



WARNING

The President
    of the panel hearing this appeal directs that the following should be attached
    to the file:

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of
the
    Criminal Code
provide:

486.4(1)       Subject to subsection
    (2), the presiding judge or justice may make an order directing that any
    information that could identify the victim or a witness shall not be published
    in any document or broadcast or transmitted in any way, in proceedings in
    respect of

(a)     any of the following
    offences;

(i)      an
    offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170,
    171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01,
    279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any
    offence under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED:
    S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences being dealt with in
    the same proceeding, at least one of which is an offence referred to in
    paragraph (a).

(2)     In proceedings in respect of
    the offences referred to in paragraph (1)(a) or (b), the presiding judge or
    justice shall

(a)     at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the victim
    of the right to make an application for the order; and

(b)     on application made by
    the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2),
    in proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of
    an offence other than an offence referred to in subsection (1), if the victim
    is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform
    the victim of their right to make an application for the order; and

(b) on application of the victim
    or the prosecutor, make the order.

(3)     In proceedings in respect of
    an offence under section 163.1, a judge or justice shall make an order
    directing that any information that could identify a witness who is under the
    age of eighteen years, or any person who is the subject of a representation,
    written material or a recording that constitutes child pornography within the
    meaning of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)     An order made under this
    section does not apply in respect of the disclosure of information in the
    course of the administration of justice when it is not the purpose of the
    disclosure to make the information known in the community.
2005, c. 32, s. 15; 2005, c. 43, s. 
    8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015,
    c.  13, s. 18.

486.6(1)       Every person who
    fails to comply with an order made under subsection 486.4(1), (2) or (3) or
    486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an
    order referred to in subsection (1) applies to prohibit, in relation to
    proceedings taken against any person who fails to comply with the order, the
    publication in any document or the broadcasting or transmission in any way of
    information that could identify a victim, witness or justice system participant
    whose identity is protected by the order. 2005, c. 32, s. 15.




COURT
    OF APPEAL FOR ONTARIO

CITATION:

R. v. Esquivel-Benitez,
    2020 ONCA 160

DATE: 20200302

DOCKET: C65366

Simmons,
    van Rensburg and Harvison Young JJ.A.

BETWEEN

Her
    Majesty the Queen

Respondent

and

Manuel Esquivel-Benitez

Appellant

Lance
    Beechener, for the appellant

Natalya
    Odorico, for the respondent

Heard:
    February 19, 2020

On appeal from the conviction entered by
    Justice Carole J. Brown of the Superior Court of Justice on June 2, 2017, and from
    the sentence imposed on April 17, 2018.

REASONS
    FOR DECISION

A.

Overview

[1]

At the conclusion of the oral hearing we allowed
    this appeal for reasons to follow. These are our reasons.

[2]

Following a judge alone trial, the appellant was
    convicted of sexual assault and sentenced to 22 months imprisonment plus two
    years probation. He appeals against conviction and seeks leave to appeal against
    sentence.

[3]

The appellant raises five issues on his
    conviction appeal.

[4]

We conclude that the following three issues are
    dispositive of the conviction appeal and require that the appeal be allowed,
    the conviction set aside, and a new trial ordered.

B.

Analysis

[5]

First, we accept the appellants submission that
    the trial judge made an
R. v. W.(D.)
error by treating the credibility
    issue as a contest between the complainant and the appellant and failing to
    consider whether the evidence as a whole left her with a reasonable doubt: [1991]
    1 S.C.R. 742.

[6]

On several occasions throughout her reasons, the
    trial judge framed her conclusions in language indicating she was deciding
    which version of events she preferred and that reasonable doubt did not play a
    role in her findings. Some examples are the following, found at paras. 96, 124,
    127 and 130 of the reasons below:

Except where
    otherwise stated, I prefer the complainants testimony to that of the accused.



As indicated
    herein, I find the complainants version of facts to be more credible.



I am left with a significant
    doubt as regards [the appellants] evidence of the occurrences of that evening.



I find this evidence to
    be somewhat suspect and contrived. As indicated, in terms of credibility I
    prefer [the complainants] version of the facts, which I find is more credible.

[7]

We acknowledge that the trial judge instructed
    herself on the principles of reasonable doubt in accordance with
W.(D.)
.
Nonetheless, reading her reasons as a
    whole we cannot be satisfied she properly applied those principles. In addition
    to treating the credibility issue as if it were a contest between competing
    versions of events, having found the complainant to be the more credible
    witness, the trial judge failed to step back and consider whether the whole of
    the evidence, including the appellants evidence, was nonetheless capable of
    giving rise to a reasonable doubt.

[8]

Second, we agree that the trial judge failed to
    meaningfully recognize or address the evidence of the complainants possible
    motive to fabricate when assessing credibility.

[9]

It was undisputed at trial that, following an
    afternoon and evening of drinking and partying with friends, the appellant had
    sexual intercourse with the complainant on the couch in his living room while
    the complainants husband was sleeping in an adjacent room.

[10]

Just as these events were ending, the complainants husband emerged
    from the adjacent room.
He immediately asked what was going on and flew
    into a violent rage.

[11]

As
    the couple walked home, the complainants husband persistently questioned her
    as to what had happened. He threatened to leave the complainant and stated
    repeatedly, Tell me this guy abused you or Did he abuse you?. The fact that
    the complainant did not immediately, when confronted, tell her husband that she
    had been assaulted and did so only after they had returned home, in response to
    his repeated entreaties, was relevant to whether she had a motive to fabricate,
    and ultimately to her credibility.

[12]

Rather than giving this evidence proper consideration, the trial
    judge dismissed the defence focus on this evidence as part of an ongoing myth
    regarding sexual consent: at para. 133.

[13]

This was an error.
Undoubtedly it was open to
    the trial judge to accept the complainants evidence that she did not consent
    to sexual activity and that her response to her husbands questioning was due
    to a myriad of factors that had nothing to do with fabrication. However, in the
    circumstances of this case, the trial judge was also obliged to consider
    whether the events gave rise to a motive to fabricate and, if so, how that
    reflected on her assessment of the complainants credibility.

[14]

A motive to fabricate can be an important factor that is germane
    to a witnesss credibility:
R. v. Batte
(2000),
    49 O.R. (3d) 321 (C.A.), at para. 120.

[15]

Here, i
t was incumbent on the trial judge
    to consider the evidence that was both consistent and inconsistent with
    consent, which was the central issue at trial. The complainants actions,
    including the fact that she did not assuage her husbands concerns and doubts
    by responding to his questions when asked what was going on, were relevant.
    This evidence ought to have been addressed and not dismissed as irrelevant by
    the trial judge.

[16]

Third, we accept the appellants submission that
    the trial judge relied improperly on the appellants presence in the courtroom
    when the complainant testified to negatively assess his credibility. Twice in
    her reasons the trial judge referred to the appellants presence in the
    courtroom while the complainant testified and used this factor against him in
    assessing his credibility.

[17]

At paras. 91, 129 and 130 of her reasons the trial
    judge said:

Further, his
    testimony,
coming after hearing the complainants
    testimony
, essentially mirrored her description of what occurred leading
    up to and during the sexual encounter, but he portrayed her as the aggressor.
    This simply does not have the ring of truth. I found his evidence to be
    contrived.



[The appellants]
    testimony,
following thereafter,
recounted the
    same occurrences, but made her the aggressor. He testified that she attempted
    to kiss him, he rebuffed her as he did not want to get her hopes up. She
    attempted a second time to kiss him, and then put her hand on his penis outside
    and then inside his pants. Throughout, he attempted to rebuff her and she
    continued as the aggressor.



Thus, his evidence essentially mirrored hers, but
    throughout his testimony, he portrayed, the actions as coming from her, not
    him, and made her the aggressor. I find this evidence to be somewhat suspect
    and contrived. As indicated, in terms of credibility, I prefer her version of
    the facts, which I find is more credible. [Emphasis added.]

[18]

As this court recognized in
R. v. Jorgge
,
    2013 ONCA 485, 4 C.R. (7th) 170, accused persons have not only a statutory
    obligation but also a right to be present at their trial, grounded in their
    constitutionally guaranteed rights to a fair trial and to make full answer and
    defence: at para. 12. On our review of her reasons, the trial judge used this
    right against the appellant to find that he had the opportunity to tailor his
    evidence and that he did so. This line of reasoning is not permissible:
Jorgge
,
    at para. 18.

[19]

The respondent acknowledges that absent an
    allegation of recent fabrication it is impermissible to reason that an accused
    person tailored their evidence to correspond with the prosecutions evidence.
    However, the respondent argues that did not happen here. Rather the trial judge
    was merely commenting on the sequence of the evidence. Moreover, the trial
    judge gave many valid reasons for disbelieving the evidence. Even if the trial
    judge fell into error, it was a minor error that did not occupy a prominent
    position in her reasons for rejecting the appellants evidence.

[20]

We cannot accept the respondents submissions.
    On a plain reading of the paragraphs we have quoted, read in context, the trial
    judge used the appellants presence in the courtroom as a basis for rejecting
    his evidence. We are unable to say that this error did not taint the trial
    judges reasoning process. Moreover, when considered with the other errors we
    have identified, we are satisfied that the cumulative effect of the trial judges
    errors requires a new trial.

C.

Disposition

[21]

Based on the foregoing reasons, it is
    unnecessary to consider the remaining grounds of appeal. The appeal is allowed,
    the conviction is set aside and a new trial is ordered.

 Janet Simmons J.A.

K. van Rensburg J.A.

A. Harvison Young
    J.A.


