WARNING

The President of the panel hearing this
    appeal directs that the following should be attached to the file:

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of
the Criminal
    Code
provide:

486.4(1)       Subject to subsection
    (2), the presiding judge or justice may make an order directing that any
    information that could identify the victim or a witness shall not be published
    in any document or broadcast or transmitted in any way, in proceedings in
    respect of

(a)     any of the following offences;

(i)      an offence under section 151,
    152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2,
    173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25,
    s. 22(2), effective December 6, 2014 (Act, s. 49).

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

(2)     In proceedings in respect of the
    offences referred to in paragraph (1)(a) or (b), the presiding judge or justice
    shall

(a)     at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the victim
    of the right to make an application for the order; and

(b)     on application made by the
    victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an
    offence other than an offence referred to in subsection (1), if the victim is
    under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

(3)     In proceedings in respect of an
    offence under section 163.1, a judge or justice shall make an order directing
    that any information that could identify a witness who is under the age of
    eighteen years, or any person who is the subject of a representation, written
    material or a recording that constitutes child pornography within the meaning
    of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)     An order made under this section
    does not apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community.
2005, c.
    32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014,
    c. 25, ss. 22,48; 2015, c. 13, s. 18.

486.6(1)       Every person who fails to
    comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or
    (2) is guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order
    referred to in subsection (1) applies to prohibit, in relation to proceedings
    taken against any person who fails to comply with the order, the publication in
    any document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity
    is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Norris, 2020 ONCA 847

DATE: 20201231

DOCKET: C65226

Fairburn A.C.J.O., Huscroft and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Norris

Appellant

Paul Lewandowski, for the appellant

Christine Tier, for the respondent

Heard: November 6, 2020 by video conference

On appeal from the conviction entered by Justice C. McKinnon
    of the Superior Court of Justice, dated December 7, 2015.

Fairburn A.C.J.O.:

A.

overview

[1]

The appellant held himself out to be a healer of ailments. He saw
    patients in a treatment room located in the basement of his home, a home that
    was tucked away in the countryside of a small, rural community. From that
    location, he purported to administer various treatments, including cranio-sacral
    therapy, lymph drainage therapy and visceral manipulation. From time-to-time
    the appellant would also utilize what he referred to as an orgasm technique.

[2]

The appellant was eventually charged with five counts of sexual assault,
    all arising from having touched adult female patients in circumstances of a
    sexual nature. The conduct underpinning the charges included the touching of patients
    breasts, vaginal and anal areas, and, in one case, masturbating on a patients
    feet.

[3]

The appellant was convicted on all five counts of sexual assault. He
    appeals those convictions on the basis that the trial judge erred:

(a) in allowing for the
    cross-count application of similar act evidence; and

(b) in his approach to
    consent in relation to one of the complainants  the one who had her feet
    masturbated on.

[4]

For the following reasons, I would dismiss the appeal.

B.

Did the trial judge err in his approach to similar act evidence?

(i)

Overview

[5]

The indictment contained five counts of sexual assault, one count for
    each of the complainants. At the conclusion of its case, the trial Crown applied
    to have the evidence of all five complainants apply across all five counts.

[6]

The Crowns application was met with partial success. The trial judge
    concluded that the evidence of only three of the complainants was sufficiently
    similar to qualify for consideration across counts. The trial judge
    specifically rejected the defence suggestion of collusion on the part of the
    complainants. In the end, he decided that the probative value of H.S., B.W. and
    D.A.s evidence outweighed any minimal prejudicial impact that may result from the
    cross-count application of that evidence.

[7]

The appellant contends that the similar act ruling reflects two fundamental
    errors. First, he maintains that the evidence of H.S., B.W. and D.A. was
    insufficiently similar to qualify as similar act evidence, capable of
    consideration across counts. Second, he maintains that the trial judge erred by
    dismissing the allegation of collusion in circumstances where the trial Crown
    failed to call a critical witness who was alleged to be one of the colluders.

[8]

I will deal with the appellants arguments in that order. Neither of them
    can succeed.

(ii)

Was there
    Sufficient Similarity in H.S., B.W. and D.A.s evidence?

[9]

Two purposes were served by allowing for the cross-count application of
    H.S., B.W. and D.A.s evidence. The first purpose related to the Crowns
    ability to rebut any possible suggestion of inadvertent or accidental touching.
    The second purpose related to, as the trial judge put it, the Crowns ability
    to prove that the touching happened at all. Touching forms part of the
actus
    reus
of the crime of sexual assault, the full
actus reus
of
    course being the non-consensual touching of a complainant in circumstances of a
    sexual nature:
R. v. Barton
, 2019 SCC 33, 435 D.L.R. (4th) 191, at
    para. 87;
R. v. A.(J.)
, 2011 SCC 28, [2011] 2 S.C.R. 440, at para. 23.

[10]

The
    appellant contends that where the purpose for the admission of similar act
    evidence is to assist in establishing the
actus reus
of the offence, as
    a prerequisite to admission, the evidence must be strikingly similar in nature.
    Since this was one of the purposes for applying the similar act evidence across
    counts in this case, the appellant maintains that the trial judge committed
    reversible error by failing to consider whether the evidence first met the
    threshold of striking similarity.

[11]

While
    I accept that the trial judge did not consider whether H.S., B.W. and D.A.s
    evidence was strikingly similar in nature, I reject that he was required to do
    so.

[12]

The
    appellant points to a single, dated authority for the proposition that, where
    similar act evidence is proffered to establish the
actus reus
of an
    offence, it must first be found strikingly similar in nature:
R. v.
    McNamara
(1981), 56 C.C.C. (2d) 193 (Ont. C.A.), at pp. 287-88 (affd.
    without reference to this point, [1985] 1 S.C.R. 662). I disagree that
McNamara
stands for this proposition and, even if it does, the long line of authority that
    has evolved since
McNamara
was decided has made clear that this is not
    the test.

[13]

In
    support of his proposition, the appellant appears to rely upon a brief reference
    in
McNamara
to the decision of
Boardman v. Director of Public
    Prosecutions
, [1975] A.C. 421, at p. 462. The
McNamara
court
    noted that similar act evidence was tendered in
Boardman
to prove the
    commission of the offence by the accused: at p. 288. This court said that, in
    the circumstances operative in
Boardman
, the strikingly similar test
    [was] properly applied as a condition precedent to admissibility: at p. 288.
    Even so, the
McNamara
court refused to apply that high threshold test
    to the similar act evidence in
McNamara
because the evidence was tendered
    to prove, among other things, state of mind, knowledge and intent:
McNamara
,
    at p. 288.

[14]

I do
    not intend to review the
Boardman
decision, briefly commented upon by
    this court in
McNamara
. Suffice to say that, as noted by The
    Honourable Marc Rosenberg: The English Court of Appeal quickly recognized that
    this test [the
Boardman
test] was too restrictive and no single test
    could be articulated to fit all the circumstances in which similar fact
    evidence could be admissible: The Honourable Marc Rosenberg, Similar Fact
    Evidence,
Law Society of Upper Canada Special Lectures 2003: The Law of
    Evidence
, (Toronto: Irwin Law, 2003), at p. 411. See also:
R. v. Rance
    and Herron
(1976), 62 Cr. App. R. 118 (C.A.) and
R. v. Mansfield
(1977), 65 Cr. App. R. 276 (C.A.).

[15]

Even
    if the passage in
McNamara
could be read as supporting the appellants
    position, it is an entirely obiter comment and, in any event, does not accurately
    capture the law today. To accept the appellants position would be to ignore a
    long line of authority that has evolved since
McNamara
, clarifying
    that the strikingly similar test does not operate as a condition precedent to admission,
    even where the purpose of admission is to establish the
actus reus
of
    the offence.

[16]

Indeed,
    as the majority in
R. v. B.(C.R.)
, [1990] 1 S.C.R. 717, noted 30 years
    ago now: Catchwords have gone the same way as categories: at p. 733.
[1]
Instead, the focus is upon whether the proposed similar act evidence
    constitutes an exception to the general rule prohibiting the introduction of bad
    character evidence on the basis that its probative value outweighs its
    prejudicial effect. Therefore, in any similar act application, the onus falls
    squarely on the Crown to establish on a balance of probabilities that the
    probative value of the evidence exceeds any prejudicial effect that may flow
    from its admission into the trial or, as in this case, from its application
    across counts in a multi-count indictment:
R. v. Perrier
, 2004 SCC 56,
    [2004] 3 S.C.R. 228, at para. 18;
R. v. Handy
, 2002 SCC 56, [2002] 2
    S.C.R. 908, at para. 55.

[17]

Like
    many similar act evidence applications in trials involving multiple
    complainants, the probative value of the evidence in this case lay in the
    objective improbability of coincidence that more than one person (acting
    independently) would coincidentally give the same type of evidence:
R. v.
    Arp
, [1998] 3 S.C.R. 339, at para. 48;
Handy
, at paras. 76, 110;
R.
    v. Durant
, 2019 ONCA 74, 144 O.R. (3d) 465, at para. 87. As Binnie J. put
    it in
Handy
, at para. 47: Probative value exceeds prejudice where
    the force of similar circumstances defies coincidence or other innocent
    explanation.

[18]

The
    degree of similarity required in any given case depends upon the issues at work
    in that case and the purpose for which the evidence is sought to be admitted
    into the trial or across counts. The cumulative effect of similarities in the way
    the acts were committed will often push toward admission into the trial or
    across counts. But there is no categorical approach. Factors to be considered
    involve: proximity in time, the similarity between the acts, the number of
    alleged occurrences of similar acts, the circumstances surrounding the acts,
    any distinctive features involved in the similar acts and whether there exist any
    intervening events:
Handy
, at para. 82. Dissimilarities must also be
    considered.

[19]

The
    trial judge fully appreciated these factors and went through them in some
    detail. He carefully reviewed the evidence of each complainant, ultimately
    comparing and contrasting that evidence to tease out both the similarities and
    dissimilarities at work in each version of events. Revealing the seriousness
    with which he took his gatekeeping role, the trial judge cautiously arrived at
    the conclusion that the evidence of only three of the five complainants was
    sufficiently similar to sponsor consideration for admission across counts. In
    those cases, the trial judge pointed to the following factors informing the
    similarity in the evidence:

(a)  all three women were adults;

(b)  they were each asked to remove their pants and tops while
    the appellant stood by and watched;

(c)  all three had their breasts touched;

(d)  all three had their vaginal areas touched;

(e)  all three had their tailbones manipulated;

(f)  two of the complainants had their labias touched, after
    which the appellant sniffed his fingers, also licking his fingers in one case
    and running them through his hair in another case;

(g)  the appellant made sexual comments to two of the women;
    and

(h)  he spoke to two of the women about his orgasm technique.

[20]

The
    appellant suggests that some of the trial judges analysis was flawed in the
    sense that he failed to appreciate the finer distinctions between the
    complainants versions of events. For instance, the appellant contends that the
    appellant only ran his fingers along B.W.s pubic hairline, while H.S. and D.A.
    recounted having had their labias touched. He points to another example
    relating to how the womens breasts were touched. In D.A.s case, the appellant
    was said to have placed his hands slightly in between my breasts, whereas the
    other complainants recounted a greater extent of touching of the breasts.

[21]

Bearing
    in mind the entire context in which the touching took place, and all of the
    points of similarity, the differences that the appellant points to are without
    force. The point is that the complainants were touched in similar circumstances
    of a sexual nature, in and around the same parts of their bodies, and in the
    context of the same patient/health care worker relationship. Whether touched a
    little to the left or a little to the right, in these circumstances, are
    distinctions without a difference.

[22]

Having
    determined the probative value of the evidence, the trial judge properly turned
    his mind to its prejudicial effect.

[23]

The
    presumptive inadmissibility of similar act evidence  a form of bad character
    evidence  is rooted in concerns over moral and reasoning prejudice. Moral
    prejudice results where triers of fact decide cases, not based on what the
    accused has done, but based on the kind of person the trier of fact perceives
    the accused to be:
Handy
, at paras. 31, 36;
R. v. Lo
, 2020
    ONCA 622, at para. 110. Reasoning prejudice results where similar act evidence
    gives rise to confusion and distracts the trier of fact from its proper focus
    on the charges before the court.

[24]

In
    this case, the trial judge determined that little prejudice would flow from the
    cross-count application of the three complainants testimony. The appellant
    does not take issue with that conclusion and for good reason. As this was a
    judge-alone trial, involving only the cross-count application of evidence
    intrinsic to the indictment, the potential for moral and reasoning prejudice
    was seriously attenuated:
R. v. J.M.
, 2010 ONCA 117, 251 C.C.C. (3d)
    325, at paras. 87, 88.

[25]

Accordingly,
    it was the task of the trial judge in this case to balance that admittedly
    attenuated prejudice resulting from the cross-count application of evidence with
    the probative value of what would result from any such approach. Calibrating
    the probative value of evidence against its prejudicial impact can sometimes
    involve difficult exercises of discretion. Similar act evidence applications
    are no exception to that observation.

[26]

Trial
    judges occupy the best position from which to view the entire trial landscape
    and consider the trial dynamics at work. Together, those contextual factors
    form a critical backdrop against which discretionary admissibility rulings are
    made. For this reason, a high degree of deference should be given to trial
    judges decisions respecting where, within the wider context of the entire
    trial, the balance between probative value and prejudicial effect lies:
B.(C.R.)
,
    at p. 733;
R. v. Shearing
, 2002 SCC 58, [2002] 3 S.C.R. 33, at para.
    73.

[27]

I
    see no basis upon which to interfere with the trial judges careful exercise of
    discretion in this case and would grant his admissibility decision deference.

(iii)

The Analysis on Collusion

[28]

Where
    the admissibility of similar act evidence into a trial or across counts rests
    on the improbability of coincidence, anything that serves to shake that
    improbability will serve to shake the probative potential of the evidence:
Lo
,
    at para. 113. Genuine collusion will do just that.

[29]

The
    defence made an allegation of collusion in this case and the trial judge found
    that there was an air of reality to that suggestion. Having found that the air
    of reality threshold had been crossed, it was for the trial Crown to disprove
    collusion on a balance of probabilities:
Lo
, at para. 113;
Handy
,
    at para. 112;
Shearing
, at para. 41. The appellant accepts that the trial
    judge well understood this fact.

[30]

The
    appellant maintains, though, that in meeting its onus, the trial Crown was
    duty-bound to call a particular witness who the appellant says was one of the
    colluders: G.J. Yet the Crown did not elicit evidence from G.J. The appellant
    argues that, in the absence of G.J.s evidence, the trial Crown necessarily
    fell short on disproving collusion and, therefore, it was not open to the trial
    judge to find that there had been no collusion. I do not agree with this chain
    of reasoning.

[31]

B.T.
    was a massage therapist who worked in the same geographical area as the
    appellant. His wife was G.J. In 2009, G.J. was experiencing nerve pain and so
    the couple attended at the appellants office so that G.J. could obtain treatment.
    B.T. went into the treatment room with his wife. Part way through that
    treatment session, the appellant started explaining his orgasm technique. In
    his testimony at trial, B.T. described what happened next as involving G.J.
    stroking B.T.s fingers, in a masturbating type motion, while the appellant did
    something to the palm of her hand to bring on an orgasm.

[32]

B.T.
    and G.J. later wrote a letter to the appellant, expressing concern over the
    treatment session. The letter cautioned the appellant against this type of
    activity and expressed concern over the fact that it could seriously compromise
    informed consent.

[33]

Although
    B.T. testified at trial, G.J. did not.

[34]

Anticipating
    that there may be a suggestion of collusion, the trial Crown pre-emptively
    asked B.T. questions about any interactions he may have had with the
    complainants whose allegations formed the essence of the indictment at trial.
    Equally, the complainants were asked about any interactions they had with each
    other and with B.T. and G.J. The trial judge carefully considered all of that
    evidence, made credibility findings concerning it, and provided reasons for rejecting
    the suggestion of collusion.

[35]

I
    reject the proposition that the only way that the Crown could disprove
    collusion was by calling G.J. as a witness. It is important to remember that
    contact does not amount to concoction or collaboration:
Handy
, at
    para. 111;
R. v. J.W.
, 2013 ONCA 89, 302 O.A.C. 205, at paras. 36-38. While
    G.J. may have had some contact with the witnesses, there was no evidence that
    they had concocted their stories or collaborated in developing their
    complaints. Indeed, there was evidence coming from each of the complainants
    that they did not collude with G.J. The trial judge accepted the complainants
    evidence as entirely credible. It was open to him to do so.

[36]

Moreover,
    while the Crown held the burden of establishing that there was no collusion,
    this did not mean that the Crown was required to elicit the testimony of every person
    who may have had relevant evidence to give on the point. To the contrary, in an
    exercise of clear prosecutorial discretion, it is for the Crown to decide how
    to meet its burden:
R. v. Jolivet
, 2000 SCC 29, [2000] 1 S.C.R. 751, at
    para. 14;
R. v. Cook
, [1997] 1 S.C.R. 1113, at paras. 19, 32, 39. If
    the Crown fails to meet its burden of proof, this is because the court is not
    satisfied to the requisite degree of proof, not because a witness list was not exhaustive
    or as extensive as it could have been. In this case, based upon the evidence
    heard, the trial judge was satisfied to the requisite degree of proof that
    there was no collusion.

[37]

As
    well, not that the Crown needed a reason, there happened to be a very good one for
    why G.J. was not called to testify. As the trial Crown explained on the record,
    one of G.J.s friends had been murdered not long before trial and G.J. was
    experiencing significant trauma as a result. Even so, the trial Crown offered,
    again on the record, to assist the defence with obtaining G.J.s attendance should
    the defence wish to have her examined. While I remain cognizant of the Crowns
    onus on this issue, the fact is that the defence chose not to take the Crown up
    on this offer.

[38]

I
    see no error in how the issue of collusion was disposed of.

C.

The Conviction Relating to A.R.D.

[39]

A.R.D.
    was one of the appellants patients. She saw the appellant on three occasions.
    On the last occasion, the appellant pulled his erect penis out in the treatment
    room and masturbated on her feet. The conviction for sexual assault related to
    that event.

[40]

The
    appellant argues that the trial judges reasoning on the A.R.D. count reflects
    three errors.

[41]

First,
    the appellant argues that the trial judge erred in how he approached the issue
    of consent: (a) by failing to appreciate that the complainant actually
    consented to the sexual activity in question; and, in the alternative, (b) by
    failing to properly address whether the appellant had an honest but mistaken
    belief in consent.

[42]

Second,
    the appellant argues that the trial judge failed to appreciate that the
    complainant had insufficient recall of the events to permit a conviction.

[43]

And
    third, the appellant argues that the trial judge erred by applying different standards
    of scrutiny to the evidence of the appellant and that of A.R.D.

[44]

I do
    not accept any of these arguments.

(i)

The
    Issue of Consent

a.

Did the trial judge fail to appreciate that A.R.D. actually
    consented?

[45]

The
    appellant points to a single passage in the cross-examination of A.R.D. to
    suggest that she consented to having her feet masturbated upon as she lay on the
    treatment table. In that passage, which I will set out in detail shortly,
    A.R.D. acknowledged that she may have assisted with the masturbation by moving
    her feet on the appellants penis and that she may have said yes to the foot
    masturbation taking place. The appellant argues that yes must mean yes and,
    therefore, it was not open to the trial judge to find a lack of consent to the
    sexual activity on A.R.D.s part.

[46]

I
    will first explain the factual context within which this legal issue arises and
    then address why I would reject the appellants yes must mean yes position.

i.

The Factual Context

[47]

A.R.D.
    saw the appellant in his treatment room, located in the basement of his
    countryside home, on three occasions in total.  While she originally sought his
    help with respect to migraine headaches, during the second appointment the
    appellant worked on A.R.D.s breasts, claiming that he could assist her with
    pain during menstruation. He told her that her breasts looked perkier at the
    end of that appointment. While A.R.D. was uncomfortable at that appointment,
    she felt professionally safe because she considered the appellant to be a
    doctor.

[48]

A.R.D.
    attended the third and final appointment at the appellants suggestion that he
    could assist her with stress that she was experiencing in her life. What
    happened during that appointment was the subject of dispute at trial.

[49]

A.R.D.
    testified that the appointment started with the appellant showing her astrology
    books. He had marked sexually explicit passages for her to read. She was
    uncomfortable and did not know where this was going.

[50]

After
    having reviewed those passages, the appellant told A.R.D. to lie on her back on
    the treatment table, close her eyes, and think about relaxing and happy
    thoughts. After about 20 minutes she opened her eyes to find the appellant with
    his pants down and his erect penis near her face. He asked if she wanted him to
    put his penis in her mouth. She said no. He then moved to the end of the table
    and placed his erect penis on her feet and began masturbating on them.

[51]

A.R.D.
    was questioned at length about how the appellants erect penis came to rest on
    her feet, how the foot masturbation took place, and what followed that
    masturbation. I will come back to those details shortly. A.R.D. testified about
    the fear she was experiencing while the appellants penis was exposed to her in
    the treatment room. When asked, Did you want any of those things that youve
    described with his penis to happen?, A.R.D. provided the unequivocal answer:
    Absolutely not.

[52]

The
    appellant also testified. While he agreed that he showed A.R.D. astrology books
    at the beginning of the treatment session, his version of what happened next
    differed wildly from A.R.D.s account. He said that after A.R.D. was done with
    the books, their eyes met and there was a clear connection between them.
    According to the appellant, A.R.D. then placed her hand into his pants and
    started working with and exploring his genitals. He testified that he had
    been experiencing erectile dysfunction prior to that appointment and, so, it
    surprised the hell out of [him] when his penis, as he put it, springs to
    life.

[53]

According
    to the appellant, A.R.D. suggested that they have sex on the treatment table.
    While he was amenable to her request, he decided that sex was not going to
    happen and so he asked A.R.D. if there was anything else she might like.
    According to the appellant, the foot thing was A.R.D.s idea.

[54]

The
    appellant testified that he did not get a lot of pleasure out of the foot masturbation,
    but added that he was not doing it for his own pleasure. Once he removed his
    penis from A.R.D.s feet, the appellant testified that he asked A.R.D. if she
    wanted to have his penis in her mouth because, according to the appellant, I
    never take, I always offer and I always ask. He said that he offered to place
    his penis in her mouth just in case she wanted it or needed it. He said that
    his intentions were always honourable.

[55]

The
    trial judge rejected the appellants testimony as preposterous. He gave
    multiple reasons for doing so. In contrast, the trial judge accepted A.R.D.s
    evidence as being both credible and reliable. Those credibility findings are
    owed deference by this court.

ii.

Consent and the Complainants Subjective State of
    Mind

[56]

When
    it was suggested to A.R.D. in cross-examination that the appellant asked if he
    could put his penis on her feet, A.R.D. said that she could not recall him
    doing so, but I would say that he  I just let him. She went on to describe
    the significant fear she was experiencing at that time and the fact that she
    may have been in shock while the appellants penis was out in the treatment
    room. With that context in mind, she said, I dont know if I said no, but I didnt
    say yes either and I dont believe I would say he could.

[57]

The
    trial judge focused on that evidence in coming to the conclusion that A.R.D.
    did not consent to the sexual activity in question.

[58]

The
    appellant points to a single passage close to the end of A.R.D.s
    cross-examination to suggest that the trial judge erred by failing to
    appreciate that A.R.D. actually acknowledged that she had consented to the
    appellant masturbating on her feet:

Q. You were taking steps to present
    as a willing participant?

A. Umm, yes because I didnt
    actually take my feet away and get up and run.

Q. Well, but even more than that,
    not only do you not take your feet up and get away and run, you actually assist
    with the masturbation motion?

A.
I believe
    I guess thats how it went, yes. Yeah
.

Q. All right and then again, going
    back to this, and
when he even asks, can he put his penis
    on your feet, Im again suggesting you would have said, yes or something that
    indicated
.

A.
I probably
    did, yes
. [Emphasis added.]

[59]

The
    appellant argues that, in light of this single passage, taken from a lengthy
    cross-examination, it was not open to the trial judge to conclude that the
    complainant did not consent to having her feet masturbated on because, as the
    appellant put it in this court: yes must mean yes. Respectfully, not only
    does this position take A.R.D.s evidence out of context, but it reflects a
    fundamental misunderstanding of how consent operates as part of the
actus
    reus
of the crime of sexual assault.

[60]

As
    previously dealt with in these reasons, the non-consensual touching of a
    complainant in circumstances of a sexual nature constitutes the
actus reus
of sexual assault. Therefore, one of the essential elements of the
actus
    reus
of the crime of sexual assault is the absence of consent.

[61]

For
    purposes of the
actus reus
, a complainants consent is determined solely
    by reference to the complainants subjective state of mind at the time of the
    sexual activity in question:
R. v. J.A.
, 2011 SCC 28, [2011] 2 S.C.R.
    440, at para. 23;
R. v. Ewanchuk
, [1999] 1 S.C.R. 330 at paras. 25-26.

[62]

Consent
    for purposes of sexual assault is defined in s. 273.1(1) of the
Criminal
    Code
, R.S.C. 1985, c. C-46, as being the voluntary agreement of the
    complainant to engage in the sexual activity in question. Section 273.1(1.1)
    requires that the complainants consent be present at the time the relevant sexual
    activity takes place. Therefore, the complainants subjective state of mind is
    critical to each and every sexual act engaged in:
J.A.
, at paras.
    34, 43.

[63]

Sections
    273.1(2) and (3), along with s. 265(3), operate together to provide a
    non-exhaustive list of those situations in which no valid consent is given, such
    as where the complainant is unconscious, incapable of consenting, induced to
    consent by virtue of a position of trust or authority, fraud and so on.

[64]

Therefore,
    the accuseds belief as to whether the complainant is consenting is not a
    factor when determining the absence of consent for purposes of the
actus
    reus
of sexual assault. It is all about whether the complainant in her
    mind wanted the sexual touching to take place:
Ewanchuk
, at para. 48.
    It is the complainants perspective on the touching that exclusively drives the
    analysis. It is entirely subjective in nature:
Ewanchuk
, at para. 27.

[65]

Whether
    the complainant subjectively consented must be resolved by taking into account
    both the complainants testimony about her state of mind at the time of the
    events, and other evidence that may inform the question of what was on her mind
    at the time. That evidence may include the complainants words and actions in
    and around and at the time of the incident in question.

[66]

Accordingly,
    it is always open to the accused to attempt to raise a reasonable doubt about a
    complainants direct evidence regarding her or his state of mind at the time of
    the incident, by pointing to the complainants words and actions, before and
    during the incident:
Ewanchuk
, at para. 29. Ultimately, though,
    whether the complainant subjectively consented to the sexual activity in question
    is a matter of credibility to be determined by the trial judge in light of all
    the evidence.

[67]

Therefore,
    the suggestion that the word yes or a probably  yes necessarily drives the
    result of an inquiry into whether the complainant subjectively consented at the
    time the touching was taking place is wrong in law. While it is a relevant
    factor to take into account when assessing the veracity of the complainants assertion
    that she was not consenting  that she did not want the sexual touching to take
    place  the word yes is not determinative and, in fact, can sometimes present
    as the antithesis of what the complainant actually wanted to take place at the
    time of the sexual touching.

[68]

While
    the trial judge could have provided a more detailed explanation for why he
    concluded that the Crown had met its burden on the absence of consent, his
    reasoning is clearly rooted in the broader context of A.R.D.s evidence. That
    context plainly underscored the fact that A.R.D. did not subjectively consent
    to the foot masturbation.

[69]

A.R.D.
    clearly testified that she did not want the appellants penis anywhere near
    her: not out in the treatment room, not in her mouth, and not on her feet. As
    she said in response to the question, Did you want any of those things that
    youve described with his penis to happen?, she responded, Absolutely not. Therefore,
    the complainants evidence, the only source of direct evidence as to her state
    of mind, was clear: she did not subjectively consent to anything involving the
    appellants penis.

[70]

Despite
    the one answer she gave to the one question put to her in cross-examination
    about what she may have said to the appellant, A.R.D.s direct evidence about
    what she wanted and, more importantly, what she did not want to happen to her
    in the appellants treatment room was believed by the trial judge. Not only do
    we owe deference to that finding, it is an entirely understandable one in the
    circumstances of this case.

[71]

The
    trial judge accepted that A.R.D. was terrified during the entire encounter. As
    he correctly and reasonably pointed out, A.R.D. had a lack of power in
    relation to Mr. Norris in a therapeutic setting, she was in a completely
    vulnerable situation and frightened, far from a highway, not knowing what Mr.
    Norris might do. A.R.D.s fear is palpable even on the transcript. She was
    clear throughout her evidence that from the moment she saw the appellants
    penis out in the treatment room, she was in fear for her safety. As she put it:

I was very nervous, especially at the end. I didnt know  I
    knew where I was. Hes out in the bush several miles away from a major highway,
    and so I didnt  I didnt want to  I didnt know if he would do any more
    things. I  I just wanted to leave as soon as possible.

At another point she said:

Im in shock when  I open my eyes and his penis is in my face
    and I  and am asked to put my mouth around it, and realizing where I am, in
    the basement and then he goes down to the foot of the bed, or the table, and
    has  Im not really thinking I  of  of giving him any sexual pleasure. Like
    Im thinking, how am I going to get out of here.

[72]

Therefore,
    despite the fact that A.R.D. acknowledged once, close to the end of the cross-examination,
    that she may have uttered the word yes, to a question about the appellant
    putting his penis on her feet, that evidence must be viewed within its broader
    context. That context includes A.R.D.s evidence about the fact that she did
    not want the appellant to masturbate on her feet and could not recall him
    asking to do so. It also includes her expressed fear at the time of the sexual
    activity and the fact that her focus was trained on how to safely get out of
    the appellants basement. In these circumstances, it was open to the trial
    judge to conclude, as he did, that she did not subjectively consent to the foot
    masturbation taking place.

[73]

For
    the reasons that I have set out, I see no error in the trial judges conclusion
    that the Crown had proven the absence of consent beyond a reasonable doubt.

b.

Did the trial judge err in rejecting the suggestion
    of an honest but mistaken belief in communicated consent?

[74]

The
    appellant also claims that the trial judge erred when he rejected the defence
    of an honest but mistaken belief in communicated consent. He argues that, at a
    minimum, the confluence of factors in this case cried out for a successful
    application of the defence.

[75]

As I
    will explain, the appellants argument really amounts to an attempt to
    relitigate what was litigated and reasonably rejected at trial.

[76]

The
mens
    rea
for sexual assault is made out in circumstances where the accused knows
    that the complainant is not consenting to the sexual act in question or is
    wilfully blind or reckless to the absence of consent.

[77]

In
    some situations, an accused will deny the
mens rea
of sexual assault
    by suggesting that he or she had a mistaken belief that the complainant
    communicated, by words or conduct, her or his agreement to engage in the sexual
    activity in question:
Ewanchuk
, at paras. 48-49. This defence is
    sometimes referred to as a mistake of fact defence.

[78]

The
    appellant points to the fact that he was dealing with, as he describes it, a
    sober, adult woman who had driven herself to his home and was in no way
    captive. The appellant argues that he asked A.R.D. if she wanted to fellate
    him and she declined, meaning that he would have understandably thought that
    she was in control of her actions, fully capable of making decisions in spite
    of an illusory therapeutic power imbalance that A.R.D. herself [did not]
    reference as a barrier. Combined with the fact that she probably said yes
    and might have used her feet to masturbate his penis, the appellant argues that
    this was a classic case of honest but mistaken belief in communicated consent.
    The trial judges failure to come to that conclusion is said to reflect error.

[79]

I
    start with the practical observation that, although the appellant advanced the
    defence of mistaken belief in communicated consent at trial, it did not fit
    comfortably with his testimony. The A.R.D. count on the indictment involved diametrically
    opposed versions of events.

[80]

Importantly,
    the appellants version of events did not turn on a nuanced understanding about
    what A.R.D. was agreeing to. For instance, he did not suggest that because her
    feet may have moved on his penis, he inferred she was consenting. Rather, the appellants
    version was that the complainant was the sexual aggressor and that it was she
    who suggested the foot thing. In contrast, A.R.D.s version was that it was
    the appellant who was the sexual aggressor, that she did not want any of it and
    was terrified throughout the entire encounter.

[81]

In
    these circumstances, with two diametrically opposed versions of events, it is not
    surprising that the trial judge did not spend a lot of time explaining why he
    rejected the defence of an honest but mistaken belief in consent. Indeed, given
    the diametrically opposed versions as to what took place, it would not be
    beyond the realm of possibility in a case such as this to hear a suggestion made
    that there was no air of reality to the defence:
R. v. Cinous
, 2002
    SCC 29, [2002] 2 S.C.R. 3, at para. 153,
R. v. Esau
, [1997] 2 S.C.R.
    777, at para. 61.

[82]

In
    any event, the defence in this case is constrained by the fact that there is no
    doctrine of implied consent. One is not deemed to have consented because one does
    not protest or resist:
Barton
, at para. 98;
Ewanchuk
, at
    para. 103, per McLachlin J. (as she then was). Any such thinking would reflect
    a mistake of law and not a mistake of fact.

[83]

As
    well, the defence is statutorily limited by virtue of s. 273.2 of the
Criminal
    Code
. Among other things, the statute removes the defence in circumstances
    where the accuseds belief arises from recklessness or wilful blindness: s.
    273.2(a)(ii). It also removes the defence where the accused did not take
    reasonable steps, in the circumstances known to the accused at the time, to ascertain
    that the complainant was consenting: s. 273.2(b).

[84]

Reasonable
    steps have both objective and subjective components  they must be objectively
    reasonable steps and the reasonableness of them are assessed according to the
    circumstances known to the accused at the time:
Barton
, at para. 104.
    As Moldaver J. put it in
Barton
, at para. 105, the reasonable steps
    requirement rejects the outmoded idea that women can be taken to be consenting
    unless they say no.

[85]

At many
    turns, the honest but mistaken belief in consent defence was destined for
    failure in this case. I include in that observation the fact that the
    contextual nature of what occurred in the appellants basement treatment room,
    at a minimum, points toward the presence of both recklessness and wilful
    blindness. I will focus, though, on the trial judges reason for rejecting the
    defence: the failure to take reasonable steps to ascertain consent.

[86]

The
    appellant was duty bound to take objectively reasonable steps in the
    circumstances known to him at the time. In the circumstances here, anything
    short of a full engagement with the complainant on whether she subjectively
    wanted the penis-foot masturbation to happen, would reflect a failure to take
    reasonable steps.
[2]

[87]

A.R.D.
    was the appellants patient, lying in a vulnerable position in her health care
    practitioners office, the middle of the countryside, as she described it, far
    from neighbours or help.

[88]

Combine
    that with the fact that the appellant had been previously warned about concerns
    over his overly sexualized practices and how they could undermine consent. One
    of those occasions arose from the letter that I have previously referred to,
    where B.T. and G.J. wrote to the appellant following G.J.s appointment to
    express concerns that he was placing clients at risk and warned him about the
    fact that his actions could be seen as sexual abuse. That letter specifically
    addressed concerns about the obtaining of consent.

[89]

In
    addition, and importantly, the appellant had been specifically cautioned by the
    police prior to his interaction with A.R.D. He had previously come to the
    attention of the police because other women had made complaints about his
    treatment practices. Those women did not wish to pursue the matter criminally,
    but the police were sufficiently concerned that an officer decided to explain
    the law of sexual assault to the appellant. In a recorded interview, that
    officer told him in no uncertain terms, that consent is a very clear thing
    and a huge thing.

[90]

I
    wish to emphasize that, with or without having been previously cautioned about
    his overly sexualized practices and the concerns they raised over voluntary
    consent, the appellant would have been required to know the essential nature of
    voluntary consent during sexual touching. In other words, there is no defence
    arising from an error of law on this point.

[91]

Importantly,
    though, the evidence was not led for that purpose. Rather, the evidence about what
    the appellant had been told by B.T., G.J. and the police was elicited to rebut
    the suggestion of an honest but mistaken belief in communicated consent.

[92]

The
    letter from B.T. and G.J., and the police caution about sexual assault and the
    importance of consent, all formed part of the circumstances known to the
    [appellant] at the time of his interaction with A.R.D.:
Barton
, at
    para. 104. Those circumstances vested in the appellant knowledge of what would
    otherwise be called common sense: that the appellants patients were in highly
    vulnerable positions and that any consent to sexual activity in his treatment
    room would be decidedly questionable in nature. As the appellants evidence was
    rejected by the trial judge as a fabrication, it left only A.R.D.s evidence to
    inform the potential reasonable steps. There were none.

[93]

In light
    of the circumstances known to the appellant at the time, the health care
    relationship at work, the setting where the sexual activity occurred, and the
    repeated warnings about consent, I agree with the trial judge that, at a
    minimum, it cannot be said that the appellant took objectively reasonable steps
    to ascertain A.R.D.s consent.

[94]

This
    ground of appeal fails.

D.

The Purported Lack of Recall

[95]

The
    appellant also suggests that A.R.D. had memory problems and that this should
    have led to an acquittal. The appellant seems to suggest that the trial judge
    conflated the complainants lack of evidence on certain material points with
    the availability of evidence on the same point. This is not so.

[96]

Although
    A.R.D. had difficulty recalling with precision some of the peripheral details
    around some of the things that occurred during that fateful day in the
    appellants basement, her memory on the salient points was excellent. The trial
    judge was well alive to the memory gaps and dealt with them. I see no reason to
    interfere with how he did so.

E.

Different Levels of Scrutiny

[97]

Finally,
    the appellant argues that the trial judge applied a higher level of scrutiny to
    his evidence than to that of A.R.D. Regardless of whether uneven scrutiny of
    evidence amounts to an independent ground of appeal or a separate and distinct
    error of law, the reasons for conviction do not bear this submission out:
R.
    v. Mehari
, 2020 SCC 40, at para. 1. The trial judges reasons for
    rejecting the appellants evidence as preposterous are detailed and careful. He
    gave equally compelling reasons for why he believed the complainant.

[98]

I
    see no point in reviewing the details of those reasons here. They are
    exhaustive, even-handed and compelling.

F.

Conclusion

[99]

I
    would dismiss the appeal.

Released:  J.M.F.     DEC 31 2020

Fairburn A.C.J.O.

I agree. Grant Huscroft
    J.A.

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

[1]

The only
arguable
exception to the
    general movement away from catchwords in the context of similar act evidence is
    in those cases where the evidence is tendered to prove identity:
R. v. Arp,
[1998] 3 S.C.R. 339,

at para. 45;
R. v.
MacCormack,
2009
    ONCA 72, 241 C.C.C. (3d) 516, at para. 61. This is not an identity case.

[2]
My comments here are confined solely to the legal issue involving reasonable
    steps. My comments should not be taken as suggesting that any consent that may
    be given in situations such as these would be immune to potential vitiation.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Pandurevic, 2020 ONCA 798

DATE: 20201211

DOCKET: C63975

Doherty, Roberts and Harvison
    Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Marko Pandurevic

Appellant

Paul J.I. Alexander, for the appellant

Benita Wassenaar, for the respondent

Heard: November 24, 2020 by
    videoconference

On appeal
    from the conviction entered by Justice Ian A. MacDonnell of the Superior Court
    of Justice, sitting with a jury, on May 17, 2013.

REASONS
    FOR DECISION

[1]

On May 17, 2013, the appellant was convicted of
    the second degree murder of Dmitry Savenkov and was subsequently sentenced on
    June 7, 2013 to life imprisonment with a ten-year parole ineligibility period.

[2]

The appellants main grounds of appeal are that
    the trial judge erred by admitting as voluntary the statement he made to the
    police following his arrest and by failing to give an adequate jury instruction
    on self-defence. He requests the conviction be overturned and seeks a new
    trial.

[3]

At the close of the appellants submissions, we
    dismissed the appeal with reasons to follow. These are those reasons.

Brief Factual Overview

[4]

The appellant and Mr. Savenkov lived in the same
    apartment building. The appellant testified that Mr. Savenkov, who was much
    larger than the appellant, had subjected him to several weeks of physical and
    verbal harassment. The buildings security footage showed that shortly before
    noon on July 31, 2010, the appellant was in the lobby of the apartment building.
    The appellant testified he was waiting for his grandfather. During this time,
    Mr. Savenkov was in the elevator, and the appellant testified that Mr. Savenkov
    called him a goof once the elevator doors opened. The appellant then angrily
    confronted Mr. Savenkov before the latter could exit the elevator. The two
    tussled in the elevator and the fight spilled over into the lobby. The
    appellant stabbed Mr. Savenkov with a knife that he said he had been carrying
    as protection against Mr. Savenkov. During the altercation, Mr. Savenkov
    received two stab wounds. Not realizing the extent of his injuries, Mr.
    Savenkov continued to punch the appellant, and then exited the building,
    collapsing in the parking lot. He died shortly thereafter. In the meantime, the
    appellant returned upstairs toward his apartment on the sixth floor, disposing
    of the knife
en route
in the garbage chute on the third floor. After
    speaking with his grandparents, the appellant testified that he ran down the
    stairs of the west end of the building, avoiding the lobby where the
    altercation occurred, and ultimately attended at a hospital for treatment of
    his own wounds from the altercation with Mr. Savenkov.

[5]

With his mothers assistance, the appellant flew
    that night to Bosnia, unaware at that time of Mr. Savenkovs death. The
    appellant testified that roughly a week after his arrival in Bosnia, he
    discovered that Mr. Savenkov had died. He voluntarily returned to Canada six
    months later. Upon his arrival at the airport on February 6, 2011, he was
    arrested by police for the first degree murder of Mr. Savenkov and given
    his rights to counsel and standard caution. The police immediately provided him
    with the opportunity to speak privately with his counsel and mother who had
    also come to the airport. He was then escorted by the police to the police
    station and interviewed for 1 hour and 22 minutes in what is referred to as a soft
    interview room, which is normally used for interviews with children. He was
    given water and told he could request at any time to leave the interview room
    or to use the phone to make a call. During the interview, the police
    investigators reiterated several times the appellants right to remain silent.
    While the appellant indicated numerous times that he did not wish to speak to
    police or respond to their questions without his lawyer present, he spoke often
    throughout the interview to offer his version of the incident.

Trial Proceedings

[6]

At trial, the appellant opposed the respondents
    application to admit his statement to the police as a voluntary statement. The
    trial judge allowed the respondents application.

[7]

In his supplementary reasons regarding the
    voluntariness ruling, dated May 31, 2013, the trial judge carefully reviewed
    the entire record of the appellants statement to the police and was satisfied
    beyond a reasonable doubt that the statement was voluntary:
R. v.
    Pandurevic
, 2013 ONSC 3108. Among other relevant factors, he considered
    and rejected the appellants arguments that the police ignored his numerous
    requests to remain silent and offered improper inducements to encourage him to
    speak against his will. The trial judge was expressly alive to the fact that the
    police persistently questioned the appellant, notwithstanding his many
    assertions to remain silent. However, he found that the police treated the
    appellant with courtesy and respect, did not create an oppressive atmosphere,
    reconfirmed several times his right to remain silent, and did nothing improper
    to persuade the appellant to speak with them.

[8]

Since there was no question that the appellant
    had fatally stabbed Mr. Savenkov with the knife he had been carrying, the
    appellants defence at trial turned on the question of whether he had acted in
    self-defence. At the appellants request, the trial judge instructed the jury
    to apply retrospectively the amended self-defence provisions under s. 34 of the
Criminal Code
, R.S.C. 1985, c. C-46.
[1]

[9]

After two days of deliberation, the jury found the
    appellant guilty of second degree murder.

Issues

[10]

The appellant submits the trial judge made the
    following reversible errors that warrant the conviction to be overturned and justify
    a new trial:

i.

He erred in finding that the appellants
    statement to police was voluntary, given the atmosphere of oppression that the
    police created by ignoring his multiple assertions of his right to silence and
    by improperly inducing the appellant to make a statement.

ii.

His jury instruction on the law of self-defence
    was inadequate in that it undermined the appellants reliance on self-defence
    if the jury found he was the initial aggressor.

Analysis

(i)

The appellants statement to police was
    voluntary

[11]

There is no issue that the trial judge
    considered and applied the correct factors in determining the voluntariness of
    the appellants statement. As the trial judge stated at para. 2 of his reasons,

There is no dispute with respect to the nature
    and incidence of the burden of persuasion in relation to voluntariness. In
    order for a statement made by an accused person to a person in authority to be
    admissible at the instance of the Crown, the Crown must prove beyond a
    reasonable doubt that the statement was voluntary. The assessment is contextual
    and case-specific. While all of the circumstances surrounding the making of the
    statement will be relevant,
of prime concern will be whether the statement
    was induced by hope of advantage or fear of prejudice emanating from the police
    in the form of promises, threats or other mistreatment, whether the statement
    was obtained in oppressive circumstances, whether the maker of the statement
    had an operating mind, and whether the police employed improper trickery
.
    These concerns are not separate tests but rather factors tha[t] may operate
    together to undermine confidence in the voluntariness of what was said to the
    police. [Emphasis added.]

[12]

The appellant submits that the trial judge erred
    in failing to find that the investigators offered an improper
quid pro quo
of possible clemency to the appellant in exchange for a statement. Further, the
    appellant maintains that the police never had the intention to charge him with
    anything but first degree murder, regardless of what he told them, as the
    security footage of the apartment building laid the groundwork for their theory
    of first degree murder.

[13]

We do not accept these submissions. At paras. 18-22
    of his reasons, the trial judge examined the same allegations of inducement
    that the appellant renews here. He concluded, correctly in our view, that it
    was not an improper inducement for the police to say that if the appellant gave
    them exculpatory information in relation to his role in the incident, they
    would look into whether it was true, and that this might assist the appellant
    in relation to the charge of murder. As the trial judge noted, this was a
    straightforward and accurate statement of what the duty of the police would be
    with respect to any information that
[the appellant]
chose to provide them. There is no support in the record for the
    appellants submission that the police never had any intention to investigate
    what he told them, nor was this suggestion put to the police during
    cross-examination on the voluntariness
voir dire
.

[14]

While the appellant agrees that the police were
    calm and polite, he submits that they nevertheless created an oppressive
    atmosphere during the interview. Notably, he indicates that they brushed aside
    his approximately 69 assertions during the 1 hour and 22-minute interview that
    he did not wish to speak to the police except through his lawyer and dangled a
    false promise of access to counsel.

[15]

We disagree. As the trial judge noted, the
    appellant was never in doubt about his right to silence, which quickly became
    selective, in that he appeared to choose when to speak to advance his position
    and when not to respond to a question he did not wish to answer. Moreover, the
    police never made any false promises to the appellant about speaking to his
    lawyer. Rather, they told him at the outset of the interview that he could request
    at any time to leave the interview room or to use the phone if he wished to do
    so. The appellant never asked to leave the interview room and, as the trial
    judge also noted, after the police indicated that the interview was concluded,
    he prolonged the interview by asking the police what they thought of his
    circumstances and by engaging in further discussion.

[16]

We find no error in the trial judges
    determination that the appellants statement to the police was voluntary, which
    is amply supported by the record and is entitled to deference on appeal.

(ii)

The trial judges jury charge on self-defence
    was adequate

[17]

The trial judge devoted paras. 84-200 of his jury
    charge to the question of self-defence. He correctly explained to the jury the
    availability of the defence of self-defence and, at para. 86 of his charge,
    that the appellant was not guilty of any offence arising from his use of the
    knife against Mr. Savenkov if all the conditions of s. 34(1) of the
Criminal
    Code
were present, as he summarized them in relation to the appellant:

i.

the appellant believed on reasonable grounds
    that force was being used against him;

ii.

he used the knife for the purpose of defending
    or protecting himself from the use of force; and

iii.

his use of the knife was reasonable in the
    circumstances.

[18]

The trial judge explicitly instructed the jury
    that it was not the appellants responsibility to prove that the three elements
    of the defence were present. Rather, the burden was on the respondent to prove
    beyond a reasonable doubt that at least one of the three elements of the
    defence was not present.

[19]

The appellant takes issue only with the trial
    judges instructions on the third element of the defence. While the appellant
    agrees that the jury instruction on self-defence was good overall, he maintains
    the trial judges instructions on the third branch of the test concerning
    reasonableness were unclear and erroneous. According to the appellant, if the
    jury found he was the initial aggressor in the altercation with Mr. Savenkov,
    the trial judges instructions left it open to the jury to convict based on
    their natural belief that it would never be reasonable for an initial aggressor
    to act in self-defence.

[20]

We see no error with the trial judges jury
    instruction on self-defence. The trial judges instruction supplied the jury
    with the necessary analytical tools to determine this issue.

[21]

The trial judge meticulously reviewed with the
    jury the three necessary conditions for self-defence, highlighted the relevant
    evidence that pertained to each element, and repeatedly explained the
    availability of the defence even if the jury found that the appellant was the
    initial aggressor. In particular:

i.

With respect to the first element of the
    defence, the trial judge instructed the jury that it was irrelevant who
    initiated the altercation and that they would have little difficulty finding
    that the appellant reasonably believed that force was being used against him by
    Mr. Savenkov.

ii.

The trial judge directed the jury on the second
    element of the defence to consider the appellants evidence that his only
    purpose in using the knife was to defend himself against someone whom he
    thought was going to do him serious harm or kill him.

iii.

In considering the third element of the defence,
    the trial judge instructed the jury to consider all the relevant circumstances
    leading up to, surrounding, and following the encounter in the elevator and the
    lobby, not simply the commencement of the altercation between the appellant and
    Mr. Savenkov. The trial judge made it clear that if the jury concluded that the
    appellant was the initial aggressor, the appellant was not by that fact alone
    disentitled from using force to defend himself, if the appellant reasonably
    feared from Mr. Savenkovs response that he was in danger of death or
    serious bodily harm. The trial judge reviewed in his charge the various factors
    under s. 34(2) of the
Criminal Code
and again highlighted the
    appellants evidence of his defensive purpose in reaching for his knife.

[22]

That the jury was directed to consider the
    reasonableness of the appellants role in the incident did not diminish his
    right to defend himself but was a factor that the jury was required to consider
    in determining whether the appellants use of the knife against Mr. Savenkov
    was reasonable in all of the circumstances.

[23]

As a result, the jury was left in no doubt that
    the appellant was entitled to rely on self-defence, and the jury was equipped
    to assess the reasonableness of his actions, notwithstanding any conclusion
    that he was the initial aggressor in the altercation with Mr. Savenkov and had
    fatally stabbed him.

Disposition

[24]

The appeal is therefore dismissed.

Doherty
    J.A.

L.B. Roberts J.A.

A.
    Harvison Young J.A.

[1]

The appellant takes no issue on appeal with the trial
    judges application of the amended provisions of s. 34, notwithstanding that it
    was an error to do so:
R.
    v. Bengy
, 2015 ONCA 397, 325 C.C.C. (3d) 22, at paras. 38, 70-71.
    Even if the appellant contested the retrospective application of s. 34, this
    court has held that a case specific, functional inquiry is needed to conclude
    whether this error prejudiced the appellant at trial:
R. v. Phillips
,
    2017 ONCA 752, 355 C.C.C. (3d) 141, at paras. 74-75;
R. v. Fougere
,
    2019 ONCA 505, 56 C.R. (7th) 115, at para. 3.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Posthumus, 2020 ONCA 760

DATE: 20201202

DOCKET: C64858

Feldman, Gillese and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jan Posthumus

Appellant

Richard Posner, for the appellant

Andrew Cappell, for the respondent

Heard: October 8, 2020 by video conference

On appeal from the convictions entered by Justice S. Ford
    Clements of the Ontario Court of Justice on June 23, 2017, and from the
    sentence imposed on February 21, 2018.

REASONS FOR DECISION

[1]

The appellant was a Transit Enforcement Officer employed by the Toronto
    Transit Commission. He was convicted of offences arising from a practice of
    issuing fraudulent Provincial Offence Tickets to persons for offences that had
    not been committed. In every case, the tickets were issued to persons of no
    fixed address who habitually violated TTC bylaws. The tickets were never served
    on the persons said to have committed the offences, and the persons to whom the
    tickets were ostensibly issued were never made aware of either the tickets or any
    subsequent judicial process.

[2]

The appellant was alleged to have issued 27 fraudulent tickets on seven
    dates in November and December 2012. He was convicted of one count each of
    fabricating evidence and obstruction of justice related to two of those tickets.
    Two of his co-accused were similarly convicted and two were acquitted. He was
    sentenced to a 14-day intermittent sentence in addition to a three-month
    conditional sentence. He appeals against conviction and seeks leave to appeal
    against sentence.

[3]

For the reasons that follow, the conviction appeal is dismissed. Leave
    to appeal against sentence is granted, and the sentence varied to time served.

The Conviction Appeal

[4]

In 2012, the TTC began investigating Transit Enforcement Officers
    believed to be engaging in time theft by pursuing personal business at times
    when they were supposed to be carrying out their duties for the TTC. During the
    course of the investigation, TTC officials discovered certain Transit
    Enforcement Officers had been issuing fraudulent tickets. The fraudulent
    tickets were believed to have been issued as a means to provide cover for the
    officers time theft. The officers practice was to issue tickets to homeless
    persons known to habitually violate TTC bylaws, alleging fictitious offences. The
    persons alleged to have committed the offences typically received up to 700
    legitimate tickets in a year and would likely remain unaware of the additional fraudulent
    tickets. The appellants misfeasance came to light through this investigation.

[5]

On December 9, 2012, the appellant nominally issued two tickets to
    Francis Toney, of no fixed address, for soliciting and loitering at Dundas
    Station. Both the tickets and the appellants memo book (a log of activity the Transit
    Enforcement Officers were required to keep) record the time of the offences as 9:00
    a.m. There was evidence, however, that the appellant was not present at Dundas
    Station at that time and therefore could not have observed the offences. Not
    only did the appellant not appear on Dundas Station surveillance video at the
    relevant time, but seven minutes after he was to have observed the offences, he
    was captured on surveillance video at a Lowes hardware store parking lot 10 km
    away. Toney was deemed not to dispute the charges and was convicted of the two
    offences, seemingly because she was unaware of the tickets and the subsequent
    hearing.

[6]

On December 17, 2012, the appellant nominally issued a ticket for
    loitering to a person named Salem El Ghandour, of no fixed address, at Queen
    Station at 7:02 p.m. Again, the appellant did not appear on Queen Station
    surveillance video at that time. Instead, surveillance officers observed the
    appellant attending a TD Bank near Yonge Street.

[7]

That same day, the appellant nominally issued a ticket to a person named
    Joseph Delaney, of no fixed address, for loitering at College Station at 7:57
    p.m. Both the ticket and the notation in the appellants memo book indicated
    the time of the offence as 7:57 p.m. Again, the appellant was under
    surveillance at that time, and was observed elsewhere.

[8]

On appeal, the appellant repeated his argument from trial, that the
    circumstantial evidence against him was inadequate to ground a conviction. He
    argues that the trial judge erred in concluding that he fabricated tickets, when
    a competing inference inconsistent with guilt was available: that although the
    appellant had not personally observed the commission of the offences in
    question, the offences had been committed as described, other officers had
    observed the offences and advised the appellant, and the appellant then issued
    the tickets on information and belief. The defence theory was that the officer or
    officers who provided the information  whoever they may have been  were
    simply passing on information about real occurrences in order to help the appellant
    meet his monthly Provincial Offence Ticket quota.

The erroneous inference

[9]

As stated above, the case against the appellant was circumstantial. The
    trial judge was persuaded on the totality of the evidence that the appellant
    was not at the TTC stations at the time the offences were said to have occurred.
    The appellant did not dispute this on appeal. He argued, however, that the
    circumstantial evidence is reasonably capable of supporting an inference other
    than guilt, and it was therefore an error of law to have found him guilty:
R.
    v. Villaroman
, 2016 SCC 33, [2016] 1 S.C.R. 1000.

[10]

The
    appellants argument rested on the theory that an officer did not have to personally
    observe the commission of the offence in order to issue a ticket. The pre-printed
    text of the Certificate of Offence required the issuing officer to state that he
    or she believe and certify that an offender committed an offence at a
    particular time and location. The form thus appeared to allow for an
    attestation that the officer believed that an offence had taken place, based on
    information received from another officer who had actually observed it.

[11]

Accordingly,
    the appellant argued that there was a possibility that offences had in fact been
    committed at the time and place recorded on the Certificate of Offence, by the
    persons named, and that this information was communicated to the appellant by other
    officers who had in fact observed it, so that the appellant could issue valid tickets
    to increase his Provincial Offence Ticket numbers for the month.

[12]

The
    appellant argued that as this inference is available on the evidence it is
    therefore capable of raising a reasonable doubt. In order to negate this
    inference, he argued, the Crown had to prove not just that the appellant was
    not present at the stations when the offences were said to have been committed,
    but that the offences themselves could not have taken place because, for
    example, the named offenders were not at the relevant stations at the time. The
    appellant argued that the circumstantial evidence therefore stopped well short
    of proving that the offence did not happen, and therefore well short of proving
    the appellants guilt beyond a reasonable doubt.

[13]

We
    do not agree that the trial judge erred in finding that the competing inference
    did not rise above mere speculation. Accordingly, it did not raise a reasonable
    doubt that the appellant fabricated tickets and did so with the intent that the
    tickets be used in a judicial proceeding as alleged. The trial judge acquitted
    the appellant of charges where it appeared that the appellant may have been at
    the station but was not captured on surveillance video. But where the evidence
    established that the appellant was not at the station at the relevant time,
    there was no plausible explanation other than fabrication. Of critical
    importance to the trial judge was the evidence from the tickets themselves and
    the corresponding entries in the appellants memo book. The trial judge reasoned
    that the appellant was a trained constable who was required to make accurate
    notes on both the tickets and the memo book. Had the appellant issued tickets
    at a time subsequent to when he himself had observed the offence, or had issued
    the ticket based on information and belief, he would have noted this.

[14]

The
    trial judge held that there was no evidentiary basis to support an inference
    that the tickets were issued based on information and belief. The trial judge
    had two reasons for this conclusion. First, there was no evidence that issuing
    tickets based on information and belief was a practice of the Transit
    Enforcement Officers. Although there was evidence that some officers believed the
    wording of the pre-printed text on the ticket allowed for tickets to be issued
    based on information and belief, there was no evidence that any officer had
    ever done so. Second, there was no evidence to elevate the bare possibility
    that the appellant had written the tickets on information and belief above mere
    speculation. To the contrary, the trial judge held that if the appellant had
    issued tickets based on information and belief, as a trained constable he would
    have noted this on both the ticket and in his memo book.

Misapprehension

of

evidence

[15]

On appeal,
    the appellant argues that the trial judge misapprehended the evidence that the
    appellant says supports the inference. That evidence is the testimony of Staff
    Sgt. Mark Russell and Sgt. Paul Manherz, and the co-accused Michael Schmidt. The
    appellant argues these three witnesses supplied evidence that issuing tickets
    based on information and belief rather than personal observation was an
    authorized practice.

[16]

We
    do not agree. The trial judge did not misapprehend the evidence. This evidence
    went no further than establishing that issuing a ticket on information and
    belief was theoretically possible. None of the witnesses testified to ever
    having done it themselves, or having been aware of anyone else having done it. Neither
    was there any evidence to suggest that the appellant had done so. There was,
    however, evidence from which the trial judge could draw the inference that he
    had not: the appellant had made no notation to that effect on the tickets or in
    his memo book. Additionally, Sgt. Manherz stated that if he were to issue a
    ticket based on information and belief, he would note it on the ticket itself.

[17]

The
    appellant argues that the deceptions in the appellants memo book  for
    example, stating he was at the station when he was actually at Lowes  were
    equally consistent with lying about his whereabouts while nevertheless having
    issued the tickets based on information and belief. Simply recording that a
    ticket was based on information and belief would not have enabled him to
    conceal his fraud against his employer. However, the inference that the appellant
    misstated his whereabouts with the intention of furthering his criminal
    purposes was open to the trial judge, and there is no basis on which we would
    interfere with it.

[18]

The
    appeal against conviction is therefore dismissed.

The Sentence Appeal

[19]

The
    appellant was sentenced to a three-month conditional sentence for the
    obstruction of justice conviction, which he has already served, and 14 days
    imprisonment for fabrication of evidence, to be served intermittently. He has
    already served three of those days. He seeks leave to appeal against sentence
    and submits that he should not have been subjected to a custodial term.

[20]

The
    appellant argues that his moral culpability is significantly less than that of
    his co-accused, who were his seniors in rank and whose offences spanned the
    full course of the 80-day investigation. In contrast, the appellant was
    convicted of four offences committed over a nine-day period.

[21]

When
    the appellant was sentenced, conditional sentences were not available for the offence
    of fabricating evidence under s. 742.1(c) of the
Criminal Code
. That has
    changed as a consequence of this courts decision in
R. v. Sharma
,
    2020 ONCA 478, 152 O.R. (3d) 209, leave to appeal requested, [2020] S.C.C.A.
    No. 311. In light of this and given the collateral employment, professional,
    and mental health consequences of the convictions on the appellant, we grant
    leave to appeal sentence, allow the sentence appeal, and substitute a sentence
    of time served on the conviction for fabricating evidence.

Disposition

[22]

The
    appeal against conviction is dismissed. Leave to appeal sentence is allowed, the
    appeal of sentence is allowed, and a sentence of time served is substituted for
    the conviction for fabricating evidence. Given the disposition, the appellant
    is not required to surrender into custody, as per the terms of his bail order.

K. Feldman J.A.

E.E. Gillese J.A.

B.W. Miller J.A.