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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: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    shall not be published in any document or broadcast or transmitted in any way.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. G.F., 2019 ONCA 493

DATE: 20190614

DOCKET: C65125 & C65126

Watt, Pardu and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

G.F. and R.B.

Appellants

Eva Taché-Green and Richard Posner, for the appellants

Philippe G. Cowle, for the respondent

Heard: May 1, 2019

On appeal from the convictions entered by Justice Edward
    J. Koke of the Superior Court of Justice on June 9, 2016, with reasons reported
    at 2016 ONSC 3465 and from the sentences imposed on September 6, 2017, with
    reasons reported at 2017 ONSC 5203.

Pardu J.A.:

[1]

The appellants were convicted of sexual assault.
    The complainant, referred to as C.R., was 16 years old at the time of the
    incident. The complainant and her family attended a camping trip with the
    appellants. One night, the complainant slept in the appellants trailer. She was
    intoxicated from drinking. She testified that she woke up to one of the
    appellants pulling down her pants and that both appellants engaged her in
    sexual activity. The appellants maintained that the complainant consented to
    the sexual activity.

[2]

The appellants raise numerous grounds of appeal.
    I am satisfied that the appeal must be allowed on two grounds. First, the trial
    judge did not identify the relevant factors to be considered when assessing
    whether the complainant had the capacity to consent to sexual activity. His
    reasons may be read as equating any degree of impairment by alcohol with
    incapacity; this is an error of law. Secondly, the trial judge failed to, first
    and separately, consider the issue of consent, apart from the issue of
    capacity; this is also an error of law. While the convictions could have been
    sustained on the basis that the complainant did not consent to the sexual
    activity regardless of her capacity, the reasons of the trial judge do not make
    it clear that he made a finding in that regard, or whether his statement that
    she did not consent dealt only with the invalidity of any consent because of
    the effects of alcohol.

A.

Summary of the evidence

[3]

On the Canada Day long weekend in 2013, C.R. accompanied her mother,
    stepfather and her seven-year-old brother on a camping trip. Four of her
    mothers co-workers also attended, including the appellants, who were common
    law spouses.

[4]

The group arrived at the campground on Friday, June 28. The appellants
    set up a hardtop camper trailer, the sides of which were made of canvas. Two
    beds extended from each end of the trailer. The appellants slept in the trailer.
    The appellants and the other members of the group used the trailer to store
    food, snacks, alcohol and other drinks. C.R. and her family slept in a tent
    about 20 feet from the trailer.

[5]

On the Sunday night, C.R. and her younger brother planned to sleep in
    the trailer with the appellants. C.R. said her parents and the appellants
    agreed to this arrangement; the appellant G.F. said there was no such
    agreement. That night, while sitting around the fire, C.R. testified that G.F.
    gave her shots of a liqueur; she also consumed some beer. C.R. began to feel
    nauseous and dizzy, and decided to lie down in the trailer. She had been in the
    sun all day. C.R. said her brother was in the trailer playing games with her on
    her iPhone for some time, but then he left. C.R. said G.F. entered the trailer
    and gave her more alcohol  shots of peach vodka. C.R. estimates that G.F. gave
    her between 8 and 10 shots in total. She then vomited with some of her vomit
    spilling onto the mattress cover, leaving a basketball-sized stain. At some
    point, the appellant R.B. entered the trailer to clean up and offered the complainant
    a plastic bag if she continued to vomit. Eventually, C.R. passed out or fell
    asleep.

[6]

C.R. testified that she woke up when she felt her pants being pulled
    down. She heard G.F. tell R.B. to perform oral sex on C.R. R.B. did so. G.F.
    then moved the complainants hips toward him and began vaginal intercourse. He
    pushed the complainants face into R.B.s vagina and instructed her to perform
    oral sex on R.B. C.R. testified she was scared, in shock, and did not know what
    was going on at that point. C.R. testified that she was so intoxicated that she
    had no control of herself, and said she kept blacking out and going in and out
    of it. Asked whether, at the time, she felt that she could make a choice about
    whether or not to have sex, she answered: No.

[7]

C.R. testified that she said the word stop a few times, and was crying
    and groaning, to which G.F. responded, be quiet, your parents are gonna hear
    you. She did not call out for help, testifying that she was confused and
    scared to do anything such as scream or yell while the sexual assault was
    occurring. She last remembers G.F. and R.B. having sex together before she
    passed out.

[8]

She next recalls waking up in the morning, lying naked next to R.B. The
    complainant said her breasts were tender and her vagina was swollen. She could
    not find her shirt or her iPhone. She left the trailer.

[9]

On her way home that Monday morning, C.R. covered herself in a blanket
    and was quiet. That evening, C.R. text messaged her aunt, from her mothers
    phone, saying she needed to talk and it was really bad. Later that evening, she
    told her aunt about what had happened between her and the appellants. The aunt
    told her husband. They then informed C.R.s parents.

[10]

The
    appellants consider themselves swingers. G.F.s evidence was that he and the
    complainants mother had a flirtatious relationship and there was a sexually
    charged atmosphere on the camping trip. He said that he, R.B., and the
    complainants mother planned to have a threesome while on the trip that weekend
    and the complainant knew this. G.F. testified that he touched the complainants
    mothers breasts while on a dirt bike ride with her.

[11]

G.F.
    agrees he saw C.R. with a beer but says he was only responsible for providing
    her two half-ounce shots of alcohol by the fire and nothing more. G.F. said R.B.
    advised him that C.R. vomited in the trailer. He said he informed C.R.s mother
    about this but she was not overly concerned. When he entered the trailer, he
    asked C.R. how she felt and she responded she was a lot better now. He said
    he then went fishing.

[12]

G.F.
    said he returned to the trailer at 3:15 a.m., surprised to find C.R. in bed under
    a blanket with R.B. He said he was interested in engaging in sexual activity
    with R.B., and hinted at C.R. to leave. He testified that C.R. said she liked
    them and wanted to remain in the trailer. He asked the two if they had kissed,
    and to his surprise, R.B. and C.R. began to kiss. G.F. was uncertain as to
    whether he was welcome to participate in the sexual activity, so he rubbed
    C.R.s thigh over the blanket and she responded by removing the blanket to let
    him touch her bare thigh. The three of them then participated in what he
    described as consensual oral and vaginal sex. Throughout the sexual encounter, G.F.
    said he asked C.R. repeatedly if she was okay with engaging in sex with them,
    and she assured him she was. He said C.R. was coherent and alert throughout.

B.

The trial
    judges decision

[13]

All
    parties agree that G.F. and R.B. engaged in sexual relations with C.R. The
    trial judge concluded that C.R. did not validly consent to the sexual activity.
    The trial judge was of the view that the main issue in the trial was one of
    credibility. Both C.R. and G.F. testified at trial.

[14]

The
    trial judge found that C.R.s testimony was consistent and provided in a straightforward
    fashion: at para. 53. He was impressed that her evidence was consistent with
    other accounts of the Sunday night incident which she provided on different
    occasions at trial:

at para. 53. The trial judge, at para. 53,
    highlighted several examples of evidence, which he said supported C.R.s
    account, including the following:

·

There were few, if any, inconsistencies between C.R.s evidence
    at the preliminary hearing and her testimony at trial.

·

C.R.s evidence was consistent with her police statement and the
    information she gave to her aunt.

·

C.R.s evidence was also consistent with the injuries noted by
    the nurse who examined her after the assault; C.R.s evidence was that the
    appellants sucked and licked her breasts and had vaginal intercourse with her.

·

C.R.s evidence about the amount of alcohol she consumed was
    consistent with the presence of a basketball-sized stain of vomit on the
    mattress cover, and her evidence that she felt nauseous and was so impaired by
    alcohol consumption that it did not occur to her to call out for help during
    the assault.

·

C.R.s testimony that she had no romantic interest in the
    appellants is consistent with the fact that they were more than twice her age,
    her parents friends, and virtual strangers.

·

The fact that C.R. left the trailer in the morning without her
    iPhone is consistent with her evidence that she woke up in a state of confusion
    and was anxious to leave the trailer.

·

C.R.s parents evidence that she was unusually quiet on the
    drive home is consistent with C.R.s evidence that she was still hungover and
    in a state of shock and confusion.

·

C.R.s decision to talk to her aunt about the incident the day
    after the alleged sexual assault is consistent with the behaviour of someone
    who has undergone a traumatic incident and requires guidance from an adult.
    Further, this decision is inconsistent with someone who has voluntarily engaged
    in sexual activity.

·

C.R. explained she did not immediately report the incident in the
    morning because she was afraid it would result in a physical confrontation
    between her stepfather and the appellants. This fear was supported by evidence
    at trial that C.R.s stepfather punched a fence multiple times after learning
    about the incident.

·

C.R.s fears that she might be pregnant or might have contracted a
    sexually transmitted infection support her evidence that she did not plan to
    engage in sex with the appellants.

[15]

In
    contrast, the trial judge, at para. 54, found G.F.s evidence to be riddled
    with inconsistencies, including:

·

G.F.s denial about his sexual interest in C.R. is contradicted
    by his zoomed in video recording of C.R. when the top half of her bathing suit
    came off; telling C.R.s mother he thought C.R. was cute and would revisit
    his relationship with her when she turned 18; his sexual comments toward and
    about C.R.; asking C.R. in the trailer if she had kissed R.B. yet; and engaging
    in a discussion with C.R. about her love life.

·

G.F.s denial that he was in a state of heightened sexual arousal
    throughout the weekend is contradicted by evidence of comments he made caught
    on his video camera.

·

G.F.s denial of an agreement for C.R. and her brother to sleep
    in the trailer on Sunday night is contradicted by the fact that C.R. retreated
    to the trailer when she began to feel nauseous and remained in the trailer
    after she vomited. G.F.s denial of this arrangement is also inconsistent with the
    complainants mothers evidence.

·

G.F.s evidence that he repeatedly asked C.R. if she was okay
    with engaging in sex with him and R.B. is inconsistent with his evidence that
    C.R. voluntarily engaged in sex with them. He would not have required
    assurances if C.R. had willingly consented to the sexual activity.

·

G.F.s evidence that he had a lengthy conversation with C.R.
    while on the dirt bike is inconsistent with the fact that this was a very brief
    ride on a noisy motorcycle with no stops.

·

G.F.s testimony that the complainants mother was anticipating a
    three-way sexual relationship that weekend was not supported by any other
    evidence and is inconsistent with the fact that the stepfather accompanied the
    mother for the weekend with her two children. G.F. was trying to normalize the
    activities in which he engaged with C.R. on Sunday night.

·

G.F.s general assertion that he does not lie was contradicted by
    the aunts husbands evidence, who asked G.F. what happened to his niece. G.F. initially
    denied any sexual activity but eventually admitted he engaged in sex with C.R.

·

G.F. admitted he did not wear a condom and that there was no
    prior discussion about the risk of C.R. contracting sexually transmitted
    infection or becoming pregnant. Given C.R.s concerns, it is difficult to
    accept that C.R. consented to sex with these risks present.

·

G.F. agreed that C.R. had vomited yet maintained that she still
    wanted to have sex. This runs contrary to the obvious inference to draw that
    when someone vomits, that person is unwell, likely not interested in sex, and
    not in the best condition to make decisions.

[16]

The
    trial judge also rejected various other arguments and defences raised by the
    appellants at trial.

[17]

The
    appellants pointed to a toxicology report which detected no alcohol in C.R.s
    blood or urine about 24 hours after the incident. The Center for Forensic
    Sciences (the CFS) was given two scenarios to determine what C.R.s blood
    alcohol concentration would be at the time of the taking of blood samples: (1)
    10 shots of liquor and one bottle of beer between 10 p.m. and 3 a.m., and (2) 8
    shots of liquor and one beer between 10 p.m. and 3 a.m. For scenario (1), the
    projected blood alcohol concentration would be 0 to 160 mg of alcohol in 100 ml
    of blood when C.R.s blood was tested. For scenario (2), the projected blood
    alcohol concentration would be 0 to 80 mg of alcohol in 100 ml of blood. The
    calculations assumed full or total absorption of all the alcohol consumed. The
    CFS noted that if an individual vomits shortly after consuming alcohol, the
    alcohol consumed would likely be expelled from the stomach and not absorbed
    into the bloodstream.

[18]

The
    trial judge found that the significance of the toxicology finding was
    questionable given that the samples were collected almost 24 hours after the
    events transpired and given the CFSs view on the effect of vomiting shortly
    after consumption:

at para. 63. Accordingly, the trial judge found
    that the absence of alcohol revealed by the toxicology report did not assist
    the defence in its argument that C.R.s ability to consent to sexual activity
    was not impaired by alcohol: at para.  64.

[19]

In
    dealing with concerns about C.R.s failure to report the incident immediately,
    the trial judge held that delayed disclosure of improper sexual conduct is not
    uncommon, especially in circumstances where it involves children or adolescents:

at para. 62. The trial judge was reluctant to impose adult expectations on
    C.R. when assessing her conduct the morning following the incident: at para. 62.

[20]

The
    trial judge did not consider that C.R.s evidence was undermined because she
    did not call for help during the incident:

at para. 69.

[21]

The
    accused did not raise a defence of honest but mistaken belief in communicated consent
    during closing submissions, likely because of the dramatically different
    accounts of what happened on the part of the complainant, and the accused G.F.

[22]

The
    trial judge concluded that the appellants forced C.R. into having
    non-consensual sex: at para. 71. He then noted that s. 273.1(2)(b) of the
Criminal
    Code
, R.S.C., 1985, c. C-46,
indicates that no consent is obtained where the complainant is incapable of
    consenting to the activity, such as when a complainant is intoxicated:

at
    para. 72. He found both appellants guilty.

C.

Analysis

(1)

Appellants argument
    that the verdict was unreasonable

[23]

The
    appellants submit that the coherence of the complainants narrative of the
    events belies the suggestion that she was so impaired as to lack capacity to
    consent to sexual relations. In their view, the totality of the evidence at
    trial, particularly C.R.s testimonial evidence, could not reasonably support such
    a finding of incapacity. The appellants also point to evidence of C.R.s
    alcohol consumption and toxicology evidence to support this argument. They
    submit that the verdict was unreasonable in the sense described in
R. v.
    Sinclair
, 2011 SCC 40,
[2011] 3 S.C.R. 3, Fish J., dissenting but not on this point, at para 21:

A verdict is likewise unreasonable
    where the judge draws an inference or makes a finding of fact essential to the verdict
    if that inference or finding of fact is demonstrably incompatible with
    evidence that is neither contradicted by other evidence nor rejected by the
    trial judge (
Beaudry
, at para 79,
per
Binnie J.). Here, an
    essential inference that appears compatible with the evidence from which it is
    drawn implodes on contextual scrutiny. This is so where a trial judge infers
    from
some
of the available evidence that an accused had the requisite
    intent to obstruct justice and this inference is supportable on the evidence
    relied upon but is not supportable on consideration of other evidence that has
    been neither contradicted by other evidence nor rejected by the trial judge.
    Here, too, a verdict of guilt would lack legitimacy and would properlybe
    treated as unreasonable (
ibid
.). [Citations in original.][Emphasis
    in original.]

[24]

The
    appellants submit that a new trial is required because the trial judge did not
    deal with the evidence suggesting a lesser degree of intoxication.

[25]

I
    do not agree that the nature of the account given by the complainant in itself
    is demonstrably incompatible with incapacity to consent to sexual relations, or
    that the trial judge failed to consider this evidence. The complainants
    intermittent awareness, her waking from sleep to find sexual acts performed
    upon her, her saying no, and her own description of her condition could allow a
    reasonable trier to conclude beyond a reasonable doubt that she did not consent
    to the sexual activity or that she was incapable of consenting to the activity.

[26]

Complete
    unconsciousness and absence of memory are not the only conditions which
    establish incapacity. Varying degrees of awareness, memory, and ability to
    articulate what happened have supported findings of incapacity: see
R. v. Tariq
, 2016 ONCJ
    614, 343 C.C.C. (3d) 87, at paras. 5, 116, 120-121, 124;
R. v. Daigle
(1998), 127
    C.C.C. (3d) 130 (Que. C.A.), at pp. 133,137, affd [1998] 1 S.C.R. 1220;
R. v. Bell
,
2007 ONCA 320, 223 O.A.C.
    243, at paras. 7, 44-46, 48, leave to appeal refused, [2007] S.C.C.A. No. 351
;
R. v. Wobbes
, 2008 ONCA
    567, 235 C.C.C. (3d) 561, at paras. 12, 15, 24;
R. v. L.G.,
2007 ONCA 654,
228 C.C.C.
    (3d) 194, at paras. 23-24, 94-99.

[27]

I
    would not conclude that the testimony the complainant gave about her incapacity
    was plainly contradicted by other evidence or that it was incompatible with
    evidence not otherwise contradicted or rejected by the trial judge: see
R.
    v. R.P
., 2012 SCC 22, [2012] 1 S.C.R. 746, at para. 9.

(2)

Analytical approach
    to consent and capacity

[28]

While
    I am not of the view that the trial judge erred in reaching a verdict that was
    unreasonable on the basis that the complainants coherent narrative was
    incompatible with incapacity on her part, I am of the view that the trial judge
    did err in his analysis of consent and capacity. The trial judge failed to
    consider the issue of consent separately from the issue of capacity, and
    further, did not apply the jurisprudence discussing the level of intoxication
    which could result in a finding of incapacity. Before analyzing the trial
    judges errors in detail, I will first review the concepts of consent and
    capacity, in the context of sexual activity, and will then proceed to
    articulate the correct approach for analysis when both consent and capacity are
    potentially in issue.

[29]

While
    this is not the precise argument advanced by the appellants, the issues related
    to consent and capacity were central to the arguments made on appeal by both
    the appellants and the Crown. As noted in
R v. Mian
, 2014 SCC 54,
    [2014] 2 S.C.R. 689, at para. 33, issues that are rooted in or are components
    of an existing issue are not new issues for the purposes of appellate
    review.

(a)

What is consent?

[30]

Subsection
    273.1(1) of the
Criminal Code
,
as it was at the relevant time, provides that consent means the voluntary
    agreement of the complainant to engage in the sexual activity in question. Subsections
    273.1(2)(b) and (d) provide that no consent is obtained where the complainant
    is incapable of consenting to the activity or where the complainant expresses
    by words or conduct, a lack of agreement to engage in the activity. Subsection
    273.1(3) provides that nothing in s. 273.1(2) shall be construed as limiting
    the circumstances in which no consent is obtained.

[31]

In
R v
.
Ewanchuk
, [1999] 1 S.C.R. 330, at para. 25, the Supreme
    Court delineated the elements of the
actus reus
of sexual assault:

The
actus
    reus
of sexual assault is established by the proof of three
    elements: (i) touching, (ii) the sexual nature of the contact, and (iii) the
    absence of consent. The first two of these elements are objective. It is
    sufficient for the Crown to prove that the accuseds actions were voluntary.
    The sexual nature of the assault is determined objectively; the Crown need not
    prove that the accused had any
mens rea
with
    respect to the sexual nature of his or her behaviour.

[32]

Further,
    in
R. v. Ewanchuk
, at paras. 26-27, the court held that the absence of
    consent is a subjective matter and determined by reference to the complainants
    subjective internal state of mind towards the touching at the time it occurred.

[33]

In
R. v. J.A.,
2011 SCC 28, [2011] 2
    S.C.R. 440, at para. 31,

McLachlin
C.J. concluded that the relevant statutory provisions of the
Criminal Code
suggest that Parliament saw consent as the conscious agreement of the
    complainant to engage in every sexual act in a particular encounter. Consent
    means voluntary agreement as to the touching, its sexual nature and the
    identity of the partner:
R. v. Hutchinson
, 2014 SCC 19, [2014] 1
    S.C.R. 346, at para. 5. The court indicated that in this context, given the
Criminal
    Code
provisions pertaining to incapacity that Parliament intended consent
    to mean the conscious consent of an operating mind:
J.A
., at para. 36.

(b)

When is a complainant
    incapable of consenting to sexual contact?

[34]

What
    then are the characteristics of a conscious consent of an operating mind at the
    time the sexual activity occurs?

[35]

As
    noted in Janine Benedet, The Sexual Assault of Intoxicated Women, (2010) 22
    Can. J. Women & L. 435, at p. 442:

Turning first to incapacity, there are numerous cases in which
    courts find a complainant incapable of consent due to intoxication, but in
    almost all of these cases the complainant is also asleep or unconscious when
    the sexual assault begins. Where the complainant is not unconscious, but merely
    drunk or high, courts have struggled to articulate a threshold for incapacity
    short of total non-responsiveness.

[36]

An
    unconscious or sleeping person is incapable of consenting to sexual activity. On
    the other hand, capacity for considered evaluation of the collateral risks and
    consequences of sexual activity sets the bar too high for capacity to consent
    to sexual relations.

[37]

In
R. v. Al-Rawi
, 2018 NSCA 10, 359 C.C.C. (3d) 237, Beveridge J.A.
    discussed elements of capacity to consent to sexual relations established by
    the jurisprudence, at paras. 60-61, 66-67, and I adopt that summary, subject to
    the caveat that, in light of the varieties of human conditions which may raise
    issues of incapacity, it may not describe all of the circumstances in which a
    complainant could be found to lack an operating mind:

[60]
This begs the question: what constitutes an
    operating mind? Comatose, insensate or unconsciousness cannot qualify. Major
    J., in
R. v Esau
,
supra
,

reflected
    that being unconscious due to intoxication is not the only state capable of
    removing a complainants capacity to consent (para. 24). Mere awareness of the
    activity is also insufficient to ground capacity where the trial judge accepted
    that the complainant was out of control and not able to say no due to the
    involuntary ingestion of drugs (
R. v. Daigle
(1997), 127 C.C.C. (3d) 130 (Que. C.A.), affd [1998] 1 S.C.R. 1220).

[
61
] On the other hand,
    requiring the cognitive ability necessary to weigh the risks and consequences
    of agreeing to engage in the sexual activity goes too far.

[
66
] Therefore, a complainant
    lacks the requisite capacity to consent if the Crown establishes beyond a
    reasonable doubt that, for whatever reason, the complainant did not have an
    operating mind capable of:

1. appreciating the nature and quality of the
    sexual activity; or

2. knowing the identity of the person or
    persons wishing to engage in the sexual activity; or

3. understanding she could agree or decline to
    engage in, or to continue, the sexual activity.

[
67
]
    In cases where consent and capacity to consent are live issues, the trial judge
    must determine if it has been established beyond a reasonable doubt that the
    complainant did not consent, or lacked the capacity to consent. As detailed
    above, these inquiries are entirely subjective. [Citations in original.]

[38]

Here,
    I agree with the submissions of the Crown on appeal that while mere proof of
    drunkenness, loss of inhibitions, regret for a bad decision or some memory loss
    do not of themselves negate capacity for consent, some physical actions such as
    walking a short distance, making a phone call, speaking, and some awareness of
    or resistance to sexual activity do not necessarily preclude a finding of
    incapacity. I also agree that some memory of the events is not necessarily
    inconsistent with incapacity:
R v. C.P
., 2017 ONCJ 277, at paras. 69-70,
    affd 2019 ONCA 85, leave to appeal to S.C.C. requested, 38546 (March 11, 2019);
Tariq
, at paras. 5, 116, 120-121, 124;
Daigle,
at pp. 133,
    137;
Bell
, at paras. 7, 44-46, 48;
Wobbes
, at paras. 12, 15,
    24;
L.G
., at paras. 23-24, 94-99;
R v.

Merritt
,
    [2004] O.J. No. 1295 (Ont. Sup. Ct.), at paras.
56-59;
R v. Powers
, 1999 CanLII 7332 (Ont. C.A.),
    at paras. 2, 7;
R v. Dixon
, 2018 ONCA 949, at paras.
3, 17-18;
R v. Crespo
,
    2016 ONCA 454, 132 O.R. (3d) 287, at paras. 5, 9. As the case law demonstrates,
    the trier of fact must consider all the evidence to make the factual
    determination of the complainants capacity at the relevant time. Issues of
    incapacity can arise in a multitude of circumstances, including sleep,
    intoxication, illness, and intellectual disability.

[39]

I
    observe that s. 273.1 of the
Criminal Code
was amended effective
    December 13, 2018
[1]
.
    It now provides as follows:

(1)
Subject
    to subsection (2) and subsection 265(3),
consent

means,
    for the purposes of sections 271, 272 and 273, the voluntary agreement of the
    complainant to engage in the sexual activity in question.

(1.1)

Consent
    must be present at the time the sexual activity in question takes place.

(1.2)

The
    question of whether no consent is obtained under subsection 265(3) or
    subsection (2) or (3) is a question of law.

(2) For the purpose of subsection (1), no consent is obtained
    if

(a)
the
    agreement is expressed by the words or conduct of a person other than the
    complainant;

(a.1)
the
    complainant is unconscious;

(b)
the
    complainant is incapable of consenting to the activity for any reason other
    than the one referred to in paragraph (a.1);

(c)
the
    accused induces the complainant to engage in the activity by abusing a position
    of trust, power or authority;

(d)
the
    complainant expresses, by words or conduct, a lack of agreement to engage in
    the activity; or

(e)
the
    complainant, having consented to engage in sexual activity, expresses, by words
    or conduct, a lack of agreement to continue to engage in the activity.

(3)
Nothing
    in subsection (2) shall be construed as limiting the circumstances in which no
    consent is obtained.

[40]

The
    section now specifies that no consent is obtained where the complainant is
    unconscious or where the complainant is incapable of consenting to the activity
    for any reason other than unconsciousness. This indicates that incapacity may
    arise from conditions short of unconsciousness.

(c)

Where both consent
    and capacity are potentially in issue

[41]

How
    then should a trial judge approach the evidence when dealing with potential
    issues of both consent and capacity to consent? He or she should first consider
    whether the Crown has proven beyond a reasonable doubt that the complainant did
    not consent to sexual contact. If the complainant did not consent, then there
    is no ostensible consent which is vitiated by lack of capacity. This two-step
    process was described in
R. v. Hutchinson
, at para. 4:

The
Criminal Code

sets out a two-step process for analyzing consent to sexual activity.
    The first step is to determine whether the evidence establishes that there was
    no voluntary agreement of the complainant to engage in the sexual activity in
    question under s. 273.1(1). If the complainant consented, or her conduct
    raises a reasonable doubt about the lack of consent, the second step is to
    consider whether there are any circumstances that may vitiate her apparent
    consent. Section 265(3) defines a series of conditions under which the law
    deems an absence of consent, notwithstanding the complainants ostensible
    consent or participation:
Ewanchuk
, at para. 36. Section 273.1(2) also
    lists conditions under which no consent is obtained. For example, no consent is
    obtained in circumstances of coercion (s. 265(3)
(a)
and
(b))
, fraud (s. 265(3)
(c)
), or abuse of trust or authority (ss. 265(3)
(d)
and 273.1(2)
(c)
).

[42]

Where the Crown proves beyond a reasonable doubt that the complainant
    did not affirmatively and subjectively consent to sexual contact, this absence
    of a subjective mental state may establish the requisite
actus reus
and there need not always be a further inquiry as to capacity.

[43]

To repeat, the absence of consent is subjective and determined by reference
    to the complainants subjective internal state of mind towards the touching at
    the time it occurred:
Ewanchuk
, at paras. 25-26.

[44]

In
Ewanchuk
, the court held that a lack of verbal resistance is not
    implied consent and that a belief that silence, passivity or ambiguous
    conduct constitutes consent is a mistake of law and provides no defence to an
    accused asserting reasonable belief in consent: at paras. 31, 51; see also
R
    v. Barton
, 2019 SCC 33, at para. 82.

[45]

For
    the purposes of establishing the
actus reus
there is no third option;
    either the complainant consented or he or she did not:
Ewanchuk
, at
    para. 31. As indicated in
R. v. J.A
., at para. 37, [t]he complainant
    is not required to
express
her lack of consent or her revocation of
    consent for the
actus reus
to be established (emphasis in original).

[46]

Further
    support for the notion that where non-consent is proven, there need not be an
    inquiry into capacity is found in
Ewanchuk
.
The court referred to s. 265(3) of the
Criminal Code
which provided that no consent is obtained where the complainant submits or
    does not resist by reason of the application of force, threats or the fear of
    application of force, fraud or the exercise of authority, and observed, at
    para. 40:

Section 265(3) identifies an
    additional set of circumstances in which the accuseds conduct will be
    culpable. The trial judge
only
has to consult s. 265(3) in those cases
    where the complainant has actually chosen to participate in sexual activity, or
    her ambiguous conduct or submission has given rise to doubt as to the absence
    of consent. If, as in this case, the complainants testimony establishes the
    absence of consent beyond a reasonable doubt, the
actus reus
analysis
    is complete, and the trial judge should have turned his attention to the
    accuseds perception of the encounter and the question of whether the accused
    possessed the requisite
mens rea
. [Emphasis added.]

[47]

Support
    for this two-step approach is also found in academic commentary on capacity and
    consent: Janine Benedet & Isabel Grant,
Hearing the Sexual Assault
    Complaints of Women with Mental Disabilities: Consent, Capacity, and Mistaken
    Belief (2007) 52:2 McGill L.J. 243.
The authors, at p. 270, suggest
    that an inquiry as to capacity to consent should not be necessary where the
    Crown has proven non-consent:

A finding of incapacity leads
    inevitably to a finding of nonconsent because the complainant is unable to
    provide a legally valid consent. Yet the precise relationship between capacity
    and consent is complex. It might appear logical to say that capacity should be
    addressed prior to consent because capacity is a prerequisite to consent. Thus,
    one could argue that a woman who is incapable of giving consent is also incapable
    of withholding consent.

We believe, however, that the
    level of understanding required to give meaningful consent to sexual activity
    may be higher than that which is required to withhold it. In other words, we
    believe it is possible for a woman to be incapable of giving consent in a
    particular situation, and yet be capable of withholding it. For example, a
    woman could know that she doesn't want any physical contact with the man in
    question, even if she does not understand the sexual nature of the activity or
    its potential consequences.
Because of the serious implications of finding
    someone incapable of consenting, we suggest that where there is evidence of
    nonconsent, that evidence should be looked at before considering capacity.
[Emphasis
    added.]

[48]

It
    is difficult to apply the idea of capacity to an absence of a subjective state
    of mind. Recall that the Crown need not prove that the complainant made a
    conscious decision to refuse sexual contact, for which an operating mind might
    be required:
J.A
., at para. 37. Rather, the Crown is required to prove
    the absence of consent by reference to the complainants subjective internal
    state of mind:
Ewanchuk
, at paras. 25-27. Where it is proven that the
    complainant did not affirmatively consent to sexual touching, it may serve no
    purpose to inquire further to assess whether, had he or she consented, he or she
    would have had the capacity to do so, although in some cases a trier may elect
    to make alternative findings. In any case, the analysis should not be blurred
    between the two separate issues, consent and capacity to consent.
[2]
Further, where potential incapacity relates to non-transient conditions,
    avoiding unnecessary inquiries as to capacity where non-consent is proven is
    more respectful of a complainants autonomy and privacy.

[49]

This
    is not to say that the factual circumstances of, for example, intoxication may
    not be relevant to both whether there was subjective consent and to incapacity
    to consent. In the present case, for example, the Crown argued that the complainants
    profuse vomiting made it unlikely she would have consented to sexual contact.
    The same vomiting, was relevant to the degree of consumption of alcohol and the
    effect it may have had on her capacity to consent.

(d)

Application to the
    trial judges reasons

[50]

In
    light of the aforementioned principles, I turn now to the reasons of the trial
    judge with two questions in mind. Did the trial judge properly address the
    separate issues of consent and capacity to consent, and more specifically, did
    the trial judge err by failing to consider the degree of the complainants
    impairment by alcohol?

[51]

The
    difficulty with the trial judges reasons for conviction are that he failed to
    assess whether the degree of impairment by alcohol was such that the
    complainant was incapable of consenting to sexual activity. The trial judge was
    led to this position in part by the submissions of the Crown suggesting that he
    did not have to explore the degree of intoxication versus sobriety:

Mr. Scharger: So your Honour
    doesnt really have to, in the Crowns submission, delve into degrees of
    intoxication versus sobriety, at least, insofar as, as it applies to applying
    273.1. Rather, in the Crowns submission, youre presented with a starker
    choice, of either accepting C.s evidence, which was that she was quite
    intoxicated  in the Crowns submission, if you accept her evidence, its, its
    pretty much a given that 273.1 will apply on the basis that she was incapable.
    On the other hand, the other stark choice youve been given is F. telling the
    court that she was as sober as when she appeared her in court. So by that
    assessment of things, if you do conclude that thats the case, then 273.1 would
    have no application whatsoever. So I just thought Id mention that, Your
    Honour, in terms of framing the legal analysis in this case.

THE COURT: So youre saying its
    more an issue of credibility?

Mr. Scharger: Very much so, as, as
    opposed to assessing [the] degree of how drunk or not drunk she was.

THE COURT: I dont see a big
    difference in your position, in that respect, from that of the position thats
    been set out by the defence. Its, its, its, its a case of credibility.

Mr. Scharger: Yes, sir.

The CROWN: She was either too
    impaired, or she wasnt.

Mr. Scharger: Agreed.

[52]

The
    trial Crown did argue in his submissions that the complainant would not have
    consented to sexual contact with the appellants for a variety of reasons such
    as the difference in age, the fact she hardly knew them and the fact that they
    were her mothers friends. However, he did not invite the trial judge to
    convict on the ground that the complainant did not in fact consent to sexual
    contact, separate and apart from the issue of whether or not the complainant
    had the capacity to consent.

[53]

This
    blending of the issues as to whether the complainant consented, and whether any
    consent was vitiated by a lack of capacity is mirrored in the trial judges
    reasons for judgment, at paras. 51-52, 71-73:

[51] The main issue in this case is
    one of credibility. The parties agree that G.F. and R.B. engaged in sexual
    relations with 16yearold C.R. If I find beyond a reasonable doubt that C. was
    unable to provide her consent to this sexual activity because she was impaired by
    alcohol consumption and that G.F. and R.B. knew or should have known that she
    was unable to give her consent, then they are guilty of the charges against
    them. If I find that C.s ability to give consent was not impaired by alcohol
    consumption and that she freely gave her consent, then the two accused persons
    are not guilty.

[52] I have considered the evidence
    and the submissions of counsel, and after doing so I have concluded that C.R.
    did not consent to the sexual activity, and that G.F. and R.B. are guilty of
    the offence of Sexual Assault.

[71] R.B. did not testify. I find G.F.s
    evidence to be unbelievable.It does not leave me with reasonable doubt as to
    his or R.B.s guilt, and in my view, the balance of the evidence at trial
    convincingly supports the conclusion that F. and B. forced C. into having
    non-consensual sex.

[72] Section 273.1(2)(b) of the
    Criminal Code indicates that no consent is obtained when the complainant is
    incapable of consenting to the activity. This applies in instances where a
    complainant is intoxicated.

[73] Accordingly I find the two
    accused guilty of sexual assault as charged.

[54]

The
    manner in which the reasons are structured leaves me uncertain as to whether
    the trial judge considered the issue of consent separately from the issue of
    capacity. It is clear that the trial judge did not engage the two-step
    analytical process I have articulated in these reasons, by first evaluating
    whether the complainant did not consent and then turning, if necessary, to whether
    or not the complainant had the capacity to consent. He also did not apply the
    jurisprudence discussing the level of intoxication which could result in a
    finding of incapacity, if it were necessary to go to that step. His statement
    that no consent is obtained where a complainant is intoxicated suggests that in
    his view, any level of intoxication was sufficient to vitiate consent. It is
    not clear that this belief did not constitute the basis for his statement that
    there was no consent.

[55]

Although
    the trial judge states, at para. 52, that he concluded that C.R. did not
    consent to the sexual activity and, at para. 71, that the balance of the
    evidence at trial convincingly supports the conclusion that G.F. and R.B.
    forced C.R. into having non-consensual sex, the convictions cannot be upheld
    on such a basis. First, as discussed above, the trial Crown did not invite the
    trial judge to convict on this basis. Second, the vague statement from the
    trial judge that the balance of the evidence at trial supports such a finding
    is not a sufficient basis to ground a conviction; it is not clear the trial judge
    was making a finding that the convictions could be sustained on the basis that
    the complainant did not consent, regardless of her capacity.

D.

DISPOSITION

[56]

In
    view of these errors, I would set aside the convictions and order a new trial.
    It is not necessary to consider the other arguments raised by the appellants.

Released: June 14, 2019

G. Pardu J.A.

I agree David Watt
    J.A.

I agree I.V.B.
    Nordheimer J.A.

[1]

An Act to amend the Criminal Code and the Department of
    Justice Act and to make consequential amendments to another Act
, S.C. 2018, c. 29, s. 19.

[2]
In
R v. Jensen
(1996), 106
    C.C.C. (3d) 430, this court held that findings of incapacity to consent and of
    non-consent were mutually exclusive, however this analysis has been overtaken
    by
Ewanchuk
.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gale, 2019 ONCA 519

DATE: 20190621

DOCKET: C60457

Hoy A.C.J.O., Hourigan and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

George Christopher Gale

Appellant

Brian H. Greenspan and Peter R. Hamm, for the appellant

Alexander Alvaro, for the respondent

Heard: June 6, 2019

On appeal from the conviction entered by Justice Andrew
    J. Goodman of the Superior Court of Justice, sitting with a jury, on July 23,
    2013 and from the sentence imposed on October 10, 2013, with reasons reported
    at 2013 ONSC 1107 and 2013 ONSC 6308.

REASONS FOR DECISION

[1]

George Christopher Gale appeals his second degree murder conviction
    arising from the shooting death of his common law partner, Jocelyn Bishop. He
    also appeals the 15 year parole ineligibility portion of his sentence.

THE CONVICTION APPEAL

[2]

Ms. Bishop was killed by a single shot to the top of her head. Mr. Gale
    admits that he buried her body in the backyard of the house they lived in
    together and took other steps to conceal her death, including lying to her
    family and police, attempting to clean the area of the house where she died,
    and destroying the firearm. He claimed at his trial that he did not shoot Ms.
    Bishop, but in fact witnessed Ms. Bishop, a mentally fragile and suicidal
    woman, shoot herself after attacking him. He testified that he attempted to
    conceal her death to suppress the fact of her suicide and to avoid having to
    watch her family members pretend to grieve her. The jury was not left in doubt
    by his story.

[3]

Evidence supporting Mr. Gales conviction included the testimony of Mr.
    Gales friend, Justin Darlington, who testified that before Ms. Bishops death,
    Mr. Gale spoke about shooting her and burying her in the backyard. The parties
    agree that this evidence was significant in rebutting Mr. Gales version of
    events.

[4]

Mr. Gale argues that the trial judge erred by unfairly circumscribing
    Mr. Gales cross-examination of Mr. Darlington, by ruling that no mention was
    to be made before the jury of a polygraph that had been administered to Mr.
    Darlington. Mr. Gale contends that he should have been permitted at trial to
    point out that it was only after Mr. Darlington was led to believe that he had
    failed a polygraph test that he first made the claim that Mr. Gale threatened
    to shoot and bury Ms. Bishop. Mr. Gale contends that this was a key part of the
    coercion the police allegedly exercised against Mr. Darlington to induce him to
    provide evidence that would incriminate Mr. Gale. Mr. Gale urges that he should
    have been permitted to explore the impact of the polygraph on Mr. Darlingtons
    change of position. Indeed, he argues that the trial judges decision to
    exclude evidence about the polygraph had the effect of misleading the jury, who
    were left unequipped to appreciate the full extent of the police coercion used
    against Mr. Darlington.

[5]

Mr. Gale also appeals his conviction because of the trial judges
    decision to permit Cst. Coon to testify as an expert forensic bloodstain analyst.
    Cst. Coon offered the opinion that the bloodstain patterns in the home were
    inconsistent with Mr. Gales claimed suicide scenario.

[6]

Mr. Gale urged in his factum that the trial judge erred by permitting
    Cst. Coon to offer expert testimony, as Cst. Coon was not qualified to do so. Mr.
    Gale also argues that the trial judge erred by focusing on the admissibility of
    the opinion offered, rather than on Cst. Coons qualifications. These arguments
    were not pressed in oral argument, but they have not been abandoned so we will
    address them briefly.

A.

The Bar on Mentioning the Polygraph

[7]

Mr. Gale brought an application at trial pursuant to
Charter
,

s. 7, arguing that the
    admission of Mr. Darlingtons testimony about Mr. Gales threatening comment
    would undermine Mr. Gales right to make full answer and defence. He asked for
    the evidence to be excluded by way of remedy. This application rested on Mr.
    Gales submission that any reference to the polygraph would be inadmissible,
    and that the legal bar on his ability to refer to the polygraph to challenge
    Mr. Darlingtons testimony would prevent him from cross-examining Mr.
    Darlington fully.

[8]

The trial judge disagreed. He held that the required exclusion of the
    polygraph would not undermine Mr. Gales right to full answer and defence. He
    reasoned that Mr. Gale could present his defence by using the inconsistent
    statements made by Mr. Darlington, as well as other circumstances, to
    cross-examine Mr. Darlington extensively about the truthfulness of the
    threatening comment he attributed to Mr. Gale. Those circumstances include
    other allegedly coercive behaviour by the police, such as interviewing Mr.
    Darlington twice for many hours, and threatening to charge him as an accessory
    after the fact. The trial judge therefore denied the
Charter
application
    to exclude the evidence.

[9]

It is important to appreciate what is being challenged on appeal. Mr.
    Gale is not challenging the trial judges denial of his s. 7
Charter
application.
    Instead, he is appealing the measures the trial judge took to enforce the
    exclusionary rule that Mr. Gales counsel relied upon in support of his
    application. Specifically, after his
Charter
ruling, the trial judge
    directed that no witnesses were to refer to the results or the fact of a
    polygraph and the statements were to be edited to remove reference to the
    polygraph. Mr. Gale now says that the trial judges attempt to enforce the
    exclusionary rule he relied upon in support of his application was unfair and
    improper. Unlike at trial, he now contends that evidence about the
    administration and use of the polygraph when the police were interviewing Mr.
    Darlington was in fact admissible, and that the trial judge should have
    permitted him to challenge Mr. Darlington with this information.

[10]

We
    agree with Mr. Gale that the trial judge, as well as the parties, operated
    under a mistaken belief that mention of the polygraph was inadmissible. In part
    because of concerns about the unreliability of polygraph results, the law
    prevents those results from being used to prove or disprove the truth of
    statements made during the polygraph examination, or to oath-help:
R. v.
    Beland
, [1987] 2 S.C.R. 398. But where it is relevant to the credibility
    of a witness, the law does not prevent a party from proving the fact that a
    polygraph was used in securing information from a witness:
R. v. Charrette,
[1994] O.J. No. 2509 (Ont. Gen. Div.), at para. 19;
R. v. Sipes
, 2010
    BCSC 1364, at para. 34.

[11]

The
    difficulty for Mr. Gale, however, is that during the trial he did not want the
    jury to learn that a polygraph had been taken. Put otherwise, he did not want
    the benefit of the rule of admissibility that he now seeks to invoke. A number
    of things make this clear.

[12]

First,
    during the
Charter
application, Mr. Gales trial counsel expressed
    concern that if Mr. Darlington was permitted to testify about Mr. Gales
    threat, the polygraph could come out unintentionally during the
    cross-examination. Then, after the trial judges ruling and direction that the
    polygraph not be mentioned by witnesses or in recorded statements played in
    court, Mr. Gales trial counsel was asked whether there was anything else. He
    did not take the opportunity to raise any issue with the trial judges measures
    to prevent the polygraph from being made known to the jury, as might have been
    expected from senior counsel in response to an uninvited ruling that would harm
    the defence case. Instead, Mr. Gales trial counsel said:

No, thank you, Your Honour. As I say  and youve hit
my concern
, is the warning that would go to the witness.
    And I may remind my friend and yourself at the appropriate time, but
Im just scared
that he blurts it out. [Emphasis added.]

[13]

Mr.
    Gales appeal counsel argued that, with these words, Mr. Gales trial counsel
    was simply expressing concern about the risk of a mistrial, should information
    about the polygraph come out. With respect, this explanation is most unlikely. Mr.
    Gales experienced trial counsel would have understood that inadvertent
    disclosure would likely be addressed with a jury direction, as the trial judge suggested,
    not a mistrial. Moreover, in his comments Mr. Gales trial counsel felt the
    need to say that he may have to caution the Crown and the trial judge about the
    need to prevent mention of the polygraph. This strongly suggests that trial
    counsels focus was not on the concern that all of the parties would share in
    avoiding a mistrial, but rather on a concern that was particular to Mr. Gale.
    Of course, we cannot know for certain what that concern was, but the most
    probable explanation for why defence counsel was scared the polygraph would
    come out in cross-examination was the palpable risk that if the jury was to
    learn of the polygraph it would prejudice Mr. Gale. Specifically, jurors would be
    apt to use the sequence of events to infer that Mr. Darlingtons testimony
    about the threat must be true, coming as it did after he was apparently caught
    lying during a polygraph examination.

[14]

Ultimately,
    it does not matter why Mr. Gales trial counsel did not want any mention of the
    polygraph. The fact is that at trial, he clearly did not want any mention to be
    made of the polygraph. Mr. Gale cannot now appeal on the footing that the trial
    judge gave him what he wanted. We would therefore deny this ground of appeal.

B.

Cst. Coons Expertise

[15]

The
    trial judge did not err in qualifying Cst. Coon as an expert witness, even
    though he was only an apprentice bloodstain analyst when he attended the crime
    scene. In coming to this conclusion we need not resolve whether, as an
    apprentice, he had sufficient expertise to offer the opinions he did. By the
    time Cst. Coon testified at the trial, he was an accredited bloodstain analyst,
    fully qualified to interpret the blood staining he had personally observed and
    witnessed being recorded when he attended the crime scene.

[16]

Nor
    is there anything to the suggestion that the trial judge improperly focused on
    admissibility considerations relating to the kind of expert opinion offered,
    when the real issue was expertise. The trial judge understood that the issue
    before him was with Cst. Coons qualifications. He identified expertise as the issue
    before him, cited the correct test for expertise, and offered a specific
    conclusion on that issue that found support in his reasoning.

[17]

We
    would therefore also dismiss this ground of appeal.

THE SENTENCE APPEAL

[18]

We
    would dismiss Mr. Gales sentence appeal, as well, notwithstanding that the
    trial judge imposed a 15 year parole ineligibility period in the face of the recommendation
    of 10 jurors that Mr. Gale should be eligible for parole after 10 years.

[19]

The
    trial judge applied the correct legal framework for considering whether to
    reject a jury recommendation on parole ineligibility, and gave cogent reasons
    for his conclusion. We do not agree that he failed to explain his decision. He
    held that the recommendation was totally unrealistic. He made it clear that it
    would be contrary to the principles of sentencing to impose a 10 year parole
    ineligibility period in the circumstances of a domestic homicide committed with
    a gun in the couples home, where the accused has attempted to get rid of the
    body and then lied to the victims family about the victims disappearance, and
    where there has been no mitigating guilty plea. In his view, 15 years of parole
    ineligibility was required. We would not interfere with the reasonable decision
    arrived at by the trial judge, which was for him to have made.

[20]

Nor
    do we accept that it was an error for the trial judge to move to the top of the
    range of 12-15 years for parole ineligibility in domestic homicides identified
    in
R. v. McKnight
(1999)
,
    135 C.C.C. (3d) 41 (Ont. C.A.), at para. 54. If accepted, the submission that a
    judge is obliged to sentence at the bottom of the range where a jury recommends
    the minimum parole ineligibility would improperly convert recommendations for
    consideration into operative limits on judicial discretion.

DISPOSITION

[21]

We
    therefore dismiss the conviction appeal. We grant leave to appeal sentence, but
    also dismiss the sentence appeal.

Alexandra Hoy A.C.J.O.
C.W. Hourigan J.A.
David M. Paciocco J.A.


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., 2019 ONCA 523

DATE: 20190624

DOCKET: C62800

Doherty, Watt and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.L.

Appellant (Applicant)

Keshav Agnihotri, for the appellant (applicant)

Candice Suter, for the respondent

Heard: June 10, 2019

On appeal from the conviction entered on November 25,
    2015 and the sentence imposed on April 29, 2016 by Justice R. Lococo of the Superior
    Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

The appellant, J.L., was found guilty by a jury of one count of sexual
    assault and one count of touching a person under the age of 16 for a sexual
    purpose. The complainant, T.W., is the appellants stepdaughter. She was 13 at
    the time of the alleged assaults.

[2]

The trial judge imposed a sentence of four years on the sexual touching
    count and stayed the conviction on the sexual assault charge.

[3]

The appellant appeals conviction and sentence.

[4]

T.W. went to live with her mother and the appellant in 2011. Before
    that, she had lived with her biological father (K.K.). T.W. testified that the
    appellant regularly sexually assaulted her between January and June 2012. The
    assaults took place at night in her bedroom and involved digital penetration
    and oral sex.

[5]

The appellant testified and denied the allegations. He testified that
    T.W. had become a significant discipline problem by 2012 while she was living
    with the appellant and her mother. He had grounded her on occasion. T.W.s
    mother was, however, primarily responsible for disciplining T.W.

[6]

T.W. was taken into care by the Childrens Aid Society in July of 2012.
    The Childrens Aid Society had been involved with T.W. many times prior to
    2012. They became involved in July of 2012 as a result of an incident involving
    T.W.s friend, K.W.

[7]

T.W. had an argument with her mother and went to K.W.s home. While T.W.
    was at K.W.s home, T.W.s mother sent text messages to K.W. (who was 15-years
    old) inviting her to participate in a threesome with the complainants mother
    and the appellant. K.W. told her mother about the text messages and her mother
    went to the police and contacted the Childrens Aid Society. The Childrens Aid
    Society removed T.W. from the care of her mother and the appellant. T.W.s
    mother was later charged with invitation to sexual touching, contrary to s. 152
    of the
Criminal Code
. She eventually pled guilty to the charge.

[8]

In her testimony, T.W. said that she told her mother that the appellant
    was molesting her, but that her mother did not believe her. She also testified
    that the appellant repeatedly threatened her, telling her that if she told
    anyone he would tell the Childrens Aid Society that she had initiated the
    contact and the Childrens Aid Society would separate her from her siblings.

[9]

T.W. testified that she did not trust the Childrens Aid Society in
    2012. She refused at times to speak to child protection workers about alleged
    abuse in the home. On one occasion, at least, she denied that the abuse had
    occurred when in fact she had been abused. T.W. testified that she lied to the
    Childrens Aid Society workers and school counsellors because of the
    appellants threats that she would be taken from her siblings if the Childrens
    Aid Society became involved.

[10]

T.W.
    eventually complained to her new foster mother about the sexual abuse in August
    2013. She gave a statement to the police and the appellant was charged. T.W.
    indicated by this time she had been separated from her siblings and the
    Childrens Aid Society had commenced child protection proceedings. T.W.
    believed she had nothing left to lose. She was made a Crown ward in 2014.

[11]

The
    appellant advances four arguments in his factum. First, he makes submissions
    about the prejudicial effect of evidence led by the Crown concerning the
    conviction of T.W.s mother on the charge of invitation to touch for a sexual
    purpose. Second, the appellant argues that the trial judge made various errors
    in respect of the appellants pretrial motion for the production of documents
    in the possession of various third parties. Third, the appellant alleges errors
    in the charge to the jury. Fourth, the appellant submits that the sentence was
    demonstrably unfit.

[12]

Counsel
    did not make oral submissions in support of the third or fourth grounds of
    appeal outlined above. We see no merit in either and do not propose to address
    them any further in these reasons.

The Mothers Conviction for Invitation to Sexual Touching

[13]

The
    Crown sought to lead evidence in respect of the mothers attempt to solicit the
    involvement of K.W., T.W.s 15-year old friend, in sexual activity with T.W.s
    mother and the appellant. The attempted solicitation came via text messages.
    T.W. was with her friend when she received these messages.

[14]

The
    Crown argued that the evidence of the conviction and the events on which it was
    based was relevant to show the reason the Childrens Aid Society took T.W. out
    of the appellants home in July 2012. The Crown further argued that the
    evidence was relevant to demonstrate the nature of the relationship between
    T.W. and her mother. T.W. had said that she told her mother about the sexual
    abuse and that her mother did not believe her. The Crown contended that evidence
    of the mothers sexual misconduct toward T.W.s friend in the summer of 2012 provided
    an explanation for the mothers supposed disbelief of T.W. The Crown submitted
    that the evidence showed that T.W.s mother did not come to T.W.s support, not
    because she did not believe her daughter, but because she herself was
    interested in, and involved in, the sexual abuse of young girls.

[15]

The
    trial judge agreed with the Crowns position, holding that evidence of the
    dysfunctional relationship between T.W. and her mother could be important in
    assessing T.W.s credibility as it related to her description of the family
    dynamics and her mothers reaction to her allegations.

[16]

Although
    the trial judge admitted the evidence, he was alive to the potential prejudice
    to the appellant from the evidence. He addressed that prejudice by strictly
    limiting the evidence that the Crown could lead in respect of the mothers
    conduct and her subsequent conviction. The trial judge indicated that he wanted
    to limit the evidence to the extent possible to exclude indications of
    involvement [by the appellant].

[17]

Eventually,
    the Crown put the evidence of the mothers conviction on the invitation to
    sexual touching charge before the jury by reading to the jury from a document
    containing the allegation. The jury was also advised that T.W.s mother had
    pled guilty to that charge. The evidence of the surrounding circumstances,
    including the text messages, was not put before the jury.

[18]

Although
    counsel for the appellant had opposed the admissibility of the evidence for any
    purpose other than to explain why T.W. was taken into the care of the
    Childrens Aid Society, he did agree, after he had lost the admissibility
    argument, with the manner in which the evidence was put before the jury. Contrary
    to counsels submission in this court, there is nothing in the trial record to
    suggest that counsel did not have notice of the contents of the document read
    to the jury by Crown counsel.

[19]

The
    Crown read the following to the jury:

[The complainants mother] was charged that on or about the 3
rd
day of July, in the year 2012 in the City of St. Catharines, she did for a
    sexual purpose invite a person under the age of 16 years, namely [her
    daughters friend] to directly or indirectly touch with a part of her body the
    body of [the complainants mother] and/or [the appellant] to wit: to engage in
    a sexual encounter contrary to s. 152 of the
Criminal Code

[20]

A
    copy of the document Crown counsel had read to the jury was not made an
    exhibit. The trial judge, in his instructions, did not refer specifically to
    the document, but instead summarized its contents without reference to the
    appellants name.

[21]

In
    his instructions, the trial judge repeatedly advised the jury that the evidence
    of T.W.s mothers guilty plea and her conviction could not be used as evidence
    that the appellant had committed the offences. For example, the trial judge said:

However, since the Crown could not rely on the conduct
    involving [the complainants mother] and [the complainants friend] to
    establish any of the element of the charges against [the appellant] before the
    court, you must not use the agreed facts to help you conclude that the Crown
    has established any element of the offences charged or to help you to otherwise
    conclude that [the appellant] is guilty of the offences charged.

[22]

Counsel
    for the appellant submits, that despite the instructions, the jury could well
    have concluded from the reference to the appellant in the charge against the
    mother that the appellant was the kind of person who engaged, or wanted to
    engage, in sexual activity with young girls. Counsel argues that, if the jury drew
    that conclusion, convictions were inevitable.

[23]

The
    reference to the appellants name in the charge against the mother was probably
    unnecessary given the purpose for which the evidence was admitted. However,
    there was no objection by the defence to the format in which evidence of the
    charge and plea was put before the jury. Nor did the language of the document
    allege any misconduct by the appellant.

[24]

Having
    regard to the actual language of the document as it related to the appellant,
    the absence of any objection by the defence, but most significantly the
    powerful limiting instruction given by the trial judge, we conclude that the
    appellant was not prejudiced by the manner in which the mothers conviction was
    put before the jury.

[25]

Lastly,
    we would note that although it is not entirely clear whether the appellant
    objects on appeal to the admissibility of the evidence regardless of its form,
    we agree with the trial judges analysis as to the relevance of the evidence.
    It was properly admitted.

The Third Party Records Application

[26]

The
    appellant brought an application under s. 278.3 of the
Criminal Code
prior to trial for an order requiring production of records in the control of:

·

the District School Board of Niagara;

·

the Childrens Aid Society; and

·

Pathstone Mental Health.

[27]

The
    application described the records as pertaining to prior allegations of sexual
    abuse made by [the complainant] against the appellant and her biological father
    [K.K.]. The applicant sought an order releasing to the defence the documents in
    the possession of the above-named parties concerning enumerated instances of
    the complainants recanted allegations of sexual abuse at the hands of the
    accused and another adult significant other.

[28]

At
    the outset of his submissions in this court, counsel, relying on
R. v. T.C.
,
    [2004] O.J. No. 4077 and
R. v. Shearing
, [2002] 3 S.C.R. 33, argued
    that because the appellant had received copies of the Childrens Aid Society
    documents as part of the child protection proceedings, s. 278.3 of the
Criminal
    Code
, which governs the production of documents in the possession of third
    parties, had no application. Counsel submits that the appellant had the
    documents without any need for a production order. The appellant had undertaken
    to destroy the documents after the child protection proceedings were complete
    and to refrain from using the documents for any other purpose.

[29]

We
    accept, however, the respondents submission that the question of whether the
    appellant could have used any of the documents in his possession in the course
    of the trial did not arise in this trial. The appellant did not seek a ruling
    on whether he could use documents in his possession. Instead, the appellant chose
    to bring a third party records application, targeting, not only the Childrens
    Aid Society but other entities in possession of documents that he said were
    relevant to the trial. The motion having been brought, it was incumbent on the
    trial judge to rule on the motion in accordance with the provisions in the
Criminal
    Code
governing the production of documents from third parties. The fact
    that the appellant was in possession of copies of some of the documents does
    not render s. 278.3 any less applicable on a motion to compel production of
    documents held by third parties.

(i)

The Production for Inspection Order

[30]

Section
    278.3 applications proceed in two stages. At the first stage, the trial judge
    decides whether the third party record holder should produce any, some, or all
    of the requested documents to the trial judge for inspection by the trial
    judge:
Criminal Code
, s. 278.5. At the second stage of the application
    process, the trial judge decides whether any of the documents ordered produced
    should be provided to the defence:
Criminal Code
, s. 278.7.

[31]

The
    trial judge can order production of the record for her inspection only if
    satisfied that the record is likely relevant to an issue at trial and that
    the production is necessary in the interests of justice: s. 278.5(1). The
    interests of justice inquiry mandated by the section looks to the factors
    enumerated in s. 278.5(2). Those factors demand a consideration and balancing
    of important, but often competing interests. Clearly, when deciding whether to
    order production of the records, the trial judge is engaged in an exercise of
    discretion. This court will defer to that exercise of discretion unless the
    appellant demonstrates error in law, error in principle, or material
    misapprehension of the evidence.

[32]

After
    reviewing the evidence proffered on the application by the appellant, the
    submissions of third parties and the complainant, and the relevant legal
    principles, the trial judge ordered the Childrens Aid Society to produce for
    his examination records for the period beginning January 28, 2012 that
    pertained to T.W.s allegations of sexual misconduct by the appellant or to recantations
    of those allegations by T.W. The trial judge declined to order production of
    any of the other documents sought by the appellant.

[33]

We
    see no error in the exercise of his discretion. First, we accept his finding
    that insofar as the records held by Pathstone and the School Board were
    concerned, there was no evidence that those records contained anything which
    could assist the defence in respect of any issue at trial. It is not enough to
    establish likely relevance that the records may contain information about T.W.
    and her relationship with the appellant.

[34]

We
    also defer to the trial judges findings that the appellant had not met his
    onus to show that any records pertaining to T.W.s biological father and
    allegations she made against him were likely relevant to any issue at the
    appellants trial. As correctly observed by the trial judge, the only evidence
    of allegations against the biological father of sexual misconduct came from the
    applicant in his affidavit. Nor was there clear evidence that T.W. had ever
    made allegations that she was sexually assaulted by her biological father or
    that she had recanted any such allegation. It was open to the trial judge to
    conclude that the uncertain nature of the suggestions that T.W. had made
    allegations against her biological father and then recanted those allegations,
    combined with the fact that the supposed allegations concerned someone other
    than the appellant, combined to justify the finding that the documents were not
    likely relevant, or necessary to the making of full answer and defence by the
    appellant.

[35]

Finally,
    the trial judge rejected the basket clause component of the application,
    which sought production of any records tending to show that the complainant had
    a tendency to lie and blame others in order to avoid responsibility for her
    actions. Like the trial judge, we view this basis for a production claim as
    far too amorphous to justify the significant invasion of T.W.s privacy that
    would flow from the granting of the order.

(ii)

The Production to the Defence Order

[36]

At
    the second phase of the application, the trial judge, after reviewing the
    documents he had ordered the Childrens Aid Society to produce at the
    inspection phase, ordered copies of some of those documents, with redactions,
    be provided to the appellant.

[37]

Counsel
    for the appellant has not made any specific submissions challenging the ruling
    of the trial judge at the second stage of the production application. His submissions
    focused on the trial judges ruling at the first stage. We have not been convinced
    that the trial judge made any error in respect of the determination as to what
    part of the documents he had ordered produced should be passed on to accused.

[38]

We
    reject this ground of appeal.

[39]

As
    indicated at the end of oral argument, the appeal from conviction and sentence
    are dismissed.

Doherty J.A.

David Watt J.A.

G. Pardu J.A.


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. K.S., 2019 ONCA 474

DATE: 20190610

DOCKET: C65926

Hoy A.C.J.O., Hourigan and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

K.S.

Appellant

Sam Goldstein, for the appellant

Catherine Weiler, for the respondent

Heard: June 5, 2019

On appeal from the finding of
    guilt made by Justice Robert Charney of the Superior Court of Justice on March
    26, 2018, and the conviction entered on September 27, 2018, with reasons
    reported at 2018 ONSC 1988.

REASONS FOR DECISION

[1]

K.S. appeals his conviction for sexual interference resulting from
    sexual activity with a 14 year old minor. He contends that the trial judge
    arrived at an unreasonable verdict, engaged in impressionistic reasoning and
    failed to give adequate reasons. At the end of the oral hearing we dismissed
    the appeal, with reasons to follow. These are our reasons.

[2]

K.S., who was 30 years of age at the time, admitted to the sexual
    activity alleged by the complainant, but relied on his claimed mistaken belief
    that the complainant was of legal age. The trial judge had a reasonable doubt
    about K.S.s belief, but convicted K.S. because he had not taken reasonable
    steps to confirm her age.

[3]

In support of the general grounds of appeal advanced, K.S. says that the
    trial judge erred by placing undue reliance on selfie photographs of the
    complainant taken at unknown dates around the time of the sexual activity. K.S.
    says this error is compounded in the face of K.S.s unchallenged testimony
    that at the time of the sexual activity, she looked closer to her appearance in
    court as a 17 year old witness, rather than as depicted in the photographs. Drawing
    analogy to case law addressing improper inferences about the way sexual assault
    victims would behave, he also contends that the trial judge drew an
    inappropriate inference about what young women look like. Finally, he claims
    that the trial judge failed to give reasons for his conclusion that [f]rom a
    subjective perspective, the complainant looks young  about 14 years of age
    in these photos.

[4]

Each of K.S.s grounds of appeal lacks merit.

[5]

K.S. conceded that a trial judge is entitled to draw inferences from
    photographs admitted into evidence, but argues that it was unreasonable for the
    trial judge to use the photographs admitted in this case to infer that at the
    time of the offence, the complainant look[ed] young  about 14 years of age. He
    contends that it is unreasonable to draw such an inference from photos taken
    not on the day of the offence, but at unknown dates, depicting the complainant
    with various hairstyles and different clothing.

[6]

We disagree. Although the precise times when the photos were taken are
    unknown, it is agreed that the photographs were taken both before and after the
    event, while the complainant was in grade 9. They therefore frame the event,
    which occurred in the middle of that school year, and together depict the
    complainants general appearance at the time. The trial judge was therefore entitled
    to determine, based on his observation of the photographs, that at the time of
    the offence the complainant appeared to be about 14 years of age.

[7]

Moreover, the trial judges observations about the complainants
    appearance in the grade 9 photographs was enough to entitle him to reject
    K.S.s claim that, at the time of the event, she looked more like the 17 year
    old who was testifying in the case, than the person depicted in the
    photographs. The trial judge saw the photos and the complainant at the time of
    the trial. He was well placed to judge that claim. Therefore, we do not accept
    that K.S.s testimony on this point was un-contradicted.

[8]

It is noteworthy that the trial judge did not rely on the photos to
    support a conclusion as to the precise age of the complainant. He relied upon
    the photographs to conclude that her appearance around the time of the event,
    along with other evidence  including K.S.s admission that he knew the
    complainant to be in high school at the time  would have prompted a reasonable
    30 year old to make reasonable inquiries about her age before proceeding to
    having sex with her. Yet K.S., a 30 year old man giving a ride to a high school
    student he had just met that day, took no steps to inquire about the
    complainants age. In our view, the trial judges finding was closer to being
    inevitable than unreasonable.

[9]

K.S.s argument that that trial judge engaged in impressionistic
    reasoning about what young girls can be expected to look like misses the mark.
    In his factum, K.S. sought to support this argument with authority cautioning
    courts to avoid rank generalizations about what young women will or will not
    do. This body of law has nothing to do with inferences drawn from ordinary
    human experience about the apparent age of other persons. The law has long
    recognized the admissibility of a witnesss inference about apparent age:
R.
    v. Graat
, [1982] 2 S.C.R. 819. It is no more impressionistic or
    improperly speculative for a judge to draw such an inference than it is for a
    witness to do so.

[10]

Nor
    is there an issue with the quality of the trial judges reasons. It is
    unreasonable to expect that the trial judge would identify, in his reasons,
    features or details from the photographs that support his conclusion that the
    complainant looked to be about 14 years of age. As indicated, lay witnesses are
    permitted to express general opinions about apparent age precisely because it
    is difficult to use language to capture and communicate the complex
    observations that go into this kind of commonly-derived conclusion:
Graat
,
    at pp. 837-838.

[11]

We
    do not accept K.S.s analogy to direct evidence of identification. Estimates of
    age differ from direct evidence of identification in what can be expected in
    explaining why the relevant opinion is held. Where direct evidence of
    identification is offered, courts expect a basis to be provided for the opinion
    that the accused is the suspect, since identification is based on perceived
    similarities, many of which are capable of description. In contrast, it is not
    realistic to expect precise details to be available to explain meaningfully why
    someone appears to be 14 rather than 18. Moreover, the photographic record is
    available for our inspection. We have reviewed the photographs, and, in our
    view, the trial judges conclusion is a perfectly reasonable one.

[12]

We
    therefore dismissed K.S.s appeal.

Alexandra
    Hoy A.C.J.O.
C.W. Hourigan J.A.
David M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. King, 2019 ONCA 530

DATE: 20190621

DOCKET: C64497

Sharpe, Brown and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ryan James King

Appellant

Jessica Zita, for the appellant

Mabel Lai, for the respondent

Heard and released orally: June 20, 2019

On appeal from the conviction entered on February 4,
    2013, and the sentence imposed on April 12, 2013, by Justice Harrison S. Arrell
    of the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

The deceased approached the appellant and his associate, Ryan Fitzpatrick,
    as they were breaking into cars to steal items. The deceased was fatally
    stabbed in the head with a screwdriver. Fitzpatrick testified that the
    appellant struck the fatal blow. The appellant testified that Fitzpatrick had
    done so.

[2]

The appellant raises four grounds of appeal from his conviction for
    second degree murder:

1.

The trial judge
    erred by admitting similar fact evidence;

2.

The trial judge
    erred by failing to give a proper limiting instruction on the use of the
    similar fact evidence;

3.

The trial judge
    erred by permitting a lengthy re-examination of Justin Schultz;

4.

The trial judge
    erred by admitting an autopsy photo.

[3]

The appellant also appeals sentence, arguing that the trial judge erred
    by sentencing him to 15 years parole ineligibility.

(1)

Similar fact evidence

[4]

The appellant submits that the trial judge erred by admitting similar
    fact evidence arising from the evidence of Justin Schultz, who testified that
    after the attack on the deceased, the appellant told him: I did it again.
    Schultz then explained that it referred to an earlier incident, when they had
    been engaged in breaking into and stealing from cars, when the appellant had
    violently struck and injured a passer-by.

[5]

In our view, Schultzs evidence was admissible to explain the
    appellants admission that he had done it again.

[6]

As to the similar fact ruling, counsel concedes that the two incidents were
    sufficiently similar to warrant admission, but argues that the prejudicial
    value of this evidence outweighs its probative effect.

[7]

We do not accept that submission. The similar fact evidence was no more
    prejudicial than any other similar fact evidence. It simply added to the weight
    of the Crowns case. Moreover, as we note below, the jury was appropriately
    cautioned on the proper use of similar fact evidence.

(2)

Similar fact instruction

[8]

The trial judge appropriately cautioned the jury on the use it could make
    of the similar fact evidence. The trial judge instructed the jury that it must
    not use the evidence to conclude that the appellant is a person of general bad
    character or disposition, who likely committed the offence charge because of
    that general bad character. The trial judge also cautioned the jury that it
    must not punish the appellant for that conduct by finding him guilty of the
    offence charge simply because he had done some other thing. We note as well
    that no objection was taken to this aspect of the charge by the appellants
    trial counsel.

(3)

Re-examination

[9]

Defence counsel challenged Schultz at length in cross-examination as to
    his criminal antecedents, prior inconsistent statement, lies and failure to
    come forward. Defence counsel suggested that Schultz had acted in this manner
    because he was lying. Schultzs response was that he had acted in that way
    because he was afraid of the appellant. In re-examination, Crown counsel asked
    Schultz why he was afraid of the appellant. Schultz recounted at some length
    prior acts of violence and discreditable conduct by the appellant. Defence
    counsel eventually objected to this line of questioning and asked for a
    mistrial. The trial judge refused to grant a mistrial. He found that the
    defence had opened the door to this line of questioning by the manner of its
    cross-examination of Schultz. The trial judge stated, however, that the
    questioning had gone on long enough and that it should end. He indicated that
    he would give the jury a
Vetrovec
caution as to Schultzs evidence and
    that he would caution the jury on the narrow purpose for which it could use the
    evidence as to prior acts of discreditable conduct by the appellant.

[10]

The
    trial judge gave a limiting instruction along these lines and defence trial
    counsel raised no objection to the charge on that point.

[11]

We
    see no error on the part of the trial judge. We agree that the defence attack
    on Schultz opened the door to the Crowns line of re-examination. When defence
    counsel objected, the trial judge stopped it. The jury was appropriately
    cautioned on the evidence of Schultz and the limited use it could make of his
    explanation for why he was afraid of the appellant.

(4)

The autopsy photograph

[12]

We
    see no error on the part of the trial judge in admitting the autopsy
    photograph. As the trial judge observed in his ruling, the photograph was not
    gory, grotesque or graphic. The photograph, in our view, provided the jury with
    information from which it could understand and assess the evidence of the
    forensic pathologist as to the nature, mechanism, direction and force of the
    fatal blow and the superficial wounds. We note as well that defence counsel
    relied on the very autopsy photograph that is now objected to in his closing
    submissions to the jury.

(5)

Sentence appeal

[13]

We
    see no error on the part of the trial judge in sentencing the appellant to 15
    years parole ineligibility. This was a brutal and senseless killing of an
    innocent passer-by, and the appellant has failed to identify any error in the
    careful reasons given by the trial judge to explain the sentence he imposed.

Disposition

[14]

Accordingly,
    appeal from conviction is dismissed. Leave to appeal sentence is granted, but
    the appeal from sentence is dismissed.

Robert J. Sharpe J.A.

David Brown J.A.

L.B. Roberts J.A.