



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    that any information that could identify the complainant or a witness shall not
    be published in any document or broadcast or transmitted in any way, in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. Colbourne, 2013
    ONCA 308

DATE: 20130509

DOCKET: C54866

Weiler, Gillese and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Darren Colbourne

Appellant

Leo Adler, for the appellant

Megan Stephens, for the respondent

Heard and released orally: May 7, 2013

On appeal from the conviction entered on October 27, 2011
    and the sentence imposed on February 29, 2012 by Justice David Salmers of the Superior
    Court of Justice, sitting without a jury.

ENDORSEMENT

OVERVIEW

[1]

The appellant was found guilty of sexually assaulting the complainant.
    He was sentenced to fourteen months imprisonment followed by two years probation.
    He appeals his conviction and, if leave to appeal is granted, seeks leave to
    appeal his sentence. In relation to conviction, the appellant raises three
    grounds of appeal, all of which relate to the trial judges reasons.  The
    appellant alleges that the trial judge erred in three respects. 1) He made
    findings of fact based on conjecture and misapprehensions of the evidence. 2)
    He failed to properly apply R. v.
W.(D.)
, [1991] 1 S.C.R. 742 (S.C.C.).
    3) He failed to consider the appellants honest but mistaken belief in
    consent.  In relation to sentence, the appellant submits that it is overly
    harsh and long.

FACTS

[2]

After an evening spent drinking at a bar, the appellant, his brother,
    and three women drove to the appellants home. Except for the appellants
    brother who was driving, all of them were drunk.

[3]

The complainant felt unwell during the truck ride on the way to the
    appellants house and put her head down in the lap of her girlfriend, Ms. Reid.
    Upon arrival, she opened the truck door and vomited on the driveway. She had to
    be helped out of her boots in the house, and helped upstairs to a second floor
    bedroom and into bed.

[4]

The others continued the party in the kitchen then moved to the computer
    room. The appellant left the computer room where the party was ongoing. After a
    very brief period of time his absence was noted. Ms. Reid left the computer
    room and discovered the appellant having sexual intercourse with the
    complainant. Ms. Reid testified that she grabbed the appellant and told him to
    get off the complainant. The complainant was still fully clothed from the waist
    up; her winter coat was still on and her purse was across her torso; her pants
    were partially off. Ms. Reid said the complainant seemed stunned, began crying
    and looked confused. Ms. Reid and Ms. Ruscoe eventually helped the complainant
    put her pants back on, helped her down the stairs, put on her boots and then
    helped her leave the house.

[5]

The complainant testified that she was sleeping in the bedroom when she
    felt a dark figure over top of her. She felt pressure in her vaginal and pelvic
    areas. It was uncomfortable but did not seem real. She testified that it seemed
    like it was a dream.

[6]

The appellant testified that he was on his way to the bathroom when he
    met the complainant in the hallway. He stated that they kissed in the hallway
    and moved to the bedroom where she had previously been. They then had
    consensual sexual intercourse there.

THE TRIAL COURT JUDGMENT

[7]

The trial judge found that at the time that Ms. Reid first assisted the
    complainant into bed, the complainant was without capacity to consent to sexual
    activity, including sexual intercourse with the accused. After the discovery of
    the sexual intercourse, the evidence of the complainant, Ms. Reid, and Ms.
    Ruscoes testimony was to the effect that the complainant was not pretending to
    be asleep or confused. She was genuinely extremely groggy and confused.

[8]

The trial judge did not believe the appellants testimony about what
    happened between him and the complainant.  He rejected the appellants evidence
    that the sexual intercourse was consensual and added:

Further, the accuseds testimony does not raise a reasonable
    doubt in my mind about whether the sexual intercourse was consensual. Finally,
    I am satisfied beyond a reasonable doubt, that when the accused was having
    sexual activity, including intercourse, with the complainant, she was incapable
    of consenting to the sexual activity including sexual intercourse and that the
    accused knew that. I am satisfied beyond a reasonable doubt that the incapacity
    of the complainant was due to intoxication, illness and/or sleepiness, either
    any one of them alone or in combination with one or all of the other factors.

ISSUES AND DISPOSITION

(1)

Did the trial judge err by making findings of fact based on conjecture
    and misapprehensions of the evidence?

[9]

The appellant submits that the trial judges analysis of the evidence
    was faulty. He submits that the trial judge based his conviction of the
    appellant on an inappropriate analysis, on speculation and conjecture and on
    findings of fact unsupported by the weight of the evidence.  In particular, the
    appellant submits that the trial judge used the fact the appellant and
    complainant met for the first time that night and that she was still wearing
    her coat with her purse strapped across her torso, the appellants inability to
    give detail about their move from the hallway to the bedroom, the issue of
    whether the bedroom door was open and the appellants alleged lie about his
    daughter being home that night, to find it implausible that the complainant
    would have sex with the appellant.

[10]

In
    our opinion, the appellants allegations do not meet the stringent standard
    that applies to appellate reversal on the basis of misapprehension of the
    evidence.

[11]

The
    core of the trial judges reasoning is that when the complainant was put to bed
    by her friend, Ms. Reid, the complainant was without capacity to consent to
    sexual activity. He found that a short while later, she was still without
    capacity to consent to sexual activity when found by her friends having
    intercourse with the appellant. We do not agree that the trial judge engaged in
    speculation. The trial judge was entitled to take into consideration the
    evidence of how long the appellant and complainant had known each other, her
    state of dress when she was having intercourse, and the appellants omission of
    detail respecting how the complainant got from being upright in the hallway
    onto the bed with him, along with all of the other evidence concerning her
    physical condition in assessing the credibility of the witnesses. Even assuming
    there is some merit in the appellants contention i.e. concerning whether his
    daughter was asleep in the house, and whether the door to the bedroom was open,
    these points are peripheral and do not affect the core of the trial judges
    reasoning. Overall, the trial judge made reasonable inferences from the
    evidence and did not engage in impermissible speculation.

[12]

The
    appellant further submits that the trial judge gave greater scrutiny to a minor
    inconsistency in the appellants prior consistent statements to the police than
    to the complainants erroneous statement respecting the doctors report. Simply
    because the trial judge weighed these two individual pieces of evidence
    differently does not mean that he applied greater scrutiny to the evidence of
    the appellant than of the complainant. We do not agree he applied different
    levels of scrutiny to the evidence of the defence and the Crown witnesses. The
    findings the trial judge made were open to him.

(2)

Did the trial judge err in his application of
R. v. W.(D.)
, s
upra,
by not properly evaluating the whole of the evidence to determine reasonable
    doubt?

[13]

The
    trial judge applied the correct burden and standard of proof  he did not treat
    this case as turning on whose evidence he accepted. He provided extensive
    reasons for why he found the complainant lacked the capacity to consent, and
    explained why he believed the Crown had proven guilt beyond a reasonable doubt.

(3)

Did the trial judge err by not considering the defence of honest but
    mistaken belief in consent?

[14]

On
    the basis that the case was argued at trial, the sole issue was whether the
    complainant consented to have sex with the appellant.  Section 273.1(2)(b)
    provides that no consent is obtained where the complainant is incapable of
    consenting to the activity.

[15]

Before
    us, the appellant submits that the trial judge was also obliged to consider
    whether the appellant had an honest belief in the appellants consent. Inasmuch
    as we see no error in the trial judges finding that the complainant was
    incapable of consenting to sexual activity and his finding that the appellant
    knew this, the defence has no air of reality.

[16]

The
    appeal as to conviction is dismissed.

SENTENCE

[17]

The
    sentencing judge was alive to the appellants health condition and personal
    circumstances. The appellant has not shown any error in principle that would
    warrant interference with the sentence. If anything the sentence was at the low
    end of the range.

[18]

Accordingly
    while we grant leave to appeal sentence, the appeal as to sentence is also dismissed.
K.M.
    Weiler J.A.

E.E.
    Gillese J.A.

Alexandra
    Hoy J.A.


