R. v. Evans

R. v. Evans Collection Decisions of the Court of Appeal Date 2023-05-23 Neutral citation 2023 ONCA 365 Docket numbers C69954 Judges Huscroft, Grant; Harvison Young, Alison; Thorburn, Julie Subject Criminal Decision Content 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152,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 complainant’s 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and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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. Evans, 2023 ONCA 365 DATE: 20230523 DOCKET: C69954 Huscroft, Harvison Young and Thorburn JJ.A. BETWEEN His Majesty the King Respondent and Bradley Evans Appellant Stephen Whitzman, for the appellant Emily Marrocco, for the respondent Heard: May 2, 2023 On appeal from the conviction entered on April 22, 2021, and the sentence imposed on October 6, 2021, by Justice Leslie C. Pringle of the Ontario Court of Justice. REASONS FOR DECISION OVERVIEW [1] The appellant appeals against his conviction on charges of sexual assault with a weapon, sexual assault causing bodily harm, and sexual assault, arising out of incidents that occurred on January 4/5 and January 18, 2019. He argues that the verdict was unreasonable because (1) it was based on flawed credibility/reliability findings and (2) it was internally inconsistent. The appellant also seeks leave to appeal the five-year sentence that was imposed. [2] The appeal is dismissed for the reasons that follow. BACKGROUND [3] The appellant and the complainant first met in person on a Tinder date on January 4, 2019. The complainant remembers drinking a lot of tequila shots that evening at two different bars with the appellant. Her last memory of the evening was the two of them walking on the sidewalk. She blacked out and has no memory of going to the appellant’s apartment until she woke up. When she woke up, she saw that she had bruises on her face, marks on her wrists, red marks in a line on her neck, and deep red eyes. [4] The complainant testified that the appellant explained to her that he had carried her to his home with the assistance of another man. She had awakened at some point in the night and asked him to have sex with her. He told her that he had restrained her face down on the bed with straps, penetrated her vaginally, penetrated her anally with a taser and a very large dildo, put a ball gag in her mouth, whipped her, and choked her with a belt. She testified that the appellant told her he was surprised that she did not remember, as she had been “completely lucid” and “present”, and he thought she was enjoying it. [5] The complainant went to a doctor on January 7, 2019 because she was concerned about the redness in her eyes. The doctor testified that she observed severe bilateral hemorrhaging, bruises on the complainant’s elbow and thigh, scratch marks on her back, and a swollen ankle. In addition, the doctor observed broken blood vessels in the complainant’s throat, behind her ears, and beneath her eyes, injuries she said were consistent with strangulation. The complainant told the doctor she did not remember what happened but the appellant told her what he had done. The complainant discussed the possibility of making a police report with her doctor but did not do so. [6] The complainant testified that on January 18, 2019, she went to the home of the appellant’s friend, A.C., along with the appellant. Later that evening, they went to the appellant’s apartment. The complainant had intercourse with A.C. at the apartment while the appellant was in another room. She said that she believed the appellant had been pushing her towards A.C. and wanted her to be with him, so she did. A.C. left and the complainant stayed at the appellant’s apartment overnight. The next morning, she agreed to have vaginal sex with the appellant but specifically refused anal sex. She testified that the appellant forced anal sex on her. The complainant experienced bleeding in her anal area and went to get examined by a doctor. She learned that she had contracted herpes. [7] On February 4/5, 2019, the complainant met with the appellant and A.C., and confided the events of January 4/5 to A.C. [8] The complainant exchanged numerous text messages with the appellant on WhatsApp until mid-February. The complainant would often say positive things to the appellant, including that she enjoyed her sexual experiences with him. She testified that the messages were intended to appease the appellant. She stated that she was lost and at times suicidal and that she had not meant what she said in the messages. She also testified that she thought no one would love her again after she was diagnosed with herpes and was scared. She stopped responding to the appellant’s text messages on February 16, 2019. [9] A.C., who was by this time the complainant’s boyfriend, reported the events to the police on July 22, 2019. DISCUSSION The trial judge did not err in assessing the complainant’s credibility and reliability [10] The appellant attacks the trial judge’s credibility and reliability findings on several bases. He argues that the trial judge overlooked “serious weaknesses” in the complainant’s evidence, such as her failure to recall that she had spent the night with the appellant on another occasion. The most serious error, according to the appellant, is that the trial judge failed to consider that the complainant believed the appellant had infected her with herpes, and that this gave rise to “an obvious motivation to fabricate, or at the very least a subconscious motive to rationalize her sexual activity with the appellant as non-consensual”. [11] The appellant’s submissions essentially invite this court to revisit the trial judge’s findings. That is not our role on appeal. It is well established that a trial judge’s credibility findings are entitled to considerable deference in this court. This court will interfere with a credibility assessment only where there is palpable and overriding error. The question is whether the trial judge’s credibility finding 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. [12] The appellant has established no basis to interfere with the trial judge’s credibility findings. The trial judge fully and fairly considered what the appellant characterizes as shortcomings in the complainant’s evidence, including her failure to recall the night she spent with the appellant subsequent to the assault and the continued communication with the appellant after the alleged assaults – communication the appellant says shows clearly that the complainant consented to the sexual activity. The trial judge simply did not accept that these alleged shortcomings undermined the complainant’s credibility or reliability. The “most serious error” alleged by the appellant – the trial judge’s failure to consider that the complainant’s contraction of herpes gave her a potential motive to fabricate – was the subject of submissions that the trial judge ultimately rejected. She did not accept that the complainant was rationalizing her understanding of what had happened, reinterpreting it in a way that she could live with. The trial judge did not specifically mention the herpes diagnosis in rejecting this argument but was not required to. [13] Nor was the trial judge required to refer to the specific messages which, according to the appellant, show that the complainant consented to the sexual activity on January 4/5. The text messages were before the trial judge, who acknowledged that continued communication with the appellant was a significant factor to be considered in her credibility analysis. She agreed that the complainant’s behaviour could not be considered reasoned or logical but found that, in all of the circumstances, it was understandable. The complainant’s explanation was honest and genuine and it did not diminish her credibility. The trial judge found that the complainant was “a candid and genuine witness who was doing her best to be honest with herself and with the court.” These findings were open to the trial judge and are entitled to deference in this court. This ground of appeal fails. The verdict is not inconsistent or irrational [14] The appellant also argues that the trial judge’s decision to find reasonable doubt concerning the issues of lack of consent and unconsciousness because the complainant’s evidence was insufficiently reliable is inconsistent with her finding of guilt on the capacity issue. Her decision is unreasonable because it was reached illogically or irrationally in the sense set out in R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190. [15] There is no merit to this argument. [16] As the Supreme Court has explained in R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at para. 57, released subsequent to the trial judge’s decision, the capacity to consent to sexual activity is a precondition to subjective consent and requires the capability to understand 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. If a complainant is incapable of understanding any one of these four conditions, then she is incapable of consenting to the sexual activity. [17] There was ample evidentiary support for the trial judge’s conclusion that the complainant was incapable of consenting to the sexual activity with the appellant on the night of January 4/5. Among other things, the complainant was drinking tequila, which she had never had, and became highly intoxicated; she blacked out on the sidewalk on leaving the bar; she had to be carried to the appellant’s apartment; she vomited at the appellant’s apartment and passed out on his floor; she could not remove her clothing; she was periodically unconscious. The complainant’s lack of capacity was further supported by the finding that she had no memory of the events that occurred at the complainant’s apartment. The trial judge understated the circumstances in describing the conclusion that the complainant did not have the capacity to consent as “rather compelling”. [18] This was a case of multiple sexual acts committed on the complainant, some of which involved BDSM gear. In accordance with G.F., the complainant had to be capable of consenting to each of these particular acts. If the trial judge had the benefit of G.F. and addressed the capacity issue as the Supreme Court directs, her analysis could have stopped there. [19] But the trial judge considered whether the complainant agreed to the sexual activity in question prior to determining the capacity issue, and this was the context in which she found an “apparent contradiction” between the text messages and the complainant’s testimony. The trial judge’s decision not to find non-consent in that context does not undermine her finding that incapacity was proven beyond a reasonable doubt. As noted above, there was ample evidence in this regard. The trial judge specifically considered whether the complainant’s text messages undermined the conclusion that she did not have capacity to consent and determined that they did not. The trial judge accepted the complainant’s evidence that she had no memory of the events and that she did not mean what she said in the messages. The incapacity finding was based on the totality of the evidence, including the complainant’s testimony, A.C.’s testimony, and the appellant’s own statements, which provided “a clear picture of extreme intoxication and periods of unconsciousness”. [20] The appellant argues that although the complainant may have been incapacitated initially, there was no evidence she was incapacitated at an undetermined later time when he says the sex occurred. There is no merit to this argument. It depends on a self-serving statement by the appellant to the complainant that “[she] asked him to have sex with [her]” and that she was “completely lucid”. The trial judge rejected these statements as implausible, and the appellant chose not to testify. The evidence before the trial judge amply supported the finding of incapacity. [21] Finally, the appellant argues that the trial judge’s finding that the complainant’s evidence was insufficiently reliable to support a finding of non-consent concerning the January 4/5 events renders her conclusion of non-consent on the January 18 incident irrational. We do not accept this argument. The trial judge accepted the complainant’s evidence that she consented to vaginal intercourse on January 18 but the appellant forced anal sex upon her. The appellant’s challenge to her credibility failed. The trial judge found that the complainant was an honest and genuine witness; she clearly informed the appellant that she did not want anal sex because her anus still hurt following the January 4/5 events. The trial judge found that the complainant’s evidence was credible, reliable, and unchallenged. This conclusion cannot be said to be irrational. Leave to appeal sentence is denied [22] The appellant seeks leave to appeal sentence but says simply that “a sentence of five years is excessive and should be reduced”. No error in principle is asserted, nor is any authority proffered in support of the assertion that the sentence is excessive. In our view it is not, and there is no basis for this court to interfere with it on appeal. [23] Accordingly, leave to appeal sentence is denied. CONCLUSION [24] The appeal is dismissed. “Grant Huscroft J.A.” “A. Harvison Young J.A.” “J.A. Thorburn J.A.”