



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Rand, 2012
    ONCA 731

DATE: 20121030

DOCKET: C53113

Rosenberg, Blair and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Travis Rand

Appellant

Travis Rand, acting in person

Emily Morton, as duty counsel

Andreea Baiasu, for the respondent

Heard: August 16, 2012

On appeal from the conviction entered on September 13,
    2010 and the sentence imposed on November 23, 2010 by Justice Richard G. Byers
    of the Superior Court of Justice, sitting without a jury.

Rosenberg J.A.:

[1]

With the assistance of duty counsel, the appellant appeals from his
    conviction and sentence for sexual assault and breach of probation. The
    appellant and his co-accused, Daniel See, were tried by Byers J. without a
    jury. The appellant was sentenced to four years imprisonment for the sexual
    assault and 30 days concurrent for the breach of probation. For the following
    reasons, I would dismiss the appeal.

THE CONVICTION APPEAL

[2]

The principal issue raised by duty counsel is the sufficiency of the
    trial judges reasons and, in particular, whether he adequately dealt with a
    gap in the complainants memory shortly before the sexual assault.

[3]

At the time of the events leading to the sexual assault, the appellant
    was 27 years of age. His companion, Mr. See, was 20 years of age. The
    complainant was 17 years of age. She had never met the appellant and Mr. See
    before. The sexual assaults occurred at Zwicks Park in Belleville the evening
    of June 21, 2008. There was an open-air concert with several performers, most
    notably, the Tragically Hip. Before attending the park, the complainant drank a
    considerable amount of alcohol: at least three bottles of beer, some shots,
    some mixed drinks such as Margaritas and some Rockstars, a cooler with vodka.
    She was intoxicated by the time she and her friends left for the park around
    7:00 p.m. At the park, she had several large gulps of liquor from a mickey she
    and her friends had smuggled into the park, before it was confiscated by
    security personnel.

[4]

Once at the park, the complainant socialized with her friends and
    others, and at some point she met the appellant and Mr. See. Despite the fact
    that she had never met these men, she began dancing and flirting with the
    appellant. The flirting included a brief period of consensual kissing. During
    this period, the complainant lost contact with her friends. By this time, the
    concert had begun, there were many more people present and the complainant felt
    quite confused. She believed from her last conversation with her friends that they
    had gone to the washrooms and so she headed towards them. At this point, the
    complainants recollection of events became blotchy. She did not think she
    made it to the washrooms. Her next memory is lying on the ground in the bushes
    with her pants down and the appellant lying on top of her, penetrating her
    vaginally. She felt that she had no control over her body and felt very weak.
    She wanted to get up but she could not. She was in and out of consciousness
    throughout. She told the appellant No. No. No. You dont have a condom. No.
    She remembered the appellant reassuring her that it was okay. She kept
    repeating the same things. The appellant stopped the vaginal intercourse and
    engaged in oral sex. She felt dizzy and kept trying to move. At some point, she
    was able to roll over but the appellant then penetrated her anally.

[5]

The appellant finally stopped and left the area. At this point, Mr. See
    came into the bush and penetrated the complainant vaginally. The complainant
    also said no to him.

[6]

The complainants evidence was unclear as to the gaps in her memory. She
    did not know how long the gap in her memory was. She heard the Tragically Hip
    playing both when she headed over to the bathrooms and when she came to in the
    bushes with the appellant on top of her. She therefore agreed with counsel for
    Mr. See that the gap in her memory may have been fairly brief. Independent
    evidence established that the Tragically Hip started playing at 8:45. This
    would have been about three hours after the complainant last had any alcohol to
    drink.

[7]

In cross-examination, the complainant conceded that because of her lack
    of memory, there may have been some conversation between her and the appellant
    in which she consented to sex. But, she added: And irregardless if there was
    consent beforehand, when I was conscious and able to speak for myself, I was
    not consensual [
sic
].

[8]

After the assaults, the complainant woke up alone in the bush. She was
    able to get dressed and leave the bush. She had no money and was unable to
    locate her friends. She eventually walked to her friends home with the
    assistance of a man, whom she had never met. The complainant told her friend
    what happened. When the complainant woke up in the morning, she was bleeding
    from her anus and there was blood on the sheets.  That morning, the complainant
    went to the hospital where she was examined and samples were taken. The
    complainant had suffered relatively minor injuries to her back and right arm
    and an abrasion between her vagina and her anus. When seen at the hospital, she
    was visibly upset and crying.

[9]

The appellant and Mr. See were eventually identified through DNA
    identification. When they were arrested, both men admittedly lied to the
    police. The appellant lied about who he was with and he claimed that he and
    another man were accosted by the complainant who grabbed their penises. She
    then dragged the appellant into the bush and had sex with him.

[10]

The
    appellant did not testify. Mr. See did testify. He confirmed that he and the
    appellant met the complainant and engaged in flirting with her. At some point,
    he needed to go to the bathroom and so the three of them went there. After they
    all used the toilet, the appellant and the complainant went into the bush. The
    complainant then came out and took him into the bush where she performed oral
    sex on him and they engaged in consensual intercourse. They left the bush, but
    Mr. See realized that he had dropped his cell phone. He went back to get it,
    and when he returned the complainant was gone.

[11]

The
    trial judge accepted the evidence of the complainant and rejected Mr. Sees
    evidence. The trial judge gave extensive reasons for doing so. The ground of
    appeal raised by duty counsel concerns the trial judges failure to explicitly
    deal with what counsel at trial characterized as the complainants convenient
    memory lapse. Defence counsel put the issue this way to the trial judge:

And I suggest to you its convenient that theres this period
    of time when she says she wakes up unconscious, she cant defend herself and
    her friends comment the next morning, how could this happen unless she was
    drugged, unless she was date raped drugged because [the complainants] a
    strong, assertive girl.

And:

[T]heres a complete loss of intellectual and physical function
    on her part and a sudden regaining of it during the commission of the criminal
    offence. If an accused went into the witness stand and said to you in the
    immediate prelude to committing this crime, I for unexplained reasons lost
    memory or lost function and I suddenly regained it in the midst of committing
    this criminal offence, Your Honour would say I dont believe you.  Theres no
    explanation for that.  Thats not true. Thats too convenient. Such a
    fundamental part of the case of the sequence of events that night is that the
    person claims without any legitimate explanation, a complete absence of memory
    or a complete absence of the function we knew she had immediately before and
    after and Your Honour can look at that and say not only do I not believe that
    part of the evidence, I find that causes me to doubt her whole evidence.

[12]

In
R. v. Dinardo
, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 31, Charron
    J. summarized the trial judges duty to give reasons in a case such as this as
    follows:

As I explained at the outset of the analysis, the inquiry into
    the sufficiency of the reasons should be directed at whether the reasons
    respond to the case's live issues. In this case, the complainant's truthfulness
    was very much a live issue -- the trial judge recognized it as so during the
voir
    dire
to determine whether the complainant was competent to testify. At
    trial, two of the witnesses testified that the complainant could be untruthful
    and manipulative. While it was open to the trial judge to conclude that he was
    convinced beyond a reasonable doubt of the guilt of the accused, it was not
    open to him to do so without explaining how he reconciled the complainant's
    inconsistent testimony, particularly in light of the accused's own evidence
    denying her allegations.

[13]

At
    para. 32 of the same decision, Charron J. explained that where the reasons are
    deficient, the reviewing court must examine the evidence and determine whether
    the reasons for conviction are, in fact, patent on the record. However, it is
    not open to an appellate court to engage in a reassessment of aspects of the
    case not resolved by the trial judge. Thus, [w]here the trial judge's
    reasoning is not apparent from the reasons or the record, as in the instant
    case, the appeal court ought not to substitute its own analysis for that of the
    trial judge.

[14]

In
    this case, the trial judge did not expressly deal with the effect of the
    complainants memory gap on her credibility. The question then is whether the
    reasons for conviction are nevertheless patent on the record. In my view, they
    are. The trial judge dealt both with the complainants credibility, in the
    sense of honesty, and with her reliability. He saw the issues as whether the
    complainant was honest in her testimony that she did not consent and whether
    her recounting of events was reliable.

[15]

In
    my view, the reasons respond to the real issues in the case. The trial judge
    fully understood that consent was an issue, particularly given the
    complainants earlier conduct with the appellant and Mr. See. The memory gap
    was not a material issue in the case because the trial judge accepted that
    irrespective of what had occurred earlier, the complainant clearly and
    unequivocally expressed her lack of consent in the course of the sexual acts
    with the appellant. In other words, even if the complainant did consent to some
    kind of sexual acts initially, she withdrew that consent. The trial judges
    reasons make that clear.  In the course of his reasons, the trial judge
    referred to a portion of the complainants testimony in these terms:

[41] There was a moment towards the end of Mr. Hurleys
    cross-examination I shall not soon forget. Mr. Hurley was pressing hard and the
    following took place.

Question: And it was then between the vaginal sex and the anal
    sex that Mr. Rand performed oral sex on you?

Answer: Yes.

Question: And throughout this period of time youre not doing
    anything to resist him, or are you?

Answer: I couldnt do much to resist him. I was pushing at
    this point. Like I had said before, I was saying no.

Question: Were you trying to push him off?

Answer: Yes.

Question: You were actually physically doing that?

Answer: Trying to. It was...  I cant explain what it was
    like. It was... Does it matter where? Like, is...

Question: Did you move your legs or your body in any way?

Answer: I didnt want to be there. I said no. I said no over
    and over and over again. I said, You dont have a condom on. Get off me. I
    said no. Thats what should matter. What the fuck? Excuse my language, Your
    Honour. These stupid things are not what matters. What matters is that I said
    no.

[42] Reading from that evidence does not do justice to that
    electrifying exchange in this court room. You could hear a pin drop when it was
    over. It was obvious to me and everyone else that [the complainant] was
    spontaneously angry and outraged.

[16]

Later
    in his reasons, the trial judge described what happened the night of the
    assault in these terms:

[69] This was fast, grubby sex with two strangers in the dark,
    in the bush, in the middle of a rock concert. And I believe [the complainant]
    when she says that she did not consent to it.

[70] Her memory of that night is not perfect. She got some
    things wrong. But she got most of it right. Two strange men had sex with her.
    At that point she couldnt know that DNA would prove that two men did have sex
    with her. And she said one used a condom and one did not. That turned out to be
    true. One of those men had a Mohawk. That was true too. Her description of the
    two men was basically accurate.

[71] Her chances of ever finding these men were remote. Notwithstanding
    she told the police about it. Why bother? Her story to the police was
    essentially consistent throughout. She says she did flirt with the men, but she
    also said she did not consent to the sex, and I believe her.

[72] I do not believe them  either of them. In my view they
    would say anything to escape their predicament.

[73] Is her evidence reliable. Defence argues that the
    flirting, the making out is consistent with someone consenting to sex later on;
    that her decision to stay with the men is consistent with her consenting to sex
    later on; that her failure to tell the first available policeman about the
    assault somehow taints her disclosure hours later; that she couldnt have been
    that drunk given how little alcohol she had had at the concert.

[74] She was foolish to make out with a strange man that
    evening. But she was young, and she was still intoxicated. Maybe she ought to
    have reported the assault to the first available policeman, but she just wanted
    to get home, and she did report it then. Her demeanour at home and at the
    hospital was consistent with the notion that something bad had happened to her.

[75] I accept Kristens evidence about how [the complainant]
    was crying when she disclosed, and later her complaints about pain and about
    the blood. The marks found on her body tend to support her evidence.

[76] And finally I was struck by her evidence about the two men
    consoling her during sex. In all my years as a judge hearing hundreds of these
    sorts of cases, Ive never heard that. She didnt make that up. It really
    happened. And I cant see having to console someone having consensual sex. You
    console someone who doesnt like whats happening to them.

[77] So in my view her evidence is reliable. That means I am
    satisfied beyond a reasonable doubt that [the complainant] did not consent to
    sex that night with Mr. Rand, and she did not consent to sex with Mr. See.

[17]

The
    complainants memory loss, which was probably brief, did not undermine her
    credibility or the reliability of her evidence on the crucial issue of whether
    she consented to the sexual acts with these two strangers. Whether or not she
    voluntarily went into the bushes with the appellant and whether or not some
    kind of consensual activity may have occurred during the memory gap period, the
    complainant did not consent to the continuing sexual acts with the appellant.
    For the purpose of determining whether the
actus reus
of the offence
    was committed, the relevant period of time was when the sexual touching was
    occurring, not what occurred earlier in the evening or even earlier in the
    sexual touching in the bushes. The Supreme Court of Canada reiterated this
    point in the recent decision in
R. v. J.A.
, 2011 SCC 28, [2011] 2
    S.C.R. 440, at para. 46:

The only relevant period of time for the complainant's consent
    is while the touching is occurring:
Ewanchuk
, at para. 26. The
    complainant's views towards the touching before or after are not directly
    relevant. An offence has not occurred if the complainant consents at the time
    but later changes her mind (absent grounds for vitiating consent). Conversely,
    the
actus reus
has been committed if the complainant was not
    consenting in her mind while the touching took place, even if she expressed her
    consent before or after the fact.

[18]

Accordingly,
    I would dismiss the appeal from conviction.

THE SENTENCE APPEAL

[19]

The
    appellant also appeals from his sentence of four years imprisonment. I would
    not interfere with the sentence. The appellant took advantage of a vulnerable
    intoxicated young woman. He committed acts of unprotected anal and vaginal sex.
    He has a prior criminal record dating back to 2004 that includes offences of
    dishonesty and also convictions for crimes of violence, including assault,
    assault with a weapon, and assault with intent to resist arrest. Two of the
    assault convictions, in 2004 and 2007, involved incidents of domestic violence.
    The sentence imposed by the trial judge in this case was well within the
    appropriate range. The trial judges reasons disclose no errors in principle.

[20]

Accordingly,
    while I would grant leave to appeal sentence, I would dismiss the appeal.

Released: M.R. October 30, 2012

M.
    Rosenberg J.A.

I
    agree R.A. Blair J.A.

I
    agree M. Tulloch J.A.


