



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C. 2014, c. 25, s.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    the victim shall not be published in any document or broadcast or transmitted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. Graham, 2019 ONCA 347

DATE: 20190430

DOCKET: C62924

Doherty, Hourigan and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Justin Graham

Appellant

Joseph Wilkinson and Bryan Badali, for the appellant

Mabel Lai, for the respondent

Heard: January 11, 2019

On appeal from the conviction entered on June 2, 2016 by
    Justice Kevin B. Phillips of the Superior Court of Justice, sitting with a
    jury.

By the Court:

I.

Overview

[1]

The appellant was convicted of one count of sexual assault and one count
    of sexual assault causing bodily harm. The sexual assault conviction was conditionally
    stayed.

[2]

On appeal, he raises a number of issues regarding the evidence admitted
    at trial, the charge to the jury, and an answer given by the trial judge in
    response to a jury question. These reasons explain why we do not give effect to
    those submissions and dismiss the appeal.

II.

Facts

[3]

The events giving rise to the convictions occurred on July 27, 2013,
    while the appellant and the complainant, who were acquaintances, attended a
    party at the home of a mutual friend, G.W. The complainant and some of the
    appellants friends testified that the appellant was hitting on the complainant
    throughout the evening, and that he shared some of his alcohol with her. G.W.
    testified that, at one point, the appellant told G.W. that he was going to
    fuck the complainant. G.W. told the appellant that he could not do that
    because the complainant was too intoxicated. G.W. then left to set up a bed for
    the complainant to spend the night on. After G.W. went to set up the bed, the
    appellant ended up alone with the complainant.

[4]

The complainant initially had no recollection of the sexual encounter
    with the appellant. Her memory returned to her in flashbacks over the next one
    or two weeks. According to the complainant, the appellant told her that he had
    a present waiting for her in the backyard shed, so they went to the backyard.
    The appellant then pushed the complainant to the ground, pinned her down,
    pulled out her tampon, and proceeded to penetrate her vaginally and anally. G.W.
    eventually intervened, putting an end to the encounter. The complainant
    sustained several injuries, including vaginal tearing and bruising all over her
    body.

[5]

The appellant did not deny that he engaged in a sexual encounter with the
    complainant, but testified it was consensual. His evidence was that the
    complainant led him to the backyard by hand, performed oral sex, and then
    pulled him on top of her and tried to insert his penis into her vagina.
    However, he stated that he lost his erection and that he did not penetrate the
    complainant. At trial, his position was that his sperm ended up in the
    complainants vagina and rectum without any penetration having occurred.

III.

Issues

[6]

The appellant argues that the trial judge erred in:

1.

Dismissing his
    application to adduce evidence of the complainants prior experience of sexual
    assault, pursuant to s. 276 of the
Criminal Code
, and to produce third
    party counselling records relating to that assault and the incident at issue,
    pursuant to s. 278.1 of the
Criminal Code
.

2.

Refusing to
    allow the appellant to lead in examination in chief his exculpatory statement
    to the police.

3.

Charging the
    jury on incapacity and, having done so, not charging the jury on the defence of
    honest but mistaken belief in consent.

4.

Responding to
    the jurys post-charge questions regarding bodily harm and consent.

5.

Dismissing the
    appellants application to sit at counsel table.

IV.

Analysis

(1)

Application
    Regarding Prior Sexual Assault

[7]

At trial, the appellant applied to cross-examine the complainant on a
    previous incident of sexual assault, and to have relevant counselling records
    disclosed. In his factum, the appellant submitted that the trial judge erred in
    dismissing his applications, as the complainants prior experience of sexual
    assault may have contaminated her recollections or perceptions of her sexual
    encounter with the appellant. This argument was not advanced in oral argument.
    That was a sensible decision on the part of the appellants counsel, as there
    is no merit in this ground of appeal.

[8]

The trial judge did not err in his ruling on the application to
    cross-examine the complainant on her prior experience of sexual assault. There
    was an insufficient evidentiary basis to establish the relevance of the
    complainants previous assault. In addition, even if the evidence was relevant,
    the trial judge did not err in his discretionary determination that the
    probative value of the proposed cross-examination was substantially outweighed
    by its prejudicial effect.

[9]

With respect to the counselling records, the trial judge correctly
    concluded that the appellant failed to establish the likely relevance of the
    complainants psychiatric records, as required under s. 278.1-278.9 of the
Criminal
    Code
. In particular, there was no evidence of any tainting or co-mingling
    between the prior sexual assault of the complainant and the incident with the
    appellant. As a result, the trial judge properly dismissed the disclosure
    application.

(2)

Prior Exculpatory
    Statement

[10]

The
    appellant submits that the trial judge erred in finding that his prior
    consistent statement should not be admitted because of the time gap between his
    arrest and the giving of the statement. He argues that in
R. v. Liard
,
    2015 ONCA 414, 327 C.C.C. (3d) 126, this court emphasized the contextual nature
    of the assessment of spontaneity; while the passage of time is relevant, it is
    not determinative.

[11]

The
    appellant concedes that several hours had passed between his first learning of
    the accusation and the statement, but argues that his reaction to the details
    of the accusation was spontaneous. In the appellants submission, his reaction
    to hearing the substance of the allegations for the first time during his
    police interview was probative evidence upon which the jury could have relied
    in assessing his credibility and his state of mind at the time of the incident.

[12]

We
    are not persuaded by this argument. The appellant was arrested at 12:50 p.m.
    and began his statement to police at 8:20 p.m. The trial judge did not err in
    concluding that the passage of time and the intervening events deprived the
    appellants statement of any potential relevance. He was entitled to give
    significant weight to the seven and a half hour gap between his arrest and the
    prior consistent statement in deciding that the statement lacked the necessary
    spontaneity to be admissible.

(3)

Incapacity

[13]

Some
    context is necessary to consider this ground of appeal. At the pre-charge
    conference, the trial judge asked counsel to make submissions on how he should
    instruct the jury on the issue of consent. Specifically, his concern was that
the jury could believe the appellants version of events or
    be left in reasonable doubt by it, yet still convict on the basis that the
    appellant engaged in sexual relations with a complainant who did not have
    capacity to consent.

[14]

In
    response to this concern, the trial Crown took the position that although this
    would be a legally available avenue to convict the appellant, it would not be
    right or fair to do so in this case, because the appellant would be convicted
    on a set of facts entirely different than what the Crown alleged and set out
    to prove, a version of facts that the Crown says never happened, and in a
    scenario where her actions demonstrate an ability to consent, that she is not
    incapacitated by alcohol and is the initiator of the sexual activity.

[15]

The
    trial judge ultimately instructed the jury on incapacity as follows:

There is no such thing as implied consent in law. Consent must
    be communicated by word, act or gesture. You must determine whether the Crown
    has proved beyond a reasonable doubt that Mr. Graham knew that [the
    complainant] was not consenting. You should consider
Any
    evidence that you accept with respect to the risk that [the complainant] would
    have been in no condition to consent. Would Mr. Graham have had any reason to
    see risk in that regard? Did he just proceed anyway in the face of that risk? Any
    evidence that you accept about [the complainants] level of intoxication being
    at the level of incapacity. Would that incapacity have been apparent to anyone
    who cared to turn his mind to it?

What is meant by incapacity? All of us know that alcohol
    causes intoxication, and that intoxication is a state where judgment is clouded
    and behaviour is disinhibited. It is normal for intoxicated people to behave in
    ways that are entirely and even woefully inconsistent with their behaviour
    while sober. Accordingly, the threshold for incapacity is not the same as mere
    intoxication. To have capacity, or to be capable of voluntarily agreeing to
    participate in sexual activity, [the complainant] must not have been so
    intoxicated or in any other type of mental state that rendered her unable to
    understand Mr. Grahams conduct, the sexual nature of Mr. Grahams conduct or
    the identity of Mr. Graham. [The complainant] must have been able to realize
    that she had the right to choose not to participate in sexual activity with Mr.
    Graham. In other words, [the complainant] must have been able to realize that
    she had the right to say no at any time. Her capacity in this regard is a
    continuous ongoing concept which must be in existence throughout the sexual
    transaction from beginning to end.

If you find that [the complainant] did not, in fact, have the capacity
    to consent, that does not end the matter. You must further determine, beyond a
    reasonable doubt, that Mr. Graham knew that she did not have the capacity to
    consent

[16]

The
    appellant submits that, notwithstanding the Crowns concession, the trial judge
    erroneously left the issue of incapacity with the jury. This, the appellant
    argues, constitutes reversible error. In the alternative, if the trial judge
    appropriately instructed the jury on incapacity, it was incumbent upon him to
    also instruct the jury on the defence of honest but mistaken belief in consent.

[17]

We
    do not accept this ground of appeal. The trial Crowns concession, properly
    understood, was that she declined to rely on incapacity in the event that the
    appellants evidence was accepted or raised a reasonable doubt, even though
    that route to conviction was legally available.

[18]

There
    was no error in the trial judge instructing on incapacity as a route to
    conviction on the Crowns evidence. The incapacity instruction was given as
    part of the consideration of the appellants
mens rea
. The issue for determination
    was whether the appellant knew that the complainant did not consent to the
    force that he intentionally applied. The jury was told that they might consider
    evidence of the complainants incapacity to consent. The import of this
    instruction was to tell the jury: if you find that the complainant was so
    intoxicated that she was incapable of consenting, you may consider whether this
    evidence helps you decide whether the appellant knew that the complainant was
    not subjectively consenting at the time of the sexual encounter. This was a
    proper consideration for the jury to take into account, as there was
    substantial evidence of the complainants intoxication, and the jury was
    entitled to consider that evidence in assessing the appellants
mens rea
.

[19]

The
    trial judge did not err by then failing to leave the defence of honest but
    mistaken belief in consent with the jury. There was no air of reality to that
    defence if the jury accepted the complainants version of events. It might have
    application if the appellants evidence was accepted or raised a reasonable
    doubt, but the jury was instructed to acquit if they reached that point in
    their analysis. There is no risk that a reasonable jury, instructed as they
    were here, would have applied the trial judges incapacity instruction to the
    appellants version of events. Thus, an instruction on the defence of honest
    but mistaken belief in consent was not necessary.

(4)

Jury Questions

[20]

The jury asked two questions as follows:

(1)

Is it sufficient to conclude
    that the force Mr. Graham intentionally applied to [the complainant] caused a
    bodily harm or do we also need to conclude (beyond a reasonable doubt) that a
    reasonable person in the circumstances would realize that the force put  [the
    complainant] at risk of suffering some kind of harm? (i.e., the main question
    on p. 45 versus the specific question in paragraph 218).

(2)

If some bodily harm was created by a force during a time of consent, but
    then the force became unconsentful [sic] and no further harm was created, would
    the defendant be found guilty of the first count.

[21]

The
    second question was asked while counsel were making submissions on the first.
    The second question suggests that the jury, or at least one of the jurors,
    might be thinking that the complainant had consented to sexual activity that
    caused bodily harm, e.g. anal and vaginal intercourse, but had not consented to
    some unspecified, less intrusive sexual activity that preceded or followed the
    more intrusive sexual conduct. This scenario had not been suggested by either
    counsel or the trial judge in the course of the trial. It was not part of the
    Crowns case that the complainant had consented to any part of the sexual
    activity, or that any consent given by her was vitiated by the appellants
    intentional infliction of bodily harm. The trial judge had given no
    instructions to the jury about the relationship between consent and the causing
    of bodily harm. Nor had either counsel requested any instruction.

[22]

After
    discussions with counsel, the trial judge concluded that the jurys first
    question queried the approach to be taken in determining whether the sexual
    assault caused bodily harm for the purposes of count one in the indictment. The
    trial judge further determined that the second question was directed at a
    different scenario. In that scenario, the appellant caused bodily harm to the
    complainant in the course of sexual activity, which the Crown had not proved
    was non-consensual.

[23]

The
    trial judge correctly observed that proof that the appellant had caused bodily
    harm during non-consensual sexual activity was measured on an objective basis:
    see
R. v. Nelson
, 2014 ONCA 853, 318 C.C.C. (3d) 476, at para. 25.
    However, bodily harm could negate or vitiate consent a complainant had given to
    sexual activity only if the appellant actually intended to inflict bodily harm
    in the course of the sexual activity:
R. v. Zhao
, 2013 ONCA 293, 297
    C.C.C. (3d) 533 at para. 107.

[24]

The
    trial judge provided written and oral instructions intended to address both
    proof of bodily harm for the purposes of count two, and the relevance of bodily
    harm if the Crown had failed to establish that the complainant did not consent to
    the sexual activity.
[1]

[25]

In
    the written instructions given in response to the question, the trial judge
    told the jury that if the Crown had proved that the complainant did not consent
    to the sexual activity, the jury could convict of sexual assault causing bodily
    harm, only if satisfied that a reasonable person in the circumstances would
    realize that his actions put the complainant at risk of suffering some kind of
    bodily harm. The trial judge referred to this as an objective test. No
    objection is taken to this instruction.

[26]

In
    the written instructions, the trial judge also repeatedly told the jury that if
    they were not satisfied that the Crown had proved that the sexual activity was
    non-consensual, the infliction of bodily harm in the course of that activity by
    the appellant could vitiate or negate consent only if the appellant intended
    the infliction of bodily harm or was reckless in that regard. The trial judge
    consistently referred to this as a subjective test to be resolved by
    determining the appellants actual state of mind when he inflicted the bodily
    harm.

[27]

In
    our view, the written instructions, considered on their own, satisfactorily
    answered the questions posed by the jury.

[28]

The
    written instructions, however, were provided after the trial judge had given
    oral instructions in response to the questions. The appellant alleges that the
    oral instructions contained a fatal error.

[29]

In
    the oral instructions, the trial judge began by reminding the jury that if they
    had any reasonable doubt arising out of the appellants evidence, they were
    obligated to acquit the appellant on both counts. The trial judge then turned
    to the two questions. He told the jury that in respect of the assault causing
    bodily harm charge (count one), the jury, if they were satisfied that the
    complainant had not consented to the sexual activity, should determine whether
    the appellant caused bodily harm using the reasonable man objective test he
    had instructed the jury on in his initial instructions. As indicated above, no
    one objects to this part of the trial judges instruction.

[30]

The
    trial judge then turned to the second question. He said:

But if you find that the acts which caused the bodily harm
    injury were done in the context when consent was alive, in other words not
    disproved by the Crown beyond a reasonable doubt, then you would apply a
    subjective test, which means you apply a level of intent specific to Mr.
    Graham.

[31]

Having
    drawn the distinction between the approach to be taken depending on whether the
    Crown had proved the absence of consent, the trial judge went on to say:

It might help in my explanation to tell you sort of why this is
    or how the law has come to be this way.  And Im going to talk about another
    subject and thats just a fist fight. Its not illegal to have a fist fight.
    Two fellows could get in an argument in a bar and say, Lets take this
    outside. And they can duke it out as long as they both consent to that.
    Theres nothing wrong with that. No one is assaulting anybody because an
    assault requires an absence of consent. But as soon as one of them causes
    bodily harm, that consent evaporates. And the reason is simply for public
    policy reasons that our law has decided over the centuries to dissuade people
    from having violent interactions to the level of the causation of bodily harm.
    It is said, therefore, that bodily harm vitiates or eliminates consent, so
    consent can exist but the bodily harm will cancel it out.

[32]

The
    appellant submits that the trial judge erred by providing the jury this example
    that was not legally correct. He argues it would have left the jury with the
    impression that consent was vitiated the moment bodily harm occurred, without
    reference to the requirement for subjective intention. This, the appellant
    contends, occasioned significant prejudice to him, since it effectively removed
    the necessary element of intended bodily harm from the equation.

[33]

We
    accept that the trial judges consensual fist fight example, standing alone, is
    inaccurate in that it does not identify the requirement that the person inflicting
    the bodily harm mean or intend to cause bodily harm: see
Zhao
.
    However, the trial judge immediately turned from the consensual fist fight
    example, which he described to the jury as explanatory of the rationale for and
    the evolution of the law, back to the specifics of the case. He said:

Ill tell you simply that if you find that the Crown has not
    proved beyond a reasonable doubt that consent is absent at the time of those
    injuries, should you find them to be and should you find them to amount to bodily
    harm, at the time those physical effects were caused, then you must impose or
    use a subjective test, that is determining whether Justin Graham intended to
    cause that bodily harm. That means that he either intended to cause bodily harm
    or he intended to inflict harm that would likely cause bodily harm and was
    reckless as to whether bodily harm would ensue or not.

To do this, you would look at what Justin Graham did or did not
    do, what Justin Graham did or did not say, and you would analyze it through the
    lens of him, what you know about him, his age, his maturity, his level of
    sobriety, the circumstances as he saw them, a subjective analysis in other
    words putting yourself in his shoes.

If you were to find that he intended to inflict bodily harm, whatever
    consent was still in play, in other words not disproved by the Crown beyond a
    reasonable doubt, is vitiated, cancelled out. But to get there you have to
    analyze his intentions subjectively.

[34]

The
    trial judge emphasized the subjective nature of the inquiry into the intention
    to cause bodily harm if the Crown had not proved the absence of consent on at
    least two more occasions in the course of his remaining instructions which take
    up about four pages of transcript.

[35]

Jury
    questions signal that a juror or jurors need clarification on the matters
    raised by the question. It is fair to assume that those issues have taken on
    some prominence, at least in the mind of one juror. The adequacy of the trial
    judges response to questions must be assessed in that light:
R. v.
    Grandine
, 2017 ONCA 718, at para. 62. The trial judges response to the
    jurys questions must, however, like the rest of the charge, be considered as a
    whole.

[36]

The
    trial judges use of the consensual fist fight example was unhelpful and
    potentially misleading. That example was, however, surrounded by repeated
    correct instructions on the subjective approach to be taken to intention to
    cause bodily harm in cases in which the Crown had proved that the complainant
    had not consented. It is significant that the repeated correct instructions,
    unlike the consensual fist fight example, were not presented to the jury as a
    hypothetical intended to provide background for the trial judges instruction
    on the applicable law. The correct instructions were presented as directly
    applicable to the facts of the case before the jury. The portion of the oral
    instructions which correctly set out the law were reinforced in the written
    instructions handed out to the jury after the oral instructions were given.

[37]

We
    are satisfied that the jury got the message and were not misled by the
    unfortunate example used by the trial judge.

[38]

The
    appellant raised a further issue in oral argument. He submitted that the trial
    judge erred in telling the jury that it was sufficient if the appellant was
    reckless as to whether his actions would cause bodily harm. The appellant
    submits that the Crown was required to prove intent to cause bodily harm in the
    narrow sense of that word. Recklessness would not suffice.

[39]

This
    submission was not made at trial or in the appellants factum, and was not
    fully argued before us. There is no case law on point. However, given the
    extent and nature of the bodily harm that was no doubt caused by the
    appellants actions during the sexual activity with the complainant,
    recklessness with respect to the causing of that bodily harm, as distinct from
    intentionally causing that bodily harm, was not realistically a live issue.

(5)

Counsel Table

[40]

In
    his factum, the appellant submitted that he was prejudiced by not being permitted
    to sit at counsel table because it impaired his ability to communicate with
    defence counsel while witnesses gave their evidence. This submission was not
    advanced during oral argument. It is without merit. The trial judge reasonably
    exercised his discretion to dismiss the appellants application to sit at
    counsel table. There is nothing on the record to suggest that this prejudiced
    the appellants right to make full answer and defence.

V.

Disposition

[41]

For
    the foregoing reasons, we dismiss the appeal.

Released: D.D. April 30, 2019

Doherty
    J.A.

C.W.
    Hourigan J.A.

A.
    Harvison Young J.A.





[1]

The trial judge was not asked to, and did not,
    consider whether the second question asked by the jury warranted further
    instruction on the meaning of consent in s. 273.1(1) of the
Criminal Code
.
    That section defines consent in respect of sexual assaults as the voluntary
    agreement of the complainant to engage in the sexual activity in question. To
    the extent that bodily harm related to specific sexual activity, e.g. anal
    intercourse, it may have been appropriate for the trial judge to explain to the
    jury that it should consider the question of consent as it related directly to
    the specific sexual activity giving rise to the bodily harm: see
R. v.
    Hutchison
, 2014 SCC 19 [2014] 1 S.C.R. 346, at para. 54. The appellant does
    not, and cannot, complain that the trial judge did not go down this road. It
    could not possibly have helped the appellant.


