WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110(1)          Subject to this section, no person
    shall publish the name of a young person, or any other information related to a
    young person, if it would identify the young person as a young person dealt
    with under this Act.

(2) Subsection (1) does not apply

(a) in a case where the information relates to a
    young person who has received an adult sentence;

(b) in a case where the information relates to a
    young person who has received a youth sentence for a violent offence and the
    youth justice court has ordered a lifting of the publication ban under
    subsection 75(2); and

(c) in a case where the publication of the
    information is made in the course of the administration of justice, if it is
    not the purpose of the publication to make the information known in the
    community.

(3) A young person referred to in subsection (1) may,
    after he or she attains the age of eighteen years, publish or cause to be
    published information that would identify him or her as having been dealt with
    under this Act or the
Young Offenders Act
, chapter Y-1 of the Revised
    Statutes of Canada, 1985, provided that he or she is not in custody pursuant to
    either Act at the time of the publication.

111(1)          Subject to this section, no person
    shall publish the name of a child or young person, or any other information
    related to a child or a young person, if it would identify the child or young
    person as having been a victim of, or as having appeared as a witness in
    connection with, an offence committed or alleged to have been committed by a
    young person.

138(1)          Every person who contravenes
    subsection 110(1) (identity of offender not to be published), 111(1) (identity
    of victim or witness not to be published), 118(1) (no access to records unless
    authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no
    subsequent disclosure) of this Act, or subsection 38(1) (identity not to be
    published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure
    by school) or (1.15) (information to be kept separate), 45(2) (destruction of
    records) or 46(1) (prohibition against disclosure) of the
Young Offenders
    Act
, chapter Y-1 of the Revised Statutes of Canada, 1985,

(a) is guilty of an indictable offence and liable
    to imprisonment for a term not exceeding two years; or

(b)  is guilty of an offence punishable on summary
    conviction.

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. C.P., 2019 ONCA 85

DATE: 20190208

DOCKET: C65441

Feldman, MacPherson and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

C.P.

Appellant

C.P., in person

Matthew Gourlay, appearing as duty counsel

Grace Choi, for the respondent

Heard: December 11, 2018

On appeal from the conviction entered on May 2, 2017 and
    the sentence imposed on April 13, 2018 by Justice K. Crosbie of the Ontario
    Court of Justice.

Nordheimer J.A. (dissenting):

[1]

C.P. appeals his conviction on a single count of sexual assault
    following a judge alone trial. For the reasons that follow, I would allow the
    appeal. In my view, based on a fair and balanced review of the evidence as a
    whole, proof of the offence beyond a reasonable doubt was not an available
    verdict. The conviction is therefore unreasonable.

A.

Background

[2]

The charge arises out of what is alleged to have been non-consensual
    sexual intercourse that occurred between the 15-year-old appellant and the 14-year-old
    complainant. The two were part of a group of young persons who had decided to
    go to a beach near the Scarborough Bluffs to celebrate a friends birthday.

[3]

Prior to going to the beach, the group purchased alcohol from an
    L.C.B.O. store. They did so through a process known as a shoulder tap: one of
    them would tap an adult on the shoulder and ask them to purchase the liquor.
    The group managed to buy at least two bottles of vodka  a 26 ounce bottle and
    a mickey.

[4]

The appellant and the complainant were friends. After the liquor was
    purchased, they walked together to get a street car to take them to the area of
    the beach. During the course of their travel to the beach, they were both
    drinking from the bottles of vodka which, it appears, were being passed around
    among the group.

[5]

When the group arrived at the area of the beach, they had to walk down a
    steep hill to actually get to the beach. When they got to the beach, there was
    already a group of slightly older youths who had a fire going. The appellants
    group asked if they could join the older group and the older group agreed.

[6]

The appellant and the complainant went and sat on a mattress that was
    near the fire. They began to kiss. At some point, they were interrupted because
    members of the older group decided that they wanted to throw the mattress onto
    the fire.

[7]

The appellant and complainant got up. The complainant went over to sit
    on some rocks that were close by the fire. The appellant went to chat with a
    friend. Shortly thereafter, the appellant joined the complainant sitting on the
    rocks. They began to kiss again. The kissing proceeded to fondling. At some
    point, according to the appellant, the complainant said to him, Fuck me [C].
    The appellant responded Okay. The sexual intercourse ensued. After having
    sex, the appellant got up and went to speak to some friends. The complainant pulled
    up her pants but remained lying near the rocks.

[8]

At some point after the sexual activity, another friend, E.G., who was
    late arriving at the beach, went over to the complainant. According to E.G.,
    although the complainant was asleep, it was obvious to her that the complainant
    was very intoxicated. The complainant had vomit all over her. E.G. woke the
    complainant up. She said that the complainant could barely talk. All the
    complainant could say was that she was cold. E.G. got her a sweater and
    positioned the complainant so that she would not choke if she vomited again.

[9]

Eventually, one or more of the mothers of some of the young persons
    arrived at the beach and took people home. The complainant was helped up the
    path from the beach by the appellant, among others.

[10]

The
    next morning, the complainant received a message from a friend telling her that
    there were messages on social media commenting on the fact that the complainant
    had had sex with the appellant at the beach. The complainant had no memory of
    the sexual activity. The complainant was upset about this revelation and spoke
    to her mother. Her mother took the complainant to a hospital to be examined.
    Thereafter the complainant reported the matter to the police.

B.

Standard of review

[11]

Section
    686(1)(a)(i) of the
Criminal Code
empowers this court to allow an
    appeal against a conviction when it is of the opinion that the verdict is
    unreasonable or cannot be supported by the evidence. When the verdict is
    delivered by a jury, this power is to be exercised within markedly narrow
    confines. A court of appeal is required to examine the whole of the evidence to
    determine whether the verdict could have been reasonably rendered by a properly
    instructed jury acting judicially. Although the court cannot simply substitute
    its own view of the facts, the task does require it to re-examine and re-weigh
    the evidence within the limits of appellate disadvantage:
R. v. Yebes
,
    [1987] 2 S.C.R. 168 at p. 186;
R. v. Biniaris
,

2000 SCC 15,
    [2000] 1 S.C.R. 381, at para. 36.

[12]

However,
    when a verdict is delivered by a judge, the reasons for the verdict can also be
    scrutinized for flaws in the judges analysis or evaluation of the evidence. As
    Arbour J. noted in
Biniaris
, at para. 97,

The
Yebes
test is expressed in terms of a verdict
    reached by a jury. It is, however, equally applicable to the judgment of a
    judge sitting at trial without a jury. The review for unreasonableness on
    appeal is different, however, and somewhat easier when the judgment under
    attack is that of a single judge, at least when reasons for judgment of some
    substance are provided. In those cases, the reviewing appellate court may be
    able to identify a flaw in the evaluation of the evidence, or in the analysis,
    that will serve to explain the unreasonable conclusion reached, and justify the
    reversal.

[13]

As
    a result, when reviewing the verdict of a judge sitting alone, the test under
    s. 686(1)(a)(i) is, to some extent, broader. A court of appeal is still not
    free to substitute its own findings of fact or reverse a conviction on the
    ground that the trial judges reasons could have been expressed with more
    clarity or detail. However, a verdict that rests on findings of fact that are
    demonstrably incompatible with uncontradicted evidence, that is not rejected by
    the trial judge, can be overturned. The Supreme Court encapsulated this branch
    of the test in
R. v. P. (R.)
, 2012 SCC 22, [2012] 1 S.C.R. 746 where
    Deschamps J. said, at para. 9:

The appellate court may also find a verdict unreasonable if the
    trial judge has drawn an inference or made a finding of fact essential to the
    verdict that (1) is plainly contradicted by the evidence relied on by the trial
    judge in support of that inference or finding, or (2) is shown to be
    incompatible with evidence that has not otherwise been contradicted or rejected
    by the trial judge.

[14]

Even
    before these decisions, however, appellate courts had found verdicts
    unreasonable on the strength of accumulated judicial experience brought to bear
    on their review of the evidence, including findings as to the credibility of
    witnesses. The Supreme Court has supported such appellate intervention:
Biniaris
,
    at paras. 41-42;
R. v. Burke
, [1996] 1 S.C.R. 474.

C.

Analysis

[15]

The
    trial judge was satisfied, beyond a reasonable doubt, both that the complainant
    was not capable of consenting to the sexual activity and that the appellant
    could not rely on an honest but mistaken belief that the complainant had
    consented. I find that the trial judge verdict is unreasonable because her
    first conclusion is demonstrably incompatible with the whole of the evidence,
    especially the uncontradicted evidence. As a result, I will not address her
    second conclusion.

[16]

Central
    to a finding of guilt in this case was the issue of the complainants capacity
    to consent to the sexual activity. The trial judge was aware that the timing of
    the sexual activity was of central importance to the issue of the complainants
    capacity to consent. The trial judge observed, at para. 90, that there was a
    lack of clarity with respect to the timing of the sexual activity. She also
    noted that there was a lot of guesswork by the Crown witnesses on the issue of
    timing. She further noted that neither G.G. nor E.G. saw the sexual activity
    and thus could not assist in pinpointing the time when it happened. The trial
    judge then made the following point (para. 90):

Had the sexual activity occurred closer in time to when the
    group first arrived  when R.D. was drinking but not yet feeling significant
    effects of her alcohol consumption  the Crown may well have had more
    difficulty establishing that R.D. lacked the capacity to consent.

[17]

The
    trial judge ultimately found that the sexual activity in question had occurred
    later in time. It is this essential finding that, in my view, makes the verdict
    unreasonable because it is irreconcilable with the totality of the evidence,
    especially when it is measured against the burden of proof.

[18]

This
    was undoubtedly a difficult case because of the nature and quality of the
    evidence. First, although there was evidence that there were between 15 and 20
    people on the beach at the time of the events, only two of those persons
    (beside the complainant and the appellant) gave evidence: G.G. and E.G. Second,
    all four of these witnesses had been drinking, albeit to different degrees, and
    all four were teenagers. Indeed, the complainant had imbibed to the extent that
    she claimed to have almost no memory of the central events. Third, the
    complainants evidence at trial consisted entirely of her police statement
    that, while videotaped, was not under oath. It was admitted as evidence under
    the principled exception to the hearsay rule.
[1]
Notwithstanding that ruling, and somewhat unusually, the complainant was not
    produced for cross-examination at trial. Fourth, there was no real agreement
    among the witnesses as to the timing of the various events.

[19]

A
    few facts are clear, however. One is, as I have said, that both the complainant
    and the appellant had been drinking prior to engaging in the sexual activity.
    Another is that the complainant does not remember the sexual activity. The
    complainant simply has no memory of the event. This salient fact distinguishes
    this case from those like
R. v. Ewanchuk
, [1999] 1 S.C.R. 330, where
    there is direct evidence of non-consent. Yet another is that one or more of the
    persons, who were present, witnessed the sexual activity but did not give
    evidence. This is evident from the fact that messages were posted on social
    media reporting that the appellant and the complainant had had sex on the
    beach.

[20]

The
    trial judge began her analysis by properly stating the burden of proof that lay
    on the Crown. It was the Crowns burden to prove each of the essential elements
    of the offence beyond a reasonable doubt, including the complainants lack of
    capacity to consent. The trial judge also set out the required approach when an
    accused person gives evidence, which was established under
R. v. W. (D.)
, [1991] 1 S.C.R. 742.

[21]

The
    trial judge continued her analysis and reached two central conclusions. One
    conclusion was that she rejected the evidence of the appellant (with one
    notable exception). The appellant had said that the sexual activity was
    consensual.

[22]

The
    other conclusion was that the Crown had proven that the complainant was
    incapable of consenting to the sexual activity, because she found that the
    sexual activity had occurred later in the night when the complainant was
    severely intoxicated. She reached this conclusion based on the evidence of a
    single witness, E.G., supported by one answer from the evidence of the
    appellant.

[23]

E.G.
    had said that she went to the complainant instantly after she arrived in the
    beach area, and found the complainant asleep and covered in vomit. The
    appellant testified on direct examination that, after the sexual activity, he
    stood up.  He heard that E.G. and another person had arrived in the beach area.
    He then went over to E.G., and after a fifteen-minute chat, they came back to
    find the complainant in a changed position and vomiting. In cross-examination,
    the appellant agreed to an ambiguous suggestion made by Crown counsel that, on
    arriving at the beach, E.G. had gone directly to the complainant. It is this
    single answer from the appellants cross-examination that the trial judge
    relied on to pinpoint the time of the sexual activity. She rejected the appellants
    claim that he had chatted with E.G. for fifteen minutes.

[24]

On
    the first finding, the trial judge was undoubtedly entitled to reject the
    appellants evidence. However, having done so, it was then incumbent on her to
    explain why, having rejected all of the other evidence provided by the
    appellant, (e.g. that the complainant had asked him to have sex with her), she
    was prepared to accept this single piece of the appellants evidence as
    confirmation of the evidence of E.G. on the issue of timing.

[25]

Crucially,
    this piece of evidence supplied a missing link for the trial judges chain of
    reasoning. As mentioned, the appellant was the only witness with any memory of
    the sexual activity in question. Therefore, he was the only one who could
    connect E.Gs arrival with the time of the sexual activity, which was necessary
    to establish the complainants level of intoxication. The trial judge could not
    have found, on her analysis, that the complainant did not have the capacity to
    consent without singling out, and relying on, this part of the appellants evidence.

[26]

I
    appreciate that any trier of fact is entitled to accept some, none, or all of a
    witness evidence. However, the trial judges reliance on this single piece of
    the appellants evidence represents a dramatic exception to the trial judges
    sweeping rejection of all of the rest of the appellants evidence insofar as it
    related to anything that was controversial. The trial judge does not provide
    any reason why she is prepared to isolate this one piece of the appellants
    evidence and then rely on it, especially in light of the appellants evidence
    in chief which differed on the very same point. The failure to provide that
    explanation does not allow for effective appellate review. It thus constitutes
    an error in law. As the majority said in
R. v. Gagnon
, 2006 SCC 17,
    [2006] 1 S.C.R. 621, at para. 19:

This Court has consistently admonished trial judges to explain
    their reasons on credibility and reasonable doubt in a way that permits
    adequate review by an appellate court.

[27]

This
    error is one of some significance, given both the importance of the timing
    issue and the fact that the appellant himself was not consistent on this
    specific subject between his evidence in chief and his cross-examination. On
    that latter point, one must remember that the appellant had also been drinking
    and was, according to his own evidence, fairly drunk. Accepting the appellants
    evidence on this solitary point is also inconsistent with the trial judges
    general view that the appellant was evasive and rattled during his evidence.

[28]

On
    the second finding regarding capacity, the trial judge ultimately found, based
    on the evidence of the appellant and E.G., that the sexual activity had
    occurred immediately prior to E.G.s arrival. Based on this finding, she
    concluded that it had occurred late in the night. However, these inferences are
    incompatible with the uncontradicted evidence, in three ways.

[29]

First,
    there were some significant problems with E.G.s evidence. For example, E.G.
    said in her evidence in chief, which was introduced by way of a video
    statement, that she arrived at the beach some two hours after the group but she
    also said that she arrived around 10:00 p.m. The two cannot be reconciled on
    the evidence. E.G. essentially acknowledged as much by saying, in
    cross-examination, that she might be wrong about the time when she arrived at
    the beach.

[30]

I
    repeat that timing is the critical element in this case.  On that point, it
    seems clear that the group (including the appellant and the complainant)
    arrived between 10:00 p.m. and 10:30 p.m. This was, for example, G.G.s
    recollection and appears consistent with the timing of the purchase of the
    alcohol and the street car ride to the beach. If E.G. is right that she arrived
    about two hours after the group did, that would mean that E.G. arrived at
    between midnight and 12:30 a.m. Further, G.G. said that she never saw E.G.
    before G.G. left the beach at 12:30 a.m. The trial judge accepted that that is
    when G.G. left the beach. G.G. said that she is certain that she would have
    seen E.G. if she had arrived before G.G. left. This evidence would then put
    E.G.s arrival after 12:30 a.m.

[31]

Second
    is the evidence that the trial judge fails to mention that relates to the issue
    of the timing of the sexual activity. For instance, G.G. said that all of the
    drinking had concluded within an hour of the groups arrival at the beach,
    which would be at 11:00 p.m. to 11:30 p.m., or at least an hour before E.G.
    arrived. G.G. also said that, at the time she was leaving, and very shortly
    before, she saw the complainant vomiting. It follows that E.G. must have
    arrived sometime after that point in order to witness the complainant asleep
    with vomit on her. It also follows that the sexual activity must have already
    occurred.
[2]
It further follows, given all of that, that there was a larger gap in time
    between the sexual activity and E.G.s arrival than the trial judge allowed
    for. It is then difficult to see how E.G.s observations could assist regarding
    the complainants level of intoxication at the time that the sexual activity
    took place.

[32]

The
    trial judge also fails to mention other portions of the evidence that impact on
    the timing issue and the involvement of E.G. For example, E.G. said that, when
    she arrived, she drank some of the vodka that was left. That fact is
    inconsistent with a finding that E.G. went instantly to the complainant. On
    this point, it should be noted that E.G. said that when she went to the
    complainant, she stayed with the complainant until they all left the beach.

[33]

The
    trial judges reliance on the evidence of E.G. to pinpoint the time of the
    sexual activity also fails to take into account the evidence that E.G. gave as
    to how she came to find out that the complainant and the appellant had had sex.
    On that point, E.G. said:

Im not really too sure who was saying it but a few people
    were like, oh like, [the complainant] and [the appellant] like, had sex earlier
    today, tonight and I was like when? And they were like on like, before you and
    [E.G.s friend] showed up

[34]

The
    trial judge does not mention this evidence, which strongly suggests that the
    sexual activity occurred some period of time before E.G. arrived at the beach.
    Not immediately before, as the trial judge concludes.

[35]

Third,
    the trial judges finding of incapacity is also inconsistent with the evidence
    that, after the sexual activity, the complainant alone pulled up her pants. I
    appreciate that this evidence comes from the appellant (who the trial judge did
    not believe) but, importantly, it is confirmed by the complainant, who said
    that she remembered pulling her pants up. It is also a salient fact that, when
    E.G. found the complainant, she was dressed normally. No one suggested that the
    appellant or anyone else had pulled the complainants pants up. The trial judge
    does not address this evidence either as it relates to the issue of capacity.

[36]

All
    of this raises a serious concern about the conclusion that the complainant was
    incapacitated at the time of the sexual activity. However, even if one puts
    aside all of these problems, there is still the central issue: Having rejected
    the evidence of the appellant, what was the trial judge left with on which to
    reach a conclusion that the Crown had proved the offence beyond a reasonable
    doubt?

[37]

I
    have already dealt with the problems that I see with the trial judges
    conclusion on the timing of the sexual activity. In addition to that problem,
    however, there is the evidence of the complainant to consider. I earlier noted
    that the complainant did not say that she did not consent to the sexual
    activity. Rather, she said that she had almost no memory of the event. Indeed,
    what the complainant did say about the event in her police statement was that
    she remembered kissing the appellant, although her recollection of that was
    vague. She was also asked if she had wanted to have sex with the appellant and
    she said:

Uhm, I when it happened I dont remember it so, I dont, I
    dont think so.

[38]

What
    we do know is that the complainant and the appellant engaged in kissing, not
    once but twice. This evidence does not come solely from the appellant. G.G.
    confirmed that she saw the complainant and the appellant kissing a couple of
    times and that the kissing was what G.G. described as heavy kissing. It
    therefore appears that the complainant had the mental awareness to engage in
    that contact. The statement I dont think so, in response to the question
    whether she wanted to have sex with the appellant, clearly leaves open the
    possibility that she did want to  a reality that the trial judge acknowledged.
    The complainant also remembers pulling her pants up which further suggests a
    level of awareness at the time that the sexual activity occurred.

[39]

In
    addition to evidence about the complainants consumption of some amount of
    alcohol before the sexual activity, that is essentially the totality of the
    evidence on the core issue of her capacity to consent, once the appellants
    evidence is removed. I cannot see how, on that evidence, a judge, properly
    instructed and acting judicially, could reach the conclusion that the Crown had
    proven, beyond a reasonable doubt, that the complainant did not have the
    capacity to consent to the sexual activity. As the trial judge noted, cases
    where extreme intoxication have led to findings of incapacity tend to include
    evidence of a loss of awareness or loss of consciousness (para. 68). On any
    reasonable view of the evidence here, it does not rise to that level. Indeed,
    what the complainants evidence suggests is a lack of
memory
of the sexual activity, not a lack of
capacity
to
    understand and agree to the sexual activity. Memory and capacity are two
    different things. On this point, when referring to a sexual assault
    complainants less equivocal evidence that she would not have consented, Major
    J. said in
R. v. Esau
, [1997] 2 S.C.R. 777, at para. 23:

This, in view of the complainant's failure to remember, is no
    evidence of her denying consent.

[40]

Given
    the errors in the trial judges treatment of the appellants evidence and the
    deficiencies and inconsistencies in the evidence, the trial judges conclusion
    that the appellant forced sexual intercourse on [the complainant] knowing she
    was incapable of consenting due to extreme intoxication simply cannot be
    reconciled with the evidence as a whole. The evidence viewed fairly, and in its
    totality, does not allow for a conclusion to be reached, to the standard of
    proof of beyond a reasonable doubt, that the complainant did not have the
    capacity to consent to the sexual activity. The conviction must be set aside.

D.

Conclusion

[41]

I
    would allow the appeal, set aside the conviction, and enter an acquittal.

I.V.B.
    Nordheimer J.A.

MacPherson J.A.:

[42]

I
    have had the opportunity to read my colleagues reasons in this appeal. His
    conclusion is:

I would allow the appeal. In my view, based on a fair and
    balanced review of the evidence as a whole, proof of the offence beyond a
    reasonable doubt was not an available verdict. The conviction is therefore
    unreasonable.

[43]

With
    respect, I do not agree with this conclusion. It is clear from the case law
    that it is, and should be, exceedingly rare that an appellate court sets
    aside a trial verdict as unreasonable:
R. v. Sinclair
, 2011 SCC 40,
    at para. 22 (Fish J., dissenting, but not on this point). In my view, the trial
    judges decision in this case is far removed from deserving this label.

[44]

I
    begin by observing that I agree with my colleagues description of the
    governing principles that structure the analysis in unreasonable verdict
    appeals. In particular, I accept the framework he lays out from the leading
    appellate unreasonable verdict cases, including
R. v. Yebes
, [1987] 2
    S.C.R. 168;
R. v. Biniaris
, 2000 SCC 15; and
R. v. R.P.
, 2012
    SCC 22.

[45]

My
    problem is with my colleagues application of those cases to the trial judges
    decision in this case. In my view, there are three problems with his analysis.
    I will deal with them in turn.

(1)

The appellants evidence

[46]

First,
    my colleague is critical  indeed, strongly critical as the language in the
    passage below makes clear  of the trial judges acceptance of a single piece
    of the appellants testimony relating to the timing of the sexual activity
    involving the appellant and the complainant. My colleague says:

I appreciate that any trier of fact is entitled to accept some,
    none, or all of a witness evidence. However, the trial judges reliance on
    this single piece of the appellants evidence represents a dramatic exception
    to the trial judges sweeping rejection of all of the rest of the appellants
    evidence. The trial judge does not provide any reason why she is prepared to
    isolate this one piece of the appellants evidence and then rely on it,
    especially in light of the appellants evidence in chief which differed on the
    very same point. The failure to provide that explanation is an error because it
    does not allow for appellate review.

[47]

In
    my view, this passage misstates and significantly exaggerates the trial judges
    treatment of the appellants testimony. I say this for several reasons.

[48]

First,
    the trial judge accepted a number of aspects of the appellants evidence,
    particularly on peripheral, narrative points such as the fact that he had been
    drinking along with the complainant from the time they left the LCBO. The trial
    judge also accepted that he genuinely did not recall certain details about the event.

[49]

Second,
    the trial judge clearly explained her assessment of the appellants credibility
    and why she did not accept some of his evidence. In her reasons, the trial
    judge stated:

There are aspects of C.P.s evidence that
    did not suffer from the flaws I have just described.
I note that if the
    accused was as drunk as witnesses suggest, it would be understandable for him
    to have gaps in his memory. He was also remembering an event from a year ago.
    C.P. is also only 16 years old and I suspect, was nervous when testifying,
    especially under skilled cross-examination of counsel. I am, by no means,
    criticizing his evidence in its entirety. What I have set out above are the
many reasons upon which I rejected his evidence on certain, key
    points.
[Emphasis added.]

[50]

These
    key points relate to the appellants evidence that the complainant seemed
    fine during the sexual activity. The trial judge did not accept the
    appellants evidence on this point based on her assessment of his credibility;
    she determined the appellant was evasive and was not being forthright with the
    court. However, it was open to the trial judge to accept some, none, or all of
    the appellants evidence:
R. v. Zimunya
, 2013 ONCA 265, at para. 4.

[51]

The
    trial judge accepted, among other things, the appellants evidence that after
    he ejaculated he stood up at the same time he heard that Jeremy and E.G.  had
    arrived. In the context of the appellants evidence, this was a narrative
    detail, similar in character to other evidence of the appellant accepted by the
    trial judge.

[52]

Third,
    the inconsistency in the appellants evidence in chief and in cross-examination
    on this point has been mischaracterized. As the trial judge noted, the
    appellant testified both in chief and in cross-examination that when he stood
    up after ejaculating he heard E.G. and Jeremy coming down the hill. The
    appellants evidence was consistent on this point.

[53]

The
    inconsistency in the appellants testimony related not to the timing of E.G.s
    arrival in relation to the sexual activity, but to whether the appellant spoke
    to E.G. when she arrived for 10-15 minutes, or whether E.G. went straight to
    see the complainant. On this point, the trial judge accepted E.G.s evidence.
    She explicitly rejected the appellants evidence in chief, based on the fact
    that it was internally contradictory (he both stated that he spoke with them
    for 10 to 15 minutes and later elaborated that E.G. went right over to the
    complainant when she arrived), that he testified his friend told him to sit
    because he was too drunk to be walking about, and that E.G. had very little to
    drink. The trial judge found that E.G. related events clearly and seemingly
    without exaggeration and displayed no animus toward the appellant. It was open
    to the trial judge to accept E.G.s evidence. This was consistent with the
    appellants evidence on cross-examination.

[54]

Finally,
    on the issue of this 10-15 minute interval, it was open to the trial judge to
    conclude that the appellant told the truth in cross-examination and not in
    chief, especially considering the corroborating testimony from E.G. on that
    point. Nevertheless, whether or not the appellant spoke to E.G. and Jeremy for
    10-15 minutes when they arrived is insignificant in the context of a 3-4 hour
    time period. This finding was not essential to the trial judges conclusion on
    the timing of the sexual activity as being late in the night.

(2)

Evidentiary incompatibility

[55]

My
    colleague states that the inferences made by the trial judge that led to her
    conclusion that the sexual activity occurred immediately prior to E.G.s
    arrival were incompatible with the rest of the uncontradicted evidence for the
    following reasons:

1.

There were significant problems with E.G.s evidence in relation to the
    timing of her arrival in particular;

2.

The trial judge fails to mention all of the evidence relating to the
    issue of timing, including the evidence of G.G. that she saw the complainant
    vomiting when she was leaving, but did not see E.G. until later when she
    returned to the beach;

3.

The trial judge did not address the fact that the complainant pulled up
    her own pants, despite the conclusion that she was incapacitated at the time of
    the sexual activity.

[56]

On
    the first issue, the trial judge acknowledged that E.G. allowed for the
    possibility that she was mistaken about the time she arrived and this did not
    affect her assessment that E.G. was a credible and reliable witness. She stated
    that E.G. was not challenged on what she found to be the crux of her evidence.
    My colleague also mentioned that E.G.s testimony with respect to drinking some
    vodka when she arrived was inconsistent with the finding that E.G. went
    instantly to the complainant. These facts are not necessarily incompatible nor
    are they particularly relevant to the issue of timing. I agree that timing is a
    critical element in this case. However, the exact time of E.G.s arrival and
    observation of the complainant is not critical. Rather, it is the relative time
    of her arrival in relation to the sexual activity as testified to by the
    appellant that is important.

[57]

On
    the second issue regarding G.G.s evidence, the trial judge considered E.G.,
    G.G. and the complainants evidence together as circumstantial evidence to draw
    inferences about her level of intoxication. The trial judge also acknowledged
    G.G.s evidence that she did not see E.G. before she left and that she saw the
    complainant start throwing up as she left around 12:30 a.m. The trial judge had
    the benefit of all of the evidence before her and did not find this testimony
    to be in conflict. She reviewed the evidence and ultimately concluded that the
    complainant was found unconscious and generally unresponsive within a very
    short period of time from when the appellant, on his own evidence, had
    ejaculated inside her. I see no problem with this analysis.

[58]

On
    the third issue regarding the complainants pants, my colleagues analysis is
    speculative and does not bear at all on the analysis. There was no reason for
    the trial judge to address the fact that the complainant had her pants on (and
    potentially pulled up her own pants) as going to the issue of incapacity. The
    question to be determined, as indicated by the trial judge, was whether the
    complainant lacked the minimal capacity to consent, or withhold her consent, to
    the sexual activity. Whether she was able to pull up her pants would not negate
    a finding of incapacity.

(3)

The complainants evidence

[59]

In
    my view, my colleagues treatment of the complainants evidence is, in places,
    tilted against her.

[60]

The
    strongest example is this passage early in the Background (i.e. Facts) part of
    my colleagues reasons:

The kissing proceeded to fondling. At some point, according to
    the appellant, the complainant said to him, Fuck me [C.]. The appellant
    responded Okay. The sexual intercourse ensued.

[61]

In
    my view, including this as a background fact is not appropriate, especially in
    light of the trial judges comprehensive rejection of it in her reasons:

I further find that R.D. did not ask C.P. to have sexual
    intercourse with her  and even if she had, she was too intoxicated to have
    given voluntary consent to sexual activity. I have discussed above why there
    are many aspects of C.P.s evidence that I have rejected. For those reasons, I
    find it extremely difficult to believe that R.D. asked C.P. to fuck me. More
    to the point, I have serious misgivings about whether R.D. said this because it
    would have been out of the blue. Even C.P. said he was taken by surprise by her
    asking him to fuck me because they were not close. R.D. and C.P. had
    socialized with their friends at Tim Hortons regularly for two months. The
    evidence before me was that they all sat in a group and sometimes C.P. and R.D.
    would be beside each other, seemingly not by design. C.P. also may have been to
    her house on one occasion. While it is true that they were talking and kissing,
    the nature of their relationship calls into question  on the facts before me
    that it was a simple and natural progression for R.D. to ask C.P. to fuck me
    on this beach with people standing around nearby. I find she did not ask C.P.
    to fuck me.

[62]

A
    second example of reasoning that is, in my view, tilted against the complainant
    is where my colleague states one or more of the persons, who were present,
    witnessed the sexual activity but did not give evidence.

[63]

My
    colleague appears to draw a possible negative inference from the absence of
    other witnesses at the trial who saw the sexual activity. I would simply say
    that
no
inference should be drawn from this fact.
    This was not an issue raised at trial and the trial judge said nothing about
    it.

[64]

My
    colleague also described the following as clear facts:

One is  that both the complainant and the appellant had been
    drinking prior to engaging in the sexual activity. Another is that the
    complainant does not remember the sexual activity.

[65]

To
    the extent that a negative inference is drawn from the fact that the
    complainant said that she did not remember the sexual activity, I would say a
    fairer inference would be that it supports the truthfulness of her testimony.
    Rather than lying and saying the appellant raped me; I did not consent, the
    complainant is being honest  I do not remember, so I cannot say whether I
    consented. Further, the trial judge was alive to this issue. She said:

I have approached R.D.s evidence with serious caution.
I acknowledge that an inability to remember something that
    happened does not necessarily mean that the person was acting without capacity
     or intent  at the time it happened
. Furthermore, R.D.s evidence
    because of the faults in her memory and the weight that can sensibly be given
    to her evidence given she was not cross-examined  would not go a considerable
    way on its own toward meeting the high burden the Crown bears. I am also
    mindful that, although she was cautioned that she could be charged if she lied
    to the police, her statement was not under oath. However, when considering the
    whole of the evidence, R.D.s evidence tends to support the conclusion that she
    was very, very drunk near the time the sexual assault occurred. [Citations
    omitted; emphasis added.]

Conclusion

[66]

The
    trial in this case, like most criminal trials, turned on credibility. The
    appellant and the complainant (by videotaped police statement) both testified.
    Accordingly, the trial judge heard what they said and saw how they said it.
    This court sees only the trial transcript (the what was said); we do not see
    the witnesses as they testify. This is an important difference, especially in a
    case where the allegation is that the trial judges verdict is unreasonable.

[67]

In
R. v. A.G.
, [2000] 1 S.C.R. 439, Arbour J. said this in relation to
    unreasonable verdict, at para. 29:

[W[here a judge gives detailed reasons for judgment and when,
    as in this case, the reasons reveal that he or she was alive to the recurrent
    problems in this field of adjudication, the court of appeal brings no special
    insight to the assessment of the evidence. As this Courts s. 686(1)(a)(i)
    jurisprudence makes very clear, the fact that an appeal court judge would have
    had a doubt when the trial judge did not is insufficient to justify the
    conclusion that the trial judgment was unreasonable.

[68]

In
    my view, the trial judges careful and comprehensive reasons led to an entirely
    reasonable verdict. I would dismiss the appeal.

Released:

KF                                                   J.C.
    MacPherson J.A.

FEB -8 2019                                     I agree
    K. Feldman J.A.

[1]

Defence counsel conceded that both necessity and threshold
    reliability were met.

[2]
It was not the Crowns position that the sexual activity had occurred after the
    complainant had gotten vomit on her. There was no evidence that would have
    supported that scenario. As in
Burke
, judicial experience can be
    relied upon at the appellate stage to require some foundation before such an
    unlikely sexual assault scenario would be accepted.


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. Chafe, 2019 ONCA 113

DATE: 20190215

DOCKET: C63827

Sharpe, Benotto and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Paul Chafe

Appellant

Scott Hutchison, for the appellant

Sarah Shaikh, for the respondent

Heard: February 7, 2019

On appeal from the conviction entered on January 20, 2017
    and the sentence imposed on May 16, 2017 by Justice Gerald E. Taylor of the Superior
    Court of Justice, sitting with a jury.

Benotto J.A.:

[1]

The appellant was convicted of sexual assault against a friend of his
    and of his long-time girlfriend. He appeals his conviction on the basis that
    the trial judge erred in law when instructing the jury on recognition evidence
    and failed to provide the jury with guidance about assessing his reaction when
    his girlfriend confronted him about the allegations.

[2]

For the following reasons, I would allow the appeal.

FACTS

[3]

The appellant and A.M. met in high school. They began dating in 2004
    while at Dalhousie University. There, they met the complainant. The three
    became friends. Eventually they all moved to Toronto and remained friends. The
    complainant and A.M. were particularly close, and the complainant was fond of
    the appellant.

[4]

On July 12, 2012 the appellant, A.M. and the complainant, together with
    other friends from university, went to a wedding in Kitchener. The three
    friends drove from Toronto to Kitchener with another couple and booked into the
    Conestoga College residence. The appellant, A.M. and the complainant shared a
    suite which had two bedrooms. The appellant and A.M. stayed in one bedroom, the
    complainant in the other. There was also small shared communal living space and
    bathroom. The couple they had driven with stayed in another suite in the same
    residence.

[5]

The complainant was drinking alcohol before, during and after the
    wedding reception. She testified that on a scale of drunkenness she was a 7 out
    of 10. A.M. thought it was higher and put her friend at an 8 on the scale. The
    complainant agreed that people seeing her at the reception could tell she had
    been drinking quite a bit. The appellant testified that she was drinking wine
    straight from the bottle and spilled wine on his new tailored suit. All three
    left the reception together around 11 p.m. and began to make their way back to
    the residence. It took a long time to walk back to the residence because the
    complainant was stumbling. At one point she stopped on the side of the road to
    urinate.

[6]

Once at the residence the appellant testified that he changed out of his
    clothes which were wet with the wine and put on boxer shorts and a t-shirt. He
    and A.M. went to bed. He did not have sex with A.M. because red wine made him
    unable to achieve an erection. He felt nauseous. He got up from bed and was
    sick in the washroom. On his way to the washroom, he saw several friends in the
    common room. A.M. testified that she heard 4 or 5 people including the
    distinctive voice of the person they had driven to Kitchener with. Other
    witnesses testified that several wedding-goers had gone back to the residence
    to continue the party. Some were going from room to room.

[7]

The complainant testified that, once back at the residence, she went to
    bed and fell right asleep. At some point during the night, she woke up to find
    a man standing in the door of her bedroom masturbating. She told him to fuck
    off, threw a pillow at him and went back to sleep. In her initial statement to
    the police she said the man was wearing a suit. It was dark and the interaction
    lasted a couple of seconds. She identified the man as the appellant.

[8]

Later that night, she felt someone in bed behind her stroking his penis.
    The person touched her buttocks and ejaculated on her. She did not see the man
    in bed with her but assumed  based on the earlier encounter  that it was the
    appellant. The man then left the room and shortly after returned. She heard the
    clicking sound of a camera. After a while, the complainant got out of bed to go
    to the bathroom. She saw a camera in the bathroom but there were no pictures on
    it. She testified that she saw the appellant sitting in the common area wearing
    a t-shirt and boxer shorts. She asked him what was wrong with him and returned
    to her bedroom. By this time, the sun was starting to come up.

[9]

The next morning, the complainant, A.M. and the appellant met up with
    two other couples for breakfast and drove back to Toronto. Nothing was said
    about the events of the night before and everyone acted normally.

[10]

Back
    in Toronto, the complainant told her mother and another friend what had happened.
    She then told A.M. that something really bad happened between her and the
    appellant. At trial the complainant said she did not tell A.M. the details of
    what happened. A.M. testified that she could not recall the words the
    complainant used but was left with the impression that the appellant had
    sexually assaulted her.

[11]

The
    complainant decided not to go to the police. She changed her mind two years
    later during the extensively publicized sexual assault trial of Jian Ghomeshi
    and eventually went to the police in October 2014. A.M., however, confronted
    the appellant immediately.

[12]

After
    speaking to the complainant, A.M. ran to the apartment she shared with the
    appellant, packed her bags and prepared to leave. She confronted the appellant
    saying that her friend told me what you did. She could not recall his exact
    response, but it was generally that he did not remember. Within five minutes
    she left and she later moved out.

[13]

Over
    the next four months A.M. spoke by phone with the appellant. She testified that
    she asked him if he had grabbed the complainant. A.M. could not recall his
    exact words in response, but she had the impression that he was acknowledging
    the allegation. She became convinced that he had done so. The appellant
    testified that, if he said that he did not remember, he was trying to avoid
    confrontation but, in his mind, it was a denial.

[14]

The
    complainant went to the police in October 2014 and the trial took place in
    2017.

THE JURY CHARGE

[15]

The
    trial judge prepared a draft charge which he provided to counsel in advance.
    There were no objections to the charge.

[16]

The
    trial judge told the jury that the issue in the case was whether the events
    took place and whether the appellant committed them. Since the complainant did
    not see the person in bed with her, the jury was given the standard instruction
    on circumstantial evidence. The jury was also told that the identity of the
    person standing in the doorway masturbating was important. As to identity, the
    trial judge said:

An important part of the Crown's evidence in this
    case is the identification of [the appellant] by [the complainant] as the
    person standing in the door of the bedroom masturbating. You must be very
    cautious about relying on eyewitness testimony if you find [the appellant] guilty
    of sexual assault. In the past, there have been miscarriages of justice.
    Innocent persons have been wrongfully convicted because eyewitnesses have made
    honest mistakes in identifying the person whom they saw committing a crime. Eyewitness
    identification may seem more reliable than it actually is because it is given
    by a credible and convincing witness who honestly, but perhaps mistakenly,
    believes that the accused is the person who they saw on a particular occasion.
    Identification evidence is an expression by a witness of their belief or
    impression. It is quite possible for an honest witness to make a mistaken
    identification. Honest people do make mistakes. An apparently convincing
    witness can be mistaken. Little connection exists between the great confidence
    of a witness and the correctness of her identification and the accuracy of the
    identification. Confidence and accuracy are two different things. Even a very
    confident witness may be honestly mistaken or entirely wrong about her
    identification.

When you decide how
    much or little to believe of or rely upon the identification evidence,
    everything that I told you earlier  which I haven't told you yet, but I will
    about assessing evidence, applies to the identification by [the complainant] of
    [the appellant] as the person standing in the doorway to her bedroom. In
    addition, you should keep in mind several factors that relate specifically to
    the eyewitness identification of [the appellant] as the person standing in the
    doorway to the bedroom. It was dark in the bedroom. [The complainant] had just
    awoken from sleep. [The complainant] had consumed a considerable amount of
    alcohol earlier in the evening. [The complainant] observed the person in the
    doorway for three or four seconds and there was no light behind the person. [The
    complainant] could not describe what the person standing in the doorway was
    wearing, although in a statement to the police in November 2014, she said that
    the person in the doorway was wearing clothes that he had worn to the wedding
    reception.
On the other hand, [the appellant]
    was known to [the complainant]. Identification of a known person is different
    than identification of a stranger. Also [the complainant] was aware that [the
    appellant] was the only male staying in the residence suite that night.

[Emphasis added.]

ISSUES

[17]

The
    appellant raises two issues with respect to the jury charge. The first is based
    on what was said, the second is based on what was not said. The appellant
    submits first that the charge on identity was wrong in law and second that the
    trial judge erred by not giving the jury guidance on how to assess the evidence
    of the appellants reaction when confronted by A.M.

[18]

The
    respondent submits that the trial judge properly charged the jury on the
    frailties of identification evidence and explained the principles of assessing
    evidence. The evidence of the appellants reaction to the allegations by A.M. was
    properly before the jury and no specific instruction was necessary. Further,
    the appellant raised no objections at trial and approved of the final jury
    instructions.

ANALYSIS

[19]

One
    of the strengths of the jury system is that lay persons, those outside of the
    justice system, are called on to assess the evidence. In that capacity they
    bring their collective everyday experiences to determine the credibility and
    reliability of witnesses. Indeed, jurors are routinely told to use and rely on
    their common sense, in other words, the means by which they make decisions and
    come to conclusions in their everyday lives.

[20]

In
    some situations, however, a straightforward common sense analysis can be
    misleading and result in a wrongful conviction. In these situations, lay
    persons need to be instructed about deceptively influential types of evidence
    that those in the justice system are aware of.

[21]

Two
    types of evidence that fall into this category are at issue here: eyewitness
    identification and the accuseds reaction to accusations.

[22]

Eyewitness
    identification is very persuasive for a lay person. The law has learned  and
    jurors are told  about the honest but mistaken belief that may lead to
    wrongful conviction. Recognition evidence is, within that category, even more
    persuasive. A juror may understandably jump to the conclusion that, because the
    person was known to the witness, the identification is reliable.

[23]

Likewise,
    evidence of a persons reaction to an accusation may seem conclusive to a lay
    person. If an accused did not deny an allegation, it may be alluring to
    conclude that the accusation was correct. Here too, the jurors need to be given
    more than the standard instruction with respect to the assessment of evidence.

[24]

These
    categories of evidence require the trial judge to educate the jury about the
    experience that those in the justice system have gained from relying on
    assumptions that may be deceptively influential. As the appellants counsel
    submitted, the trial judge needs to help the jury learn the lessons that the
    law has learned at great cost.

[25]

I
    will address both categories of evidence in the context of the evidence and trial
    judges charge to the jury.

Identification Instruction

[26]

The
    case against the appellant rested entirely on identity. The identity rested
    entirely on the complainants recognition of the appellant as the man in the
    doorway.

[27]

The
    trial judge correctly instructed the jury with respect to identification
    evidence. He cautioned about guarding against honest but mistaken belief. He
    referred to the frailties in the complainants evidence: she had just woken up;
    she had consumed a lot of alcohol; she saw the man for 3-4 seconds; she
    initially told the police the man was wearing the suit he wore to the wedding.

[28]

The
    respondent submits that this instruction properly cautioned the jury about the
    dangers inherent in eyewitness identification. I do not agree because the trial
    judge added the following sentence to the end of his instruction on
    identification:

On the other hand, [the appellant] was known to the
    complainant. Identification of a known person is
different than identification of a stranger
. [Emphasis added.]

[29]

This sentence effectively negated the identification instruction and is
    wrong in law. Recognition evidence is not different from identification
    evidence. It is subject to the same frailties and the same risks. This is
    significant where, as here, a jury may be quick to assume that, because the
    witness knows the person, the identification must be correct. A trier of fact
    could intuitively place undue reliance on the evidence of recognition without a
    clear instruction outlining the frailties. The trier of fact, whether judge or
    jury, must approach the evidence of recognition with the same caution as
    identification evidence and the evidence must have the same level of reliability.

[30]

Even though the witness knows the person identified, the time to
    observe, the circumstances of the observation, and the conflicting evidence
    constitute factors which the trier of fact must grapple with in order to
    determine reliability. The usual dangers of eyewitness identification exist in
    a case of alleged recognition: see
R. v. Miller
(1998), 131 C.C.C. (3d) 141 (Ont. C.A), at para. 27.

[31]

With
    respect to recognition evidence, this court said in
R. v. Olliffe,
2015
    ONCA 242, 322 C.C.C. (3d) 501, at para. 38:

Triers of fact are entitled to take into account whether the
    witness is acquainted with the accused when assessing the reliability of the
    identification evidence. Where a witness is known to the accused, the testimony
    identifying the accused is sometimes referred to as recognition evidence.

[32]

It
    is crucial to remember, though, that recognition evidence is a form of
    identification evidence. The same level of assessment of the evidence must
    apply. Continuing on in
Olliffe
at para 39:

It must be remembered, however,
    that recognition evidence is merely a form of identification evidence. The same
    concerns apply, and the same caution must be taken in considering its
    reliability as in dealing with any other identification evidence.

[33]

By
    describing recognition evidence as different from identification evidence, the
    trial judge gave the wrong instruction. This error was compounded by the
    sentence immediately following this section in the charge when he said:

Also [the
    complainant] was aware that [the appellant] was the only male staying in the
    residence suite that night.

[34]

This was misleading. While the appellant may have been the only male
    staying in the particular suite, there was evidence that other males had come
    to the residence after the wedding to continue the party and were occasionally
    wandering around. The judges comment artificially bolstered the identification
    evidence by incorrectly implying that the man in the doorway had to be the
    appellant because he was the only male staying in the suite.

The appellants reaction to the accusations

[35]

I turn now to the second issue with respect to the jury charge.

[36]

Common
    sense may lead a juror to the conclusion that someone who does not vehemently
    deny an accusation must be guilty of the charge.

[37]

The
    appellant was confronted by A.M. while she was packing to leave their
    apartment. The confrontation lasted less than five minutes. She testified that
    she said that the complainant told me what you did and that the appellant
    said something like, I am afraid I did that and that he did not remember.
    The appellant testified that he said, what are you talking about.

[38]

In
R. v. Levert
(2001), 159 C.C.C. (3d) 71 (Ont. C.A.), this court held
    that evidence of an accuseds reaction to allegations is of limited if any
    probative value. The inferences rest on assumptions about how a normal person
    would react and judicial experience has taught us that this is often wrong. In
Levert
Rosenberg J.A. said, at para. 27:

The probative value of this type of
    evidence is highly suspect. In the two recent cases of Susan Nelles and Guy
    Paul Morin use of the accuseds demeanour was found to have played a part in
    wrongful prosecution. The
Report of The Commission on Proceedings Involving
    Guy Paul Morin
, 1998contains an extensive discussion of the dangers of
    admitting such demeanour evidence. The expert and other evidence introduced at
    the Commission strongly suggests that this evidence can be highly suspect and
    should be admitted at a criminal trial with caution. Perceptions of guilt based
    on demeanour are likely to depend upon highly subjective impressions that may
    be difficult to convey to the jury and in any event the significance of the reaction
    will often be equivocal.

[39]

The respondent submits that the reaction of the appellant was not
    demeanour evidence. However, in my view the same considerations apply. And in
    the cases referred to by this court in the above excerpt, it was the reaction
    of the accused that played a part in the wrongful prosecution.

[40]

The reaction of the accused to an allegation rests on an assumption of
    what is a normal reaction. In
R. v. J.S.W.,
2013
    ONCA 593, 301 C.C.C. (3d) 252, the appellants conviction was overturned because
    the trial judge relied on his reaction to the charge. However, the appellant was
    not told where, when or how he was alleged to have fondled the complainant. Tulloch
    J. A. speaking for this court said, at para 47:

[The appellants]
    failure to make an unequivocal denial without knowing the specifics of the
    allegation should not have been automatically construed as evidence that his
    testimony was incredible.

And at para. 49:

To completely discount the entire
    evidence of an accused because he did not immediately and unequivocally deny a
    vague allegation constitutes an error of law on the part of the trial
    judge:
Levert
, at paras. 27-28.

[41]

The respondent submits that this is not a
J.S.W.
situation because in that case the response of the accused was the sole
    basis for conviction by the trial judge and here there was other evidence on
    which to base the conviction.  I do not agree. The appellants response to the
    accusations by A.M. formed a significant part of the Crowns case.
Crown
    counsels closing submissions demonstrate this. When speaking about the
    confrontation by A.M. the trial Crown said:

It was in this moment that the
    circumstances cried out for a denial. He did not deny it.

[]

Even on his own evidence he also
    did not ever deny it. He always relied on his lack of memory of the incident.
    That does not assure your life partner of your innocence. It makes no sense
    that he did not deny sexually assaulting the complainant if he did not do it.

[42]

In
    fact, the appellant could not deny it because he did not know what it was.
    The appellant was given no details about the allegations because A.M. did not
    know the details of the allegations. And A.M. did not know the details of the
    allegations because the complainant had not told her. She just had the
    impression that the appellant had been sexually inappropriate. The principles
    in
J.S.W.
apply.

[43]

The
    Crowns closing also referred to the
evidence of A.M. that she
    asked the appellant if he grabbed the complainant:

A.M. asked [the appellant] if he grabbed [the
    complainant] and he agreed that he had. He said, I feel like a monster and I
    dont know why youre even still talking to me.

[44]

This is inaccurate. First, the appellant testified that he did not say
    that he had grabbed the complainant, and instead he said, you must think I am
    a monster. Second, and more importantly, the complainant testified that she
    never used the word grab. It was never part of her accusation against the
    appellant. This in turn diminished the probative value of A.M.s evidence that
    she asked the appellant if he grabbed [the complainant].

[45]

I make no comment as to whether this evidence was even admissible in
    the first place. Given that it was admitted, it was incumbent on the trial
    judge to advise the jury of the dangers of relying on it. This would include an
    instruction that they should place no weight on his response to an accusation
    when he was given no details; that there is no normal way for a person to
    respond when faced with an accusation of wrongdoing; that failure to recall is
    not an admission; and that they should not rely on A.M.s impression of what
    his reaction meant in the face of his explanations. In short, the admonition
    from
Levert
should have been used to instruct the jury with
    respect to this evidence.
Without these directions, the jury was
    left with the suggestion that the appellant had confessed to the charge.

[46]

The respondent submits that trial counsel had the opportunity to vet
    the jury charge in advance and
did not request a change to the
    recognition evidence error, nor seek a broader instruction on the reaction of
    the appellant. This fact does not save the errors of law contained in this
    charge. As this court held in
R. v. Pintar
(1996), 30 O.R. (3d) 483
    (C.A.), at p. 519:

That is not to say, however, that
    counsels silence will prove fatal in all such cases. Failure to object does
    not relieve trial judges from their obligation to relate the evidence to the
    issues. In the final analysis, regard must be had to the importance of the
    issue; the significance of the evidence in relation to that issue and the
    prejudicial effect occasioned by the inadequate instruction.

[47]

Both
    the recognition evidence and the evidence of the appellants reactions to the
    accusations were significant parts of the Crowns case with respect to the key
    issue of identity. The trial judges failure to properly instruct the jury on these
    matters was seriously prejudicial to the appellants fair trial rights.
    Accordingly, in spite of defence counsels failure to object, I would give
    effect to both grounds of appeal.

DISPOSITION

[48]

I
    would allow the appeal, set aside the conviction

and order a new trial, if the Crown
    decides it wishes to pursue the matter. Consequently, there is no need to
    address the sentence appeal.

M.L. Benotto J.A.

I agree Robert J.
    Sharpe J.A.

I agree David Brown
    J.A.

Released: February 15, 2019


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dennis, 2019 ONCA 109

DATE: 20190215

DOCKET: C66120

Pepall, Trotter and Harvison Young JJ.A.

BETWEEN

Her
    Majesty the Queen

Respondent

and

Jason Dennis

Appellant

Michael S. Puskas, for the appellant

Ron Sabo, for the respondent

Heard: in writing

On appeal from the
    order of Justice Frederic M. Campling of the Ontario Court of Justice, dated
    September 28, 2017.

REASONS FOR DECISION

[1]

The threshold for awarding costs against a lawyer personally in a
    criminal proceeding is a high one. As stated by Justice Gascon in
Quebec
    (Director of Criminal and Penal Prosecutions) v. Jodoin
, 2017 SCC 26,
    [2017] 1 S.C.R. 478, at para. 25, only serious misconduct can justify such a
    sanction. Justice Gascon addressed the threshold for awarding costs against a
    lawyer personally at para. 29:

In my opinion, therefore, an award of costs against a lawyer
    personally can be justified only on an exceptional basis where a lawyers acts have
    seriously undermined the authority of the courts or seriously interfered with
    the administration of justice. This high threshold is met where a court has
    before it an unfounded, frivolous, dilatory or vexatious proceeding that
    denotes serious abuse of the judicial system by the lawyer, or dishonest or
    malicious misconduct on his or her part, that is deliberate.

At para. 52, he noted that costs are awarded on a discretionary
    basis and appellate courts should only intervene when that discretion is
    exercised in an abusive, unreasonable or non-judicial manner.

[2]

In the case before us, the appellant had appealed from his conviction
    under the
Provincial Offences Act
, R.S.O. 1990, c. P.33 (POA). On
    the date scheduled for the appeal hearing, the appellants counsel requested an
    adjournment of the hearing without prior notice to the Crown prosecutor. The
    Crown prosecutor had interrupted her vacation to attend on the scheduled date
    to argue the appeal, and had been inconvenienced as a result of the appellants
    request for an adjournment.

[3]

Of his own initiative, the appeal judge asked the Crown prosecutor if
    she wished to apply for costs. He observed that pursuant to s. 129 of the POA,
    he was empowered to make any costs order that he considered just and
    reasonable. He accepted that such an award should be made on an exceptional basis,
    but noted that the standard in s. 129 of the POA may be a little broader than
    the criteria set out in
Jodoin
.

[4]

In describing counsels adjournment request, the appeal judge stated
    that To wait for the other side to get to court and then notify the other side
    and the court that youre not ready and you need an adjournment is, in my view,
    reckless disregard for whoever [
sic
] is acting for the other side. He
    ordered the appellants counsel to pay $500 in costs personally.

[5]

We would observe that the principles described in
Jodoin
ought
    to apply equally to an order under s. 129 of the POA.

[6]

Here, the absence of advance notice of the adjournment request was
    worthy of adverse comment by the court. Whether categorized as inconsiderate or
    rude, counsels conduct cannot be considered acceptable. Indeed, in
    acknowledgement of this, counsel apologized to both the court and to the Crown prosecutor.

[7]

However, in our view, the exercise of the appeal judges discretion was unreasonable
    and did not meet the threshold for an award of costs against counsel personally.
    Fundamentally, counsels behaviour did not warrant the exceptional remedy of a
    personal costs order. Presumably in recognition of this, the respondent
    consented to both the appellants request for leave to appeal, and to the
    appeal itself.

[8]

For these reasons, the appeal is allowed and the costs award is vacated.
    We see no reason to order costs against the respondent as requested by the
    appellant.

S.E.
    Pepall J.A.

G.T. Trotter J.A.

Harvison
    Young J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Drysdale, 2019 ONCA 129

DATE: 20190220

DOCKET: C65892

MacPherson, Sharpe and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jeffery Drysdale

Appellant

Jeffery Drysdale, in person

Scott Hutchison, duty counsel

Andrew Hotke, for the respondent

Heard: February 11, 2019

On appeal from the sentence imposed on June 2, 2018 by
    Justice Patrick Boucher of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

We do not agree that the trial judge erred by imposing an 18 month
    sentence on top of pre-trial custody.  This was a joint submission and
    statements made by both defence counsel and Crown counsel during their
    submissions were clear that the 18 months was on top of pre-trial custody.   The
    case was extensively pre-tried and the sentencing judge was involved in those
    discussions.  While the appellant did ask the trial judge to consider giving
    him credit for pre-trial custody that would reduce the sentence below 18
    months, we do not agree that given the discussions that had taken place , the
    trial judge erred by not agreeing to that request.

[2]

Ineffective assistance of counsel is not raised as a ground of appeal.

[3]

The Crown agrees that the victim fine surcharge should be set aside.

[4]

Accordingly the appeal is allowed but only to remove the victim fine
    surcharge.  The appeal is otherwise dismissed.