



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(1), (1.1), (2), or (3) of the
Criminal Code
shall continue. These sections of the
Criminal Code
provide:

486(1) Any proceedings against an
    accused shall be held in open court, but the presiding judge or justice may, on
    application of the prosecutor or a witness or on his or her own motion, order
    the exclusion of all or any members of the public from the court room for all
    or part of the proceedings, or order that the witness testify behind a screen
    or other device that would allow the witness not to be seen by members of the
    public, if the judge or justice is of the opinion that such an order is in the
    interest of public morals, the maintenance of order or the proper
    administration of justice or is necessary to prevent injury to international
    relations or national defence or national security.

(1.1) The application may be made,
    during the proceedings, to the presiding judge or justice or, before the
    proceedings begin, to the judge or the justice who will preside at the
    proceedings or, if that judge or justice has not yet been determined, to any
    judge or justice having jurisdiction in the judicial district where the
    proceedings will take place.

(2)     In determining whether the order
    is in the interest of the proper administration of judge, the judge or justice
    shall consider

(a) societys interest in encouraging
    the reporting of offences and the participation of victims and witnesses in the
    criminal justice process;

(b) the safeguarding of the interests
    of witnesses under the age of 18 years in all proceedings;

(c) the ability of the witness to give
    a full and candid account of the acts complained of if the order were not made;

(d) whether the witness needs the order
    for their security or to protect them from intimidation or retaliation;

(e) the protection of justice system
    participants who are involved in the proceedings;

(f) whether effective alternatives to
    the making of the proposed order are available in the circumstances;

(g) the salutary and deleterious
    effects of the proposed order; and

(h) any other factor that the judge or
    justice considers relevant.

(3)     If an accused is charged with an
    offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or
    (3) or section 163.1, 171, 171.1, 172, 172.1, 172.2, 173, 271, 272, 273,
    279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3 and the prosecutor or
    the accused applies for an order under subsection (1), the judge or justice
    shall, if no such order is made, state, by reference to the circumstances of
    the case, the reason for not making an order.

(4) No adverse inference may be drawn
    from the fact that an order is, or is not, made under this section.

R.S., 1985, c. C-46, s. 486; R.S., 1985,
    c. 27(1
st
Supp.), s. 203, c. 19 (3rd Supp.), s. 14, c. 23 (4
th
Supp.) s. 1; 1992, c. 1, s. 60(F), c. 21, s. 9; 1993, c. 45, s.7; 1997, c. 16,
    s. 6; 1999, c. 25, s. 2(Preamble); 2001, c. 32, s. 29, c. 41, ss. 16, 34, 133;
    2002, c. 13, s. 20; 2005, c. 32, c.43, ss. 4,8,; 2010, c.3, s. 4; 2012, c. 1,
    s. 28; 2014, c. 25, s. 21; 2015, c. 13, s. 13, c. 20, s. 21.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tweneboah-Koduah, 2018 ONCA 570

DATE: 20180621

DOCKET: C62859

Watt, van Rensburg and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Francis Yaw Tweneboah-Koduah

Applicant / Appellant

Catriona Verner, for the appellant

Candice Suter, for the respondent

Heard: June 14, 2018

On appeal from the conviction entered on September 30,
    2016 and the sentence imposed January 31, 2017 by Justice Paul Howard of the Superior
    Court of Justice, sitting without a jury.

REASONS FOR DECISION

I.

Overview

[1]

The appellant and complainant were first year
    university students staying in the same residence. After consuming a large
    amount of alcohol, the complainant went with the appellant to his room. The
    complainant testified that: (a) the appellant pulled up her shirt and bra,
    aggressively kissed her and fondled her breasts; (b) she awoke to find the
    appellants penis in her mouth; and (c) the appellant vaginally penetrated her
    from behind.

[2]

The appellant was tried on a single count of
    sexual assault. He was convicted and sentenced to 26 months imprisonment. He
    appeals from both conviction and sentence. On the conviction appeal he claims
    that the trial judge erred by:

a)

failing to understand that a person can consent
    while blacked out;

b)

failing to consider
    what happened while the complainant was blacked out;

c)

inappropriately
    equating pain with lack of consent;

d)

arriving upon an
    unreasonable verdict;

e)

misunderstanding the
    complainants evidence about bruising; and

f)

taking judicial notice of the fact that
    the complainant would have smelled of alcohol.

[3]

The appellant also contends that he was the
    subject of an unfair and prejudicial cross-examination.

[4]

Following the hearing, we dismissed the
    conviction and sentence appeals with reasons to follow. These are the reasons.


II.

Conviction Appeal

(a) Alleged failure to understand
    that a person can consent while blacked out

[5]

Among other things, the complainant was able to
    recall that at one point she realized that the appellants penis was in her
    mouth and she was choking on it. She could not recall how the
fellatio
began.

[6]

The trial judge correctly stated the law, that
    consent to sexual activity must be contemporaneous with that activity and that,
    in order to consent, a person must be conscious, with an operating mind,
    capable of granting, revoking or withholding consent to each and every sexual
    act:
R. v. J.A.,
2011 SCC 28, [2011] 2 S.C.R. 440 at para. 44. The
    trial judge concluded that, as it related to the act of
fellatio
, the
    complainant could not have consented because she had blacked out.

[7]

The appellant claims that the trial judge erred
    by failing to appreciate the difference between blacking out and a state of
    unconsciousness. He defines the term black out as a period of time for which
    a person  who was conscious  has no memory. The appellant emphasizes that the
    Crown also seemed to approach the term in this way. The appellant says that the
    distinction between a state of unconsciousness and a black out are important
    because a person who has simply lost their memory may have consented to sexual
    activity:
R. v. Esau
(1997), 116 C.C.C. (3d) 289 (S.C.C.).
    Accordingly, he contends that the trial judge erred by concluding that because
    the complainant blacked out she did not consent. We disagree.

[8]

The appellants entire submission is predicated
    on the singular definition he offers to the term blacked out. We do not agree
    that this is a legal term of art that admits of only one definition. What is
    important is how the term is used.

[9]

The trial judge in this case demonstrated his
    keen understanding of the difference between being unconscious and simply
    losing ones memory. He specifically adverted to this difference: I accept
    that because of her level of intoxication, there were periods where she
    blacked out and there were periods where she could not remember what was said
    or done.

[10]

Although the trial judge used the term blacked
    out to describe the complainants condition when the appellants penis was
    originally placed in her mouth, he was clearly conveying his conclusion that
    the complainant was unconscious when the
fellatio
began, rendering her
    incapable of consent. The following passages from the reasons for judgment make
    this clear:

The accused also alleges that the complainant
    performed oral sex on him. For the reasons already expressed, I have rejected
    the accuseds evidence on point and have accepted the complainants evidence
    that, after having blacked out,
she woke
    up with the accuseds penis in her mouth
.

The complainant simply cannot be held to have
    consented to the act. It follows from my acceptance of the complainants
    evidence that she
woke up with the accuseds
    penis in her mouth, that the sex act began when she was blacked out.
As such, it cannot be said that at the time the accused initiated the activity,
    the complainant possessed the requisite conscious, operating mind, capable of
    granting, revoking or withholding consent, as required by the Supreme Courts
    decision in
R. v. J.A.

[Emphasis added.]

[11]

These passages reveal the trial judges factual
    conclusion that the complainant was in a state of unconsciousness when the
fellatio
started and only came to a state of consciousness part way through.

(b) Alleged failure to consider
    what happened while the complainant was blacked out

[12]

The appellant acknowledges that if he fails on
    the previous ground of appeal, then he cannot succeed in showing that the trial
    judge erred by failing to consider whether the complainant might have consented
    to the
fellatio
. Given our finding that the trial judge concluded that
    the complainant was unconscious when the appellants penis originally went into
    her mouth, she could not have consented and this ground of appeal also fails.

(c) Alleged misunderstanding of
    what constitutes a lack of consent

[13]

The complainant testified about the pain she
    experienced during the vaginal penetration from behind. As a result of this
    act, she suffered a one-centimetre tear to her vagina and bled extensively from
    the wound.

[14]

The trial judge is said to have erred by
    assuming that the complainant would not have consented to vaginal intercourse
    because of the pain it caused. According to the appellant, it was pure
    speculation to find that the complainant, who acknowledged that she had done
    things she would not usually do that night, would not have consented to
    intercourse from behind. We disagree.

[15]

Although the trial judge made specific reference
    to the complainants level of pain, he based his finding that there was no
    consent on the totality of the evidence, including the evidence of pain and
    injury. There was ample evidence to support this finding and those findings are
    entitled to deference.

[16]

The complainants evidence demonstrates that she
    did not want to engage in the sexual acts. When it was suggested to her in
    cross-examination that she consented to sexual intercourse from behind, she
    responded [t]hats not true. She also described being:

·

pushed onto the appellants bed;

·

feeling like a lead
    weight;

·

being unable to get up
    and leave;

·

having her bra pulled
    up and attempting to pull it down;

·

being in a state of
    shock;

·

feeling like she was in
    a nightmare;

·

feeling like she could
    not do anything because she was so drunk; and

·

being scared.

[17]

The trial judge carefully and extensively
    reviewed all of the evidence surrounding what occurred in the appellants room.
    The totality of that evidence easily supported his finding that the complainant
    did not consent.

(d) Alleged Unreasonable Verdict

[18]

The appellant maintains that the verdict was
    unreasonable. We disagree. There was ample evidence upon which a properly
    instructed jury acting judicially could reasonably find the appellant guilty:
R.
    v. Biniaris
, [2000] 1 S.C.R. 381 at
    para. 36
.

(e) Alleged Misunderstanding of
    the Bruising Evidence

[19]

The complainant testified that she had visible
    bruises the day following the sexual assault. She sent a text message to her
    friend, reflecting the fact that she was covered in bruises. She also told
    others that she had bruising. However, the nurse practitioner who examined the
    complainant after the sexual assault did not make any note of bruising.

[20]

The trial judge reviewed the evidence in detail
    and found that the complainant was simply wrong about when the visible bruises
    emerged. He further held that in the absence of medical evidence about when the
    bruising would have become visible, he was unable to make an adverse finding of
    credibility.

[21]

The appellant argues that the trial judge erred
    in his approach to this evidence. He maintains that the lack of bruising was a
    pivotal issue at trial because it showed that the complainant was not being
    truthful. Combined with the fact that the complainant sent a text message to
    her friend shortly after the events in the appellants room, referencing her
    belief that she had made a mistake, the appellant argues that the
    complainants suggestion of bruising is a fabrication to attempt to justify her
    actions. We disagree that the trial judge erred.

[22]

The trial judge was alive to the importance of
    the complainants evidence regarding the timing of her bruising. As he said in
    his reasons: [t]he critical issue surrounding the complainants credibility
    and reliability is, of course, the issue of the bruising.

[23]

The complainant was tender following the
    assault. This was confirmed in the medical examination. Although visible
    bruises were not seen during the nurses examination, the complainants mother
    saw bruising three days after the assault. The trial judge found that, although
    the complainants evidence about the timing of the bruising undermined her
    reliability, it did not undermine her credibility. It was open to the trial
    judge to come to this conclusion, particularly in light of the fact that the
    complainant testified about how sore she was after the assault and the medical
    practitioners confirmation of this evidence.

[24]

It was within the trial judges domain to deal
    with the evidence as he did and we defer to his conclusions.

(f) Alleged error in taking judicial
    notice of the fact that the complainant would have smelled of alcohol

[25]

The appellant argues that the trial judge erred
    by treating his evidence that the complainant did not smell of alcohol as fundamentally
    and significantly undermining his credibility. The appellant maintains that it
    was unreasonable to infer that the complainant would have smelled of alcohol simply
    because of the amount of alcohol she consumed. Accordingly, it was unfair to use
    his evidence on this point to impugn his credibility. We disagree.

[26]

It was entirely reasonable to infer that the
    complainant would have smelled of alcohol. She was not challenged on her
    evidence about having consumed, in addition to other alcohol, six shots of
    vodka and a quarter bottle of Sour Puss. Other witnesses at trial testified about
    her inebriation. Her text messaging immediately following the sexual assault
    further demonstrates a high level of intoxication.

[27]

It was open to the trial judge to conclude that
    the appellants credibility was shaken by denying the obvious: the complainant
    was highly intoxicated and would have smelled of alcohol. Indeed, in light of
    all of the evidence, it was open to the trial judge to, reject the accuseds
    evidence that he could not see, smell, or sense any indication that the
    complainant had been drinking. We do not consider this a matter of judicial
    notice. It reflects nothing more than a common sense inference that was open
    to the trial judge to draw from all of the evidence.

(g) Alleged impropriety of the trial
    Crowns cross-examination

[28]

The appellant maintains that the trial Crowns
    cross-examination of him exceeded the permissible bounds of advocacy, being
    calculated to demean and humiliate him:
R. v. R.(A.J.)
(1994), 94
    C.C.C,. (3d) 168 (Ont. C.A.), at p. 177. Although we agree that on two
    occasions the cross-examination went too far, we would not give effect to this
    ground of appeal.

[29]

First, the Crown asked the appellant if he had a
    sister. This was a question designed to elicit wholly irrelevant evidence. Even
    so, it was answered and the matter was not further pursued.

[30]

Second, the Crown commented that the appellant
    did not feel badly about what had happened, and left the complainant like a
    discarded tissue. This comment should not have been made. Even so, the
    comment was properly objected to and ruled argumentative. The trial Crown moved
    on.

[31]

This was a judge alone trial and the questions
    asked and comments made did not result in prejudice to the appellant, deprive
    him of a fair trial or harm the administration of justice.

III.

Sentence Appeal

[32]

The appellant seeks leave to appeal his sentence
    of 26 months custody. He emphasizes that the trial judge found that the
mens
    rea
for sexual assault had been made out on the basis of recklessness.
    Accordingly, he argues that he had a lesser form of
mens rea
than full
    knowledge and the sentencing judge failed to discount his sentence accordingly.
    In addition, he says that the fact that the appellant asked during the assault
    whether the complainant was enjoying herself (to which he received no answer),
    should have factored into the sentence imposed.

[33]

We see no basis upon which to interfere with the
    sentence imposed. Whether he had knowledge of the lack of consent or was reckless
    about whether there was consent, he is equally morally blameworthy.

[34]

Even bearing in mind the appellants young age,
    the sentence was entirely within the range of sentences imposed in similar
    circumstances. The aggravating factors were many, including:

·

it was the complainants first week of
    university and it was meant to be her fresh start;

·

she was 17 years of age;

·

she suffered a vaginal
    injury;

·

the sexual assault consisted
    of multiple acts;

·

part of the assault
    occurred while she was completely unconscious and caused her to choke;

·

the victim impact,
    including on the complainants parents, was grave.

[35]

We would not interfere with the sentence
    imposed.


IV.

Conclusion

[36]

The conviction appeal is dismissed.

[37]

Leave to appeal sentence is granted, but the
    sentence appeal is dismissed.

David
    Watt J.A.

K.
    van Rensburg J.A.

Fairburn
    J.A.


