



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. L.A., 2019 ONCA 877

DATE: 20191107

DOCKET: C65352

Fairburn, Harvison Young and
    Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

L.A.

Appellant

Jill Presser and Shakir Rahim, for the
    appellant

Lisa Joyal, for the respondent

Heard: October 30, 2019

On appeal from the conviction entered on
    March 12, 2018 by Justice A. Duncan Grace of the Superior Court of Justice.

REASONS FOR DECISION

[1]

This an appeal from conviction for sexual
    assault. The complainant was the appellants former girlfriend. There is no
    dispute that they remained close friends after their romantic relationship
    ended, continuing with some sort of relationship.

[2]

The complainant and some other individuals were
    at the appellants home drinking on the night in question. After the appellant had
    retired to his bedroom, he sent the complainant a text message, asking her to
    come to his room because he could not sleep.

[3]

The complainant testified that upon receiving
    the appellants text message, she went to his room, laid down on her back and
    fell asleep on his bed. It was not unusual for her to sleep over at the
    appellants home and even in his room with him after the end of their romantic
    relationship. The complainant testified that she awoke to find that her pants
    had been removed and that the appellant was having vaginal intercourse with
    her. She testified that she yelled at the appellant, retrieved her clothing and
    left his room.

[4]

The appellants version of events was
    fundamentally different. While he agreed that he had texted the complainant,
    asking that she come to his room, he testified that the sexual intercourse only
    commenced when the complainant said to him, fuck me. The appellant testified
    that the complainant gave a weird gasp during the course of consensual
    intercourse, got up, grabbed her clothes and left the room. He surmised that
    the complainant may have been upset because he had, perhaps, mistakenly
    inserted his penis into her anus.

[5]

It is common ground that the appellant and
    complainants relationship never recovered.

[6]

The appellant contends that the trial judge
    erred in three respects:

(a)     reversing the burden of proof;

(b)     misapprehending the evidence; and

(c)     failing to provide reasons for why
    he rejected the defence of honest but mistaken belief in consent.

[7]

We do not agree that the trial judge erred in
    these respects.

[8]

The trial judges reasons carefully set out the
    burden and standard of proof. They specifically state that the verdict could
    not be based on a choice between the appellants and complainants evidence.
    The trial judge properly applied the principles in
R. v. W.(D.),
[1991]
1 S.C.R. 742. Finally, the reasons
    display a keen understanding of the fact that the central issue for
    determination was whether, based on the whole of the evidence, the Crown had
    proven the appellants guilt beyond a reasonable doubt.

[9]

The trial judge gave detailed reasons for
    rejecting the appellants evidence. He found that there were significant
    inconsistencies in the appellants version of the circumstances from the time
    that the complainant entered his room until the time that she purportedly asked
    to have intercourse. The trial judge set out those circumstances as follows:

One version was an in the moment awareness
    of a continuous chain of events that started with [the complainant] removing
    her pants and initiating sexual intercourse almost immediately afterward. The
    other involved an after-the-fact realization of the presence of another
    semi-nude person. Although the two versions became one, their commencement
    cannot be rationalized.

[10]

In oral submissions, the appellant suggested
    that this passage reflects a material misapprehension of the evidence going to
    the heart of why the appellants evidence was rejected and, therefore, the
    heart of the verdict. The appellant contends that the trial judge must have
    misunderstood his statement to the police, thinking that it only suggested that
    he awoke after the complainant was already in his bed, nude from the waist
    down. Yet the statement includes a qualifier not mentioned by the trial judge:
    I dont know if it was her that came by  like come into the room that
    possibly woke me up and made me reach over, want a drink of water, but I 
    maybe she moved around, I dont know. Accordingly, the appellant submits that
    the trial judge found inconsistencies where there were none.

[11]

We find no misapprehension of the evidence.

[12]

In his statement to the police, the appellant
    repeatedly suggested that he only realized that the complainant was in his room
    when he reached over to get a bottle of water and discovered her already in his
    bed. His qualifier  that he may have awoken when she came into the room  came
    much later in his statement.

[13]

In the appellants affidavit filed on the s. 276
Criminal Code,
R.S.C., 1985, c.
    C-46
application, he definitively suggested that his sleep was
    disturbed by the complainants entry into the room. In contrast, in his
    evidence in-chief at trial, he reverted to the suggestion that he woke up to
    [the complainant] next to [him]. Then in cross-examination he said that he
    noticed her getting into [his] bed, and as that happened she disturbed [his] sleep.
    He also said that he heard the door, and then I was still laying there, and
    didnt think anything of it, and then when she got undressed, and then finally
    came into bed, she disturbed my sleep. So I moved over, and at the same time,
    when I moved, I went to get a glass, or a drink of water from the bottle that
    was next to my bed.

[14]

We are satisfied that the trial judge did not
    materially misapprehend the evidence. It was open to the trial judge to
    conclude that the appellant had described the events in that period of time in
    different ways. We would defer to that factual determination.

[15]

Moreover, contradictions in the appellants
    description of when he awoke were not the only reason that the trial judge gave
    for rejecting the appellants credibility. The trial judge also gave other
    reasons for rejecting his evidence, including that the appellants version of
    the events made no sense:

The evening had been a pleasant one from all
    accounts. The get-together had been planned albeit only earlier that day. No
    friction of any kind was identified in the shack during the initial or later
    portion of the evening or during the time at the Creamery. In short, absolutely
    nothing had happened before [the complainant] entered the bedroom that gave any
    indication that anything troubling would occur that night. [The appellants] report
    of unintentional anal penetration during a complainant initiated sexual
    encounter, followed by a complete disintegration of a long-term
    post-relationship, does not resonate at all. That version of events is not
    truthful. It is not reliable. It is invented.

[16]

We also note that the trial judge also gave
    detailed reasons for believing the complainants evidence. To the extent that
    her evidence contained frailties, he addressed and resolved them. Close to the
    end of his reasons, the trial judge mentioned the legal proposition arising
    from
R. v. J.J.R.D.

(2006)
,
215 C.C.C. (3d) 252 (Ont.
    C.A.), at para. 53, leave to appeal to S.C.C. refused, [2007] S.C.C.A. No. 69,
    that an accuseds evidence could be rejected upon a considered and reasoned
    acceptance beyond a reasonable doubt of the truth of conflicting credible
    evidence. This was yet another reason for why the trial judge rejected the
    appellants evidence. We would defer to his credibility findings.

[17]

Finally, the appellant argues that trial judge
    erred by failing to address his alternative argument that, even if the
    complainant did not consent, he held an honest but mistaken belief in the fact
    that she did. The trial judge merely said that [t]he case does not involve a
    complainant who forgot that she had consented to sexual intercourse. Nor does
    it involve an accused who honestly, but mistakenly, believed consent had been
    given.

[18]

The appellant says that this cursory comment,
    dismissing his alternative defence, was insufficient and lacks any reasoning. He
    makes two broad points. First, he maintains that the trial judge erred by not
    considering whether the complainant was in a parasomniac state (see
R. v.
    Luedecke
, 2008 ONCA 716, 93 O.R. (3d) 89, at para. 28), leaving her with
    the ability to consent to the sexual acts while asleep, but with no memory of
    that consent. In support of that proposition, the appellant relies upon this
    courts decision in
R. v. Garciacruz
,
2015 ONCA 27, 320 C.C.C.
    (3d) 414. Second, he argues that it is possible to splice some of each
    persons evidence with respect to the encounter, and settle upon a reasonably
    coherent set of facts, supported by the evidence that would be capable of
    supporting his alternative defence of mistaken belief in consent:
R. v.
    Park
, [1995] 2 S.C.R. 836, at para. 25.

[19]

We conclude that the trial judge was under no
    obligation to address the alternative defence beyond what he said.

[20]

First,
Garciacruz

is a
    fundamentally different case. It involves a complainant who admitted that she was
    in a blackout state on the night in question which began long before the
    alleged sexual assault took place and ended some time afterwards. During that
    time, the complainant performed many acts of which she had no memory, including
    her inability to recall leaving a bar, walking to a car, taking a ride, having
    a conversation with her cousin, and ordering a taxi for her cousins use. In
    those circumstances, involving the complainant functioning, but with no memory
    of what she did, this court said that it was incumbent on the trial judge to
    consider whether the complainant may have consented to the sexual activity, but
    simply have no recollection of having done so:
Garciacruz
,
at
    para. 55-57.

[21]

This case bears no resemblance to
Garciacruz
.
    This was not a case about a blackout, but about a complainant falling asleep
    and waking up to find sexual intercourse in progress. The complainant in this
    case had a clear recollection of the events prior to and after the sexual
    activity in question. She remembered receiving the appellants text message, entering
    his room, falling asleep and then awaking to find the intercourse occurring.
    She also remembered what she said when she awoke, getting dressed, being very
    upset and eventually going back out to the shack where the others were still
    gathered. The trial judge accepted that evidence as true.

[22]

In addition, the factual foundation for the
    parasomnia argument rests on the appellants version of events, that the
    complainant invited sexual intercourse. Yet that version of events was rejected
    by the trial judge, a finding that is owed deference by this court. In these
    circumstances, we agree with the respondent that it would have been entirely speculative
    to infer that the complainant initiated sexual intercourse while she was
    asleep.

[23]

Second, this is not a case where it was possible
    to splice together a coherent set of facts capable of supporting the suggestion
    of a mistaken belief in consent. The complainant and appellant gave diametrically
    opposed accounts, one involving consent and the other involving no consent. Importantly,
    on the salient points, the trial judge entirely rejected the appellants
    version of events and accepted the complainants version. Based on his findings
    of fact, there was no air of reality to the suggestion that the appellant had
    mistakenly believed that the complainant had consented.

[24]

Accordingly, there was no need to address the
    alternative defence.

[25]

The appeal is dismissed.

Fairburn J.A.

Harvison Young J.A.

Thorburn J.A.


