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Criminal - Sexual Assault (2). R. v. R.B.-M.
In R. v. R.B.-M. (Ont CA, 2024) the Ontario Court of Appeal comments on the social significance of sexual assault:[16] As the trial judge recognized, quoting this court’s decision in R. v. A.J.K., 2022 ONCA 487, 162 O.R. (3d) 721, at para. 74: “All sexual assaults are serious acts of violence. They reflect the wrongful exploitation of the victim whose personal autonomy, sexual integrity and dignity are harmfully impacted while being treated as nothing more than an object.” . R. v. N.D.
In R. v. N.D. (Ont CA, 2024) the Ontario Court of Appeal dismissed a criminal sexual assault appeal, here where the court considered the appellate SOR:[17] Before addressing these issues, it is helpful to emphasize that this court owes significant deference to the trial judge’s credibility findings because she had the advantage of seeing and hearing the witnesses testify: R. v. Tynes, 2022 ONCA 866, 165 O.R. (3d) 321, at para. 57; R. v. R.A., 2017 ONCA 714, 355 C.C.C. (3d) 400, at para. 44, aff’d 2018 SCC 13, [2018] 1 S.C.R. 307. An appellate court should not interfere with findings of credibility unless they cannot be supported on any reasonable view of the evidence: R. v. R.P., 2012 SCC 22, [2012] 1 S.C.R. 746, at para. 10. Absent a palpable and overriding error, an appellate court must not interfere in a trial judge’s credibility findings: R. v. G.F., 2021 SCC 20, 71 S.C.R. (7th) 1, at para. 81; R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20; and Tynes, at para. 57. . R. v. Gordon
In R. v. Gordon (Ont CA, 2024) the Ontario Court of Appeal usefully sets out the actus reus of sexual assault, and the elements of consent:[3] The actus reus of sexual assault requires the Crown to prove three elements: (1) touching, (2) of a sexual nature, and (3) in the absence of consent: R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at para. 25. The first two elements are objective while the third element – consent – is subjective: Ewanchuk, at paras. 26-27. The consent element of the actus reus is only concerned with the complainant’s perspective and state of mind toward the touching at the time it occurred: R. v. G.F., 2021 SCC 20, at paras. 25, 29. Capacity to consent is a precondition to subjective consent: G.F., at para. 45. To have capacity to consent a complainant “must be capable of understanding four things: (1) the physical act; (2) that the act is sexual in nature; (3) the specific identity of the complainant’s partner or partners; and (4) that they have the choice to refuse to participate in the sexual activity”: G.F., at para. 57. . R. v. A.B.
In R. v. A.B. (Ont CA, 2024) the Ontario Court of Appeal allowed a criminal sexual assault appeal. Here the court considers the mens rea for sexual assault:[33] The mens rea element of sexual assault requires the Crown to prove beyond a reasonable doubt that an accused knew that the complainant did not consent to the sexual activity. This knowledge element can be proven through actual knowledge, recklessness or wilful blindness: R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at para. 23. . R. v. Cremasco
In R. v. Cremasco (Ont CA, 2024) the Ontario Court of Appeal considers the mens rea for sexual assault:[19] The mens rea of sexual assault requires that the accused intend the sexual touching in question and know of, or be reckless about or wilfully blind to, the complainant’s lack of consent: R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at paras. 23 and 42. The trial judge essentially focused on this issue throughout his reasons, especially in the section under the heading “Knowledge”. . Metrolinx v. Amalgamated Transit Union, Local 1587
In Metrolinx v. Amalgamated Transit Union, Local 1587 (Div Court, 2024) the Divisional Court considers conventional expectations regarding the behaviour of sexual assault victims:[56] Moreover, the Supreme Court of Canada has, for more than 30 years, been warning judges that it is an error to rely on what is presumed to be the expected conduct or reaction of a victim of sexual assault. In particular, a victim’s reluctance to report or complain about a sexual assault cannot be used to draw an adverse inference about her credibility: R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at p. 136; R. v. D.D., 2000 SCC 43, at paras. 63, 65; R. v. A.R.J.D., 2018 SCC 6, at para. 2. . R. v. Basso
In R. v. Basso (Ont CA, 2024) the Court of Appeal considered the mens rea for 'recklessness', here where adjudging the age of a potential sexual offence victim:[38] In June 2020, this court released its decision in R. v. Carbone, 2020 ONCA 394, 150 O.R. (3d) 758. The appellant’s trial took place 4 months later, in October 2020. In Carbone, this court clarified the law on what the Crown must prove to establish the mens rea for sexual offences against minors. Prior to Carbone, the Crown was only required to prove beyond a reasonable doubt that the accused did not take all reasonable steps to determine the complainant’s age. In Carbone, relying on the Supreme Court of Canada’s decision in R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3, this court held that the Crown is additionally required to prove beyond a reasonable doubt that the accused believed the complainant was underage. The court summarized, at paras. 120 and 131, this new approach as follows:As I read the above-quoted passage, it is no longer, strictly speaking, correct to define the required mens rea with respect to the complainant’s age by reference, only to the absence of reasonable steps to determine the complainant’s age. There is a mens rea requirement that focuses exclusively on the accused’s state of mind. The Crown is required to prove the accused believed the complainant was underage.
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In summary, to convict on a charge under s. 152, the Crown must prove the accused believed (or was wilfully blind) the complainant was under 16, or was reckless as to her age. Recklessness includes a failure to advert to the age of the complainant, save in those cases in which the circumstances did not permit the inference that in proceeding without regard to the complainant’s age, the accused decided to treat her age as irrelevant to his conduct. While one can imagine circumstances in which the failure to advert to the age of the complainant should not be characterized as a decision to treat the age of the complainant as irrelevant and take the risk, those circumstances will seldom occur in the real world. For practical purposes, those rare circumstances, in which the failure to turn one’s mind to the age of the complainant does not reflect the decision to take a risk about the complainant’s age, will be the same rare circumstances in which the reasonable steps inquiry in s. 150.1(4) will be satisfied even though the accused took no active steps to determine the complainant’s age. [39] The trial judge did not refer to Carbone in her reasons, nor was this case put before her by counsel for either party. However, in our view, her findings clearly support the conviction under the mens rea requirement as set out in Carbone. The trial judge found on the appellant’s own evidence that he chose to proceed with sexual activity with a minor after clearly adverting to the possibility that she was underage.
[40] As Watt J.A. in R. v. W.G., 2021 ONCA 578, 405 C.C.C. (3d) 162, at para. 70, noted:As Carbone teaches, the fault element of recklessness is subjective. It involves the appreciation of some level of risk coupled with the conscious decision to take that risk. Under s. 151, an accused who chooses to proceed with the activity the section prohibits – sexual activity with young persons – after having adverted to the possibility that the complainant was underage, will inevitably be found to have been reckless with respect to the complainant’s age: Carbone, at para. 125. So too, at least in most cases, indifference to the complainant’s age, a state of mind that reflects a positive choice by an accused to treat the complainant’s age as irrelevant to their decision to engage in the sexual activity: Carbone, at paras. 126-127. . R. v. Basso
In R. v. Basso (Ont CA, 2024) the Court of Appeal considered a form of 'mootness' doctrine, here where the court might allow (and did) a Charter s.12 ['cruel and unusual'] mandatory minimum sentence challenge to the penalty for sexual assault, even though it was not necessary for the case before it:[52] The trial judge, in imposing the 12-month sentence, made no reference to the mandatory minimum for the sexual assault conviction, although her colloquy with trial counsel at the sentencing hearing confirmed the application of the mandatory minimum and clarified that, at the sentencing hearing, the appellant had not challenged the constitutionality of the mandatory minimum.
[53] The respondent submits both that the sentence was fit, and that, as a result, there is no need to consider the constitutionality of the mandatory minimum as it had no bearing on the result in this case. However, should this court proceed to consider the constitutionality of the mandatory minimum, the respondent concedes that the present case cannot be distinguished from analogous cases where mandatory minimum sentences have been struck down as a violation of s. 12 of the Charter.
[54] In R. v. B.J.T., 2019 ONCA 694, 378 C.C.C. (3d) 238, this court struck down the mandatory minimum sentence of 12 months’ imprisonment for sexual interference as it constituted cruel and unusual punishment under s. 12 of the Charter. This decision was based on reasonable hypotheticals posited by appellate courts across Canada: see e.g., Caron Barrette c. R., 2018 QCCA 516, 46 C.R. (7th) 400.
[55] For example, in B.J.T., at para. 73, this court referred to the hypothetical proposed in R. v. Scofield, 2019 BCCA 3, 52 C.R. (7th) 379, an analogous case to the one on appeal:In Scofield, the B.C.C.A. postulated a hypothetical where two young people meet at a party; one is almost 16, while the other recently turned 21… The two people drink alcohol and smoke marijuana, reducing their inhibitions. They go to a private bedroom where they engage in some kissing and brief sexual touching over their clothing for ten minutes. They act willingly and know each other’s ages. Neither has a criminal record. Harris J.A. concluded that a one-year sentence for that conduct would be grossly disproportionate to a proportionate sentence which would not necessarily involve imprisonment or even a conditional sentence. He also added that if the 21-year-old had a disability that reduced his moral culpability or if Gladue factors applied, ... those two characteristics of the offender could make the mandatory minimum sentence more disproportionate. [56] The respondent submits that the impugned mandatory minimum sentencing provision had no effect on the sentence, and a sentence lower than the mandatory minimum would be unfit. The provision’s constitutionality is moot and need not be decided. As the Supreme Court of Canada stated in R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130, at para. 18:To be sure, it does not follow that a provincial court judge is obligated to consider the constitutionality of a mandatory minimum provision where it can have no impact on the sentence in the case at issue. Judicial economy dictates that judges should not squander time and resources on matters they need not decide. But a formalistic approach should be avoided. Thus, once the judge in this case determined that the mandatory minimum did not materially exceed the bottom of the sentencing range applicable to Mr. Lloyd, he could have declined to consider its constitutionality. To put it in legal terms, the doctrine of mootness should be flexibly applied. If an issue arises as to the validity of the law, the provincial court judge has the power to determine it as part of the decision-making process in the case. To compel provincial court judges to conduct an analysis of whether the law could have any impact on an offender’s sentence, as a condition precedent to considering the law’s constitutional validity, would place artificial constraints on the trial and decision-making process. [57] A similar approach was taken in R. v. Hewitt, 2018 ONCA 561, at paras. 3-5, where this court declined to hear a constitutional challenge to a mandatory minimum for trafficking firearms, stating, at para. 5, “[i]t is not necessary for us to consider the appellant’s constitutional argument because it would not affect the sentence: R. v. Chambers, 2013 ONCA 680. Even if the mandatory minimum did not apply, the three-year sentence imposed in the circumstances of this case was fit and appropriate.” See also R. v. Kinnear (2005), 2005 CanLII 21092 (ON CA), 30 C.R. (6th) 1 (Ont. C.A.), at para. 59.
[58] In our view, there is no basis to conclude that the 12-month sentence imposed was not fit, nor did the trial judge commit an error of principle in her analysis of the applicable sentencing principles. She properly considered the priority of the sentencing principles of denunciation and deterrence, the appellant's intellectual disability, and the impact of the offence on the complainant.
[59] We accept that this court has discretion in this case as to whether to consider the constitutional challenge to s. 271(a) of the Criminal Code, given the conclusion that the sentence of 12 months was otherwise fit. In our view, that discretion should be exercised in favour of deciding the issue, given the importance of clarity and certainty as to the applicability of the analysis in B.J.T. to the mandatory minimum for sexual assault.
[60] In our view, B.J.T. is not distinguishable. The hypotheticals cited in B.J.T. could also have been prosecuted as sexual assault of a minor. On that approach, those hypotheticals would also attract a minimum sentence of one-year under the provision impugned in this case. The respondent accepts that if a one-year sentence is grossly disproportionate for the hypothetical facts, this conclusion does not vary based on whether the facts are labelled sexual interference or sexual assault of a minor.
[61] This conclusion compels a holding that the one-year minimum sentence at issue in this case offends s. 12 of the Charter. The respondent does not argue that the minimum sentence is saved by s. 1 of the Charter. We note that this conclusion is consistent with several trial court decisions prior to B.J.T. holding that the mandatory minimum of 12 months for sexual offences is unconstitutional: see e.g., R. v. Gordon, 2018 ONSC 6217, at paras. 14-18, citing, inter alia, R. v. Hussein, 2017 ONSC 4202; and R. v. M.L., 2016 ONSC 7082, 367 C.R.R. (2d) 268. For trial and appellate decisions in other jurisdictions, see R. v. MacLean, 2021 NLCA 24, at paras. 49-50, and the cases cited therein.
[62] For these reasons, while the sentence of 12 months imposed on the appellant is affirmed, the mandatory minimum for sexual assault set out in s. 271(a) of the Criminal Code is unconstitutional, and pursuant to s. 52(1) of the Constitution Act, 1982, of no force or effect. . R. v. H.S.
In R. v. H.S. (Ont CA, 2023) the Court of Appeal considered the high deference accorded to trial judge's credibility findings, especially in sexual assault cases:[42] As the Supreme Court recently emphasized in R. v. G.F., 2021 SCC 20, 404 C.C.C. (3d) 1, at para. 76, a trial judge’s findings of fact are entitled to great deference on appeal, particularly in sexual assault cases where the matters in dispute typically turn on assessments of credibility. . A. Z. v. Office of the Independent Police Review Director
In A. Z. v. Office of the Independent Police Review Director (Div Court, 2023) the Divisional Court considered a JR of the dismissal of OIPRD screening, investigation and examination of a complaint of local police misconduct, here regarding their handling of sexual assault allegations. Paras 1-35 are illustrative of police and OIPRD procedures in such matters.
In these quotes the court considers an issue of prosecutorial discretion, here in a specific local (Niagara) police and sex assault context:Was the Director’s Finding that there Were No Reasonable or Probable Grounds for the NRPS to Lay Charges Unreasonable?
[70] The applicant maintains that, based solely on her statement to the police, there were reasonable and probable grounds to lay charges against the alleged perpetrator of the sexual assault and the security guard who allegedly assaulted her. Accordingly, she argues that the Director’s review of whether or not there were reasonable grounds to believe that an offence was committed and, thus, whether or not charges should have been laid, is a question of law, attracting a correctness standard of review.
[71] We disagree.
[72] The decision to lay a charge involves the exercise of discretion. NRPS, unlike some other police services, does not have a “mandatory charge” policy for sexual assaults of this nature. The NRPS’s assessments of the applicant’s complaints about the conduct of the officers, including the manner in which they exercise their discretion to lay charges, does not engage a question of law. Accordingly, the standard of review afforded to the Director’s decision making is a reasonableness standard. That standard requires the reviewing court to ask whether the decision as a whole bears the hallmarks of reasonableness – justification, transparency and intelligibility: Vavilov, at para. 81.
[73] The application of the reasonableness standard in this case does not, therefore, require us to decide whether we would have made the same decision as the Director. Nor are we required to determine the range of other possible conclusions that would have been open to the Director, or to conduct our own analysis of the evidentiary record.
[74] The Director declined to recommend that the assault investigation be reopened because he was satisfied that it was comprehensive and that the evidentiary record supported the Chief’s conclusion that DS Gauthier’s exercise of his discretion not to charge the security guard was reasonable in the circumstances. He offered this explanation for having come to that conclusion:Police officers have broad discretion with respect to both how they investigate and whether to lay a charge. That discretion is critical to the effective administration of justice. It is certainly not unbridled and must be exercised reasonably and in good faith [footnote: Hill v. Hamilton-Wentworth (Regional Municipality) Police Services Board, 2007 SCC 41, at paras 52 and 73]. I find DS Gauthier’s explanation of the application of the Trespass to Property Act particularly compelling. [Italics in original.] [75] In our view, it was open to the Director to conclude that the decision not to lay charges against the security guard was reasonable.
[76] With respect to the sexual assault investigation, the Director concluded that the evidentiary record overwhelmingly demonstrated that DC Catherwood had exercised his discretion reasonably and in good faith in deciding not to charge the patron who the complainant alleges assaulted her. The evidentiary record included a statement from DC Catherwood in which he set out in some detail his reasoning, which the Director found to be fair and logical, and supported the chief’s conclusion that there was insufficient evidence to substantiate misconduct against either DC Catherwood or DS Hodges.
[77] The Director was also satisfied that NRPS had taken additional steps to confirm the sufficiency of the sexual assault investigation, notwithstanding the irreversible errors that had been made by PCs Celetti and Haley. Those steps included having DS Hodges review the work of DC Catherwood (he concurred with DC Catherwood’s finding that there was insufficient evidence to ground a charge) and having the investigation reviewed de novo by the officer in charge of the NRPS sexual assault unit (he also came to the same conclusion).
[78] Furthermore, the Sexual Assault Advocate Case Review Team could have, but did not raise concerns or make any recommendations in relation to the decision not to lay charges.
[79] The Director’s decision satisfies the requirements of justification, transparency and intelligibility. We see no basis for interfering with it. . R. v. C.H.
In R. v. C.H. (Ont CA, 2023) the Court of Appeal considers 'consent' in a sexual assault context:[28] C.H. testified that he believed that all of his sexual interactions with the complainant were consensual. He testified variously how the complainant made “no complaints”, was “fine with it” and “just went along with it”, although he did not testify as to why he believed that the complainant had communicated her consent. After citing relevant legal principles and statutory provisions confirming that consent is not obtained by a failure to resist or protest, and that a belief in consent must be based on communicated consent, the trial judge commented:Against this backdrop of the applicable provisions and legal principles, [C.H.]’s generalised statement that he believed all sex with [the complainant] was consensual, without more, could not form the basis for an acquittal on the sexual assault charge even if I completely believed him. [29] I agree with C.H. that, in the circumstances of this case, this observation by the trial judge is incorrect. The trial judge found, based on the complainant’s own evidence, that all three of the sexual events that grounded the sexual assault conviction - the “Hunt Camp incident”, the “Necktie incident”, and the “Mother’s Day Weekend incident” - began consensually. Her admitted participation at the commencement of the sexual conduct would inevitably have communicated her consent. Given this, absent any indication from the complainant that she had changed her mind on these occasions, it would be reasonable for C.H. to believe that her communicated consent was continuing without the need to take any further steps to confirm communicated consent. In these circumstances, if the trial judge accepted C.H.’s claim that he believed that the sex was consensual relating to these events, even without taking further steps and even if relying on the absence of post-consent complaints or other signs of rejection, C.H. would have a defence because he would have lacked the mens rea required to be convicted of sexual assault.
[30] In spite of this error, I would not set aside C.H.’s sexual assault conviction. When the trial judge made this legally erroneous comment, he was addressing the hypothetical question of what would happen if he believed C.H.’s evidence. This hypothetical event never came to pass because it is plain when the decision is read as a whole that the trial judge affirmatively rejected C.H.’s testimony that the complainant made “no complaints”, was “fine with it” and “just went along with it”. Instead, the trial judge found affirmatively that on each occasion the complainant told C.H. to stop. On the facts that the trial judge found, his erroneous “even if” legal proposition made no contribution to the sexual assault conviction.
[31] I have considered and rejected C.H.’s related submission that there is an associated W.(D.) error because in his reasons the trial judge addressed only what would have happened if he believed C.H.’s testimony about the complainant’s consent but did not address what would happen if he did not affirmatively believe this evidence but could not reject it in its entirety. This submission is unpersuasive because the trial judge’s affirmative finding that the complainant told C.H. to stop represents a complete rejection of C.H.’s account, leaving no room for reasonable doubt. Moreover, as I have noted, the trial judge conveyed his understanding of the rule in W.(D.) earlier in his decision. There is no basis for inferring that in accepting the complainant’s evidence beyond a reasonable doubt the trial judge failed to consider whether C.H.’s account left him with a reasonable doubt.
[32] I would reject this ground of appeal.
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