



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. F.B.P., 2019 ONCA 157

DATE: 20190228

DOCKET: C61984

Feldman, Paciocco and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

F.B.P.

Appellant

Sherif M. Foda, for the appellant

Jeremy Tatum, for the respondent

Heard: February 13, 2019

On appeal from the conviction entered by Justice Joseph
    F. Kenkel of the Ontario Court of Justice on January 26, 2016, and from the
    sentence imposed on April 12, 2016, with reasons reported at 2016 ONCJ 860 and
    2016 ONCJ 861.

Paciocco J.A.:

[1]

The appellant was tried before an Ontario Court of Justice trial judge on
    a charge of sexually assaulting C.I. Although C.I., who drank heavily that
    night, could not recall what happened, the appellant subsequently told her they
    had had sex. His DNA was found on her underwear. Not surprisingly, the
    intercourse was admitted at trial. The only issue was consent.

[2]

Key evidence in the case was presented by C.I.s friend, who testified
    that she witnessed the appellant helping C.I. to her bed when C.I. didnt seem
    very awake, appeared unable to function, and could not hold her body up
    anymore. The appellant gave a different account of C.I.s condition when he
    brought her to the bed, claiming that despite her intoxication she was capable
    of consenting and did so by asking for sex. The trial judge disbelieved the
    appellant, and based in large measure on C.I.s friends evidence relevant to
    C.I.s incapacity due to intoxication, convicted him. The trial judge found
    that C.I. did not consent because she was incapable of doing so, and that the
    appellant did not have an honest but mistaken belief in consent because he had
    not taken reasonable steps to determine her consent.

[3]

The appellant appeals his conviction. He has now abandoned the
    accompanying sentence appeal. For the reasons that follow, I would deny the
    conviction appeal, and dismiss the sentence appeal as abandoned.

[4]

The first ground in the conviction appeal is that the trial judge relied
    on non-probative factors to ground his finding of C.I.s incapacity, including
    evidence that C.I. continued to drink after vomiting, the severity of the
    complainants hangover the next day, and her loss of memory.

[5]

In my view, while none of these factors leads to a direct inference of
    C.I.s incapacity, each of these factors is relevant evidence of C.I.s
    intoxication, a central plank in the Crowns theory that C.I. was too
    intoxicated to consent. Since incapacity through intoxication cannot be
    established without proof of intoxication, evidence of indicia of intoxication
    is relevant and probative.

[6]

Of importance, the trial judge recognized that [i]ntoxication does not
    automatically equate to incapacity. There is no basis for concluding that, despite
    this understanding, he went on to use the indicia of intoxication directly as
    proof of incapacity, or gave this evidence improper weight.

[7]

The trial judge also relied on C.I.s shocked response when the
    appellant told her they had had sex. Specifically, C.I. testified that when the
    appellant told her he had had sexual intercourse with her, she responded [w]hat?,
    and then shortly after, I need to go to Shoppers  I need to go to Shoppers
    [to get a morning after pill]. The appellant says her shocked reaction is
    non-probative, self-serving hearsay. In my view, this evidence is probative as
    evidence confirming C.I.s lack of memory, which, in context, was consistent
    with her intoxicated condition when the sexual intercourse occurred. The trial
    judge was therefore entitled to find her shocked reaction to be probative in
    supporting C.I.s friends description of C.I.s mental and physical state
    prior to the sexual intercourse.

[8]

No hearsay objection was made at the time this evidence was admitted.
    Had an objection been made it would have failed. C.I.s shocked reaction,
    reflected in the comments she made, was clearly admissible. It is either
    non-hearsay circumstantial evidence of C.I.s present state of mind, as
    described in
R. v. P.(R.)
(1990), 58 C.C.C. (3d) 334 at p. 341 (Ont.
    H.C.J.) by Doherty J., or if more properly characterized as an implied hearsay
    assertion according to
R. v. Baldree
, 2013 SCC 35, [2013] 2 S.C.R.
    520, it is implied hearsay that would nonetheless gain admission under the
    statements of present state of mind exception to the hearsay rule.

[9]

During oral argument, counsel for the appellant also argued that the
    trial judge erred in law when rejecting the appellants account of having
    intercourse with C.I. on the hotel room balcony prior to the alleged sexual
    assault, by drawing stereotypical inferences about how women would behave
    sexually in a set of circumstances. I disagree. The trial judges finding that
    it would be implausible for the complainant to have had sex with the appellant in
    public, on a balcony, when both prior to this happening, and after this happening,
    she had shown no interest in him, and when there was a bedroom nearby, is
    grounded in common sense propositions about the likelihood of human behaviour
    in all of the circumstances. It does not depend upon impermissible stereotypes
    or rape myths.

[10]

Nor
    were improper stereotypical inferences relied upon when the trial judge
    concluded that the appellants description of his own conduct on the balcony
    was implausible. The trial judge was not concerned with the unlikelihood, in
    isolation, that the appellant would engage in intercourse on a public balcony.
    He found such behaviour to be implausible in light of the appellants testimony
    that he intended to leave the balcony and was not interested in C.I.

[11]

The
    appellant also urges that the trial judge failed to apply
R. v. W. (D.)
,
    [1991] 1 S.C.R. 742 and reversed the onus of proof with respect to the defence
    of honest but mistaken belief in consent, which the appellant claims the trial
    judge failed to analyze. Again, I disagree.

[12]

On
    the first point, it is apparent when reading the decision as a whole that
    although he did not cite
W.(D).
directly, the trial judge applied
W.(D.)
He said he did not accept the testimony of the appellant and then concluded his
    decision by commenting, with obvious reference to the appellants evidence, I
    can find no credible evidence that reasonably could leave a doubt. He then
    said, I find that the Crown has proved the charge of Sexual Assault s. 271
    beyond a reasonable doubt. Together these passages account for each of the
W.(D).
requirements.

[13]

With
    respect to the second point, the trial judge did consider the defence of honest
    but mistaken belief in consent, and he rejected it. The fact that the trial
    judge misspoke when doing so by describing the defence as reasonable belief
    in consent is of no moment. He rejected the defence based on the absence of
    reasonable steps.

[14]

Since
    a judge may only consider a mistaken belief in consent defence that has an air
    of reality, it is clear that the trial judge did not reject the defence because
    he felt it had no air of reality, as the appellant suggests. The trial judge
    treated the defence as being before him and determined it on its merits.

[15]

Nor
    did the trial judge commit a
W.(D.)
error in rejecting the defence. The
    appellants submission in this regard is untenable. His argument focuses on the
    fact that the appellant was the only person to offer evidence about what
    transpired during the sexual intercourse, as C.I. had no memory. The appellant
    urges that even if the trial judge properly disbelieved the appellants
    evidence beyond a reasonable doubt, since that would leave a complete absence
    of evidence, the Crown would be unable to discharge its burden of proving that
    reasonable steps were not taken. Not only would this submission, if accepted, produce
    the intolerable outcome of effectively preventing convictions in all cases of
    sexual assaults on unconscious women occurring in private, regardless of the
    strength of the incapacity evidence, but it is also wrong in law. If the air of
    reality test is met, the defence that is on the table and that requires
    rebuttal is the one that is grounded in evidence, in this case the mistaken
    belief in consent defence that arose from the appellants version about what
    happened in the bedroom. Once the trial judge absolutely rejected the
    appellants evidence, the only defence that was before the court was disproved
    beyond a reasonable doubt, and the Crown had discharged its burden. Quite
    simply, it is a misconception to think that where a particular set of facts gives
    an air of reality to a defence, the Crown must then lead affirmative evidence
    disproving every imaginable set of facts that could give rise to the same kind
    of defence. No reversal of onus occurred here.

[16]

I
    do agree, however, that the trial judge misapprehended evidence in three
    respects.

[17]

First,
    although there was evidence that C.I. passed out at some point, there was no
    evidence capable of supporting the trial judges finding that C.I. passed out
    before she was helped back to the bed where she was allegedly sexually
    assaulted. The trial judge was mistaken in finding that C.I.s friend had
    offered such testimony. The only evidence that can be taken to address whether
    C.I. was passed out at that time was the appellants statement to the contrary,
    that C.I. was lying down in the other room [the other room evidence]. The
    trial judge did not believe the appellant that C.I. was merely lying down in
    the other room, as he was entitled to. But he was not entitled to parlay that
    disbelief into an affirmative finding that C.I. was passed out in the other
    room. There was no affirmative evidence to support that conclusion.

[18]

Second,
    the appellant testified to a sexual advance by C.I. on the balcony. The trial
    judge interpreted the appellants evidence as being that this advance was
    unwanted, a characterization his testimony does not reasonably bear. To be
    sure, the appellant did say that he was not interested in C.I. as more than a
    friend, but that disinterest alone cannot support an inference that the sexual
    advance was unwanted in the face of the appellants testimony that he was happy
    it had happened and could not help himself when propositioned.

[19]

Third,
    the trial judge said that C.I.s friend drank less than C.I. had, when the only
    evidence relevant to the relative condition of the two was C.I.s friends
    evidence that she was less intoxicated than C.I. was.

[20]

I
    do not find, however, that these mistakes caused a miscarriage of justice by playing
    an essential part in the trial judges reasoning.

[21]

The
    mistaken other room evidence was used as further proof of C.I.s state of
    intoxication. That intoxication was decisively established by other indicia of
    alcohol consumption and impairment, including C.I.s friends direct evidence
    of C.I.s condition upon returning from the other room with the appellant.

[22]

The
    mistake about an unwanted sexual advance was considered by the trial judge,
    along with other evidence, to demonstrate the implausibility of the appellants
    testimony that he would respond by having sex with C.I. on the balcony, and that
    he would then accompany C.I. to the bed where the alleged sexual assault
    occurred. However, these inferences were not central to the rejection of the
    appellants version of the sexual intercourse that formed the subject of the
    assault charge, and the reasons the trial judge considered the balcony event to
    be implausible went well beyond his misconception that the appellant considered
    that sexual advance to be unwanted. More importantly, a key consideration for
    the trial judge in rejecting the appellants testimony about what transpired in
    the bed was C.I.s friends evidence of C.Is condition at the time, which was completely
    inconsistent with the statements and aggressive physical reactions [that the
    appellant] attributes to [C.I.].

[23]

Finally,
    the mistake about C.I.s friend having drunk less alcohol than C.I. was used in
    evaluating the reliability of C.I.s friends testimony, by inferring that she
    was not as intoxicated as C.I. was. This error does not matter because, as
    indicated, C.I.s friend testified directly that she was not as intoxicated as
    C.I.

[24]

During
    oral argument, counsel asked us for the first time to entertain an appeal from
    the reasonableness of the conviction, given the state of evidence and the
    problems with the reliability of the Crown evidence. This ground of appeal
    cannot succeed. The trial judge was alive to the reliability problems with the
    Crowns evidence. On the record before us, I would not interfere with the credibility
    and reliability determinations of the trial judge. They were his to make. Nor
    would I interfere with his verdict. It, too, was one the trial judge was
    entitled to come to on the evidence before him.

[25]

It
    was also drawn to our attention orally that the trial judge imposed a 5 year
    SOIRA order, instead of the required 20 year SOIRA order. The Crown did not
    press this court to amend the order. In the absence of an appeal I decline to
    do so.

[26]

The
    conviction appeal is therefore dismissed. The sentence appeal is also dismissed
    as abandoned.

Released: DB Feb 28 2019

David
    M. Paciocco J.A.
I agree. K. Feldman J.A.
I agree. B. Zarnett J.A.


