



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. J.L., 2018 ONCA 756

DATE: 20180919

DOCKET: C61474

Pepall, Lauwers and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.L.

Appellant

Saman Wickramasinghe and Zachary Kerbel, for the
    appellant

Andrew Hotke, for the respondent

Heard: February 23, 2018

On appeal from the conviction entered on November 13, 2015 by
    Justice James C. Kent of the Superior Court of Justice, sitting without a jury.

Pepall J.A.:

[1]

The appellant was convicted of sexual assault. The key issues raised in
    this conviction appeal are the sufficiency of the trial judges reasons and whether
    he properly relied on a behavioural assumption and on the complainants post-occurrence
    demeanour in convicting the appellant.

[2]

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

Nature of Relationship

[3]

The alleged assault took place on December 18, 2009. Prior to that time,
    the appellant, age 18, and the complainant, age 15, were friends. They had been
    next door neighbors and had attended the same high school.

[4]

At trial, the nature of their relationship was the subject of dispute.

[5]

The appellant testified at trial. He stated that he had known the
    complainant for about ten years. After attending a Britney Spears concert together
    along with some other friends in August 2009, the appellant and the complainant
    started communicating more frequently. They went to restaurants, walked around
    the city and spent time at the complainants house together. They also started
    flirting and sending sexual text messages to each other. Since the fall of
    2009, they had had a number of sexual encounters, none of which had resulted in
    intercourse.
[1]


[6]

The appellant testified to a number of brief sexual encounters at school
    that involved kissing and touching each others genitalia, as well as two
    occurrences in the complainants home. The first occurred around September 2009
    when they kissed and touched each others genitalia in the bedroom of the
    complainants brother. The appellant described the bedroom as containing an
    abundance of Toronto Maple Leaf memorabilia, a fact confirmed by the complainant.
    The second encounter occurred on Halloween of the same year. On this second
    occasion, the appellant testified that the complainant had texted him at 10 or
    11 p.m. telling him to come over. The appellant cycled over to the
    complainants home and sat on the porch with her and her friend, S.P. He stated
    that the complainant asked S.P. to turn away while the complainant and the
    appellant kissed and touched each others genitalia.

[7]

During the fall of 2009, they would occasionally meet in a secluded area
    of their school for 5-15 minutes and engage in kissing and touching, which
    included the appellant rubbing the complainants vagina with his fingers and
    her rubbing his penis with his pants unzipped.

[8]

In support of his version of events, the appellant identified numerous
    sexual text messages that he had received from the complainant, the bulk of
    which were dated within the October 30 to November 1, 2009 time frame. He
    testified that he had saved these messages because even though they had been
    exchanging sexual text messages since at least August 2009 and had had multiple
    sexual encounters, certain of their female schoolmates asserted that he and the
    complainant had never, and would never, engage sexually with each other.

[9]

In contrast to the appellants evidence, the complainant testified that
    she and the appellant were platonic friends who had grown up on the same street
    as children and who would say hi to each other at school. They would see each
    other in the school cafeteria and were friends on Facebook. They exchanged text
    messages but she did not know how often. She testified that she had attended a
    Britney Spears concert in Hamilton with her friend H.F., the appellant, and the
    appellants friend N.A. in August 2009. She maintained that she and the
    appellant had never been alone together and had never been intimate. At trial she
    asserted that the appellant may have texted her sexual messages, but she never
    sent such messages to him. She denied sending the October 30  November 1, 2009
    text messages.

[10]

A
    witness, S.P., testified in reply that she was with the complainant on
    Halloween at the complainants home and the appellant was not present. At
    trial, the defence argued that S.P.s evidence was compromised because during
    the course of the trial, the complainant had called S.P. and advised her of the
    evidence that had been given by the appellant at trial. S.P. denied having
    discussed the Halloween events with the complainant but could not recall what
    she was doing on Halloween in 2008, 2010, and 2011.

The Dance

[11]

On
    December 18, 2009, the appellant and the complainant attended a dance. Each had
    arrived at the dance with a different group of friends but both had been
    drinking alcohol. The appellant had been at a friends house at around 6 p.m.
    where he had consumed about four or five alcoholic drinks. He arrived at the
    dance around 8 p.m. and may have consumed more alcohol there. The complainant
    said that she had had two Vex coolers and a couple of Jell-O shooters
    containing either Sourpuss liquor or vodka. The complainants friend, C.H.,
    testified that the complainant had had two to three drinks and was not
    intoxicated to the point she could not stand up.

[12]

Like
    the divergent descriptions of the nature of their relationship, the appellants
    and the complainants versions of what transpired at the dance also differ.

[13]

According
    to the appellant, the complainant approached him at the dance. She was upset
    and crying because she had seen D.V.S., a friend of the appellant on whom the
    complainant had a crush, dancing with another young woman. The appellant and
    the complainant went outside the dance hall where it was quieter and they could
    talk. The appellant told the complainant that she should not cry. The
    complainant leaned on the wall, tilted over to her right-hand side and then
    went down to the ground onto a small patch of wet grass. The appellant knelt down
    on the ground in front of her and asked her what was going on. The complainant hugged
    him, they started kissing, and he touched her. He unzipped his pants, and she
    touched his penis and lifted her leg to rub his penis on her vagina through her
    underwear, which remained up. This was the furthest they had gone sexually. He stated
    that he did not penetrate her vagina but could not recall whether his fingers
    had touched the skin of her clitoris or vagina. He thought there was a
    possibility this had occurred. After about five or ten minutes of them being
    outside, the complainant abruptly stopped the sexual activity and stated that
    she wanted to go back inside to see D.V.S.. The appellant testified that he
    walked back with her but before they got to the doors, she ran into the hall about
    a meter or two ahead of him. He returned to the dance. After about 20 minutes,
    his brother approached him and asked what he had done. The appellant was
    confused and asked what he meant, and his brother told the appellant that the
    complainant was saying he raped her. The appellant was surprised by the
    allegation.

[14]

He
    went to the washroom area where he thought the complainant was and people
    started asking him questions. He then showed them texts on his phone to prove
    that this was not the first time the complainant and he had done anything like
    this, i.e., had had sexual encounters. His schoolmates appeared shocked.

[15]

The
    complainant testified that about an hour after she had arrived at the dance,
    the appellant tried calling her over, saying he needed to talk to her about
    something important in a quiet place. She denied that she was angry because she
    saw D.V.S. dancing with someone else. The appellant put his arm around her and
    led her outside. They left the dance hall and walked along a gravel path that
    led to horse barns. It was dark and chilly but there was no snow on the ground.
    There was some light from a lamppost and possibly a lamp on the wall. She
    testified that the appellant started lifting up her dress and when they got to
    the back of the building around the corner, he grabbed her by the shoulders and
    forcefully put her down on the ground where she landed on her back. In her
    police interview, she said that she did not think he wanted to hurt her. She
    described the surface as being rocky, dirt, cold [and] gravelly. According to
    the complainant, the appellant came kneeling down at me and he had stuck his
    penis inside me. The appellant said something like it wont hurt or it
    wont hurt for very long or that he could make it feel good. She was
    screaming or yelling for help during the assault and telling him to stop. She
    eventually got up and ran straight for the bathroom. He said not to go and as
    she looked back, she saw that he was masturbating. She was scared. In the
    bathroom, she was being sick and told another student, H.J., that I think I
    was raped. When asked by whom, she responded that it was by the appellant.

Other Witnesses

[16]

The
    complainants best friend, C.H., testified at trial. At the dance, prior to the
    incident, she saw that the complainant was upset and crying, but did not know
    why. She tried to speak to her but the appellant intervened, grabbed the
    complainants arm, and said they were going outside. The two then left the
    building. When the complainant did not return, C.H. became worried. She and the
    complainants brother looked for the complainant in the parking lot and around
    the dance floor. C.H.s boyfriend went along the outside of the dance hall
    building to see if the complainant was there. No screaming was heard. C.H. and
    the complainants brother found the complainant in a state of emotional
    distress and physical disarray in one of the washroom stalls. Her mascara was
    running down her face, her dress was soaked, and there was dirt on her dress
    and on her knees. She said that the appellant had raped her and kept repeating
    it hurts, it hurts.

[17]

H.J.
    also saw the complainant in the washroom. The complainant said she had been
    raped and when asked who was responsible, she had difficulty getting out the
    answer as she was crying so much. She said it was the appellant. H.J. asked her
    repeatedly if she was sure because she could tell that she was really drunk,
    because she kept saying that she was going to be sick. She told H.J. that the
    appellant had thrown her up against the wall and then put her on the ground.
    H.J. then called 911.

[18]

Both
    C.H. and H.J. testified that before the police arrived, the appellant stood
    outside the bathroom saying that the complainant was a liar and that he had
    text messages that would prove it. He then showed the messages on his phone to
    H.J, saying that what had happened was consensual.

[19]

D.V.S.
    testified that in 2009, he and the complainant were seeing each other but it
    was not serious. He testified that the complainant was really drunk on the
    night of the dance. After seeing D.V.S. dancing with another young woman, the
    complainant said: How could you? According to him, she was pissed that he
    was with another person and she went off in the corner and started crying.
    D.V.S. asked her if she was okay but she did not want to talk to him. He said
    that the appellant asked her if she was okay, and the complainant then grabbed
    the appellants hand and they left. D.V.S. maintained that he usually saw her
    cry at dances; she was emotional and always really drunk.

[20]

In
    the bathroom, the complainant told her brother that the appellant had stuck it
    into her. She was upset and crying. Her brother asked the appellant whether
    this was true and the appellant responded: No man, why would I do that?

[21]

Constable
    Jeff Descheemaeker responded to the 911 call. In response to his inquiry as to
    what had happened, the complainant stated that she had told the appellant to
    stop. She did not know if she was raped. He testified that it was obvious she
    had been drinking and that, based on her reactions to everything, he thought alcohol
    may be a factor in this. She told the Constable that she did not want to get
    the appellant into trouble; she liked his friend.

[22]

Constable
    Descheemaeker described the appellant as being 100% cooperative. He asked the
    appellant if he had had sex with the complainant and the appellant had
    responded that he had not; they had been kissing and there had been rubbing but
    his penis had not been out of his pants. He told the Constable to go and ask
    the complainant; she would tell him. He said he could not believe this was
    happening, she was always doing stuff like this. He advised the Constable of
    the text messages.

[23]

In
    the appellants subsequent police interview with his mother at the OPP
    Detachment, the appellant denied any non-consensual sexual activity. He smelt
    of alcohol and had some soil or dirt marks on his pants, but had no bruising, scratch
    marks, or torn or ripped clothing.

[24]

Constable
    Elisha Duyvestijn spoke with the complainant at the hospital. The complainant
    related that she and the appellant were talking at the dance when the appellant
    started talking dirty and said he had to tell her something, to come with him
    and it would feel good. She said that he pushed her to the ground and he tried
    to rub his penis between her [sic] and she kept telling him it hurt and to stop.
    She thought his penis went in, it felt like it was right up inside her, and
    he thrust it in maybe five times. It hurt every time. She also said he was
    jacking off before he was inside her and that he was doing it to himself. She
    did not know if he had ejaculated inside of her.

[25]

Testing
    of the complainants vagina revealed the presence of cells with a single male
    Y-STR profile. It was compared with a sample profile taken from the appellant.
    The possibility that a randomly selected male individual unrelated to the
    appellant would share the same profile is 1 in 2674. The test was inconclusive
    as to whether the DNA came from skin, saliva or sperm.

[26]

There
    were no injuries or signs of trauma to the complainants vaginal area or
    anywhere else on her body.

[27]

The
    toxicologists report established that blood and urine samples obtained from
    the complainant approximately five hours after the occurrence contained 109 to
    155 milligrams of alcohol per 100 millilitres of blood.

[28]

After
    attending the hospital, the complainant went to the OPP Detachment and provided
    a statement. After doing so, she was told by police not to discuss the case
    with anyone. She was then observed on the video monitor making a call on her
    cell phone and speaking about the incident. She told the person on the other
    end of the call that she could not scream during the assault because the
    appellant was covering her mouth. That same day, she logged onto her Facebook
    account where she and her friends had posted pictures of themselves partying
    the previous evening.

[29]

The
    appellant admitted lying in his police interview about the sexual contact with the complainant. In the interview, he said he did not have an erection when in fact he had, and his penis had touched the complainant's vagina. He said he lied because he was nervous and did not want his mother to know what had happened. However, he denied sexually assaulting the complainant and volunteered the text messages he had saved. Examples of the text messages sent by her during the October 30 to November 1, 2009 time period include the following:

·

October 30, 2009, 11:43 p.m.: We shoulda went by the elevator!
    I was turned on.

·

November 1, 2009, 2:06pm not much OMG [Oh My God], orgasm it deluso
    [sic] so good.

·

November 1, 2009, 2:29 a.m.: Felt so good. I want it again so
    bad. Please. Ugg.

·

November 1, 2009, 2:41 am I wanted more so bad, it felt so good.

·

November 1, 2009, 2:50 am Hey, so felt good OMG UGG so good
    orgasm.

·

November 1, 2009, 6:11 a.m.: OMG J., Im just letting you know
    it felt so so so good I want it again :)

[30]

Although
    the complainant denied having authored these messages, the defence called a
    witness with expertise in cell phones. He largely contradicted the suggestion
    that the messages had not been, at a minimum, sent from the complainants phone
    on the days and at the times noted.

[31]

On
    the night of the alleged assault, the appellant and complainants phones
    exchanged text messages. The appellant questioned why she was lying. At trial,
    the complainant denied replying to any of the text messages from the appellant,
    though the responses to his messages were admitted as evidence.

Trial Judges Reasons

[32]

In
    his oral reasons, the trial judge characterized the case as turning on a
    determination of what happened on December 18, 2009  the complainant alleging
    that she was raped and the appellant maintaining that any sexual contact was
    consensual.

[33]

The
    trial judge briefly outlined the background facts and then turned to his
    finding on prior sexual contact. He concluded that there was a real
    probability that some sexual texting between the two occurred, which made live
    the possibility that some sexual contact occurred between the complainant and
    the appellant before December 18, 2009.

[34]

He
    then found that there was insufficient physical evidence to conclude that the
    appellants penis had penetrated the complainants vagina.

[35]

The
    trial judge then turned to the issue of credibility. He stated:

An argument can be made for
    believing either or neither of the parties. Their testimony contains, as
    counsel have argued, inconsistencies and many lapses of memory. This is not
    unexpected given that both parties were young persons testifying about an event
    that occurred almost six years ago when both had been consuming alcohol.

[36]

He
    then instructed himself on the Supreme Courts direction in
Regina v.
    (W.D.)
,
[1991] 1 S.C.R.
    742. Although the trial judge concluded that the appellant had raised a
    reasonable doubt on the issues of penetration and prior sexual contact, he did
    not find the appellants evidence to be believable on the crucial issue. He
    found that the appellant continued to pursue sexual activity after the
    complainant told him to stop.

That prior contact may have led
    him to believe that the complainant would consent to intercourse. But on the
    evidence that I accept, any consent that may have existed or may have been
    mistakenly perceived on his part ceased to exist when the complainant said
    stop. I am satisfied beyond a reasonable doubt that the complainant clearly
    communicated a lack of consent to any further sexual contact and that the
    accused pressed on in an attempt at intercourse. The description of the
    complainant provided by the witnesses in the washroom and by the police
    officers who observed her very shortly after the occurrence are not the
    descriptions of a young woman who has just engaged in consensual sexual
    activity. I cannot accept that a young woman would go outside wearing a dress
    in mid-December, lie down in dirt, gravel and wet grass and engage in
    consensual sexual activity. That defies common sense and reason.

[37]

It
    is appears that the appellants evidence failed to raise a reasonable doubt on consent
    due to the complainants post-occurrence demeanour, and the trial judges refusal
    to accept that a young woman would consensually do what the complainant was
    said to have done. On that basis, the trial judge found the appellant guilty of
    sexual assault.

Issues

[38]

Before
    us, the appellant submits that the trial judges reasons for decision were
    insufficient, and failed to confront both the inconsistencies in the
    complainants evidence and the exculpatory evidence that favoured the
    appellants innocence. Moreover, the trial judge improperly placed reliance on the
    complainants post-occurrence emotional state, and on his assumption about the behaviour
    of young females. The appellant also argues that the verdict was unreasonable.
    In light of my disposition of the other issues, it is unnecessary to address
    the unreasonable verdict ground of appeal.

Analysis

[39]

Appellate
    courts are to take a functional approach to reviewing the sufficiency of
    reasons, keeping in mind that reasons do not have to meet a standard of
    perfection:
R. v. Sheppard
, 2002 SCC 26, [2002] 1 S.C.R. 869, at para.
    55;
R. v. R.E.M.
, [2008] 3 S.C.R. 3. An appeal based on insufficient
    reasons will only be allowed when the trial judges reasons are so deficient
    that they foreclose meaningful appellate review:
Sheppard
, at para. 25
    and
R. v. Dinardo
,
2008 SCC 24, [2008] 1 S.C.R. 788, at para. 25. As Chief Justice McLachlin
    stated in
R. v. H.S.B.
, [2008] 3 S.C.R. 32, at para. 2:

So long as the trial judge
    fulfills the purpose of giving reasons --- to explain the decision, to provide
    public accountability and to permit meaningful appellate review --- a court of
    appeal is not justified in interfering with the verdict on the grounds of
    insufficiency of reasons. The purposes of giving reasons are fulfilled where
    the reasons for judgment, read in context, establish a logical connection
    between the verdict and the basis for it --- in other words, the reasons must
    explain why the judge made his or her decision. A detailed description of the
    judges process in arriving at the verdict is unnecessary.

[40]

As
    acknowledged by the trial Crown in his closing submissions, this case turned
    largely on credibility. In
Dinardo
, Charron J. addressed the approach
    to reviewing reasons rooted in credibility findings: Where a case turns
    largely on credibility, the sufficiency of the reasons should be considered in
    light of the deference afforded to trial judges on credibility findings. Rarely
    will the deficiencies in the trial judges credibility analysis, as expressed
    in the reasons for judgment, merit intervention on appeal:
Dinardo
, at
    para. 26.

[41]

A
    trial judge need not resolve every inconsistency that may arise on the
    evidence:
R. v. Dobson
, 2009 ONCA 714, at para. 10. Even so, in the
    context of a case involving credibility findings:

Reasons acquire particular
    importance where the trial judge must resolve confused and contradictory
    evidence on a key issue, unless the basis of the trial judges conclusion is
    apparent from the record (
Sheppard
, at para. 55). Here, the
    complainants evidence was not only confused, but contradicted as well by the
    accused. As I will now explain, it is my view that the trial judge fell into
    error by failing to explain how he reconciled the inconsistencies in the
    complainants testimony on the issue of whether she invented the allegations. I
    also conclude that the trial judges failure to provide such an explanation
    prejudiced the accuseds legal right to an appeal. [See:
Dinardo
,
at
    para. 27]

[42]

At
    para. 8 of
H.S.B.
, McLachlin C.J. described the appellate courts task
    as being to ensure that read in the context of the entire record, the reasons
    demonstrate that the trial judge was alive to and resolved the central issues
    before the court.

[43]

As
    mentioned, the trial judge did not engage in any analysis of the complainants
    and appellants testimony save to say that there were inconsistencies and many
    lapses of memory. In essence, the trial judge relied on two facts to explain
    why he accepted that the complainant communicated a lack of consent to further
    sexual contact and that the appellant pressed on in an attempt at intercourse: (i)
    the complainants demeanour following the occurrence and, (ii) his finding that
    it defies reason and common sense that a young woman would go outside
    wearing a dress in mid-December, lie down in dirt, gravel and wet grass and
    engage in consensual sexual activity.

(i)

Post-occurrence Description of the Complainant

[44]

In
    relying on the third party testimony regarding the complainants emotional state
    after the occurrence, the trial judge did not advert to the fact that her state
    bore some similarities to her state before the alleged assault. The appellant
    described her as being upset and crying before they went outside. The
    complainants best friend, CH, testified that the complainant was upset and
    crying before she went outside with the appellant. D.V.S. also described her as
    being emotional and crying. He said that he often saw her that way at dances. Although
    it was entirely open to the trial judge to consider the complainants
    post-occurrence conduct in coming to his decision, his failure to consider that
    her condition before the occurrence bore some similarity to her condition after
    the occurrence is concerning. Standing on its own, this would not be
    dispositive of the result on appeal. The difficulty is that it did not stand on
    its own.

[45]

In
    addition, the complainants physical state was consistent with the possibility
    of having engaged in consensual sexual activity.


(ii)

Behavioral Assumption

[46]

The
    second basis for the trial judges conclusion depended on an assumption about what
    a young woman will and will not do. As mentioned, the trial judge said: I
    cannot accept that a young woman would go outside wearing a dress in
    mid-December, lie down in dirt, gravel and wet grass and engage in consensual
    sexual activity.  In other words, the trial judge could not accept, or even
    have a doubt arising from, the appellants evidence because the trial judge was
    of the view that, young women would not do what the complainant was said to
    have consensually done.  There is a real danger that this reasoning contributed
    to the trial judges assessment of whether, on the whole of the evidence, the
    Crown had proven the appellants guilt beyond a reasonable doubt. I do not
    share the trial judges view that it can be taken as a fact that no young woman
    would consensually engage in the alleged behaviour.

[47]

Although
    trial judges must exercise common sense when making credibility findings and
    resolving what actually happened in a case, relying upon assumptions about what
    young women will and will not do may impact a judges objective deliberation of
    the reasonable doubt standard. In
R. v. Mah
, 2002 NSCA 99, [2002]
    N.S.J. No. 349, at para. 75, Cromwell J.A. (as he then was) stated:  Assumptions
    about the ways of the world appear to have contributed to the judge's failure
    to give proper consideration to the question of whether, on the whole of the
    evidence, he had a reasonable doubt. Here, by relying on an assumption
    regarding what young women will and will not do, as if it were a fact, and in
    light of the centrality of that assumption to the trial judges reasoning, his
    finding of guilt was tainted by error.

(iii)

Insufficiency of Reasons

[48]

The
    trial judges reliance on the complainants post-occurrence behaviour absent a
    consideration of her pre-occurrence behaviour, combined with his assumptive reasoning,
    was exacerbated by his failure to resolve material inconsistencies in the
    complainants evidence and to grapple with the exculpatory evidence. The
    inconsistencies and the exculpatory evidence were arguably sufficient to raise
    a reasonable doubt as to the appellants guilt, but the trial judge did not
    attempt to reconcile the inconsistencies or meaningfully consider the
    appellants denial and the factors that supported his version of events.

[49]

Some
    of the unresolved inconsistencies included the following:

a.

At trial, the
    complainant asserted that she had never sent sexual text messages to the
    appellant and denied sending the messages subsequently authenticated by the
    defence expert.

b.

At trial, she
    testified that she was screaming throughout the alleged assault. On the day of
    the occurrence, police overheard her telling someone that she was unable to
    scream because the appellant covered her mouth.

c.

After the
    alleged assault, the appellant sent text messages to the complainant. She
    stated that she did not reply and that her phone was broken, but her responses
    were placed into evidence.

[50]

The trial judge found that the complainant probably sent the text
    messages.  However, he failed to consider that evidence and the other
    inconsistencies in assessing the nature of the relationship and whether the
    complainants lack of credibility on any of these issues raised a reasonable
    doubt.

[51]

The trial judge also did not explain why he rejected the appellants evidence
    or, at a minimum, why it did not leave him with a reasonable doubt and did not
    address the features of the evidence that supported the appellants innocence.

[52]

The trial judges decision rested on two factors: a behavioral assumption
    and isolated consideration of the complainants post-occurrence behaviour. As
    discussed, this reasoning was improper.  The analysis was exacerbated by the
    trial judges failure to resolve contradictory evidence on key issues and to
    consider factors that favoured the appellants innocence. In my view, the trial
    judge did not give proper consideration to the question of whether, on the
    whole of the evidence, he had a reasonable doubt as to the appellants guilt.

Disposition

[53]

In
    conclusion, I would allow the appeal, set aside the conviction, and order a new
    trial.

Released: S.E.P. September 19, 2018

S.E. Pepall J.A.

I agree. P. Lauwers J.A.

I agree. Fairburn J.A.





[1]

The trial judge granted an order under s. 276 (1) of the
Criminal
    Code
permitting the complainant to be cross-examined on alleged prior
    instances of sexual activity with the appellant and on the text messages that
    she was said to have sent.


