



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C. 2014, c. 25, s. 22(2),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    the victim shall not be published in any document or broadcast or transmitted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. Lacombe, 2019 ONCA 938

DATE:
    20191128

DOCKET:
    C66988

Juriansz,
    Pepall and Roberts JJ.A.

BETWEEN

Her
    Majesty the Queen

Appellant

and

Richard
    Lacombe

Respondent

Katie
    Doherty, for the appellant

Ian
    McLean, for the respondent

Heard:
    September 17, 2019

On
    appeal from the order of Justice Rick Leroy of the Superior Court of Justice, dated
    May 7, 2018, dismissing an appeal from the acquittal entered on March 1, 2017,
    by Justice Peter J. Wright of the Ontario Court of Justice.

Pepall
    J.A.
:

INTRODUCTION

[1]

The Crown appeals from the acquittal of the respondent on two charges of
    sexual assault.

[2]

The Crown submits that the Summary Conviction Appeal Judge (SCAJ)
    committed two errors. The SCAJ erred in holding that the trial judge did not rely
    on impermissible myths and stereotypes about the behaviour of sexual assault
    victims in assessing the complainants credibility. The SCAJ also erred in
    concluding that the trial judges reasonable doubt analysis was not tainted by
    his reliance on such myths and stereotypes such that it did not have a
    sufficient nexus to the verdict.

[3]

The respondent submits that the trial judge considered the proper
    factors and did not make any unreasonable finding. His credibility finding
    should be accorded deference on appellate review. The Crown is inviting this
    court to re-try the case and that is not the function of this court. In oral
    argument, the respondent accepted that if the trial judge did wrongly rely on
    stereotypical reasoning in his credibility assessment, it would inevitably have
    affected his assessment of the evidence as a whole.

[4]

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

A.

Background Facts

[5]

The complainant and the respondent were tenants in an adult assisted
    care residence for persons with disabilities. Each resident had their own room.
    The complainant alleged that the respondent sexually assaulted her on two
    consecutive days on April 18 and 19, 2015. At trial, the version of events described
    by the complainant and the respondent differed. The trial judge identified
    credibility and reliability as the sole issue(s) in the case. The complainant
    asserted that the respondent touched her in a sexual way without her consent;
    the respondent testified that he did not touch the complainant in a sexual way
    without her consent. Consent lay at the heart of the case.

(1)

Complainants Testimony

[6]

With respect to the first alleged assault, the complainant testified
    that the respondent knocked on her room door and invited her to go out for a
    cigarette. She agreed and the two of them then went outside onto the fire
    escape. She was dressed in a sleeveless pyjama top and bottom, and wore no bra
    or underwear. They smoked and engaged in small talk. According to the
    complainant, the respondent then began to touch her breasts and pinch her nipples.
    She told the respondent to stop a few times, but he refused to do so, and laughed
    each time she asked him to stop. He then put his hands inside her pants and
    played with her clitoris. He also French kissed her. She testified that she
    kissed him back because he was not listening to her, and she was scared he
    would hit her. They then left and the complainant went back to her room where
    she realized her clitoris was bleeding. She told no one about these events and
    made no report to the police. Her explanation was that she was terrified.

[7]

The following evening, the second alleged assault took place in the same
    location. According to the complainant, the respondent again came to her
    bedroom and asked if she wanted to go out onto the fire escape and smoke
    cigarettes. They did so. The complainant was wearing different pyjamas with a
    loose top and short bottoms, and wore no bra or underwear. She testified that the
    respondent touched her breasts again, pinched her nipples harder, put his hand
    down her pants, and rubbed her clitoris hard. She told the respondent to stop several
    times and told him to get his hands out of her pants. While this was going on, the
    respondent asked the complainant to touch and play with his penis and masturbate
    him. She declined to do so and he got mad. He then started French kissing her.
    She testified that she kissed him back because she was scared that if she did not,
    he would get mad and hit her. They then left and the complainant went back to
    her room.

[8]

Days after the second incident, the complainant advised her boyfriend
    and a girlfriend what had occurred. They advised her to call the police. She
    did so, and a police officer attended and questioned her. She also attended at
    the police station and gave a video statement.

[9]

The complainant testified that she did not call the police immediately
    because she did not know what to do at the time. She moved out of the residence
    about a month after the incidents.

[10]

At trial, the complainant testified that she did not want or expect the
    sexual contact she had with the respondent. She denied the respondents version
    of events.

(2)

Respondents Testimony

[11]

For his part, the respondent testified that the complainant had come to
    his room, knocked, and entered. She lifted up her shirt, played with her
    breasts, and invited the respondent to touch her breasts. He touched the
    complainants breasts as she asked, but then as she started to take her clothes
    off, he stopped her and they went out onto the fire escape to smoke cigarettes.
    Outside, the complainant asked to see the respondents penis, which he showed
    her, but she was disappointed because it was small. The respondent denied
    pinching the complainants breasts, putting his hands down her pants, touching
    her clitoris, or French kissing.

[12]

On the following evening, the respondent testified that he met the complainant
    in the hallway, gave her a peck on the lips, and they went their own ways.
    The respondent denies pinching the complainants breasts, reaching inside her
    pants, touching her clitoris, or French kissing. To the extent there was any
    touching that involved any sexuality, it was consensual.

[13]

The respondent testified that he was heavily medicated, and that one of
    the medications side effects was that he had no sex drive. It was very
    difficult for him to obtain an erection and he had very seldom had erections
    in the past 15 years.

[14]

The respondent was subsequently charged with two counts of sexual
    assault.

(3)

Trial Judges Reasons

[15]

The trial judge acquitted the respondent. In his oral reasons, he
    identified credibility and reliability as the sole issue(s) in the case.

[16]

The trial judge noted that the rule of reasonable doubt applies to the
    issue of credibility, and that triers of fact are not to treat the standard of
    proof as a credibility contest between Crown and defence witnesses. He
    correctly instructed himself that he had a duty to assess the accuseds
    evidence in light of all the evidence, including that of the complainant:
R.
    v. Hull
, [2006] O.J. No. 3177, at paras. 4-5. He noted that it would be
    open to him to be satisfied of the accuseds guilt beyond a reasonable doubt
    following careful consideration of the complainants evidence along with the
    credibility enhancing effects of any other evidence:
R. v. J.J.R.D.
(2006),
    215 C.C.C. (3d) 252. He observed that this case fell squarely within the
    principles identified in
Hull
and
J.J.R.D
.

He also
    instructed himself on the principles set forth in
R. v. W.D.
, [1991] 1
    S.C.R. 742.

[17]

The trial judge then turned to his analysis. He noted that if he were to
    accept the complainants evidence in isolation, he could find the respondent
    guilty of the offences with which he was charged, but he had to consider all of
    the evidence in the case. He proceeded to summarize that evidence, and then
    listed 11 factors that he described as not being determinative, but nonetheless
    significant to the case:

While not determinative of the issue it is significant that
    when Richard Lacombe began to touch [the complainants] breasts and nipples on
    the first occasion, April the 18
th
, and she told him to stop and he
    would not, she did not immediately leave or withdraw.

While not determinative it is significant that when Richard
    Lacombe put his hands inside the pants of [the complainant] and began to rub
    her clitoris without her consent, she did not leave, she remained.

While it is not determinative it is significant that when
    Richard Lacombe engaged in French kissing [the complainant], she did not
    immediately stop and leave or say no. She did none of that.

While it is not determinative it is significant that she said
    that she remained with Richard Lacombe and continued to French kiss him putting
    her tongue into his mouth.

While not determinative it is significant that these events
    occurred on a fire escape outside the building in which they live and the
    events continued for some considerable period of time. [The complainant] was
    unable to say for how long, or even how the events ended.

While not determinative it is significant that [the complainant]
    presented herself to Richard Lacombe dressed in a loose fitting pyjama top with
    no bra and underwear, engaging with a man that she really did not know well at
    all, including significant French kissing.

While not determinative it is significant that upon returning
    to her bedroom she became aware of the fact that Richard Lacombe had actually
    injured her sexually by rubbing her clitoris and noted that it had been
    bleeding. She said she was terrified. No medical assistance was provided, no
    medical evidence was tendered at court. This incident was not reported at that
    time to friends, or to staff, or to the police.

Context is important because there was a second incident that
    occurred on April the 19
th
.

While not determinative it is significant that [the complainant]
    the very next night accepted another invitation from Richard Lacombe to
    re-attend with him on the same fire escape to smoke, an invitation from a man
    who on her earlier evidence had sexually assaulted her the night before.

While not determinative it is significant that the next night
    April the 19
th
, [the complainant] was dressed in a loose pyjama top
    with no bra, shorty pants, PJ pants, and no underwear, and was quite prepared
    to go down the hallway and out onto the fire escape and smoke cigarettes with Richard
    Lacombe.

While not determinative it is significant that [the complainant]
    alleges that Richard Lacombe engaged in much the same sort of behaviour on
    April 19
th
that he had on April 18
th
, but pinched her
    breasts and nipples harder, and she did not leave.

While it is not determinative it is significant that [the
    complainant] was with Richard Lacombe for about an hour during which period of
    time they again engaged in French kissing voluntarily in which both Richard
    Lacombe put his tongue into the mouth of [the complainant], and she put her
    tongue into the mouth of Richard Lacombe.

[18]

Having recited these non-determinative significant factors, the trial
    judge then concluded that he was troubled by the reliability of the
    complainants evidence: Common sense and life experiences would comport with
    the notion that something was happening on April 18
th
and 19
th
between [the complainant] and Richard Lacombe, but not as [the complainant]
    would have this court believe.

[19]

The trial judge then turned to the respondents testimony, stating that [h]is
    evidence was troubled with some inconsistencies and contradictions internally
    in terms of other evidence at trial and his statements to the police. The
    trial judge stated that there was nothing in the respondents evidence that
    would allow him to conclude that the respondent was lying about the degree of
    contact that he had with the complainant; despite weaknesses in the
    respondents evidence, the trial judge could not reject his evidence of denial
    of sexual assaults.

[20]

Quoting from Martin J.A.s observation in
R. v. Nimchuk
(1977),
    33 C.C.C. (2d) 209 (Ont. C.A.), that an acquittal should ensue if a reasonable
    doubt exists in view of the conflicting testimony as to exactly where the truth
    of the matters lay, the trial judge acquitted the respondent of the two
    charges. The trial judge did say that he may provide more detailed written
    reasons to incorporate some of the evidence, but this does not appear to have
    occurred.

(4)

Summary Conviction Appeal Judges Decision

[21]

The Crown appealed, arguing that the trial judges analysis was tainted
    by reliance on discredited stereotypical assumptions and biases about how
    victims of sexual assault behave.

[22]

The SCAJ noted that the Crowns burden was to establish an error of law,
    and to show with a reasonable degree of certainty that, had the errors not occurred,
    there would not necessarily have been an acquittal.

[23]

The SCAJ succinctly and properly observed that there was a consensus
    about the following:

i.

Complainants are entitled to reliance on a system free from discredited
    myths and stereotypes as to how a victim ought to respond and a judiciary whose
    impartiality is not compromised by biased assumptions;

ii.

The
    complainants clothing is no indication of willingness to engage in sexual
    relations; going somewhere alone with a man does not signify consent; fear of
    violence vitiates consent; consent is required for each incident of sexual
    contact; passivity is not consent;

iii.

In
    assessing credibility the timing of the complaint is simply one circumstance to
    consider in the context of the case; delayed disclosure standing alone will
    never give rise to an adverse inference against the credibility of the
    complainant 
R. v. D.D.
,
[2000] 2 S.C.R. 275
at para. 65. The trier may use the
    evidence of the making of the complaint as narrative evidence for the
    permissible purpose of showing the fact and timing of the complaint, which may
    then assist the trier of fact in the assessment of truthfulness or credibility 
R. v. Dinardo
,
2008 SCC 24
at para. 37.

iv.

These cases should
    never be decided on how abuse victims are expected to react by people who have
    never suffered abuse 
R. v Shearing
,
[2002] 3 SCR 33
.

[24]

The SCAJ was not satisfied that the trial judge had committed an error
    of law. The SCAJ found that while it was arguable that the trial judge relied
    on discredited rape myths in his analysis, the trial judge did not articulate
    the assumptions, if any, he had relied on.

[25]

The SCAJ went on to find that even if the trial judges references to
    the complainants behaviours and attire did constitute an error in law, the required
    nexus between the error and the acquittal had not been made out.

[26]

The SCAJ therefore dismissed the appeal.

(5)

Leave to Appeal

[27]

The Crown sought leave to appeal to this court. To warrant leave, an
    applicant must show that the case raises: (i) a question of law; and (ii) the
    question is of general significance to the administration of justice or the SCAJ
    made a clear error:
R. v. R. (R.)
, 2008 ONCA 497, 90 O.R. (3d) 564, at
    paras. 24, 28 and 30-33.

[28]

Leave to appeal was granted by Watt, Lauwers and Hourigan JJ.A. on May 24,
    2019.

B.

Analysis

[29]

The onus on the Crown on an appeal from acquittal is a heavy one:
R.
    v. A.R.D.
, 2017 ABCA 237, 422 D.L.R. (4th) 471, at para. 24. Crown appeals
    of acquittals must be based on errors of law, which are reviewed on a standard
    of correctness:
Housen v. Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R.
    235, at para. 8. It is only where a reasonable doubt is tainted by a legal
    error that appellate intervention in an acquittal is permitted:
R. v.
    J.M.H.
, 2011 SCC 45, [2011] 3 S.C.R. 197, at para. 39.  Not only must the
    Crown identify an error of law, but the Crown must also establish a nexus
    between the error of law and the acquittal.

[30]

As I will explain, the Crown has met its heavy onus in this case.

(1)

Improper Reliance on Sexual Stereotypes and Myths

[31]

The Supreme Court has repeatedly held that myths and stereotypes about
    sexual assault victims have no place in a rational and just system of law.
    Relying on myths and stereotypes to assess the credibility of complainants
    jeopardizes the court's truth-finding function:
R. v. A.G.
, 2000 SCC
    17, [2000] 1 S.C.R. 439, at para. 2. As Lamer C.J.C. explained in
R. v.
    Osolin
, [1993] 4 S.C.R. 595, at pp. 624-625:

Historically, a host of factors were deemed relevant to the
    credibility of complainants in sexual assault trials that did not bear on the
    credibility of witnesses in any other trial and which functioned to the
    prejudice of victims of sexual assault. In
Seaboyer
,
supra
, I
    discussed at length the hurdles that complainants faced in sexual assault
    trials due to these unfounded presumptions.  These myths suggest that women by
    their behaviour or appearance may be responsible for the occurrence of sexual
    assault. They suggest that the presence of certain emotional reactions and
    immediate reporting of the assault, despite all of the barriers that might
    discourage such reports, lend credibility to the assault report, whereas the
    opposite reactions lead to the conclusion that the complainant must be
    fabricating the event. Furthermore, they are built on the suggestion that
    women, out of spite, fickleness or fantasy and despite the obvious trauma for
    victims in many, if not most, sexual assault trials, are inclined to lie about
    sexual assault.

[32]

A trial judges credibility assessment is entitled to substantial
    deference from this court. However, a credibility assessment that is tainted by
    an error of law may displace the deference usually afforded to a trial judges
    credibility assessment and warrant appellate intervention:
R. v. Luceno
,
    2015 ONCA 759, 331 C.C.C. (3d) 51, at para. 34.

[33]

Reliance on discredited stereotypes in the  assessment of credibility is
    an error of law:
A.R.D.
, at para. 9. As stated by Paperny and Schutz
    JJ.A. in
A.R.D
.
, at para. 9, [R]easonable doubt is not a
    shield for appellate review if that doubt is informed by stereotypical and
    therefore prejudicial reasoning.

[34]

Martin J. described the dangers associated with myth-based and
    stereotypical reasoning in
R. v. C.M.G.
, 2016 ABQB 368, 41 Alta. L.R.
    (6th) 374, at para. 60:

Broadly speaking, myths and stereotypes rest on untested and
    unstated assumptions about how the world works or how certain people behave in
    particular situations. They often involve an idealized standard of conduct
    against which particular individuals are measured. Sometimes general, assumed
    or attributed characteristics are applied to a particular individual or circumstance,
    often without an analysis of whether there is any merit in the general
    assumption or whether it truly applies in a particular situation.

[35]

In this appeal, the trial judge identified credibility and reliability
    as the sole issue(s) in the case. In assessing those issues as they related to the
    complainant, the trial judge turned to factors, each of which he described as
    significant, but not determinative. Almost all these factors relied by
    implication on long-discredited myths and stereotypes about sexual assault
    complainants.

(a)

Dress

[36]

The trial judge stated that it was significant that the complainant
    presented herself to Richard Lacombe dressed in a loose-fitting pyjama top
    with no bra and underwear. He again referenced her clothing as being
    significant when addressing the second encounter the following evening, when he
    stated that it was significant that the complainant was dressed in a loose
    pyjama top with no bra, shorty pants, PJ pants, and no underwear. The trial
    judge did not explain how the complainants dress could have been significant.

[37]

In
R. v. Find
, 2001 SCC 32, [2001] 3
    S.C.R. 209, at para. 101, McLachlin C.J.C., for a unanimous court, noted:

However, strong, sometimes biased, assumptions about sexual
    behaviour are not new to sexual assault trials. Traditional myths and
    stereotypes have long tainted the assessment of the conduct and veracity of
    complainants in sexual assault cases  the belief that women of unchaste
    character are more likely to have consented or are less worthy of belief; that
    passivity or even resistance may in fact constitute consent; and that some
    women invite sexual assault by reason of their dress or behaviour, to name only
    a few. Based on overwhelming evidence from relevant social science literature,
    this Court has been willing to accept the prevailing existence of such myths
    and stereotypes: see, for example,
Seaboyer
,
supra
;
R. v.
    Osolin
, [1993] 4 S.C.R. 595, at pp. 669-71;
R. v. Ewanchuk
,
    [1999] 1 S.C.R. 330, at paras. 94-97.

[38]

The stereotypical assumption that if a woman is not
    modestly dressed, she is deemed to consent no longer finds a place in Canadian
    law:
R. v.

Ewanchuk
, 1999 SCC 71,
    [1999] 1 S.C.R. 330.

[39]

Dress does not signify consent, nor does it justify
    assaultive behavior. As such, it had no place in the trial judges assessment
    of the complainants credibility and reliability. The trial judges attribution
    of significance to this factor impermissibly adopted discredited reasoning.

(b)

Absence of Immediate Reporting

[40]

The trial judge stated that at the time of the
    first incident, the complainant did not report the assault to friends, staff,
    or the police. Again, the trial judge attributed significance to these facts
    without explaining how they could be significant.

[41]

The myth that a sexual assault complainant is less credible if
    she does not immediately complain is one of the more notorious examples of the
    speculation that in the past has passed for truth in this difficult area of
    human behaviour and the law:
R. v. Mills
, [1999] 3
    S.C.R. 668, at p. 741, per McLachlin and Iacobucci JJ
.
It
    is unacceptable to rely, as the trial judge did here, on the stereotypical view
    that victims of sexual aggression are likely to immediately report the acts,
    and conversely, to conclude that the lack of immediate reporting reflects
    either absence of assaultive or non-consensual behaviour. See also:
R.
    v. D. (D.)
, 2000 SCC 43, [2000] 2 S.C.R. 275, at para.
    63;
R. v. W. (R.)
, [1992] 2 S.C.R. 122, at p. 136.

[42]

Delayed reporting, standing alone, does not assist in evaluating
    whether an account alleging a consensual encounter is true or raises a
    reasonable doubt.

(c)

Expected Conduct

[43]

The complainant testified that she French kissed
    the respondent on both occasions because she was scared that he would hit her
    and, that on the second occasion when she refused to masturbate him, he got
    mad.  When asked why she would have allowed a second occurrence, she replied
    that she was scared that the respondent would hit her. The trial judge did not include
    these facts in his enumeration of significant factors, nor did he reject the
    complainants testimony in this regard. Rather, he considered it significant that
    the complainant did not leave in spite of telling the respondent to stop.

[44]

As Major J. wrote in
Ewanchuk
, at paras. 38-39:

there is no consent as a matter of law where
    the complainant believed that she was choosing between permitting herself to be
    touched sexually or risking being subject to the application of force.

The complainants fear need not be reasonable
    nor must it be communicated to the accused in order for consent to be vitiated.

[45]

There is no rule as to how victims of sexual assault
    are apt to behave:
R. v. Kiss
, 2018 ONCA 184, at para. 101. The trial
    judges reference to the fact that the complainant remained reflects that he
    was comparing her conduct to conduct he expected of a sexual assault
    complainant without giving any consideration to her evidence of fear.

(d)

Cumulative effect of significant factors

[46]

The trial judge engaged in reasoning that for the most
    part attached significance to factors that were insignificant.
Importantly,
    the trial judge relied on substantially nothing else in assessing the
    complainants credibility; the listed factors constituted the trial judges
    analysis.

[47]

Moreover, no explanation was given by the trial judge as to why the
    factors he enumerated and clearly relied upon were significant. Any
    significance to be attributed to these factors was anchored in assumptions that
    failed to reveal anything about the complainant's credibility and reliability. Nothing
    could be drawn from the trial judge's determination that it was significant that
    the complainant presented herself to the respondent dressed in a loose
    fitting pyjama top with no bra and underwear, or that although she testified
    that she was terrified, the first incident was not reported at the time to
    friends, staff, or the police.

[48]

The SCAJs conclusion that the trial judge was entitled to rely on the
    complainants dress because her loose clothing was relevant to the respondents
    evidence that she exposed her breasts to the respondent does not pass muster.
    The trial judges language does not reflect such an interpretation either
    expressly or inferentially.

[49]

In a similar vein, nor does the SCAJs supposition that [t]he
    references to the complainants attire and behaviours in the trial judges
    reasons were equally consistent to a general finding or statement that
    behavioural changes in the complainant would not be unexpected withstand
    scrutiny. The trial judge made no such comment and his reasons simply do not
    bear that interpretation.

[50]

After listing these factors, the trial judge then invoked common sense
    and life experiences to conclude that he should reject the complainants
    testimony. This is the precise discredited reasoning identified in cases like
Find
and
A.R.D
. As McLachlin C.J.C. wrote in
Find
, at para. 103:

These myths and stereotypes about child and adult complainants
    are particularly invidious because they comprise part of the fabric of social common
    sense in which we are daily immersed. Their pervasiveness, and the subtlety of
    their operation, create the risk that victims of abuse will be blamed or
    unjustly discredited in the minds of both judges and jurors.

[51]

Similarly, in
A.R.D
.,
Paperny and Schutz JJ.A. wrote, at
    para. 9, to suggest that stereotypical thinking is merely logic or common
    sense is a licence for it to continue unmasked and unabated.

[52]

The trial judges ultimate reliance on common sense and life experiences
    did not cleanse his assessment as his common-sense inferences reflected
    stereotypical sexual and myth-based reasoning. They infected his consideration
    of the complainants evidence and his assessment of reasonable doubt. His
    conclusions were the product of legally flawed reasoning. Again, reasonable
    doubt is not a shield for appellate review if that doubt is informed by
    stereotypical and therefore prejudicial reasoning:
A.R.D
, at para. 9.

[53]

That recourse to common sense also was coloured by improper
    considerations is evident from the following exchange between the trial judge
    and the Crown:

Crown:  [] And
    upon going back inside, she realized that her clitoris was bleeding and that
    she saw that bleeding occur for approximately five seconds.

Court:    So
    she immediately reports this to the staff and to the police, does she?

Crown:  No, Your Honour, doesnt re   .

Court:    She
    goes out with a virtual stranger onto a  on a  on a fire escape with no bra,
    no underpants, and would  how many times you  you have asked me to use common
    sense.

Crown:  Right.

Court:    How
    many times would it take for this kind of touching to take place before such a
    person would get out of that situation immediately? Would it take one or two,
    five, eight, how many would it take?

Crown:  Frankly, I dont know, Your Honour.

Court:    No, I
    dont either, but common sense tells me not much.

Crown:  Common sense tells me not much as well.



Court:    All,
    right, okay. So weve got French kissing, touching nipples.

Crown:  And that she kissed back

Court:   And she kissed back, yeah.

Crown: as a result of being scared.

Court:  What does
    common sense say? All right, I supposed I  thats  thats speculative. I
    suppose anything could happen. But she did kiss back

[54]

The SCAJs primary reason for finding no error in the trial judges
    reasons was that although it was arguable that the trial judge relied on
    discredited rape myths in his analysis, the trial judge did not articulate the
    assumptions, if any, he relied on. The SCAJ noted that the trial judge reviewed
    portions of the evidence but did not plainly relate them to the complainants
    credibility. Respectfully, I disagree.

[55]

Express identification by the trial judge of the impugned assumptions is
    unnecessary. The very problem with this type of reasoning is that it is
    insidious. It masquerades as common sense. It is evident from a review of the
    trial judges reasons that impermissible stereotypical sexual and myth-based reasoning
    was utilized in his assessment of the complainants credibility and reliability
    and underpinned his analysis of reasonable doubt.

(2)

Nexus

[56]

Having established that the SCAJ committed legal error in his treatment
    of the trial judges assessment of the evidence, the Crown must also establish
    with a reasonable degree of certainty that the verdict would not necessarily
    have been the same if the legal error had not been made. In other words, the
    Crown must establish a nexus between the error of law and the resulting
    acquittal; that is, that the identified error in the concrete reality of the
    case at hand  had a material bearing on the acquittal. The [Crown] is not
    required, however, to persuade [the court] that the verdict would necessarily
    have been different:
R. v. Graveline
, 2006 SCC 16, [2006] 1 S.C.R.
    609, at para. 14.

[57]

The respondent accepts that if the trial judge relied on stereotypical
    reasoning, that error would have inevitably affected his assessment of the
    evidence, including the respondents testimony. I agree.

[58]

This case turned on the trial judges assessment of the evidence of the
    complainant and the respondent. The trial judge set out the governing
    principles in his reasons. He recognized that it was his duty to assess the
    respondents evidence in light of all the evidence, including that of the
    complainant.

[59]

The trial judges analysis of the complainants evidence in his oral
    reasons was tainted by his consideration of the outlined significant but
    non-determinative factors. Because the trial judge was required to consider the
    respondents evidence in light of all the evidence, including the
    complainants, it is not possible to divorce the trial judges acquittal of the
    respondent from his flawed reasoning.

[60]

The totality of the evidence of the events in issue emanated from only
    two people. The trial judge had to carefully, and without preconceived notions,
    consider the totality of the evidence.

[61]

The trial judge stated that he was troubled by some of the
    inconsistencies and contradictions in the respondents testimony. This is
    understandable as there were inconsistencies. Indeed, in closing submissions,
    the trial judge asked defence counsel whether he should prefer the evidence the
    respondent gave at trial or in his police statement. For instance, in his
    police statement, the respondent stated it was his idea to take his penis out,
    he asked the complainant to touch it, and she refused. At trial, the respondent
    testified that it was the complainants idea and request.

[62]

The trial judges assessment of the complainants credibility played a
    prominent role in determining both whether he would believe the respondent and
    whether he was left with a reasonable doubt as to his guilt. The trial judges
    closing reference to
Nimchuk
reflects that he acquitted the respondent
    because he was unable to say what happened following his assessment of the
    conflicting testimony. However, his assessment of the entirety of the evidence
    was fatally flawed by the approach he took to the complainants evidence. The verdict
    would not necessarily have been the same in the absence of the trial judges
    legal errors.

[63]

In
R. v. A.B.A.
, 2019 ONCA 124, 145 O.R. (3d) 634, Justice
    Pardu stated at para. 18:

Here I am satisfied that the verdict might have been different
    had the legal errors not occurred. The errors had a material bearing on the
    acquittals, that is to say, the errors may well have affected the outcome. I am
    not satisfied that the verdict necessarily would have been different but for
    the errors, but the Crown is not required to meet that more stringent test.

[64]

The same must be said in this case. The SCAJ erred in concluding otherwise.

[65]

For these reasons, I would allow the appeal, set aside the acquittal, and
    order a new trial.

Released: November 28, 2019
    (S.E.P.)

S.E. Pepall J.A.

I agree. R.G. Juriansz
    J.A.

I agree. L.B. Roberts J.A.


