes of mild
    bondage. The complainant testified that she had consented to these photos being
    taken by the appellant at his request. The appellant, however, testified that
    the complainant had taken these photos of herself as part of a university art assignment
    that required her to explore parts of her personal life that she did not want
    to make public. He testified that she took most of the photos using the remote
    trigger for the camera and that his only involvement was putting his finger in
    the complainants mouth in certain pictures.

[11]

As
    of February 8, 2008, the date of the events in issue, the appellant was a doctoral
    student in political science and the complainant was a stay-at-home mother. She
    had previously studied visual arts at the university level and hoped to
    continue those studies in the future. The couple and the children lived
    together in an apartment in graduate housing. They also had a male boarder
    living with them at the time.

[12]

On
    the evening of February 8, the appellant went to bed before his wife. She
    stayed up and was play-wrestling with the boarder, something the two friends
    apparently did quite often.

[13]

The
    appellant testified that the sounds of the complainant wrestling with the male boarder
    aroused him. When the complainant came to bed, the appellant testified that she
    laid down with her back to him. He reached over and grabbed her hair and said in
    his dominant voice you want it, dont you? to which the complainant responded
    no. However, the appellant testified that his wifes no was spoken in her submissive
    tone, the tone she would take whenever they engaged in role play. This, to him,
    indicated consent. The appellant said that he then massaged her breasts and she
    responded receptively, which was consistent with his understanding of her
    having consented. He pulled down her pants. His right hand was holding, but not
    pulling, her hair and his left hand was supporting his weight. He had sex with
    the complainant from behind with her pushing back receptively. The appellant
    testified that the complainant responded in a passive, passionate, and
    submissive way throughout. After he ejaculated, they went to sleep.

[14]

The
    appellant recounted that the next day everything was normal. He told his wife
    that he had enjoyed the night before, to which she responded that she had not
    enjoyed it.

[15]

The
    complainants testimony concerning the events of February 8 was fundamentally
    different from that of her husband. She testified that she entered the bedroom
    and was sitting on the edge of the bed removing her socks when the appellant
    rolled over and came up behind her. Without saying a word, the appellant threw
    her back onto the bed and put his forearm over her throat. She found it
    difficult to breathe, move, or make any noise. He began to hiss in her ear,
    saying that he was going to fuck her and take what was his, among other
    profane and degrading statements. The appellant slapped her, ripped her tank top
    off, and pinched her nipples. He pulled down her jogging pants and got between
    her legs, while holding her down with his considerable weight. He forcibly
    copulated with her as she laid sobbing, hitting, and scratching him as best she
    could. He responded by saying stop crying  you knew this was coming. After
    he ejaculated, he threw her aside and went to sleep.

[16]

The
    complainant testified that she got up and showered until the water ran cold.
    She put on a big sweater and pyjama pants and went back to bed, wrapping
    herself in a blanket. She testified that the next day, the appellant asked her
    that was pretty awesome, wasnt it? to which she responded no, no, it wasnt
    awesome and that it was rape. The complainant explained at trial that she
    sustained several injuries from the assault, including bruises and sore
    muscles.

[17]

In
    March 2008, the appellant took a trip to Africa to conduct field research for
    his doctoral thesis. The complainant testified that she felt relieved while he
    was away. Upon the appellants return in the spring of 2008, he suffered a back
    injury. Because it was difficult for him to recuperate with two small children
    around, the appellant went to live with his parents to convalesce. The
    complainant testified that in the absence of the appellant, she realized her
    unwillingness to have him return to the family home. The complainant called the
    appellant and told him he was not welcome in their apartment any longer. The
    appellant testified that he was heartbroken.

[18]

The
    appellant and the complainant separated in June 2008. They attended two marital
    counselling sessions together, but their efforts to reconcile were
    unsuccessful. The complainant testified that in the course of these sessions,
    the appellant admitted to having raped her and apologized. The appellant denies
    this.

[19]

On
    October 10, 2008, the complainant attended family court, where she applied for
    and obtained an ex parte order granting her custody of their two children and
    restraining the appellant from having any contact with her or their children. When
    the appellant became aware of the order, he sought a variation. On October 20,
    2008, the complainant reluctantly agreed to vary the order so as to grant the
    appellant supervised access to his children. According to the complainant, the
    family court duty counsel told her to take the varied order to the police
    station and to insist on speaking to a police officer and having the officer read
    the affidavit the complainant had filed in family court.

[20]

The
    complainant testified that she followed duty counsels instructions and, upon
    reading the affidavit, the police officer asked her to make a videotaped
    statement; the complainant did so. Shortly thereafter, the appellant was
    arrested and charged with sexually assaulting his former spouse.

The section 276
    application

[21]

At
    the opening of trial, the appellant brought an application under s. 276 of the
Criminal
    Code
to adduce evidence of the complainants sexual activity throughout
    their relationship. The appellant maintained that this evidence was crucial to
    provide the background and foundation for his defence of honest but mistaken
    belief in her consent on February 8, 2008. The trial judge agreed and allowed
    the appellant to cross-examine the complainant on various aspects of their
    sexual relationship.

The decision below

[22]

The
    trial judge began by setting out the four elements of sexual assault that the
    Crown must prove beyond a reasonable doubt to secure the appellants
    conviction:

1.

the appellant
    intentionally applied force to the complainant,

2.

the complainant
    did not consent to the force applied,

3.

the appellant
    knew that the complainant did not consent to the force being applied, and

4.

the force
    applied by the appellant took place in circumstances of a sexual nature.

[23]

Since
    the appellant conceded that he and the complainant had sexual intercourse on
    the night of the events in question, the trial judge stated that the only
    remaining issues were the complainants consent and the appellants knowledge
    of her lack of consent.

[24]

The
    trial judge therefore held that the sole issue in the case was the credibility
    of the two trial witnesses, the complainant and the appellant. The question of the
    appellants guilt thus fell to be decided under the test established by the
    Supreme Court of Canada in
R. v. W.(D.)
, [1991] 1 S.C.R. 742. The trial
    judge found that a critical factor in his credibility assessment of the
    witnesses would be his finding as to whether they had a history of engaging in
    aggressive-assailant sexual role playing, as the appellant had testified.

[25]

The
    trial judge rejected the appellants evidence as to the nature of his sexual
    relationship with his wife. He attributed particular importance to the fact
    that despite the appellants testimony that he and the complainant regularly
    engaged in assailant/victim sexual relations, he was unable to recall any
    specific event or aspect of such relations. The trial judge ultimately
    concluded that the appellants evidence was internally and externally
    inconsistent and defied common sense. The trial judge concluded that he
    neither believed the appellants evidence, nor was he left in a state of
    reasonable doubt by it.

[26]

The
    trial judge found the complainants evidence and description of what transpired
    on February 8, 2008 to be credible and reliable. He concluded that her
    testimony was more in line with both witnesses description of the event as an
    instance of aggressive-assailant sexual role playing and the use of physical
    force that entails.

[27]

The
    trial judge disagreed with the defences argument that the complainants
    credibility was negatively affected by her delayed reporting of this event on
    the very same day that her custody order was varied to grant the appellant
    access to their children. The trial judge acknowledged that while the timing
    appeared suspicious on its face, the complainant gave credible evidence as to
    why she reported the assault on October 20, 2008.

[28]

The
    trial judge convicted the appellant of sexually assaulting the complainant and later
    sentenced him to four months imprisonment and three years probation.

Issues on appeal

[29]

The
    appellant raises five issues on appeal:

1)

Did the trial judge
    err in his assessment of the burden of proof as it relates to credibility?

2)

Did the trial judge
    misapprehend the relevance of the delay and the timing of the complainants
    report of the offence to the police?

3)

Did the trial judge
    err in applying an objective test for recklessness and wilful blindness, and
    requiring that, to constitute a defence, a mistaken belief in consent must be
    reasonable?

4)

Did the trial judge
    misapprehend relevant evidence by focussing on whether the complainant or the
    appellant had been the instigator of previous dominant/submissive role playing?
    And

5)

Did the trial judge
    err in failing to recognize a distinction between the issues of the
    complainants actual subjective consent and the appellants honest but mistaken
    belief in consent?

[30]

The
    appellant also brought a motion to file fresh evidence. The proposed evidence
    relates to the appellants acquittal, after his trial for sexual assault, on further
    charges brought against him by the complainant for assaulting their young son
    in May 2009. The appellant submits that the reasons for acquittal given by the
    trial judge in that case constitute compelling evidence that the complainant exhibits
    a pattern of bringing false charges against the appellant to gain advantages in
    their family law proceedings.

[31]

In
    my view, the reasons of the trial judge contain errors and gaps in his assessment
    of credibility and in his allocation of the burden of proof. Viewed in the
    context of the reasons as a whole, these errors and gaps show that the trial
    judge did not consider all of the evidence relating to the ultimate issue of
    guilt or innocence, thereby committing an error of law. The appeal therefore ought
    to be allowed. As a result, I need not deal with all of the grounds of appeal,
    nor consider the application to admit fresh evidence.

ANALYSIS

[32]

The
    appellant has raised several grounds of appeal. The essence of the appellants
    position, however, is that the trial judges reasons show that he approached
    the evidence in a piecemeal fashion, erred in his assessment of the burden of
    proof and, ultimately, did not take into account all of the evidence when
    determining whether he was left with a reasonable doubt on the critical issue
    of the appellants intent.

[33]

As
    set out in
R. v. Morin
, [1992] 3 S.C.R. 286, at p. 296, a failure by the
    trial judge to consider all of the evidence relating to the ultimate issue of
    guilt or innocence constitutes an error of law.

[34]

In
    addressing this issue, I am mindful of the direction given by Moldaver J. in
R.
    v. Walle
, 2012 SCC 41, [2012] 2 S.C.R. 438, at para. 46, wherein he
    explains that in
Morin
, Sopinka J. made clear that there is no
    obligation in law on a trial judge to record all or any specific part of the
    process of deliberation on the facts, and unless the reasons demonstrate that
    [a consideration of all the evidence in relation to the ultimate issue] was not
    done, the failure to record the fact of it having been done is not a proper
    basis for concluding that there was error in law in this respect.

[35]

In
    my view, reading the reasons as a whole, the concerns raised by the appellant are
    warranted. The structure of the trial judges reasons and the errors in those
    reasons demonstrate that the trial judge did not consider all of the evidence related
    to the ultimate issue of the appellants intent to sexually assault the complainant.

[36]

There are several aspects of the trial judges reasons
    that, taken together,
lead me to the conclusion that the appeal must be
    allowed and a new trial ordered. The first is that, at different points in his
    reasons, the trial judge appears to approach the case as a credibility contest
    between the appellants and the complainants versions of events. The second is
    that, at the outset of his analysis, the trial judge explains that one critical
    finding of fact will be used to decide whether to accept or reject the evidence
    of the appellant and the complainant. That finding, however, is made on a
    balance of probabilities; furthermore, the analysis that flows from this
    critical finding is flawed. The trial judge then all but convicted the
    appellant after making his findings concerning credibility; the reasons do not
    contain any further analysis of the evidence to determine whether, on the whole
    of the record, there remained a reasonable doubt as to the appellants intent
    to commit the offence. In the circumstances of this case, there were several other
    relevant factors the trial judge failed to consider when determining whether,
    on the basis of all of the evidence led at trial, he was left with a reasonable
    doubt as to the appellants guilt.

[37]

I
    will deal with each of these concerns in turn.

(1)

The
    trial judge approached his task as a credibility contest

[38]

When
    the trial judge set out on his analysis of the evidence, he correctly listed
    the four elements of the offence of sexual assault that must be proven by the
    Crown. The trial judge then expressed the view that the sole issue in this
    case is the credibility of the complainant and the credibility of the
    defendant, thereby, in the appellants submission, viewing the case as a
    credibility contest.

[39]

The
    appellant nevertheless concedes that the trial judge identified the correct
    approach to be taken in such cases, which is that outlined in
R. v. W.(D.)
, [1991] 1 S.C.R. 742, at p. 758
:

First, if you believe the evidence of the accused, obviously
    you must acquit.

Second, if you do not believe the testimony of the accused but
    you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the
    accused, you must ask yourself whether, on the basis of the evidence which you
    do accept, you are convinced beyond a reasonable doubt by that evidence of the
    guilt of the accused.

The appellant argues, however, that the reasons show
    that the trial judge did not properly apply that approach to the evidence in
    this case. I agree. Correctly setting out the
W.(D.)
approach is not
    determinative of the correctness of a decision  the critical issue is whether
    the reasons reflect its correct application: see e.g.
R. v. Wadforth
,
    2009 ONCA 716, 247 C.C.C. (3d) 466, at paras. 50-51.

[40]

The
    trial judges approach to this case as a credibility contest is evident in his
    reasons when he is dealing with the assessment of witness credibility and the
    need for the Crown to prove the elements of the offence beyond a reasonable
    doubt. The trial judge indicated that in a case such as this, the
truth
will be found to be the
version
of events
that is in harmony with what a practical and well-informed person would
    recognize as most
probable
in all of the existing circumstances
    (emphasis added). The trial judge referred to the version of events told by
    the appellant and the complainant a further five times in his reasons. These
    statements are problematic for two reasons.

[41]

First,
    it suggests that the point of the trial and the trial judges task is to
    determine which of the two recounted versions of the event is true. This
    approach is an error. As the Supreme Court of Canada held in
R. v. C.L.Y.
,
    2008 SCC 2, [2008] 1 S.C.R. 5, at para. 8:

[The purpose of the
W.(D.)
analysis] was to ensure that
    triers of fact  judges or juries  understand that the verdict should not be
    based on a choice between the accused's and Crown's evidence, but on whether,
    based on the whole of the evidence, they are left with a reasonable doubt as to
    the accused's guilt. [Citations omitted.]

See also
R. v. Avetysan
, 2000 SCC 56, [2000] 2
    S.C.R. 745, at para. 21. An approach that emphasizes having to decide whether
    to believe either the Crowns evidence or the defences evidence neglects the
    third alternative that while the trier of fact may not believe the accused, they
    may still be left with a reasonable doubt as to the guilt of the accused on the
    whole of the evidence: see
R. v. S.(W.D.)
, [1994] 3 S.C.R. 521, at p.
    532.

[42]

Second,
    having determined that the sole issue at trial was credibility, the trial judge
    approached this issue as one to be decided on a balance of probabilities. I
    acknowledge that individual facts need not be proven beyond a reasonable doubt at
    trial; only the elements of the offence must meet this higher standard: see
R.
    v. Bouvier
(1984), 11 C.C.C. (3d) 257 (Ont. C.A.), at p. 264, affd [1985]
    2 S.C.R. 485. However, by setting up the whole case as a choice between two
    competing versions of events and stating that the version that is most
    probable in all of the existing circumstances will be selected as true, the
    trial judge came dangerously close to deciding the ultimate issue at trial on a
    balance of probabilities. See
R. v. Quidley
, 2008 ONCA 501, 232 C.C.C.
    (3d) 255.

[43]

That
    the trial judge viewed his role in this case as choosing between the
    appellants and the complainants competing versions of events is further
    confirmed in his method of assessing their credibility. The trial judge
    acknowledged, in an exchange with counsel during closing submissions, that the appellant
    had testified in a forthright and honest manner. Since the complainant had
    testified in an equally honest manner, however, the trial judge set aside the
    fact of the appellants honest presentation as neutral:

[B]oth the complainant and the accused, to my mind, presented
    honestly and well. Both gave their evidence in a forthright manner. But it
    seems to me that the issue of credibility is not to be decided by demeanour,
    its not to be decided by the delivery of evidence, its not to be decided by
    manner. Its to be decided by the internal and external consistency of the
    evidence given, with the evidence as a whole  .



So I say that only because I would almost rather have you focus
    on those issues of internal and external consistency or inconsistency, because
    to my mind thats where the truth emerges.

[44]

The
    trial judge assigned relevant demeanour evidence no weight because it did not
    help him pick between the competing versions of events told by the complainant
    and the appellant at trial. This is demonstrative of the fact that the trial
    judge viewed his task as having to choose between the complainants and the
    appellants evidence. The trial judges either/or approach was in error because
    it neglected the third option, namely, that even though the trial judge did not
    believe the appellant, he was not convinced of the appellants guilt on the
    whole of the evidence.

[45]

The
    appellant raises an additional concern with respect to the trial judges
    findings of credibility. After carrying out the credibility analyses of the
    appellant and the complainant, the trial judge rejected the appellants
    submission that the complainants credibility was undermined by her delay in
    disclosing the assault, and disclosing it on the same day as she consented to a
    variation in the appellants access to their children. He stated that there was
    no evidence on this trial that
persuaded me
that
    the manner in which the reporting came about meant that her report of what
    transpired on February 8, 2008 was not true (emphasis added). The appellant
    argues that the trial judge reversed the burden of proof by placing the burden
    on the appellant to persuade the trial judge that the report was untrue. This
    simply adds to the appellants legitimate concern respecting the trial judges
    credibility findings.

(2)

The trial judges finding on the critical issue of fact and his
    piecemeal approach to the evidence

[46]

The
    fact that the complainant and the appellant had a history of engaging in sexual
    role play complicated the trial judges analysis in this case. Both the
    complainant and the appellant confirmed that their role play sometimes included
    a dominant/submissive dynamic, such as in the teacher/student scenario. Their
    evidence conflicted, however, on whether they regularly enacted an
    assailant/victim scenario as well.

[47]

As
    a preface to his analysis of the evidence, the trial judge explained that he
    would focus on this aspect of the appellant and the complainants relationship.
    Specifically, the trial judge set himself the task of determining whether in
    the past they had engaged in sexual role playing with an assailant/victim
    dynamic. The trial judge said his conclusion on this singular fact would drive
    his findings on credibility, and indeed, on the guilt or innocence of the
    appellant. The foregoing is explained in paragraphs 59 and 60 of the trial
    judges reasons, which read as follows:

If I find that [the complainant] and [the appellant] engaged in
    a role playing sexual relationship focused on dominance and submissiveness that
probably
or
likely
included an aggressive/submissive victim role playing scenario, then to my mind
    this would be a strong indicator that it would be
unsafe to convict
.
    This would be so since the Crown would have failed to establish the absence of
    consent beyond a reasonable doubt. That conclusion would follow, either because
    such a finding would necessarily call [the complainants] evidence into serious
    doubt, or because it would leave open the possibility that in their sexual
    relationship no could mean yes or that [the appellant] could have had an
    honest but mistaken belief.
I would be obliged to acquit the appellant
of the charge he faces.

On the other hand, if I find on the whole of the evidence that
    [the complainant] and [the appellant] did not engage in an
    aggressive-assailant/submissive-victim type of role playing scenario as part of
    their sexual relationship, even if they did types of role playing focussed on
    teacher/student or daddy/daughter, or other lesser expressions of sexual
    dominance and submissiveness, then there would be no basis to believe the
    accused either that [the complainant] consented or that he had an honest but
    mistaken belief that she was consenting in the context of their sexual
    relationship. Such a finding would totally undermine any credibility to [the
    appellants] assertion of holding an honest but mistaken belief that [the
    complainant] consented because the context in which no allegedly meant yes,
    or in which he could have reasonably have had an honest but mistaken belief
    would be absent.
In that case, the appellant should be convicted
since
    the Crown would have established the absence of consent beyond a reasonable
    doubt. That would necessarily be the result if I did not believe his evidence
    and was not left in a reasonable doubt by it, and provided I was satisfied that
    the Crown had otherwise proven the absence of that consent beyond a reasonable
    doubt, having regard to the whole of the evidence. [Emphasis added.]

[48]

This
    approach, central to the trial judges analysis, is fundamentally flawed for
    two reasons.

[49]

First,
    the trial judge determined that this critical finding of fact would be made on
    a standard of probability or likelihood. As I noted above, although
    individual facts in a criminal trial need not be proven beyond a reasonable
    doubt, there is cause for serious concern when a critical fact that determines
    the outcome of the case is decided on a balance of probabilities:
Quidley
.
    Such an approach not only lowers the Crowns burden of proof, but also places a
    burden on the appellant to prove, on a balance of probabilities, that he and
    the complainant did indeed share a sexual history of this nature.

[50]

Second,
    and more importantly, the trial judge erred by tethering the appellants
    acquittal or conviction to this finding of fact. The trial judge has a
    responsibility to consider all of the evidence in relation to the ultimate
    issue of whether the guilt of the accused has been proven beyond a reasonable
    doubt:
Morin
. The appellant was charged with sexually assaulting the
    complainant on February 8, 2008. The trial judge therefore had an obligation to
    consider the witnesses testimony regarding the events of that evening, and
    whether it was credible in the context of the evidence as a whole, before
    determining the ultimate issue of the appellants guilt.

[51]

Rather,
    the trial judge in this case decided that if the complainant was to be believed
    on the subject of the parties sexual history, the appellant should be convicted
    because 1) his testimony regarding his honest but mistaken belief in consent
    would not be credible and 2) the Crown would have proved the absence of consent
    beyond a reasonable doubt. These were the only two issues in the case. The
    trial judge ultimately found that, as the complainant had testified, the
    complainant and the appellants sexual relationship did not include an
    assailant/victim role playing scenario. The appellants conviction flowed
    inexorably from this finding because the trial judge had already concluded that
    if the complainant and the appellant did not share a sexual history of this
    particular nature, then both of the appellants defences of consent and honest but
    mistaken belief in consent were baseless  and this without considering all of
    the evidence, specifically any evidence directly related to the events of
    February 8, 2008. This reasoning runs counter to the analytical framework set
    out by the Supreme Court of Canada in
W.(D.).
The fact that the trial
    judge reiterates the applicable
W.(D.)
principles at the end of the
    extract quoted above is not dispositive, given the obvious flaws in his
    analysis.

[52]

The
    dangers of taking such a piecemeal approach to the evidence are further
    realized in the trial judges decision. The balance of the reasons demonstrate
    that after the trial judge decided the complainant was to be believed as to the
    nature of the parties sexual history, he assumed her version of the events of
    February 8, 2008 was true as well. This error is of a piece with the trial
    judges approach to this case as a credibility contest wherein his task was to
    choose between believing the complainants evidence or the appellants evidence
    in its entirety, as earlier discussed.

[53]

The
    above errors led the trial judge to analyze the appellants evidence regarding
    February 8, 2008 in light of the trial judges foregone conclusion that the
    complainant was telling the truth about the events of that night. For example, the
    trial judge found that the appellants credibility was negatively affected
    because the appellant minimized his own actions and the force that he used
    against the complainant, despite the appellants having described the nights
    intercourse as being in the aggressive-assailant mode. In other words, the
    trial judge found that the appellants testimony was inconsistent and could not
    be believed because he testified that the February 8 intercourse was in the
    aggressive-assailant mode, but simultaneously denied that he used any force
    against the complainant. These findings assume that the complainants testimony
    regarding the amount of violence used against her on February 8, 2008, was
    true, and was an accurate depiction of what aggressive-assailant sexual
    relations are. These findings are contrary to the appellants testimony that
    aggressive sex meant using aggressive language, not physical force, in a
    sexual context.
[1]


[54]

In
    the same vein, the trial judge concluded on four separate occasions in his reasons
    that the complainants testimony was much more in keeping with the
    aggressive-assailant scenario than what [the appellant] described,
    particularly as to the words, force, and level of dominance used by the
    appellant. In other words, because the trial judge concluded that the events of
    February 8 were an aggressive-assailant scenario as the complainant had
    defined it, the complainants evidence fit better with the physical force that
    is integral to that scenario.

[55]

The
    trial judges piecemeal approach to the evidence meant that he did not consider
    all of the evidence in relation to the ultimate issue of whether the
    appellants guilt had been proven beyond a reasonable doubt. In addition to the
    concerns identified above, there are several facts that are not addressed in
    the trial judges reasons. These, individually or in concert, were relevant to
    the ultimate issue in the trial, even accepting the trial judges finding that
    the complainant was credible and the appellant was not. Some of the facts and
    issues not dealt with in the trial judges reasons are as follows.

[56]

Despite
    finding the appellant to have testified honestly, as discussed above, the trial
    judge rejects his evidence without analyzing the impact of that demeanour
    evidence. This omission is all the more problematic when one considers that in
    his reasons for sentence, the trial judge wrote that the complainant does seem
    [to] have a tendency to dramatize, both in her evidence at trial and in her
    victim impact statement. These findings are never reconciled, nor considered.

[57]

More
    importantly, nowhere in his reasons for judgment does the trial judge make a
    specific finding as to whether, in the specific context of the appellant and
    the complainants sexual relationship, no had ever meant yes. As appears
    from the excerpt set out at para. 46 of these reasons, he thought that if no
    meant yes in their relationship, this was a strong indicator that it would be
    unsafe to convict. Indeed, the fact that no meant yes in the appellant and
    the complainants relationship was a cornerstone of the appellants defence.
[2]
It was not until he issued his reasons for sentence that the trial judge revealed
    that he accepted the appellants evidence in that regard. As set out in the
    reasons for sentence, it is clear that in the context of their relationship
    no frequently did mean yes and that the complainant and the appellant had
    for some years, acted as if no meant yes albeit on a less serious or
    aggressive plane. The trial judge ought to have weighed this fact in
    determining the ultimate question of whether the appellant held an honest but
    mistaken belief in the complainants consent on February 8, 2008, or whether,
    on the whole the evidence, the trial judge was convinced beyond a reasonable
    doubt of the appellants guilt.

[58]

In
    summary, the trial judge erred by setting up an analytical framework wherein
    one critical finding of fact, determined on a balance of probabilities, drove
    his conclusions on both credibility and whether the Crown had proven the
    appellants guilt beyond a reasonable doubt. He thereby assessed the trial
    evidence in a piecemeal fashion, and failed to consider all of the evidence in
    relation to the ultimate issue.

CONCLUSION

[59]

The
    trial judge approached the trial as a credibility contest between the appellant
    and the complainant, he made key findings of fact on a balance of
    probabilities, he evaluated the evidence in a piecemeal fashion, and he failed
    to make some crucial findings altogether. More importantly, the trial judges
    reasons show that he did not consider whether the evidence, taken as a whole,
    raised a reasonable doubt as to the central issue of the appellants
mens
    rea
for sexual assault, and particularly whether the appellant had an
    honest but mistaken belief that the complainant consented. In his reasons, the
    trial judge correctly recites the
W.(D.)
test, but does not
    demonstrate that it was correctly applied. This constitutes an error of law. The
    appeal should be allowed and a new trial ordered.

Paul Rouleau J.A.

I agree K.M. Weiler
    J.A.

I agree R.A. Blair
    J.A.

Released: May 28, 2013





[1]
While the appellant did agree in cross-examination that dominant/submissive
    role play includes an element of aggressive physicality, he described
    examples of this physicality as holding the complainants hair in his hand and
    not talking to her in a soothing way. He clarified that neither he nor the
    complainant ever hurt one another during this type of role play and refused to
    agree with the suggestion that the role play would involve more physicality
    than he had described:
Cross-Examination of A.P.
, March 8, 2011, at pp.
    254-57.



[2]
See paras. 7, 57, 59, 60, 74, 80, and 81 of the trial judgment.


