



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    that could identify the complainant or a witness shall not be published in any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. K.A., 2013 ONCA 410

DATE: 20130619

DOCKET: C56113

Rouleau, Watt and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

K. A.

Appellant

Robin K. McKechney, for the appellant

Christine Tier, for the respondent

Heard and released orally: June 12, 2013

On appeal from the judgment of Justice P.U. Rivard of the
    Superior Court of Justice, sitting as a Summary Conviction Appeal Court, on
    September 17, 2012.

ENDORSEMENT

[1]

K. A. appeals from the decision of a judge of the Superior Court of
    Justice that dismissed his summary conviction appeal from a conviction of a
    single count of sexual assault.

[2]

The sexual assault alleged was that the appellant had sexual intercourse
    with the complainant without her consent while she and her [then] common law
    husband were in bed together after several hours of drinking in a hot tub with
    the appellant and another man.

[3]

The appellant acknowledged that he had sexual intercourse with the
    complainant, but he insisted that it was with her consent. The complainant
    denied consent.

[4]

A critical piece of evidence relied upon by the appellant at trial in
    support of his submission that the complainant consented was the evidence of
    her former common law spouse, J. M. He testified that he was awakened by the
    movement of the bed in which he and the complainant were sleeping and by the
    complainants grabbing his hand and moving it between her legs.  The appellant
    relied on this evidence to support the inference that the complainant knew she
    was having sexual intercourse with the appellant and was inviting her then
    common law spouse to join them in a threesome.

[5]

The evidence in this case was heard on two days about one year apart.
    After hearing closing submissions, the trial judge reserved judgment. Four
    months later he released his reasons for convicting the appellant.

[6]

In his reasons for judgment, which consist of 21 paragraphs, the trial
    judge characterized the only issue as whether the appellant honestly and
    reasonably believed the complainant was consenting to the sexual activity that
    took place.  This issue, the trial judge reasoned, reduced to a question of
    whether the appellant took reasonable steps in the circumstances known to him
    at the time to ascertain whether the complainant was consenting to the sexual
    activity within s. 273.2(1) of the
Criminal Code
.

[7]

The trial judge concluded that the appellant took no reasonable steps to
    ascertain whether the complainant was consenting to the sexual activity in
    which the appellant was engaged. Of the appellants evidence, the trial judge
    said:

Needless to say, I do not believe the accused nor am I left
    with a reasonable doubt on his evidence.

[8]

The trial judge expressly found the witnesses for the Crown to be
    reliable and trustworthy. The complainants former common law spouse, whose
    evidence was central to the consent defence, was a Crown witness.

[9]

The trial judge said nothing about this critical piece of evidence in
    his reasons for judgment. Nor, for that matter, did he deal, in terms, with the
    defence advanced, which was consent, not mistaken belief in consent as the
    trial judge characterized it. Further, the reasons are barren of any analysis
    of why the judge concluded the evidence was sufficient to satisfy the high
    standard of proof required in criminal cases.

[10]

The
    appeal judge acknowledged that the trial judge had failed to address many of
    the inconsistencies in the evidence of the Crown witnesses. The appeal judge
    considered that it was not necessary for the trial judge to have done so to
    permit meaningful appellate review. Like the trial judge, the appeal judge
    concluded that the only live issue was whether the appellant took reasonable
    steps to ascertain whether the complainant was consenting to the sexual
    activity in which the appellant was engaged.

[11]

In
    our view, the appellants conviction cannot stand. The reasons for judgment in
    both courts below reflect a fundamental misunderstanding of the defence
    advanced at trial and fail to consider, thus come to grips with, evidence that
    bore directly on the defence advanced at trial, consent, thus the issue of the
    appellants guilt or innocence. This deficiency and the overall conclusory
    nature of the trial judges findings, as well as those of the appeal judge,
    preclude meaningful appellate review.

[12]

This
    was not a complex case. No controverted principles of law required resolution.
    But the issue of consent required reasoned analysis, a consideration it did not
    receive.

[13]

For
    these reasons, we allow the appeal, set aside the conviction and order a new
    trial.

Paul Rouleau J.A.

David Watt J.A.

Gloria Epstein J.A.


