



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. R.H., 2022 ONCA 69

DATE: 20220127

DOCKET: C68425

Paciocco, Nordheimer and Sossin
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.H.

Appellant

Mellington Godoy, for the appellant

Jennifer Epstein, for the respondent

Heard: January 12, 2022 by video
    conference

On appeal from the convictions entered
    by Justice Kevin B. Phillips of the Superior Court of Justice on January 24,
    2020.

Nordheimer
    J.A.:

[1]

R.H. appeals from his conviction for sexual
    assault. He was also convicted of other offences including assault causing bodily
    harm, mischief, and uttering threats. However, his appeal is solely with
    respect to the sexual assault offence.

A.

Background

[2]

The facts underlying the offences are somewhat
    unusual. The appellant and the complainant were in a relationship. At the time
    of the offences, the appellant was using drugs, including crack cocaine, which
    caused him to have paranoid hallucinations. Uncontested testimony from the
    complainant established that these hallucinations led the appellant to believe
    that the complainant was having sexual intercourse with other men while the
    appellant was with the complainant.

[3]

More specifically, the appellant would be lying
    in bed with the complainant and would become convinced that the complainant
    was, then and there, having intercourse with another man. In an effort to
    convince the appellant that this was not occurring, the complainant would allow
    the appellant to touch her vagina so that he would be assured that no act of
    intercourse was taking place.

[4]

The complainant testified that it was not the
    physical act of the appellant touching her vagina that made her uncomfortable.
    Rather, it was the appellants accusations that she was being unfaithful that
    bothered her. The complainant was consistent, both during examination in chief
    and cross-examination, that she allowed the appellant to touch her and that she
    did not feel that she had been sexually assaulted. The complainant also said
    that every time she and the appellant had sex, it was consensual.

B.

the trial judges reasons

[5]

With respect to the sexual assault offence, the
    trial judge concluded that the complainants agreement to permit the appellant
    to touch her sexually was invalid. He said that any consent in this context was
    an illusion. The trial judge based his conclusion on the history of violence
    in the relationship. More specifically, the trial judge said:

[R.H.] wouldve understood full well that he
    had a form of control over her; that he had injected so much violence into this
    relationship, that when his partner acquiesced to him investigating her vagina
    to satisfy himself that other men were not then presently engaged in sex or had
    not recently been, he was being allowed to do so because he had a form of power
    over the complainant, brought about by his violent treatment of her.

C.

Analysis

[6]

In my view, the trial judge erred in reaching
    the conclusion that he did. In so concluding, I do not mean to suggest that
    such a conclusion would not be open to a trial judge to reach on the particular
    facts of any given case. It may well be that a trial judge could conclude, even
    in the absence of specific threatening conduct attached to an act of sexual
    touching, that based on the totality of the evidence of the conduct between the
    parties, the voluntariness of a complainants subjective agreement to that act
    of sexual touching was vitiated by the control that the accused person
    exercised through violence and intimidation within their relationship. Put
    simply, if a complainant agrees to sexual touching because of an operating fear
    of past acts of violence, their subjective agreement to sexual activity will be
    vitiated.

[7]

The problem that arises in this case is that
    neither counsel argued this route to a conviction. This case was not litigated
    as a vitiation of consent case. The contest was about the factual question of
    whether the complainant subjectively agreed to the charged sexual activity.

[8]

The Crowns position was that the complainant
    was a difficult and reluctant witness at trial who downplayed in her testimony the
    actions of the appellant towards her. The Crown sought to have the trial judge
    make his finding of fact relating to her subjective consent based on a
    statement the complainant gave to the police, that was ultimately admitted at
    trial under the principles from
R. v. B. (K.G.)
, [1993] 1 S.C.R. 740
    (the 
KGB
statement). Unlike her evidence at trial that the touching
    was consensual, in her police statement the complainant said that the touching had
    upset her. She also said, in response to a leading question from the
    interviewing officer, that she had not wanted the touching to happen.

[9]

The Crown argued that the complainants evidence,
    through the police statement, should be preferred to the complainants evidence
    at trial. The Crown continued by asserting that the fact that the complainant
    said, in her police statement, that the touching bothered her constituted a
    violation of the complainants sexual integrity. The Crown concluded by
    asserting that the fact that the complainant said at trial, and contrary to her
    police statement, that all of the touching was consensual, should be rejected
    and should not raise a reasonable doubt.

[10]

In response, the defence argued that the
    complainants police statement was suspect because, at the time, the
    complainant had a motive to fabricate her allegations. This arose, in part, from
    the complainants concern for her children and the possible involvement of the
    Childrens Aid Society. The complainant was very concerned about the possible
    loss of her children. She wanted to deflect any concerns about what was going
    on in the relationship, as it impacted on the children and her ability to care
    for them, entirely onto the appellant.

[11]

As a consequence, the defence argued that the
    complainants evidence from her police statement should be approached with
    caution and with scepticism. Notably, the defence did not make any specific
    submissions regarding the sexual assault offence, other than to say, in
    reliance on the complainants trial testimony, that the Crown failed to negate consent
    beyond a reasonable doubt.

[12]

The trial judge, because of the inconsistent
    accounts provided by the complainant, was left in a reasonable doubt relating
    to whether she subjectively consented. This led him to move on to consider
    whether that consent had been vitiated.

[13]

I have already set out the vitiated consent theory
    the trial judge used to convict the appellant of the sexual assault offence. This
    theory was never advanced by either of the parties, nor did the trial judge raise
    it with the parties. In convicting on this basis in these circumstances, he visited
    an unfairness on the appellant. That unfairness has two parts. One is that
    raising this issue for the first time after evidence and argument were
    completed did not allow for either counsel, but especially defence counsel, to
    make any submissions as to the validity of that theory, on the facts of the
    case. It did not permit counsel the opportunity to provide case authorities on
    the subject, nor did it permit counsel to refer to evidence that might impact
    on that theory.

[14]

This latter concern leads to the second part of
    the unfairness. Not only was there no indication that this was a route that
    might be taken to a conviction on the sexual assault offence, as I will
    explain, the manner in which the Crown presented the case suggested it would
    not be. Defence counsel was therefore misled in terms of his conduct of the
    defence. It is almost certain that had it been known that this theory was a
    live route to conviction, the defence would have explored the issue with the
    complainant during the course of her cross-examination.

[15]

This is not a fanciful or speculative concern in
    this case. In the course of the examination in chief of the complainant, Crown counsel
    addressed the sexual assault offence. In particular, the following exchange
    took place:

Q.      So, do you remember whether it was
    otherwise in terms of your pants coming down, thats [
sic
] its not
    simply you doing it, but whether he did it as well?

A.      What I said for him, that if he
    thought that something was going on, to check. So, I did allow permission.

Q.      Did he ever do it without your
    permission?

A.      No. I dont feel as if [R.H.] has ever
    sexually assaulted me.

[16]

Those answers were helpful to the defence.
    However, Crown counsel left things there, without asking any questions relating
    to the integrity of the permission the complaint gave. In light of that
    exchange, and the absence of any indication in the
KGB
statement that
    the complainant was concerned about the risk of violence when the accused
    touched her sexually, it is understandable why defence counsel would not address
    voluntariness issues in his cross-examination. In particular, there would be no
    reason for defence counsel to engage with the complainant on the subject of
    whether her stated consent was actually no consent because of the nature of her
    relationship with the appellant and the history of violence. Simply put, Crown
    counsel had not gone there, so why would defence counsel do so? I would add, on
    this point, that because of the differences between the complainants police
    statement and her evidence at trial, Crown counsel had been permitted to
    cross-examine the complainant pursuant to s. 9(2) of the
Canada Evidence
    Act
, R.S.C., 1985, c. C-5.

[17]

The parties do not dispute that the absence of
    consent is subjective and is to be determined by reference to the complainants
    subjective internal state of mind towards the touching, at the time it occurred:
R. v. Ewanchuk
, [1999] 1 S.C.R. 330, at para. 26. However, to be
    legally effective, consent must be freely given. At the risk of stating the
    obvious, the complainant will be the primary source of their subjective view of
    whether they gave consent. The complainant will also be the primary source for
    determining whether any apparent consent was freely given. However, the
    complainants view is not the end of the inquiry. For policy reasons, the law
    may render apparent consent as legally ineffective:
R. v. G.F.
, 2021
    SCC 20, 459 D.L.R. (4th) 375, at para. 34.

[18]

All of these principles highlight the need for
    the issue of consent, and its legal effect, to be canvassed at the trial. This
    will be especially so where the legal effect of the subjective consent is a
    live issue. It was not in this case. Consequently, the issue was not canvassed
    by counsel, either in their questioning of the complainant or in their
    submissions at the conclusion of the trial. That reality renders the subsequent
    reliance by the trial judge on the lack of a legally effective consent, leading
    to a conviction for sexual assault, fundamentally unfair to the appellant.

[19]

The Crown responds to these concerns by pointing
    out that the trier of fact is not confined to the Crowns theory in determining
    liability. To quote the Crowns factum: A conviction may be based on an
    alternative theory of liability not advanced by the Crown so long as it falls
    within the wording of the indictment and is supported by the evidence.

[20]

While that is undoubtedly true as a general
    principle, its application is not without constraint. In particular, that principle
    does not address the corresponding principle of trial fairness. An accused
    person is entitled to know the case that they are being asked to meet. It is
    fundamentally unfair to convict an accused person on a theory of which they are
    entirely unaware, and to which they have not had the opportunity to respond. On
    this point, I note that in two of the cases that the Crown relied on for its
    principle that a conviction can rest on an alternative theory, both this court and
    the Supreme Court of Canada made it clear that the defence was aware of the
    alternative theory on which the convictions ultimately rested:
R. v. Groot
(1998), 41 O.R. (3d) 280 (C.A.), at para. 25, affd [1999] 3 S.C.R. 664;
R.
    v. Pickton
, 2010 SCC 32, [2010] 2 S.C.R. 198, at para. 21. Consequently,
    there was no unfairness to the accused in those two cases.

[21]

In contrast, this court concluded in
R. v.
    Ranger
(2003), 67 O.R. (3d) 1 (C.A.), that unfairness to the accused had
    occurred where the trial judge instructed the jury on a route to conviction
    that had not been advanced by the Crown and which the defence did not know
    would be available. Specifically, Charron J.A. said, at para. 162:

In these circumstances, it cannot be said that
    the appellant was not materially prejudiced by the trial judge's failure to
    notify counsel of his intention to charge the jury on this additional theory of
    liability before counsel's final address to the jury.

[22]

This case was argued by both sides on the issue
    whether the complainant had consented to the sexual touching. It was not argued
    that the complainant was incapable of consenting because of the history of her
    relationship with the appellant. As a result, that issue was not explored by
    counsel during the course of the trial. For example, Crown counsel acknowledges
    in her factum that the complainant was never asked what she thought might
    happen if she denied the appellant the opportunity to inspect her vagina.

[23]

As I have said, it is fundamentally unfair to
    convict an accused person on a basis of which they are unaware and which they
    have not had an opportunity to respond. It denies the accused person their
    constitutional right to make full answer and defence:
R. v. Mills
,
    [1999] 3 S.C.R. 668, at para. 69. At the very least, when the trial judge became
    aware that he might convict on that basis, he ought to have alerted counsel to
    that possibility and asked for their submissions. That did not happen.

[24]

The appellant was prejudiced by the trial
    judges adoption of a route to conviction of which he was unaware. The
    appellant was denied trial fairness. The conviction on the count of sexual
    assault must be set aside.

D.

Conclusion

[25]

The appeal is
    allowed and the conviction for sexual assault (count #2) is set aside. A new
    trial is ordered on that count alone.

Released: January 27, 2022 David M.
    Paciocco J.A.

I.V.B. Nordheimer J.A.

I agree. David M. Paciocco J.A.

I agree. Sossin J.A.


