



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    that could identify the victim or a witness shall not be published in any document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(iii)     REPEALED: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    shall not be published in any document or broadcast or transmitted in any way.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. Cepic, 2019 ONCA 541

DATE: 20190627

DOCKET: C65440

Benotto, Roberts and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Damir Cepic

Appellant

Colleen McKeown, for the appellant

Kevin Rawluk, for the respondent

Heard: June 19, 2019

On appeal from the
    conviction entered on March 29, 2018 by Justice Anne E. London-Weinstein of the
    Superior Court of Justice, sitting without a jury.

Benotto J.A.:

[1]

The appellant worked as a male dancer at a strip
    club. He was convicted of the sexual assault of a female customer. He appeals
    on the basis that the trial judge relied on behavioural assumptions and
    stereotypes to determine that the complainant did not consent to the sexual
    activity.

[2]

For the reasons that follow, I would allow the
    appeal.

Facts

[3]

On March 12, 2016, the complainant and seven
    girlfriends went to the Foxxes Den male strip club to celebrate a birthday. The
    club has an open room, a stage and a more private VIP room. Men dance on the
    stage and circulate around the open room offering lap dances to the customers.

[4]

As the name implies, during a lap dance, a dancer
    sits on the customers lap. His legs are on hers and his knees are on the sofa
    she is sitting on. A lap dance in the open room generally costs $10 per dance.
    In the VIP it costs $20. A dance lasts the length of a song.

[5]

The complainants group sat at a booth and
    ordered bottle service. Some of her friends arranged for dances by the
    appellant. After the dances, the complainant went to the side of the stage and
    paid the appellant $10 for her own lap dance. She sat down and he performed for
    her. The appellant described it as his typical dance. He was facing her; his
    legs were on the couch and my bum is on her knees. While some dancers expose
    their penis, he did not, although the complainants friend testified that you
    could see the base of his penis. The appellant testified that he was aroused
    and the complainant did reach in there to touch it. He said he told her if
    you want to see it, there is a VIP. The complainant denied touching his penis.

[6]

After this dance, the complainant returned to
    her table and asked the appellant to perform for one of her friends. She paid
    him $5 for the friends dance and asked for another dance for herself. She used
    her debit card to get cash from the bar. She paid the appellant $40 for a dance
    that occurred in the VIP room.

[7]

Together the appellant and complainant went to the
    VIP room and he danced for her. This dance involved fellatio and vaginal
    intercourse. Very few words were exchanged until the appellant told her he was
    about to ejaculate. He testified she said No, I have a boyfriend. She
    testified that she did not say this. The appellant ejaculated on the floor. He
    then gave the complainant his business card and went for a shower.

[8]

The complainant returned to her table and, after
    about 10 minutes, called her boyfriend to come pick her up. She also texted a
    friend expressing concern about what to say to her boyfriend, and concern that
    her father, a police officer, would hate me. When the boyfriend arrived, the
    complainant told him that she had been sexually assaulted, and then reported
    the assault to police that night. The appellant was charged with one count of
    sexual assault.

Decision Below

[9]

The sole issue at trial was consent. The
    complainant said she was forced into fellatio and intercourse. The appellant
    said she was a willing participant.

[10]

The trial judge rejected the appellants
    evidence as self-serving and found that it did not raise a reasonable doubt.
    She found his account of the first lap dance implausible, reasoning that the
    complainant, who had never had a lap dance before, would not have touched his
    penis. The trial judge also rejected as completely implausible and
    nonsensical the appellants evidence that the complainant told her she had a
    boyfriend as he was about to climax. By contrast, the trial judge found the
    complainant both reliable and credible. She convicted the appellant of sexual
    assault and sentenced him to two years less a day in jail.

Position of the Parties

[11]

The
    appellant submits that the trial judges credibility analysis was tainted by: (i)
    an impermissible reliance on stereotypes and assumptions; and (ii) uneven
    scrutiny of the evidence of the appellant as opposed to the complainant.

[12]

The
    respondent submits that the trial judge was entitled to rely on common sense
    assumptions about basic human conduct.

Analysis

[13]

The
    use of a common-sense approach to credibility assessment is fraught with danger
    for it can mask reliance on stereotypical assumptions:
R. v. A.B.A.
2019 ONCA 124, 372 C.C.C. (3d) 301, at para. 7).

[14]

It
    is an error of law to rely on pre-conceived views about how sexual assault
    victims would behave:
R. v. D.D.,
2000 SCC 43, [2000] 2 S.C.R. 275 at
    para. 65
; R. v. A.R.J.D.
, 2018 SCC 6, [2018] 1 S.C.R. 218, at para. 2.
    These are the myths of appropriate behaviour that the law seeks to eradicate.
    Historically, these myths have operated to undermine a complainants testimony.
    But they may also operate in the reverse, to artificially bolster a
    complainants credibility on the basis that no young woman would consensually
    engage in the alleged behaviour:
R. v. J.L.,
2018 ONCA 756, 367
    C.C.C. (3d) 249, at paras. 46-47.

[15]

Here
    the trial judge used assumptions about female behaviour as the basis for
    accepting the complainants testimony. The corollary is that the assumptions
    about what a woman would or would not do were also used to undermine the
    appellants credibility.

[16]

The
    trial judge started from the assumption about what a young woman would do in a
    strip club and carried that theme throughout her analysis. She began with a
    reference to the conflicting evidence about the first dance and concluded that
    the complainant did not touch the appellants penis. She said at p.  26:

I do not believe that [the
    complainant], having never had a lap dance before in her life would have
    reached into [the appellants] pants and touched his penis in the manner he
    described.

And at p. 27:

I find it implausible that she,
    not knowing what to expect, and having never been in a strip club before, would
    have just reached into his pants to touch his penis in the manner he described.

[17]

At
    pp. 29, 31 and 39, the trial judge applied this same reasoning to reject the
    appellants evidence that, after he told the complainant he was going to
    ejaculate, she said no, I have a boyfriend:

That evidence is completely implausible and nonsensical.  In my
    view, it would make no sense for the complainant to say this just before [the
    appellant] said he was going to climax.

[]

His commentstruck me as contrived and as I said it made no
    sense. I dont believe that happened.

[]

I did not believe [the appellant]
    when he said that the complainant told him she had a boyfriend and that is why
    he ejaculated on the floor. As I said, that was a completely implausible piece
    of evidence.

[18]

With
    respect to the parties physical positions during vaginal intercourse, the
    complainant testified that she used her left arm to try to push the appellant
    off from behind her. He testified that she had her hand resting on her buttocks
    but did not push him away. The trial judge addressed this discrepancy at p. 35:

I did not accept [the appellants] explanation for why [the
    complainant] would have had her hand on her buttockThat explanation made no
    sense to me. It would have been a highly awkward position to maintain and [the
    complainants] explanation for why she had her hand behind her back is far more
    logical.

[19]

The
    trial judges determinations about what made no sense or was implausible
    were blatant assumptions, unsupported by the evidence.

[20]

The
    Crown submits that the assumptions were simply common-sense views as to human
    behaviour. The Crown relies on several cases to demonstrate that credibility
    assessments can be based on assumptions about human conduct: see
R. v.
    Quartey,
2018 SCC 59, at para. 3;
R. v. G.H.,
2018 ONCA 349, at
    para. 5;
R. v. F.B.P.
, 2019 ONCA 157, at para. 9. Those cases all
    involve situations where the trial judge assessed credibility based on evidence
    about what a particular person would do in the specific circumstances of each
    case.

[21]

In
Quartey,
the trial judge had found the appellants evidence
    fanciful. The Alberta Court of Appeal concluded that the trial judges views
    were about the appellant, not men in general. On further appeal, the Supreme
    Court held:

Nor did the trial judge err by
    applying generalizations and stereotypes in rejecting the appellants evidence.
    We agree with the majority at the Court of Appeal that the trial judges
    statements in this regard were directed to the appellants
own
evidence
    and to the believability of
the appellants
claims about how
he
responded
    to the specific circumstances of this case, and not to some stereotypical
    understanding of how
men
in those circumstances would conduct
    themselves. [Emphasis in original].

[22]

Likewise,
    in
G.H.,
the trial judge considered evidence from the appellant about
    how he and the complainant behaved and measured that evidence against common
    sense and human behaviour. The trial judge did not reach outside the evidence
    to make credibility findings based on generalizations about the sexual
    behaviour of men and women. Finally, in
F.B.P.
, the trial judges inference
    that it would be implausible for the complainant to have had sex with the
    appellant on a public balcony was not central to the rejection of the
    appellants evidence but in any event was based on the evidence.

[23]

Here,
    the trial judges repeated use of words like implausible and nonsensical to
    characterize various aspects of the appellants testimony is untethered to an
    evidentiary base. It reflects a conclusion based almost entirely on an
    assumption about what a young woman would do in this context. And the context
    was significant: a womens only party in a highly sexualized environment
    involving alcohol and male dancers.

[24]

On
    this basis alone I would allow the appeal. But the trial judge also seems to
    have utilized stereotypes about male aggression. When discussing the
    appellants evidence, the trial judge said at p. 31:

[He] tried to paint [the complainant] as the sexual aggressor,
    in a way that did not accord with common sense.

[25]

And
    in conclusion at p. 39:

I believe that this young woman
    was stunned and confused by the situation she found herself in and [the
    appellant] took advantage of that confusion.

[26]

The
    trial judge reached this conclusion without mention of the uncontroverted
    evidence that the complainant actively pursued the appellant for dances. She
    purchased a dance shortly after arriving at the club, purchased a dance for her
    friend, then withdrew more cash to purchase another for herself in the VIP
    room. While this certainly does not lead to an inference of consent, it is
    evidence that the trial judge chose to ignore when she concluded that the complainant
    could not have been the sexual aggressor and was stunned and confused.

[27]

The
    trial judges path to conviction rested largely on a series of erroneous assumptions
    about what a young woman would or would not do in the circumstances of this
    case. The conviction must therefore be set aside.

[28]

Since
    I accept the first ground of appeal, it is not necessary to consider the second
    ground alleging uneven scrutiny of the evidence.

[29]

I
    would allow the appeal and order a new trial
[1]
.

Released: June 27, 2019

MLB

M.L. Benotto J.A.

I agree L.B. Roberts
    J.A.

I agree B.W. Miller
    J.A.





[1]

The sentence appeal, which is now moot, was previously
    abandoned.


