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), (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    any information that could identify the complainant or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273,
    279.01, 279.02, 279.03, 346 or 347,

(ii)  an offence under section 144 (rape), 145 (attempt to
    commit rape), 149 (indecent assault on female), 156 (indecent assault on male)
    or 245 (common assault) or subsection 246(1) (assault with intent) of the
Criminal Code
,
    chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately
    before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse
    with a female under 14) or (2) (sexual intercourse with a female between 14 and
    16) or section 151 (seduction of a female between 16 and 18), 153 (sexual
    intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross
    indecency), 166 (parent or guardian procuring defilement) or 167 (householder
    permitting defilement) of the
Criminal
    Code
, chapter C-34 of the Revised Statutes of Canada, 1970, as it
    read immediately before January 1, 1988; or

(b)       two or more offences being dealt
    with in the same proceeding, at least one of which is an offence referred to in
    any of subparagraphs (a)(i) to (iii).

(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 complainant of the right to make an application for the order; and

(b)  on application
    made by the complainant, the prosecutor or any such witness, 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).

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. A.P., 2013 ONCA 344

DATE: 20130528

DOCKET: C54307

Weiler, Blair and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

A.P.

Appellant

Jill Copeland, for the appellant

Robert W. Hubbard, for the respondent

Heard: January 9, 2013

On appeal from the conviction entered on May 3, 2011 by
    Justice Michael G. Quigley of the Superior Court of Justice, sitting without a
    jury.

Rouleau J.A.:

OVERVIEW

[1]

The appellant was convicted of sexually assaulting his wife after a
    trial in the Superior Court of Justice. The appellant and the complainant were
    the only witnesses at trial, and testified to similar, yet critically different
    stories. The appellant and the complainant agreed that they had engaged in
    dominant/submissive sexual role playing over the course of their relationship;
    the appellant candidly admitted that on the night in question, he and his wife had
    sex; and he also agreed that the complainant wife had said no to the
    appellants request for sexual intercourse that night. The appellant stated,
    however, that the complainants verbal refusal to consent to sexual intercourse
    formed part and parcel of their standard sexual role playing, and argued that
    either she actually consented to sex or that he had an honest but mistaken
    belief in her consent. In contrast, the complainant testified that her husband
    perpetrated a violent sexual assault upon her, in full knowledge of her
    unwillingness to participate.

[2]

The trial judge convicted the appellant, finding the complainant to be the
    more credible of the two witnesses. The appellant appeals his conviction on the
    basis that the trial judge misapplied the principles outlined by the Supreme
    Court of Canada in
R. v. W.(D.)
, and erred by placing the burden of
    proof on the appellant and in his analysis of whether he was left with a
    reasonable doubt as to the appellants guilt. For the reasons that follow, I
    allow the appeal and order a new trial.

FACTS

[3]

The appellant and the complainant met in 1997. They started dating
    shortly thereafter and their relationship gradually became sexual. They married
    on December 31, 2003. They have two children, the first born in October 2005
    and the second in September 2007.

[4]

The appellant testified that while his and the complainants sexual
    relationship was initially conventional, it became increasingly imaginative
    over time. The complainant expressed an interest in bisexuality. They had an
    open relationship for a period. They experimented with bondage. And they explored
    sexual role playing of a dominant/submissive nature. Except for one particular
    occasion, the appellant always played the dominant role and the complainant
    always played the submissive role. The appellant testified that when the
    complainant played the submissive role, she adopted a quiet, subservient voice.
    Both the complainant and the appellant testified that role playing had been a
    significant part of their sexual relationship, but their evidence conflicted regarding
    the nature of the role playing and the frequency with which the role play occurred
    over the course of their relationship.

[5]

The appellant testified that one of their role playing scenarios, the
    teacher/student scenario, was played out one to three times a week, both when
    he and the complainant were dating and after their marriage. The appellant
    would portray a teacher character and the complainant would be his student. The
    appellant would find some aspect of his students performance wanting and the
    complainant would try to remedy the situation with sexual favours.

[6]

The appellant testified that he and the complainant also enjoyed acting
    out an assailant/victim sexual scenario throughout their relationship. He
    viewed this as a variation of dominant/submissive role play, similar to the
    teacher/student scenario in which they routinely engaged. When in his
    assailant character, the appellant used a gruff, aggressive, and demanding
    tone of voice. He testified that they began performing this more aggressive
    scenario when the complainant disclosed to him that she had been sexually
    assaulted as a pre-teenager and, although she did not like that experience,
    there were aspects of it that she wished to explore further. In the course of
    cross-examination, the appellant was asked to provide specific instances when
    this type of scenario was played out and the appellant was only able to specify
    two: a failed attempt on the first night of their honeymoon and a
    daddy/daughter episode in December 2007.

[7]

In his testimony, the appellant stated that he and the complainant had
    agreed on a safe word  cabbage  to ensure that these games did not surpass
    either of their comfort levels. The appellant stated that it had not been used
    after 2003.

[8]

The complainant acknowledged in her testimony that she had engaged in
    sexual role play with the appellant, including an attempt early on to explore
    bondage, but only at his instigation. Before their marriage, the role playing
    included the appellant taking on an aggressor personality and barking out
    orders for her to obey. She testified, however, that role playing was limited
    to situations of domination and submission such as the teacher/student
    scenario. According to the complainant, the appellant favoured scenarios where
    he caught a young girl off her guard, but she submitted to demands and agreed
    that she in fact wished to convey sexual favours. The complainant explained
    that the appellant wanted scenarios where she was a willing participant
    because, according to the complainant, being unwilling would be against his
    kink. The complainant testified that the role play largely ceased after she
    and the appellant got married.

[9]

The complainant also testified that the appellant had repeatedly
    discussed with her his desire to explore more aggressive role playing scenarios
    or rape scenarios, but that she adamantly refused any use of force or to feign
    unwillingness to participate in sex. The complainant testified that this was
    because she had been sexually assaulted as a pre-teenager and was deeply
    uncomfortable with the idea of reliving such a traumatizing experience. The
    complainant maintained that she and her husband had never agreed on a safe
    word, because it was unnecessary given that aggressive sex was unacceptable to
    her in all cases.

[10]

There
    were photos tendered in evidence that depicted the complainant in scenes of mild
    bondage. The complainant testified that she had consented to these photos being
    taken by the appellant at his request. The appellant, however, testified that
    the complainant had taken these photos of herself as part of a university art assignment
    that required her to explore parts of her personal life that she did not want
    to make public. He testified that she took most of the photos using the remote
    trigger for the camera and that his only involvement was putting his finger in
    the complainants mouth in certain pictures.

[11]

As
    of February 8, 2008, the date of the events in issue, the appellant was a doctoral
    student in political science and the complainant was a stay-at-home mother. She
    had previously studied visual arts at the university level and hoped to
    continue those studies in the future. The couple and the children lived
    together in an apartment in graduate housing. They also had a male boarder
    living with them at the time.

[12]

On
    the evening of February 8, the appellant went to bed before his wife. She
    stayed up and was play-wrestling with the boarder, something the two friends
    apparently did quite often.

[13]

The
    appellant testified that the sounds of the complainant wrestling with the male boarder
    aroused him. When the complainant came to bed, the appellant testified that she
    laid down with her back to him. He reached over and grabbed her hair and said in
    his dominant voice you want it, dont you? to which the complainant responded
    no. However, the appellant testified that his wifes no was spoken in her submissive
    tone, the tone she would take whenever they engaged in role play. This, to him,
    indicated consent. The appellant said that he then massaged her breasts and she
    responded receptively, which was consistent with his understanding of her
    having consented. He pulled down her pants. His right hand was holding, but not
    pulling, her hair and his left hand was supporting his weight. He had sex with
    the complainant from behind with her pushing back receptively. The appellant
    testified that the complainant responded in a passive, passionate, and
    submissive way throughout. After he ejaculated, they went to sleep.

[14]

The
    appellant recounted that the next day everything was normal. He told his wife
    that he had enjoyed the night before, to which she responded that she had not
    enjoyed it.

[15]

The
    complainants testimony concerning the events of February 8 was fundamentally
    different from that of her husband. She testified that she entered the bedroom
    and was sitting on the edge of the bed removing her socks when the appellant
    rolled over and came up behind her. Without saying a word, the appellant threw
    her back onto the bed and put his forearm over her throat. She found it
    difficult to breathe, move, or make any noise. He began to hiss in her ear,
    saying that he was going to fuck her and take what was his, among other
    profane and degrading statements. The appellant slapped her, ripped her tank top
    off, and pinched her nipples. He pulled down her jogging pants and got between
    her legs, while holding her down with his considerable weight. He forcibly
    copulated with her as she laid sobbing, hitting, and scratching him as best she
    could. He responded by saying stop crying  you knew this was coming. After
    he ejaculated, he threw her aside and went to sleep.

[16]

The
    complainant testified that she got up and showered until the water ran cold.
    She put on a big sweater and pyjama pants and went back to bed, wrapping
    herself in a blanket. She testified that the next day, the appellant asked her
    that was pretty awesome, wasnt it? to which she responded no, no, it wasnt
    awesome and that it was rape. The complainant explained at trial that she
    sustained several injuries from the assault, including bruises and sore
    muscles.

[17]

In
    March 2008, the appellant took a trip to Africa to conduct field research for
    his doctoral thesis. The complainant testified that she felt relieved while he
    was away. Upon the appellants return in the spring of 2008, he suffered a back
    injury. Because it was difficult for him to recuperate with two small children
    around, the appellant went to live with his parents to convalesce. The
    complainant testified that in the absence of the appellant, she realized her
    unwillingness to have him return to the family home. The complainant called the
    appellant and told him he was not welcome in their apartment any longer. The
    appellant testified that he was heartbroken.

[18]

The
    appellant and the complainant separated in June 2008. They attended two marital
    counselling sessions together, but their efforts to reconcile were
    unsuccessful. The complainant testified that in the course of these sessions,
    the appellant admitted to having raped her and apologized. The appellant denies
    this.

[19]

On
    October 10, 2008, the complainant attended family court, where she applied for
    and obtained an ex parte order granting her custody of their two children and
    restraining the appellant from having any contact with her or their children. When
    the appellant became aware of the order, he sought a variation. On October 20,
    2008, the complainant reluctantly agreed to vary the order so as to grant the
    appellant supervised access to his children. According to the complainant, the
    family court duty counsel told her to take the varied order to the police
    station and to insist on speaking to a police officer and having the officer read
    the affidavit the complainant had filed in family court.

[20]

The
    complainant testified that she followed duty counsels instructions and, upon
    reading the affidavit, the police officer asked her to make a videotaped
    statement; the complainant did so. Shortly thereafter, the appellant was
    arrested and charged with sexually assaulting his former spouse.

The section 276
    application

[21]

At
    the opening of trial, the appellant brought an application under s. 276 of the
Criminal
    Code
to adduce evidence of the complainants sexual activity throughout
    their relationship. The appellant maintained that this evidence was crucial to
    provide the background and foundation for his defence of honest but mistaken
    belief in her consent on February 8, 2008. The trial judge agreed and allowed
    the appellant to cross-examine the complainant on various aspects of their
    sexual relationship.

The decision below

[22]

The
    trial judge began by setting out the four elements of sexual assault that the
    Crown must prove beyond a reasonable doubt to secure the appellants
    conviction:

1.

the appellant
    intentionally applied force to the complainant,

2.

the complainant
    did not consent to the force applied,

3.

the appellant
    knew that the complainant did not consent to the force being applied, and

4.

the force
    applied by the appellant took place in circumstances of a sexual nature.

[23]

Since
    the appellant conceded that he and the complainant had sexual intercourse on
    the night of the events in question, the trial judge stated that the only
    remaining issues were the complainants consent and the appellants knowledge
    of her lack of consent.

[24]

The
    trial judge therefore held that the sole issue in the case was the credibility
    of the two trial witnesses, the complainant and the appellant. The question of the
    appellants guilt thus fell to be decided under the test established by the
    Supreme Court of Canada in
R. v. W.(D.)
, [1991] 1 S.C.R. 742. The trial
    judge found that a critical factor in his credibility assessment of the
    witnesses would be his finding as to whether they had a history of engaging in
    aggressive-assailant sexual role playing, as the appellant had testified.

[25]

The
    trial judge rejected the appellants evidence as to the nature of his sexual
    relationship with his wife. He attributed particular importance to the fact
    that despite the appellants testimony that he and the complainant regularly
    engaged in assailant/victim sexual relations, he was unable to recall any
    specific event or aspect of such relations. The trial judge ultimately
    concluded that the appellants evidence was internally and externally
    inconsistent and defied common sense. The trial judge concluded that he
    neither believed the appellants evidence, nor was he left in a state of
    reasonable doubt by it.

[26]

The
    trial judge found the complainants evidence and description of what transpired
    on February 8, 2008 to be credible and reliable. He concluded that her
    testimony was more in line with both witnesses description of the event as an
    instance of aggressive-assailant sexual role playing and the use of physical
    force that entails.

[27]

The
    trial judge disagreed with the defences argument that the complainants
    credibility was negatively affected by her delayed reporting of this event on
    the very same day that her custody order was varied to grant the appellant
    access to their children. The trial judge acknowledged that while the timing
    appeared suspicious on its face, the complainant gave credible evidence as to
    why she reported the assault on October 20, 2008.

[28]

The
    trial judge convicted the appellant of sexually assaulting the complainant and later
    sentenced him to four months imprisonment and three years probation.

Issues on appeal

[29]

The
    appellant raises five issues on appeal:

1)

Did the trial judge
    err in his assessment of the burden of proof as it relates to credibility?

2)

Did the trial judge
    misapprehend the relevance of the delay and the timing of the complainants
    report of the offence to the police?

3)

Did the trial judge
    err in applying an objective test for recklessness and wilful blindness, and
    requiring that, to constitute a defence, a mistaken belief in consent must be
    reasonable?

4)

Did the trial judge
    misapprehend relevant evidence by focussing on whether the complainant or the
    appellant had been the instigator of previous dominant/submissive role playing?
    And

5)

Did the trial judge
    err in failing to recognize a distinction between the issues of the
    complainants actual subjective consent and the appellants honest but mistaken
    belief in consent?

[30]

The
    appellant also brought a motion to file fresh evidence. The proposed evidence
    relates to the appellants acquittal, after his trial for sexual assault, on further
    charges brought against him by the complainant for assaulting their young son
    in May 2009. The appellant submits that the reasons for acquittal given by the
    trial judge in that case constitute compelling evidence that the complainant exhibits
    a pattern of bringing false charges against the appellant to gain advantages in
    their family law proceedings.

[31]

In
    my view, the reasons of the trial judge contain errors and gaps in his assessment
    of credibility and in his allocation of the burden of proof. Viewed in the
    context of the reasons as a whole, these errors and gaps show that the trial
    judge did not consider all of the evidence relating to the ultimate issue of
    guilt or innocence, thereby committing an error of law. The appeal therefore ought
    to be allowed. As a result, I need not deal with all of the grounds of appeal,
    nor consider the application to admit fresh evidence.

ANALYSIS

[32]

The
    appellant has raised several grounds of appeal. The essence of the appellants
    position, however, is that the trial judges reasons show that he approached
    the evidence in a piecemeal fashion, erred in his assessment of the burden of
    proof and, ultimately, did not take into account all of the evidence when
    determining whether he was left with a reasonable doubt on the critical issue
    of the appellants intent.

[33]

As
    set out in
R. v. Morin
, [1992] 3 S.C.R. 286, at p. 296, a failure by the
    trial judge to consider all of the evidence relating to the ultimate issue of
    guilt or innocence constitutes an error of law.

[34]

In
    addressing this issue, I am mindful of the direction given by Moldaver J. in
R.
    v. Walle
, 2012 SCC 41, [2012] 2 S.C.R. 438, at para. 46, wherein he
    explains that in
Morin
, Sopinka J. made clear that there is no
    obligation in law on a trial judge to record all or any specific part of the
    process of deliberation on the facts, and unless the reasons demonstrate that
    [a consideration of all the evidence in relation to the ultimate issue] was not
    done, the failure to record the fact of it having been done is not a proper
    basis for concluding that there was error in law in this respect.

[35]

In
    my view, reading the reasons as a whole, the concerns raised by the appellant are
    warranted. The structure of the trial judges reasons and the errors in those
    reasons demonstrate that the trial judge did not consider all of the evidence related
    to the ultimate issue of the appellants intent to sexually assault the complainant.

[36]

There are several aspects of the trial judges reasons
    that, taken together,
lead me to the conclusion that the appeal must be
    allowed and a new trial ordered. The first is that, at different points in his
    reasons, the trial judge appears to approach the case as a credibility contest
    between the appellants and the complainants versions of events. The second is
    that, at the outset of his analysis, the trial judge explains that one critical
    finding of fact will be used to decide whether to accept or reject the evidence
    of the appellant and the complainant. That finding, however, is made on a
    balance of probabilities; furthermore, the analysis that flows from this
    critical finding is flawed. The trial judge then all but convicted the
    appellant after making his findings concerning credibility; the reasons do not
    contain any further analysis of the evidence to determine whether, on the whole
    of the record, there remained a reasonable doubt as to the appellants intent
    to commit the offence. In the circumstances of this case, there were several other
    relevant factors the trial judge failed to consider when determining whether,
    on the basis of all of the evidence led at trial, he was left with a reasonable
    doubt as to the appellants guilt.

[37]

I
    will deal with each of these concerns in turn.

(1)

The
    trial judge approached his task as a credibility contest

[38]

When
    the trial judge set out on his analysis of the evidence, he correctly listed
    the four elements of the offence of sexual assault that must be proven by the
    Crown. The trial judge then expressed the view that the sole issue in this
    case is the credibility of the complainant and the credibility of the
    defendant, thereby, in the appellants submission, viewing the case as a
    credibility contest.

[39]

The
    appellant nevertheless concedes that the trial judge identified the correct
    approach to be taken in such cases, which is that outlined in
R. v. W.(D.)
, [1991] 1 S.C.R. 742, at p. 758
:

First, if you believe the evidence of the accused, obviously
    you must acquit.

Second, if you do not believe the testimony of the accused but
    you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the
    accused, you must ask yourself whether, on the basis of the evidence which you
    do accept, you are convinced beyond a reasonable doubt by that evidence of the
    guilt of the accused.

The appellant argues, however, that the reasons show
    that the trial judge did not properly apply that approach to the evidence in
    this case. I agree. Correctly setting out the
W.(D.)
approach is not
    determinative of the correctness of a decision  the critical issue is whether
    the reasons reflect its correct application: see e.g.
R. v. Wadforth
,
    2009 ONCA 716, 247 C.C.C. (3d) 466, at paras. 50-51.

[40]

The
    trial judges approach to this case as a credibility contest is evident in his
    reasons when he is dealing with the assessment of witness credibility and the
    need for the Crown to prove the elements of the offence beyond a reasonable
    doubt. The trial judge indicated that in a case such as this, the
truth
will be found to be the
version
of events
that is in harmony with what a practical and well-informed person would
    recognize as most
probable
in all of the existing circumstances
    (emphasis added). The trial judge referred to the version of events told by
    the appellant and the complainant a further five times in his reasons. These
    statements are problematic for two reasons.

[41]

First,
    it suggests that the point of the trial and the trial judges task is to
    determine which of the two recounted versions of the event is true. This
    approach is an error. As the Supreme Court of Canada held in
R. v. C.L.Y.
,
    2008 SCC 2, [2008] 1 S.C.R. 5, at para. 8:

[The purpose of the
W.(D.)
analysis] was to ensure that
    triers of fact  judges or juries  understand that the verdict should not be
    based on a choice between the accused's and Crown's evidence, but on whether,
    based on the whole of the evidence, they are left with a reasonable doubt as to
    the accused's guilt. [Citations omitted.]

See also
R. v. Avetysan
, 2000 SCC 56, [2000] 2
    S.C.R. 745, at para. 21. An approach that emphasizes having to decide whether
    to believe either the Crowns evidence or the defences evidence neglects the
    third alternative that while the trier of fact may not believe the accused, they
    may still be left with a reasonable doubt as to the guilt of the accused on the
    whole of the evidence: see
R. v. S.(W.D.)
, [1994] 3 S.C.R. 521, at p.
    532.

[42]

Second,
    having determined that the sole issue at trial was credibility, the trial judge
    approached this issue as one to be decided on a balance of probabilities. I
    acknowledge that individual facts need not be proven beyond a reasonable doubt at
    trial; only the elements of the offence must meet this higher standard: see
R.
    v. Bouvier
(1984), 11 C.C.C. (3d) 257 (Ont. C.A.), at p. 264, affd [1985]
    2 S.C.R. 485. However, by setting up the whole case as a choice between two
    competing versions of events and stating that the version that is most
    probable in all of the existing circumstances will be selected as true, the
    trial judge came dangerously close to deciding the ultimate issue at trial on a
    balance of probabilities. See
R. v. Quidley
, 2008 ONCA 501, 232 C.C.C.
    (3d) 255.

[43]

That
    the trial judge viewed his role in this case as choosing between the
    appellants and the complainants competing versions of events is further
    confirmed in his method of assessing their credibility. The trial judge
    acknowledged, in an exchange with counsel during closing submissions, that the appellant
    had testified in a forthright and honest manner. Since the complainant had
    testified in an equally honest manner, however, the trial judge set aside the
    fact of the appellants honest presentation as neutral:

[B]oth the complainant and the accused, to my mind, presented
    honestly and well. Both gave their evidence in a forthright manner. But it
    seems to me that the issue of credibility is not to be decided by demeanour,
    its not to be decided by the delivery of evidence, its not to be decided by
    manner. Its to be decided by the internal and external consistency of the
    evidence given, with the evidence as a whole  .

So I say that only because I would almost rather have you focus
    on those issues of internal and external consistency or inconsistency, because
    to my mind thats where the truth emerges.

[44]

The
    trial judge assigned relevant demeanour evidence no weight because it did not
    help him pick between the competing versions of events told by the complainant
    and the appellant at trial. This is demonstrative of the fact that the trial
    judge viewed his task as having to choose between the complainants and the
    appellants evidence. The trial judges either/or approach was in error because
    it neglected the third option, namely, that even though the trial judge did not
    believe the appellant, he was not convinced of the appellants guilt on the
    whole of the evidence.

[45]

The
    appellant raises an additional concern with respect to the trial judges
    findings of credibility. After carrying out the credibility analyses of the
    appellant and the complainant, the trial judge rejected the appellants
    submission that the complainants credibility was undermined by her delay in
    disclosing the assault, and disclosing it on the same day as she consented to a
    variation in the appellants access to their children. He stated that there was
    no evidence on this trial that
persuaded me
that
    the manner in which the reporting came about meant that her report of what
    transpired on February 8, 2008 was not true (emphasis added). The appellant
    argues that the trial judge reversed the burden of proof by placing the burden
    on the appellant to persuade the trial judge that the report was untrue. This
    simply adds to the appellants legitimate concern respecting the trial judges
    credibility findings.

(2)

The trial judges finding on the critical issue of fact and his
    piecemeal approach to the evidence

[46]

The
    fact that the complainant and the appellant had a history of engaging in sexual
    role play complicated the trial judges analysis in this case. Both the
    complainant and the appellant confirmed that their role play sometimes included
    a dominant/submissive dynamic, such as in the teacher/student scenario. Their
    evidence conflicted, however, on whether they regularly enacted an
    assailant/victim scenario as well.

[47]

As
    a preface to his analysis of the evidence, the trial judge explained that he
    would focus on this aspect of the appellant and the complainants relationship.
    Specifically, the trial judge set himself the task of determining whether in
    the past they had engaged in sexual role playing with an assailant/victim
    dynamic. The trial judge said his conclusion on this singular fact would drive
    his findings on credibility, and indeed, on the guilt or innocence of the
    appellant. The foregoing is explained in paragraphs 59 and 60 of the trial
    judges reasons, which read as follows:

If I find that [the complainant] and [the appellant] engaged in
    a role playing sexual relationship focused on dominance and submissiveness that
probably
or
likely
included an aggressive/submissive victim role playing scenario, then to my mind
    this would be a strong indicator that it would be
unsafe to convict
.
    This would be so since the Crown would have failed to establish the absence of
    consent beyond a reasonable doubt. That conclusion would follow, either because
    such a finding would necessarily call [the complainants] evidence into serious
    doubt, or because it would leave open the possibility that in their sexual
    relationship no could mean yes or that [the appellant] could have had an
    honest but mistaken belief.
I would be obliged to acquit the appellant
of the charge he faces.

On the other hand, if I find on the whole of the evidence that
    [the complainant] and [the appellant] did not engage in an
    aggressive-assailant/submissive-victim type of role playing scenario as part of
    their sexual relationship, even if they did types of role playing focussed on
    teacher/student or daddy/daughter, or other lesser expressions of sexual
    dominance and submissiveness, then there would be no basis to believe the
    accused either that [the complainant] consented or that he had an honest but
    mistaken belief that she was consenting in the context of their sexual
    relationship. Such a finding would totally undermine any credibility to [the
    appellants] assertion of holding an honest but mistaken belief that [the
    complainant] consented because the context in which no allegedly meant yes,
    or in which he could have reasonably have had an honest but mistaken belief
    would be absent.
In that case, the appellant should be convicted
since
    the Crown would have established the absence of consent beyond a reasonable
    doubt. That would necessarily be the result if I did not believe his evidence
    and was not left in a reasonable doubt by it, and provided I was satisfied that
    the Crown had otherwise proven the absence of that consent beyond a reasonable
    doubt, having regard to the whole of the evidence. [Emphasis added.]

[48]

This
    approach, central to the trial judges analysis, is fundamentally flawed for
    two reasons.

[49]

First,
    the trial judge determined that this critical finding of fact would be made on
    a standard of probability or likelihood. As I noted above, although
    individual facts in a criminal trial need not be proven beyond a reasonable
    doubt, there is cause for serious concern when a critical fact that determines
    the outcome of the case is decided on a balance of probabilities:
Quidley
.
    Such an approach not only lowers the Crowns burden of proof, but also places a
    burden on the appellant to prove, on a balance of probabilities, that he and
    the complainant did indeed share a sexual history of this nature.

[50]

Second,
    and more importantly, the trial judge erred by tethering the appellants
    acquittal or conviction to this finding of fact. The trial judge has a
    responsibility to consider all of the evidence in relation to the ultimate
    issue of whether the guilt of the accused has been proven beyond a reasonable
    doubt:
Morin
. The appellant was charged with sexually assaulting the
    complainant on February 8, 2008. The trial judge therefore had an obligation to
    consider the witnesses testimony regarding the events of that evening, and
    whether it was credible in the context of the evidence as a whole, before
    determining the ultimate issue of the appellants guilt.

[51]

Rather,
    the trial judge in this case decided that if the complainant was to be believed
    on the subject of the parties sexual history, the appellant should be convicted
    because 1) his testimony regarding his honest but mistaken belief in consent
    would not be credible and 2) the Crown would have proved the absence of consent
    beyond a reasonable doubt. These were the only two issues in the case. The
    trial judge ultimately found that, as the complainant had testified, the
    complainant and the appellants sexual relationship did not include an
    assailant/victim role playing scenario. The appellants conviction flowed
    inexorably from this finding because the trial judge had already concluded that
    if the complainant and the appellant did not share a sexual history of this
    particular nature, then both of the appellants defences of consent and honest but
    mistaken belief in consent were baseless  and this without considering all of
    the evidence, specifically any evidence directly related to the events of
    February 8, 2008. This reasoning runs counter to the analytical framework set
    out by the Supreme Court of Canada in
W.(D.).
The fact that the trial
    judge reiterates the applicable
W.(D.)
principles at the end of the
    extract quoted above is not dispositive, given the obvious flaws in his
    analysis.

[52]

The
    dangers of taking such a piecemeal approach to the evidence are further
    realized in the trial judges decision. The balance of the reasons demonstrate
    that after the trial judge decided the complainant was to be believed as to the
    nature of the parties sexual history, he assumed her version of the events of
    February 8, 2008 was true as well. This error is of a piece with the trial
    judges approach to this case as a credibility contest wherein his task was to
    choose between believing the complainants evidence or the appellants evidence
    in its entirety, as earlier discussed.

[53]

The
    above errors led the trial judge to analyze the appellants evidence regarding
    February 8, 2008 in light of the trial judges foregone conclusion that the
    complainant was telling the truth about the events of that night. For example, the
    trial judge found that the appellants credibility was negatively affected
    because the appellant minimized his own actions and the force that he used
    against the complainant, despite the appellants having described the nights
    intercourse as being in the aggressive-assailant mode. In other words, the
    trial judge found that the appellants testimony was inconsistent and could not
    be believed because he testified that the February 8 intercourse was in the
    aggressive-assailant mode, but simultaneously denied that he used any force
    against the complainant. These findings assume that the complainants testimony
    regarding the amount of violence used against her on February 8, 2008, was
    true, and was an accurate depiction of what aggressive-assailant sexual
    relations are. These findings are contrary to the appellants testimony that
    aggressive sex meant using aggressive language, not physical force, in a
    sexual context.
[1]

[54]

In
    the same vein, the trial judge concluded on four separate occasions in his reasons
    that the complainants testimony was much more in keeping with the
    aggressive-assailant scenario than what [the appellant] described,
    particularly as to the words, force, and level of dominance used by the
    appellant. In other words, because the trial judge concluded that the events of
    February 8 were an aggressive-assailant scenario as the complainant had
    defined it, the complainants evidence fit better with the physical force that
    is integral to that scenario.

[55]

The
    trial judges piecemeal approach to the evidence meant that he did not consider
    all of the evidence in relation to the ultimate issue of whether the
    appellants guilt had been proven beyond a reasonable doubt. In addition to the
    concerns identified above, there are several facts that are not addressed in
    the trial judges reasons. These, individually or in concert, were relevant to
    the ultimate issue in the trial, even accepting the trial judges finding that
    the complainant was credible and the appellant was not. Some of the facts and
    issues not dealt with in the trial judges reasons are as follows.

[56]

Despite
    finding the appellant to have testified honestly, as discussed above, the trial
    judge rejects his evidence without analyzing the impact of that demeanour
    evidence. This omission is all the more problematic when one considers that in
    his reasons for sentence, the trial judge wrote that the complainant does seem
    [to] have a tendency to dramatize, both in her evidence at trial and in her
    victim impact statement. These findings are never reconciled, nor considered.

[57]

More
    importantly, nowhere in his reasons for judgment does the trial judge make a
    specific finding as to whether, in the specific context of the appellant and
    the complainants sexual relationship, no had ever meant yes. As appears
    from the excerpt set out at para. 46 of these reasons, he thought that if no
    meant yes in their relationship, this was a strong indicator that it would be
    unsafe to convict. Indeed, the fact that no meant yes in the appellant and
    the complainants relationship was a cornerstone of the appellants defence.
[2]
It was not until he issued his reasons for sentence that the trial judge revealed
    that he accepted the appellants evidence in that regard. As set out in the
    reasons for sentence, it is clear that in the context of their relationship
    no frequently did mean yes and that the complainant and the appellant had
    for some years, acted as if no meant yes albeit on a less serious or
    aggressive plane. The trial judge ought to have weighed this fact in
    determining the ultimate question of whether the appellant held an honest but
    mistaken belief in the complainants consent on February 8, 2008, or whether,
    on the whole the evidence, the trial judge was convinced beyond a reasonable
    doubt of the appellants guilt.

[58]

In
    summary, the trial judge erred by setting up an analytical framework wherein
    one critical finding of fact, determined on a balance of probabilities, drove
    his conclusions on both credibility and whether the Crown had proven the
    appellants guilt beyond a reasonable doubt. He thereby assessed the trial
    evidence in a piecemeal fashion, and failed to consider all of the evidence in
    relation to the ultimate issue.

CONCLUSION

[59]

The
    trial judge approached the trial as a credibility contest between the appellant
    and the complainant, he made key findings of fact on a balance of
    probabilities, he evaluated the evidence in a piecemeal fashion, and he failed
    to make some crucial findings altogether. More importantly, the trial judges
    reasons show that he did not consider whether the evidence, taken as a whole,
    raised a reasonable doubt as to the central issue of the appellants
mens
    rea
for sexual assault, and particularly whether the appellant had an
    honest but mistaken belief that the complainant consented. In his reasons, the
    trial judge correctly recites the
W.(D.)
test, but does not
    demonstrate that it was correctly applied. This constitutes an error of law. The
    appeal should be allowed and a new trial ordered.

Paul Rouleau J.A.

I agree K.M. Weiler
    J.A.

I agree R.A. Blair
    J.A.

Released: May 28, 2013

[1]
While the appellant did agree in cross-examination that dominant/submissive
    role play includes an element of aggressive physicality, he described
    examples of this physicality as holding the complainants hair in his hand and
    not talking to her in a soothing way. He clarified that neither he nor the
    complainant ever hurt one another during this type of role play and refused to
    agree with the suggestion that the role play would involve more physicality
    than he had described:
Cross-Examination of A.P.
, March 8, 2011, at pp.
    254-57.

[2]
See paras. 7, 57, 59, 60, 74, 80, and 81 of the trial judgment.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ashkani, 2013 ONCA 351

DATE: 20130529

DOCKET: C56567

Watt, Tulloch and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shiva Ashkani

Appellant

Shiva Ashkani, appearing in person

Susan Chapman, acting as duty counsel

Deborah Krick, for the respondent

Heard: May 13, 2013

On appeal from the convictions entered on September 4,
    2012 and the sentence imposed on January 15, 2013 by Justice Kelly Wright of
    the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant was convicted of assault with a weapon and aggravated
    assault.  She was sentenced to a custodial sentence of 11 months, in addition
    to 396 days of pre-trial custody, which reflected actual pre-trial detention of
    264 days, calculated on a 1.5 to 1 basis.  This sentence represented a global
    sentence of two years less one day, plus three years probation.

[2]

The appellants spouse is the complainant.  The appeal focused on the
    conviction for aggravated assault.

[3]

The complainants evidence was that the appellant attacked him:

And suddenly, she came over and with all force on her body, she
    gave me two smash here. Here, between two bones.  There, start here, on the top
    of the stomach here.

THE COURT:        I want to say the diaphragm area.

MR. NEZIOL:         I think thats fair.

THE COURT:        Yes, sternum, diaphragm.

ANSWER:              And that was very, very painful.                                       Then
    she continued

ANSWER:              Exactly what else, she continued                                    she
    tried to continue.  In order to                                      avoid, I
    got her neck and head with                                    my arm like
    this.  Like her head here                                     in order to stop
    her.

QUESTION:           Okay?

ANSWER:              And here, she bite me.

[4]

The complainant testified that the pain in his torso got worse over the
    next few days. His abdomen started to swell and he could not eat or go to the
    bathroom.  He saw Dr. Justin Lee at the York Central Hospital.  Dr. Lee
    testified that a C.T. scan of the complainants belly and pelvis showed that it
    was filled with blood.  The complainant was bleeding from his spleen which had
    to be surgically removed.  Dr. Lee testified that the complainant lost 3.5 litres of blood.  The complainant originally told the doctor that he had slipped and fallen on a
    chair causing the injury.  It later transpired, however, that the complainant
    disclosed that his wife had beaten him.

[5]

In his expert evidence, Dr. Lee, who was also the treating physician,
    testified that a rupture of the spleen is usually caused by one significant
    blow.  He testified: I would suspect that a more forceful injury would be
    required to rupture the spleen than a punch.

[6]

Based on Dr. Lees evidence, the defence took the position that the
    Crown had not proven causation beyond a reasonable doubt.

[7]

The trial judge found as a fact that the complainant was assaulted by
    the appellant:

[64] I find that a reasonable person in the same circumstances
    punching someone as hard as they could in the upper abdomen would realize and
    expect that doing so would put that person at risk for suffering some kind of
    bodily harm and some kind of injury more than just brief and fleeting.

[8]

The trial judge then turned to the issue of causation:

[66] I must go on to consider if I am satisfied beyond a
    reasonable doubt that those punches caused the spleen of Mr. Danesh to
    rupture.  Defence counsel argues that the punches did not and could not have
    caused Mr. Daneshs spleen to rupture.  Defence counsel said there must have
    been some other intervening acts that caused the injury.

[67] Defence counsel directs my attention to the explanation
    that Mr. Danesh first gave to Dr. Lee when he was admitted to hospital.  He
    told Dr. Lee that he was getting out of a chair and slipped and hit his chest.
    Mr. Danesh told this court that he did not fall getting out of a chair.  He
    said he intentionally lied to the doctor to protect his wife and prevent the
    police from becoming involved.  As set out in my reasons above I accept Mr.
    Daneshs evidence and explanation in that regard.

[9]

The trial judge then considered the evidence of Dr. Lee at length and
    concluded:

[80] I have considered Dr. Lees opinion that the amount of
    blood in Mr. Daneshs belly was more consistent with an immediate bleed than a
    delayed rupture but I also take into account that the doctor qualified his
    answer by saying that he had never personally dealt with a delayed rupture of
    the spleen and could only reiterate what he had read in literature.

[81] In fact, Dr. Lee indicated that his opinion was based
    solely on his experiences with ruptured spleens, and I remain uncertain about
    the breadth of that experience.

[82] I am satisfied beyond a reasonable doubt that Mr. Danesh
    suffered no other blunt force trauma other than punches from Ms. Ashkani
    between April 14
th
and April 23
rd
, 2012.  I am satisfied
    beyond a reasonable doubt that when Shiva Ashkani punched Mr. Danesh on April
    19
th
, 2012 she did so with enough force to rupture his spleen.

[10]

Duty
    counsel argues that in reaching this conclusion, the trial judge made palpable
    and overriding errors in assessing the evidence.  We disagree.  Scientific
    proof of causation is not required and common sense inferences from the facts
    may suffice, as they do in this case, to establish the causal link between the
    appellants assault and the complainants injury.

[11]

In
    terms of the sentence, we observe that even if aggravated assault could not
    have been proven on the facts, but only assault causing bodily harm, the
    sentence imposed by the trial judge would still have been fit.

[12]

For
    these reasons, the appeal from conviction is dismissed.  Leave to appeal
    sentence is granted, but the appeal from sentence is also dismissed.

David Watt J.A.

M. Tulloch J.A.

P. Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Belanger, 2013 ONCA 349

DATE: 20130528

DOCKET: C56373

Watt, Tulloch and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Applicant/Appellant

and

Brian Belanger

Respondent

Amanda Rubaszek, for the appellant

James Marentette, for the respondent

Heard and released orally: May 17, 2013

On appeal from the order of Justice Donald J. Gordon of
    the Superior Court of Justice, sitting as a summary conviction appeal court, on
    November 16, 2012.

ENDORSEMENT

[1]

Assuming without deciding that the summary conviction appeal court judge
    was correct in concluding that the informational component of s. 10(b) was
    breached, we are satisfied that the summary conviction appeal court judge erred
    in law in concluding, without any meaningful analysis of the
Grant
lines of inquiry, that the results of the breath test should have been excluded
    as evidence.

[2]

In our view, a proper characterization of any breach of the
    informational component of s. 10(b) that might have occurred was that the
    breach was relatively minor, especially in light of the subsequent contact of
    the respondent with duty counsel facilitated by the arresting officer. A proper
    consideration of the three lines of inquiry under
Grant
, and more
    importantly the balancing required under
Grant
, mandated the
    admission, not the exclusion of the breath test results as evidence.

[3]

In the result, leave to appeal is granted, the appeal is allowed, the
    order of the summary conviction appeal court judge is set aside, and the
    conviction entered and sentence imposed at trial reinstated.

David Watt J.A.

M. Tulloch J.A.

P. Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bresnark, 2013 ONCA 320

DATE: 20130514

DOCKET: C53032

Weiler, Gillese and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Steven Bresnark

Appellant

Steven Bresnark, acting in person

Michael Medeiros, for the respondent

Heard: May 10, 2013

On appeal from the decision of the Summary Conviction
    Appeal Court dated November 12, 2010 by Justice Edward Belobaba of the Superior
    Court of Justice, dismissing the appeal from the conviction entered on July 15,
    2008 by Justice Kofi N. Barnes of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant uttered the following words in respect of a Crown Attorney
    who had once prosecuted him:

She is Draconian and she is a bitch and she should get her
    throat slashed.

[2]

The words were addressed to a fellow employee of the Crown Attorney at
    the Department of Justice some four months after the appellant had been
    convicted of the offence which the Crown Attorney had prosecuted. The appellant
    made a slashing motion with his hand across his own throat as he uttered the
    words.

[3]

Following a one day trial, the trial judge found the appellant guilty of
    knowingly uttering a threat to cause death.

[4]

The appellant brought a summary conviction appeal, which was dismissed.
    Before the summary conviction appeal court judge, the appellant argued numerous
    grounds of appeal, including that the trial judge failed to property apply the
    test set out in
R. v. Clemete,
[1994] 2 S.C.R. 758, which sets out the
    manner in which a court should approach a charge of threatening, that the Crown
    failed to prove its case beyond a reasonable doubt, and that the threat was not
    conveyed to the Crown Attorney.  The summary conviction appeal court judge
    carefully considered each of the grounds of appeal advanced by the appellant
    and explained why they could not succeed. In the case of the argument that the
    threat was not conveyed, the summary conviction appeal judge explained that
Clemente
held that the intended victim need not be aware of the threat.

[5]

The appellant now seeks leave to appeal to this court pursuant to s. 839
    of the
Criminal Code
. If granted leave, he would again argue that, if
Clemente
were correctly applied, the words he uttered would not be found to amount to a
    threat. He would also argue that his conviction was unreasonable and the summary
    conviction appeal court judge provided insufficient reasons. We note that the
    numerous grounds argued before the summary conviction appeal court judge did
    not include that his conviction was unreasonable.

[6]

Leave to appeal to this court from a summary conviction appeal pursuant
    to s. 839 is granted sparingly, and only when some exceptional circumstance
    justifies a further appeal.

[7]

The alleged error must be a question of law. Moreover, either (1) the
    merits of the appeal must be at least arguable and the issue must have general
    significance to the administration of justice beyond the particular case, or
    (2) the merits of the appeal must appear very strong: see
R. v. R.R.
(2008), 234 C.C.C. (3d) 463 (Ont. C.A.), at paras. 31 and 37.

[8]

We are not satisfied that the requirements for leave to appeal have been
    met.  To the extent the grounds the appellant seeks to raise are questions of
    law, they are not of general significance to the administration of justice
    beyond this particular case.
Clemente
is long- settled law. Nor do the
    merits of the appeal appear very strong. Indeed, in our view, there is no merit
    to this appeal.

[9]

The appellants primary contention is that the words uttered did not
    convey a threat. The trial judge concluded that, in all of the circumstances, they
    did.  The summary conviction appeal court judge in turn concluded that the
    trial judge correctly assessed the words used, the context in which they were
    spoken and the person to whom they were directed in finding that the appellants
    words amounted to a threat, and that the trial judges finding did not
    constitute a reviewable error. We agree. The correct legal test was applied.
    The determination that a threat was made was essentially a factual
    determination, and on the evidence was fully open to the trier of fact to make.

[10]

Leave
    to appeal is accordingly denied.

K.M.
    Weiler J.A.

E.E. Gillese J.A.

Alexandra Hoy 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), (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 complainant 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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02,
    279.03, 346 or 347,

(ii)  an
    offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent
    assault on female), 156 (indecent assault on male) or 245 (common assault) or
    subsection 246(1) (assault with intent) of the
Criminal Code
, chapter
    C-34 of the Revised Statutes of Canada, 1970, as it read immediately before
    January 4, 1983, or

(iii) an
    offence under subsection 146(1) (sexual intercourse with a female under 14) or
    (2) (sexual intercourse with a female between 14 and 16) or section 151
    (seduction of a female between 16 and 18), 153 (sexual intercourse with
    step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent
    or guardian procuring defilement) or 167 (householder permitting defilement) of
    the
Criminal Code
, chapter C-34 of the Revised Statutes of Canada, 1970,
    as it read immediately before January 1, 1988; or

(b)       two
    or more offences being dealt with in the same proceeding, at least one of which
    is an offence referred to in any of subparagraphs (a)(i) to (iii).

(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 complainant of the right to make an application for the order;
    and

(b)  on
    application made by the complainant, the prosecutor or any such witness, 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).

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.T., 2013 ONCA 350

DATE: 20130529

DOCKET: C55610

MacPherson, Blair and Juriansz JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

C.T.

Respondent

Nadia Thomas, for the appellant

Bernadette Saad, for the respondent

Heard: March 25, 2013

On appeal from the acquittal entered by Justice Robert
    Graydon of the Ontario Court of Justice on May 16, 2012.

Juriansz J.A.

[1]

The Crown appeals from the acquittal of the respondent on charges of
    invitation to sexual touching, sexual assault and sexual interference relating
    to the respondent's alleged actions with his four-year-old stepdaughter. The
    primary basis of the Crown's appeal is that the trial judge erred by excluding
    a portion of the complainant's video-recorded police interview.

[2]

The complainant initially disclosed to her grandmother, who was
    babysitting her, that the respondent played a secret game with her. The
    secret game was a naked game that only a little girl and a man could play
    together. The complainant said that she was not supposed to talk about it. The
    complainant agreed to act out how the game was played and did so using a toy
    hammer, toy pot and maraca. When the complainant overheard her grandmother
    reporting this event to her mother, she became hysterical, crying loudly and
    saying were not supposed to talk. The respondent, who arrived a few minutes
    later, immediately and emphatically denied the allegations.

[3]

The police conducted two video-recorded interviews of the child. The
    first was conducted two days after the complainants disclosure, when the
    grandmother took the complainant to the police station. The complainant was interviewed
    alone in a room with a police officer who was a stranger to her. The
    complainant indicated that she played games with the respondent but that she
    did not know what she did with the respondent when her mother was away. The
    interview was stopped because the complainant began to cry and wanted to go
    back to her grandmother.

[4]

The following day the police conducted a second video-recorded interview
    in a different setting. This time the complainant was allowed to sit on her
    grandmother's lap and a Children's Aid Society (CAS) worker was present. Initially
    the child said she was not sure when asked whether she had touched the
    respondents private parts and whether he had touched her private parts.
    Following these questions she stated: Whatever you ask me you still have to
    make it stop. [] As long as what I say you still have to make it stop.

[5]

After the police interviewer explained that private parts mean back-bum
    and front-bum, the complainant demonstrated, using stuffed animals, how
    mutual oral sex occurred with the respondent. She indicated by nodding yes
    that the respondents tongue had touched her front-bum. In words, she confirmed
    that the respondents tongue was used. She also said:

§

She played the secret game lots more than one time at her
    house.  They played the game on Mommy and [the respondent]s bed while her
    mother was out delivering pizza.  She and the respondent were laying down
    during the secret game.

§

She nodded yes that the respondent asked her not to tell about
    the game.  She also said that she couldnt tell because she might get in
    trouble.

§

When asked whether the respondent touched her front-bum with
    other parts of his body besides his tongue, she said: He touches the same part
    as I touch him.

§

Other than touching her front-bum with his tongue and his
    hands, the respondent does not touch the rest of her during the game.

§

Her clothes and the respondents clothes are off when they play
    the scary game.

§

She said He does the same thing as I do regarding tongue going
    on front-bum.

[6]

Later in the interview, the complainant, on her own initiative, asked
    the interviewers whether they had ever watched the movie
Ghostbusters
.
    Without prompting, she went on to recount how the respondent, like the
    character Slimer in that movie, makes slime like Slimer and the slime isnt
    green, its white. She explained that the slime doesnt come right away and
    demonstrated on a stuffed animal that you have to rub it to make it slime and
    that it takes a few minutes. This was the section of the recorded statement that
    the trial judge excluded.

[7]

The trial began on March 13, 2012, when the complainant was five years
    and three months old. At trial, video recordings of both interviews were played
    as the complainants evidence-in-chief. The Crown asked her only a few
    questions. She testified that she did not tell the police officer about the
    scary game in the first interview because she didnt have the police bear at
    that time. She agreed that having the police bear made it easier for her to
    talk about it. She also testified that what she had said about the scary game
    in the second interview was the truth. She stated that she played the scary
    game with the respondent in the bedroom.

[8]

The cross-examination of the complainant took place after an adjournment
    of one week. More than 100 times in cross-examination she said she did not
    remember or agreed with suggestions she did not remember. As well, she responded
    to other questions of defence counsel by simply stating youre so silly, or
    Im laughing at you, or youre funny.

[9]

Defence counsel asked the complainant some general questions about the
    movie
Ghostbusters
but did not approach her reference to Slimer and
    her Slimer ejaculation allegation. He asked if she had seen the movie and she
    responded that she had. She agreed with him that the movie had ghosts in it as
    well as the big marshmallow man and that she had watched it several times at
    home with the respondent and her mother. Defence counsel, however, did not ask
    any questions about what the child had said in the recorded statement about how
    the respondent was like the character Slimer.

[10]

After
    the cross-examination ended, the trial judge permitted a liberal re-examination
    by Crown counsel and then allowed defence counsel an additional opportunity to
    cross-examine the child. Defence counsel asked her about the props that had
    been present at the police station and that had been used to demonstrate the
    respondents actions. Defence counsel suggested to the child that she was
    telling the truth when she had previously answered many of his questions I
    dont remember. She agreed and also agreed that this was because sometimes
    what she was being asked about was from a while ago. However, in the further
    cross-examination, defence counsel again did not take the initiative to ask the
    child about the
Ghostbusters
movie and her Slimer allegation.

[11]

When
    defence counsel indicated to the court that he had no further questions, the
    trial judge suggested to him that he may want to ask her directly what her
    knowledge is about when she raised the subject matter of
Ghostbusters
and what flowed from that. Defence counsel proceeded to ask some general
    questions about the movie and the Slimer character and the complainant
    responded to them. Then defence counsel asked whether she remembered telling
    the CAS worker and the police officer something about [the respondent] and
    Slimer and she indicated that she did not. She said she did not remember
    telling them about something that happened with her and the respondent that
    reminded her of that movie. Defence counsel then asked her if today she
    remembered anything that happened between her and the respondent that reminded
    her of the movie
Ghostbusters
, and she answered no.

[12]

The
    respondent testified and denied committing the offences. He testified that he
    did play a scary game with the complainant once or twice a week. He explained
    that the scary game was like hide and seek but hide and scare. In the game
    the child would look for him and he would jump out and say boo. He testified
    that the complainant hated having her hair washed out and that when he bathed
    her he would refer to the shampoo as white slime. The complainant could
    pretend just like Slimer from
Ghostbusters
that he had slimed her head
    when he squeezed the shampoo bottle. The respondent also said that, when
    putting the child to bed, he would give her a body slam on to the mattress.

The Trial Judges Ruling

[13]

The
    trial judge found that the childs unresponsiveness had, in effect, denied the
    respondent the right to cross-examine her. He stated that he was invested with
    a gatekeeping function and was constitutionally obligated to ensure an
    accused receives a fair trial.  He said that though the child had been
    physically available for cross-examination, cross-examination proved to be a
    hollow meaningless right. He pointed out that, in response to questions from
    defence counsel, she had testified that she did not remember more than 100
    times and had answered other questions by simply stating youre silly, or
    Im laughing at you, or youre funny.

[14]

The
    trial judge noted that after defence counsel was requested by this Court to
    direct some of his questions of [the complainant] to the subject matter of the
    movie Ghostbusters and what followed from that, the complainant easily
    answered questions of defence counsel about the contents of the
Ghostbusters
movie but would not remember or could not remember:

·

telling the CAS worker and the police officer something about [the
    respondent] and Slimer;

·

telling the CAS worker and the police officer that something
    happened with her and [the respondent] that reminded her of that movie; and

·

anything that happened between her and [the respondent] that
    reminded her of the movie Ghostbusters.

[15]

Thereupon
    the trial judge found that the respondents
Charter
rights under
    sections 7 and 11(d) had been infringed. To ensure the trial was fair he ruled
    that all of the questions and answers about
Ghostbusters
and the Slimer
    references in the second video-recorded interview were inadmissible, together
    with any reference by any witness at trial to the subject, and the part of the
    respondents testimony in which he attempted to explain the childs Slimer
    ejaculation allegation.

Analysis

[16]

The
    trial judges ruling cannot stand for several reasons.

[17]

First,
    the trial judge erred by making the order without indicating he was considering
    making it and giving the Crown an opportunity to address the issue. There was
    no application by the defence to exclude the testimony.  In fact, after the
    child had been excused as a witness, Crown counsel had indicated that if the
    defence intended to argue that there had been no opportunity to meaningfully
    cross-examine he had submissions to make in closing argument. However, at no
    time did defence counsel suggest that his clients section 7 and 11(d)
Charte
r
    rights had been violated. The trial judge should not have made the order
    without hearing from the parties. The duty of a trial judge is to ensure the
    trial is fair to all parties.

[18]

Though
    this is a sufficient basis to set aside the order, I also accept the Crowns
    submissions that the order was not appropriate in the circumstances of this
    case.

[19]

The
    childs unresponsiveness at trial about the Slimer ejaculation allegation,
    which seems to have been the main basis of the ruling, had no connection to the
    defences opportunity to conduct the cross-examination it wished. The defence
    closed its cross-examination twice without touching on the childs Slimer
    ejaculation allegation and eventually explored the subject only when prompted
    by the trial judge. It is apparent that the defence had made a tactical
    decision to stay away from the childs Slimer ejaculation allegation to avoid
    the significant risk that the child would affirm it. The defences strategy was
    to counter the allegation with the respondents testimony about white slime
    being squeezed from the shampoo bottle when the respondent would wash the
    childs hair.

[20]

I
    have difficulty in understanding how the childs unresponsiveness on the
    subject worked any unfairness to the defence when it was the trial judge and
    not the defence who wanted the child to be questioned at trial about the
    allegation. In fact, had the additional questions posed at the request of the
    trial judge elicited testimony devastating to the defence, as could well have
    happened, the defence might have complained about the trial judges
    intervention.

[21]

In
    any event, the consideration of whether to exclude a portion of a recorded interview
    must take into account that the primary goal of s. 715.1 is to overcome the
    effects of the passage of time on the recollection of young children. Cory J. explained
    this in
R. v. F.(C.C.)
,  [1997] 3 S.C.R. 1183, at para. 21:

It can thus be seen that the primary goal of the section is to
    create a record of what is probably the best recollection of the event that
    will be of inestimable assistance in ascertaining the truth. The video record
    may indeed be the only means of presenting a child's evidence. For example, a
    child assaulted at the age of three or four years may have very little real
    recollection of the events a year or two later when the child is attempting to
    testify at trial.

[22]

At
    para. 23, Cory J. noted that:

Numerous Canadian academic writers have noted and stressed the
    goals of s. 715.1. For instance, Professor Bala stated, in Nicholas Bala and
    Hilary McCormack, "Accommodating the Criminal Process to Child Witnesses:
    L. (D.O.) and Levogiannis" (1994), 25 C.R. (4th) 341, at p. 343:

One of the main purposes of this provision is to
    ensure that the courts have access to the best description possible of the
    events, as a child is more likely to have an accurate and complete memory of
    the events when the videotape is made, than several months later at the time of
    trial. Children are also more likely to fully remember and relate often painful
    memories in a relatively relaxed interview than in the strange, stressful, and
    formal court environment.

[23]

An
    order excluding a portion of a video recording admitted under s. 715.1 because
    of a childs genuine inability to remember seems to run counter to the primary
    purpose of the provision.

[24]

Cory
    J. also noted, at para. 22, that a further aim of s. 715.1 is to obtain the
    childs story in a setting that is less overwhelming than a courtroom:

The important subsidiary aim of the section is to prevent or
    reduce materially the likelihood of inflicting further injury upon a child as a
    result of participating in court proceedings. This will be accomplished by reducing
    the number of interviews that the child must undergo and thereby diminish the
    stress occasioned a child by repeated questioning on a painful incident.
    Further, the videotaping will take place in surroundings that are less
    overwhelming for a child than the courtroom.

[25]

In
    this case the trial judge did not arrive at a determination of the reasons for
    the childs unresponsiveness. He simply said that the child would not remember
    or could not remember. There was evidence that, if accepted, would indicate the
    childs unresponsiveness was due to a genuine inability to remember.  The child
    agreed with defence counsel that she answered his questions by saying I dont
    remember because she did not in fact remember.

[26]

The
    record also discloses a basis that could support the inference that the
    courtroom setting and trial process played a role in the childs
    unresponsiveness. In cross-examination the child had explained that she did not
    disclose anything in the first police interview because she was too scared
    that day and that the next day she wasnt so scared because her grandmother
    was with her. As well, in the midst of her cross-examination, the child
    indicated she was tired and needed a break. While the trial judge had accommodated
    her with regular breaks during the in-chief viewing of the lengthy video recordings,
    there was only one short adjournment during the cross-examination. The
    cross-examination was not interrupted the second time the child indicated she
    needed a break.

[27]

The
    trial judge should not have made the ruling without resolving his concern that
    the child would not remember. Absent a finding that the child was
    deliberately evasive the record discloses no basis for excluding the portion of
    the video.

[28]

The
    trial judges concern the child would not rather than could not remember may
    have been affected by a misapprehension of the childs age and the time that elapsed
    between the events and trial. The reasons for judgment say, at one point, that [the
    complainant] was five-and-a-half years old during the time period covered by
    the information, at the time she was interviewed by the police, and six years
    of age at trial. In fact the she was four-and-a-half years old during the
    events leading to the charges, and five years and three months old at trial.

[29]

Finally,
    I observe that the defence was able to conduct a cross-examination that was not
    meaningless. In addition to the matters mentioned above she:

§

Acknowledged that it was true that the respondent scared her a lot
    while she lived with him because he hid everywhere.  She also said that this
    was not part of a game that he was playing with her.

§

She explained that she did not remember telling her grandmother
    about the secret game because it was last summer.

§

While she did not remember where she played the secret game or
    what they did, she said she did remember playing the secret game with the
    respondent. The child said that she did not remember her grandmother asking
    about the secret game, nor did she remember telling her grandmother about the
    secret game.  She clarified, however, that this was because she did not tell
    her grandmother about the secret game.  Instead, she showed her grandmother
    the secret game and she did remember showing her.

[30]

It
    is far from apparent to me that the respondent was completely denied the right
    of cross-examination.

Conclusion

[31]

For
    these reasons, I would conclude that the trial judge erred by excluding a
    portion of the complainants recorded statement. I would allow the appeal and
    remit the matter for a new trial.

R.G. Juriansz J.A.

I agree J.C.
    MacPherson J.A.

I agree R.A. Blair
    J.A.

Released: May 29, 2013


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), (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 complainant 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, 172, 172.1, 173, 210, 211, 212,
    213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii)      an offence under section 144 (rape), 145
    (attempt to commit rape), 149 (indecent assault on female), 156 (indecent
    assault on male) or 245 (common assault) or subsection 246(1) (assault with
    intent) of the
Criminal Code
, chapter C-34 of the Revised Statutes of
    Canada, 1970, as it read immediately before January 4, 1983, or

(iii)     an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

(b)     two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in any of subparagraphs (a)(i) to (iii).

(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 complainant of the right to
    make an application for the order; and

(b)     on application made by the complainant, the
    prosecutor or any such witness, 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).

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. Colbourne, 2013
    ONCA 308

DATE: 20130509

DOCKET: C54866

Weiler, Gillese and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Darren Colbourne

Appellant

Leo Adler, for the appellant

Megan Stephens, for the respondent

Heard and released orally: May 7, 2013

On appeal from the conviction entered on October 27, 2011
    and the sentence imposed on February 29, 2012 by Justice David Salmers of the Superior
    Court of Justice, sitting without a jury.

ENDORSEMENT

OVERVIEW

[1]

The appellant was found guilty of sexually assaulting the complainant.
    He was sentenced to fourteen months imprisonment followed by two years probation.
    He appeals his conviction and, if leave to appeal is granted, seeks leave to
    appeal his sentence. In relation to conviction, the appellant raises three
    grounds of appeal, all of which relate to the trial judges reasons.  The
    appellant alleges that the trial judge erred in three respects. 1) He made
    findings of fact based on conjecture and misapprehensions of the evidence. 2)
    He failed to properly apply R. v.
W.(D.)
, [1991] 1 S.C.R. 742 (S.C.C.).
    3) He failed to consider the appellants honest but mistaken belief in
    consent.  In relation to sentence, the appellant submits that it is overly
    harsh and long.

FACTS

[2]

After an evening spent drinking at a bar, the appellant, his brother,
    and three women drove to the appellants home. Except for the appellants
    brother who was driving, all of them were drunk.

[3]

The complainant felt unwell during the truck ride on the way to the
    appellants house and put her head down in the lap of her girlfriend, Ms. Reid.
    Upon arrival, she opened the truck door and vomited on the driveway. She had to
    be helped out of her boots in the house, and helped upstairs to a second floor
    bedroom and into bed.

[4]

The others continued the party in the kitchen then moved to the computer
    room. The appellant left the computer room where the party was ongoing. After a
    very brief period of time his absence was noted. Ms. Reid left the computer
    room and discovered the appellant having sexual intercourse with the
    complainant. Ms. Reid testified that she grabbed the appellant and told him to
    get off the complainant. The complainant was still fully clothed from the waist
    up; her winter coat was still on and her purse was across her torso; her pants
    were partially off. Ms. Reid said the complainant seemed stunned, began crying
    and looked confused. Ms. Reid and Ms. Ruscoe eventually helped the complainant
    put her pants back on, helped her down the stairs, put on her boots and then
    helped her leave the house.

[5]

The complainant testified that she was sleeping in the bedroom when she
    felt a dark figure over top of her. She felt pressure in her vaginal and pelvic
    areas. It was uncomfortable but did not seem real. She testified that it seemed
    like it was a dream.

[6]

The appellant testified that he was on his way to the bathroom when he
    met the complainant in the hallway. He stated that they kissed in the hallway
    and moved to the bedroom where she had previously been. They then had
    consensual sexual intercourse there.

THE TRIAL COURT JUDGMENT

[7]

The trial judge found that at the time that Ms. Reid first assisted the
    complainant into bed, the complainant was without capacity to consent to sexual
    activity, including sexual intercourse with the accused. After the discovery of
    the sexual intercourse, the evidence of the complainant, Ms. Reid, and Ms.
    Ruscoes testimony was to the effect that the complainant was not pretending to
    be asleep or confused. She was genuinely extremely groggy and confused.

[8]

The trial judge did not believe the appellants testimony about what
    happened between him and the complainant.  He rejected the appellants evidence
    that the sexual intercourse was consensual and added:

Further, the accuseds testimony does not raise a reasonable
    doubt in my mind about whether the sexual intercourse was consensual. Finally,
    I am satisfied beyond a reasonable doubt, that when the accused was having
    sexual activity, including intercourse, with the complainant, she was incapable
    of consenting to the sexual activity including sexual intercourse and that the
    accused knew that. I am satisfied beyond a reasonable doubt that the incapacity
    of the complainant was due to intoxication, illness and/or sleepiness, either
    any one of them alone or in combination with one or all of the other factors.

ISSUES AND DISPOSITION

(1)

Did the trial judge err by making findings of fact based on conjecture
    and misapprehensions of the evidence?

[9]

The appellant submits that the trial judges analysis of the evidence
    was faulty. He submits that the trial judge based his conviction of the
    appellant on an inappropriate analysis, on speculation and conjecture and on
    findings of fact unsupported by the weight of the evidence.  In particular, the
    appellant submits that the trial judge used the fact the appellant and
    complainant met for the first time that night and that she was still wearing
    her coat with her purse strapped across her torso, the appellants inability to
    give detail about their move from the hallway to the bedroom, the issue of
    whether the bedroom door was open and the appellants alleged lie about his
    daughter being home that night, to find it implausible that the complainant
    would have sex with the appellant.

[10]

In
    our opinion, the appellants allegations do not meet the stringent standard
    that applies to appellate reversal on the basis of misapprehension of the
    evidence.

[11]

The
    core of the trial judges reasoning is that when the complainant was put to bed
    by her friend, Ms. Reid, the complainant was without capacity to consent to
    sexual activity. He found that a short while later, she was still without
    capacity to consent to sexual activity when found by her friends having
    intercourse with the appellant. We do not agree that the trial judge engaged in
    speculation. The trial judge was entitled to take into consideration the
    evidence of how long the appellant and complainant had known each other, her
    state of dress when she was having intercourse, and the appellants omission of
    detail respecting how the complainant got from being upright in the hallway
    onto the bed with him, along with all of the other evidence concerning her
    physical condition in assessing the credibility of the witnesses. Even assuming
    there is some merit in the appellants contention i.e. concerning whether his
    daughter was asleep in the house, and whether the door to the bedroom was open,
    these points are peripheral and do not affect the core of the trial judges
    reasoning. Overall, the trial judge made reasonable inferences from the
    evidence and did not engage in impermissible speculation.

[12]

The
    appellant further submits that the trial judge gave greater scrutiny to a minor
    inconsistency in the appellants prior consistent statements to the police than
    to the complainants erroneous statement respecting the doctors report. Simply
    because the trial judge weighed these two individual pieces of evidence
    differently does not mean that he applied greater scrutiny to the evidence of
    the appellant than of the complainant. We do not agree he applied different
    levels of scrutiny to the evidence of the defence and the Crown witnesses. The
    findings the trial judge made were open to him.

(2)

Did the trial judge err in his application of
R. v. W.(D.)
, s
upra,
by not properly evaluating the whole of the evidence to determine reasonable
    doubt?

[13]

The
    trial judge applied the correct burden and standard of proof  he did not treat
    this case as turning on whose evidence he accepted. He provided extensive
    reasons for why he found the complainant lacked the capacity to consent, and
    explained why he believed the Crown had proven guilt beyond a reasonable doubt.

(3)

Did the trial judge err by not considering the defence of honest but
    mistaken belief in consent?

[14]

On
    the basis that the case was argued at trial, the sole issue was whether the
    complainant consented to have sex with the appellant.  Section 273.1(2)(b)
    provides that no consent is obtained where the complainant is incapable of
    consenting to the activity.

[15]

Before
    us, the appellant submits that the trial judge was also obliged to consider
    whether the appellant had an honest belief in the appellants consent. Inasmuch
    as we see no error in the trial judges finding that the complainant was
    incapable of consenting to sexual activity and his finding that the appellant
    knew this, the defence has no air of reality.

[16]

The
    appeal as to conviction is dismissed.

SENTENCE

[17]

The
    sentencing judge was alive to the appellants health condition and personal
    circumstances. The appellant has not shown any error in principle that would
    warrant interference with the sentence. If anything the sentence was at the low
    end of the range.

[18]

Accordingly
    while we grant leave to appeal sentence, the appeal as to sentence is also dismissed.
K.M.
    Weiler J.A.

E.E.
    Gillese J.A.

Alexandra
    Hoy J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dwyer, 2013 ONCA 306

DATE: 20130508

DOCKET: C54727 & C54734

Rosenberg, Blair and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent/Appellant

and

Beverley Dwyer

Appellant/Respondent

Ryan Clements, for Beverley Dwyer

Melissa Adams, for the Crown

Heard: September 7, 2012

On appeal from the conviction entered by Justice Faye E.
    McWatt of the Superior Court of Justice, sitting without a jury, on July 15,
    2011, and from the sentence imposed on November 15, 2011, with reasons reported
    at 2011 ONSC 6555.

ADDENDUM

[1]

In our decision in this matter reported at 2013 ONCA 34, the court
    allowed the Crown appeal and imposed a fine of $10,700 in lieu of forfeiture.
    In default of payment, Ms. Dwyer is to serve an additional 6 months
    imprisonment.  She is currently serving a sentence of three and one-half years
    imprisonment imposed by McWatt J. in this matter and a sentence of 17 months
    imprisonment imposed by Code J. She is also facing other charges in the Central
    West Region that may result in a further prison term if she is convicted.

[2]

The court has now received submissions on the length of time Ms. Dwyer
    should have to pay the $10,700 fine. We accept the joint submission of the
    parties in this respect. Ms. Dwyer will have time to pay the fine of two years
    following the latest date of release from custody in relation to the sentences
    imposed by McWatt J. and Code J. and any further sentence of imprisonment
    arising out of the charges in Central West Region.

M. Rosenberg JA

R.A. Blair JA

Paul Rouleau JA


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Fremlin, 2013 ONCA 318

DATE: 20130510

DOCKET: C55213

Weiler, Gillese and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dillon Fremlin

Appellant

Michael W. Caroline, for the appellant

Phil Perlmutter, for the respondent

Heard: May 10, 2013

On appeal from the decision of the Summary Convictions
    Appeal Court dated February 13, 2012 by Justice S. Bruce Durno of the Superior
    Court of Justice, dismissing the appeal from the conviction entered on October
    4, 2010 by Justice June Maresca of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The Crown concedes the appeal.  We agree that it is appropriate.
    The appeal is allowed and a new trial is ordered on both counts.  The matter is
    to be spoken to in Provincial Court in Orangeville on June 25, 2013