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ADMINISTRATIVE LAW | SPPA / Fairness (Administrative)

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Civil and Administrative
Litigation Opinions
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Criminal - Sexual Assault (2)

. 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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Last modified: 08-12-23
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