



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    that could identify the victim or a witness shall not be published in any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 from time to  time before the day on which this
    subparagraph comes into force, if the conduct alleged 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(iii)     REPEALED: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    shall not be published in any document or broadcast or transmitted in any way.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. A.B.A., 2019 ONCA 124

DATE: 20190220

DOCKET: C65356

MacPherson, Pardu and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

A.B.A.

Respondent

Jamie Klukach and Candice Suter, for the appellant

Robert Sheppard, for the respondent

Heard: December 20, 2018

On appeal from the acquittal
    entered by Justice Alissa K. Mitchell of the Superior Court of Justice on April
    5, 2018, with reasons reported at 2018 ONSC 2198.

Pardu J.A.:

[1]

The Crown appeals from an
    acquittal of the respondent of sexual assault of his sister-in-law. The
    complainant and the respondent had known each other for some 10-15 years. The complainant
    testified that at a time when the respondent was living apart from his wife
    because of marital problems, he came to her apartment and digitally penetrated
    her vagina, penetrated her vagina and anus with his penis, and forced oral sex
    upon her, all without her consent. She testified that about five days later,
    while she was at her sisters home helping to care for her sisters children,
    the respondent forced oral sex upon her again without her consent.


[2]

The respondent testified and said that the sexual activity between them
    was consensual.

[3]

The Crown submits that the trial judge erred in law by relying on myths
    or stereotypical assumptions about how sexual assault complainants are expected
    to behave in the aftermath of a sexual assault. The respondent submits that
    even if the trial judge did err in her assessment of the complainants
    credibility, the error was immaterial because the trial judge found that the
    respondent was a credible witness. She accepted his evidence that the sexual
    activity was consensual, and this was a solid foundation for the acquittal,
    regardless of the assessment of the complainants credibility.

ANALYSIS

The errors

[4]

The Crowns right of appeal from an acquittal is limited to a question
    of law alone:
R. v. J.M.H.
, 2011 SCC 45, [2011] 3 S.C.R. 197, at para.
    39. While credibility findings are generally insulated from appellate review,
    an error in legal principle affecting that assessment is an error of law:
R.
    v. Luceno
, 2015 ONCA 759, 341 O.A.C. 223, at para. 34.

[5]

Reliance upon stereotypical views about how victims of sexual assault
    would behave is an error of law:
R. v. A.R.J.D.
, 2018 SCC 6, [2018] 1
    S.C.R. 218, at para. 2, affg 2017 ABCA 237, 55 Alta. L.R. (6th) 213.

[6]

In
A.R.J.D.
,
the Alberta Court of Appeal allowed an appeal from an acquittal on charges of
    sexual assault of the accuseds step daughter, aged 11-16 at the time of the
    alleged offences. Although the trial judge cautioned himself against reliance
    upon myths of appropriate behaviour, he reasoned that [a]s a matter of logic
    and common sense, one would expect that a victim of sexual abuse would
    demonstrate behaviours consistent with that abuse or at least some change of
    behaviour such as avoiding the perpetrator.

[7]

The Alberta Court of Appeal described how seeming resort to common
    sense can mask reliance on stereotypical assumptions:

[6] An accuseds right to make full answer and
    defence and the criminal standard of proof beyond a reasonable doubt, do not
    allow reliance on prejudicial generalizations about sexual assault victims;
    this is of paramount importance when adjudicating matters involving child
    complainants. This can happen when juries and the judiciary do not even realize
    they are relying on prejudicial generalizations, leading to the drawing of
    inferences that are not part of the record but are instead, based on their own
    common sense and logic which is, in fact, unfair and inaccurate.

[
7
] Sometimes this impermissible
    form of reasoning is opaque and therefore more difficult to identify and
    correct on appellate review. But this case is an example where the
    impermissible reliance is patent and cannot stand. This appeal represents an
    example of how deeply ingrained and seductive these myths and stereotypes can
    be. In this judicial analysis the trial judge carefully and correctly cautioned
    himself against reliance on certain myths and then proceeded to rely on
    anotherone he obviously did not recognize, and cloaked as it was with the faux
    imprimatur of common sense.

[
8
] In our view, a core
    underlying tension is revealed in this trial judgmentwhether, in assessing the
    complainants credibility, it was proper for the trial judge to rely on what he
    presumed to be the expected conduct of a victim of sexual abuse after an
    assault, and comparing the specific behaviour of the complainant to that
    expectation. We must deal with the issue: is the expectation of avoidant
    conduct or clear behavioural changes by a sexual assault victim a matter of
    logic and common sense, or [is it] just another stereotype, or myth, that cannot
    be supported either as a matter of logic or as an available inference on this
    record?

[
9
] To be clear, reliance on a
    stereotype to found an assessment of credibility bearing on reasonable doubt is
    impermissibleit is an error of law. Accordingly, reasonable doubt is not a
    shield for appellate review if that doubt is informed by stereotypical and
    therefore prejudicial reasoning. Similarly, to suggest that stereotypical
    thinking is merely logic or common sense is a licence for it to continue unmasked
    and unabated. That is why, as a matter of law, this type of reasoning must not
    be insulated from appellate review.

[8]

Here too the trial judge instructed herself that the expectation of how
    a victim of sexual assault will, or should, behave must not be assessed on the
    basis of stereotypes, generalizations and myths: at para. 22. However, she then
    proceeded to adopt a common sense approach and negatively assess the
    complainants credibility based on a lack of correspondence between her
    behaviour and the behaviour one would expect of a person who ha[d] been
    brutally sexually assaulted.

[9]

The trial judge began her credibility analysis with the following
    observation at para. 23:

Unlike the child complainant in
R. v. A.R.D.
,
    [the complainant] is an adult female. From her testimony we learned that she
    suffers from agoraphobia (fear of crowds and public places), post-traumatic
    stress disorder and fibromyalgia. She is on ODSP. However, there was no
    evidence to suggest she is a member of a particularly vulnerable sector of
    society. I have no reason to believe she is unable to care for herself and make
    appropriate decisions called for in the circumstances in order to protect
    herself from harm or further harm.

[10]

Inherent
    in this approach is a comparison of the complainants behaviour to what the
    trial judge viewed was appropriate behaviour that the trial judge would have
    expected of an adult threatened with a sexual assault or a victim of sexual
    assault. The issue here was not what steps the complainant should have taken to
    protect herself, but, rather, whether she consented to sexual activity with the
    respondent.

[11]

The
    complainant testified that she was afraid of the respondent after he sexually
    assaulted her. The trial judge found that the complainants conduct after the
    assault, which included continued association with the respondent and failure
    to flee or call out for help when possible, undermined her evidence, again
    measured against how the trial judge would have reasonably expected her to
    behave. She stated, Aside from the alleged rape, there is no evidence to
    support a finding that her fear existed or if it existed was reasonable in the
    circumstances.

[12]

The
    complainant testified that at times she fought back while at other times she
    acquiesced to the sexual activity out of fear. The trial judge observed,
    Surely, it is one or the other. She is either scared to fight back and tell
    him to stop, or not. Neither behaviour is inconsistent with an absence of
    consent to sexual activity on the complainants part. The trial judge also concluded
    that the complainants submission to the respondents pushing his penis into
    her mouth was consistent with consensual sexual contact and inconsistent with
    non-consensual sexual contact. Again, this reflects an assumption as to how a
    victim of sexual assault would react.

Were the errors material to the verdict?

[13]

To
    overturn an acquittal, it is not enough for the Crown to show that the trial
    judge erred in law. The Crown must also show to a reasonable degree of
    certainty that the verdict would not necessarily have been the same if the
    legal error had not been made or, stated positively, that the verdict might
    have been different had the error not been made. See
Vézeau v. The Queen
,
    [1977] 2 S.C.R. 277, at p. 292;
R. v. B. (G.)
, [1990] 2 S.C.R. 57, at
    pp. 78-79; and
R. v. MacKenzie
, [1993] 1 S.C.R. 212, at p. 247.

[14]

This
    test has been formulated in other ways as well
.
In
R. v. Morin
, [1988] 2
    S.C.R. 345, for example, Sopinka J. affirmed the
Vé
zeau
test,
    and elaborated further at p. 374:

I am prepared to accept that the onus is a heavy
    one and that the Crown must satisfy the court with a reasonable degree of
    certainty. An accused who has been acquitted once should not be sent back to be
    tried again unless it appears that the error at the first trial was such that
    there is a reasonable degree of certainty that the outcome may well have been
    affected by it. Any more stringent test would require an appellate court to
    predict with certainty what happened in the jury room. That it cannot do.

[15]

The Crown does not have to establish that the verdict would necessarily
    have been different. In
R. v. Graveline
, 2006 SCC 16, [2006] 1 S.C.R.
    609, at para. 14, Fish J. for the majority held that the Crown must establish
    that the errors might reasonably be thought, in the concrete reality of the
    case at hand, to have had a material bearing on the acquittal, and elaborated as
    follows:

It has been long established, however, that an
    appeal by the Attorney General cannot succeed on an abstract or purely hypothetical
    possibility that the accused would have been convicted but for the error of
    law. Something more must be shown. It is the duty of the Crown in order to
    obtain a new trial to satisfy the appellate court that the error (or errors) of
    the trial judge might reasonably be thought, in the concrete reality of the
    case at hand, to have had a material bearing on the acquittal. The Attorney
    General is not required, however, to persuade us that the verdict would
    necessarily have been different.

[16]

The
    trial judge acquitted the respondent because she believed his testimony that
    the sexual activity was consensual. In doing so, she gave several reasons for
    believing him which were independent of her assessment of the complainants
    testimony. Importantly, however, her assessment of the complainants
    credibility played a prominent role in her determination of whether to believe
    the respondent.  She acknowledged at para. 21 that the case was not a
    credibility contest but wrote that her assessment of the respondents
    credibility hinged in large part on whether she believed the complainant was
    credible:

The first step of the
W.D.
analysis requires me to assess whether I believe [the
    respondents] evidence on the issue of consent. If I do, I must acquit him. To
    assess the believability of [the respondents] evidence in this regard, I must
    consider his evidence in the context of the evidence [of the complainant]. His
    believability hinges in large part on whether or not I believe [the complainant]
    and find her to be a credible witness.

[17]

The
    trial judge then went on to explain why she did not believe the complainant,
    applying the stereotypical views about how victims of sexual assault should
    behave which have been described above. The trial judges determination that
    she believed the respondent was inextricably linked to her assessment of the
    complainants credibility, which itself was fundamentally affected by legal error.

[18]

Here
    I am satisfied that the verdict might have been different had the legal errors
    not occurred. The errors had a material bearing on the acquittals, that is to
    say, the errors may well have affected the outcome. I am not satisfied that the
    verdict necessarily would have been different but for the errors, but the Crown
    is not required to meet that more stringent test.

[19]

In
    the result, accordingly, I would set aside the acquittal and order a new trial.

G.
    Pardu J.A.

I
    agree J.C. MacPherson J.A.

I
    agree David Brown J.A.

Released: February 20, 2019

JCM


