CITATION: R. v. Ururyar, 2017 ONSC 4428 COURT FILE NO.: CR-16-10000069-00A? DATE: 20170720 ‘ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HER MAJESTY TEE QUEEN Danielle Carbonneau, for the Crown/Respondent Respondent and - MUSTAFA URURYAR Mark Halfyard, for the Appellant Lance Beechener, for the Intervener Criminal Lawyers’ Association (Ontaria) Joanna Birenbaum, for the Intervener Barbara Schlifer Commemorative Clinic 5 HEARD: March 14,2017 M.Dambrot OVERVIEW [1] Mustafa Unuyar was convicted by Zuker J. in the Ontario Court of Justice of one count cof sexual assault tht was alleged to have taken place during the night of January 30-31, 2015,=Page2- and sentenced to 18 months imprisonment and three years probation. He appeals fom both convietion and sentence, [2] Both the appellant and the complainant, Mandi Gray, were graduate students at York University, They had been in a casual sexual relationship for about two weeks prior to January 30. Both the appellan’ and the complainant were involved in the affairs of a local ofthe Canadian Union of Publie Employees (*CUPE") that represented teaching assistants. On January 30, CUPE had won a strike vote and a number of graduste students, including the complainant and the appellant, went tc the Victory Café to socialize and celebrate. After a night of drinking, the appellant and the complainant went to the appellant's apartment where, the complainant testified, the appellant sexually assaulted her. The appellant testified tht the two of them did have sexual relations at his apartment but that the sexual activity was entirely consensual [B) Following the tral, which included five days of evidence, two of which ended at 11:30 ‘am, and another of which included only one half-hour of evidence, the trial judge reserved Judgment. On July 21, 2016 he delivered @ 179-page writen judgment in which he found the ‘appellant guilty [4] _ Following the finding of guilt, upon the application of the Crown, and despite the fact that the appellant had been at liberty on an undertaking or a promise to appear throughout the proceedings to date the tral judge revoked the appellant’s release and ordered that he be ‘detained in custody. The matter was adjoumed for sentencing submissions. In the interim, the appellant was ordere¢ released pending appeal by a judge ofthis Court [5] On September 14, 2016, immediately following submissions on sentence, and without reviewing the sentencing materials fied by the defence, tho tral judge released a SS-page written judgment sentencing the appellant to 18 months imprisonment aid three years probation. He also ‘ordered the appellant to pay $8,000 tothe complainant in restitution to compensate her for legal ‘osts incured in preparing to testify atthe tial, although this order is not found in the reasons for sentence. ‘THE GROUNDS OF APPEAL {6} On this appec, the appellant rises six grounds of appeal with respect to conviction and. ‘one respecting seterce, namely: 1. The trial judge displayed a reasonable apprehension of bias in favour of the complainant; 2, The trial judge improperly took judicial notice of and relied on untested academic ‘commentary that was not put tothe parties for submissions; 5. The tral judge applied different standards of scrutiny to the evidence; 44. The verdict is unreasonable because the tial judge’s reasoning process at times, impossible to follows 5. ‘The trial judge misapprehended the evidence related to text messages and public displays of affection; rational and, 6, ‘The trial judge erred in is assessment ofthe issue of consent; and 7. ‘The tral judge erred in imposing restitution forthe complainant's legal fees,=Page 3 ‘THE EVIDENCE, [7] After CUPE’s successful strike vote, the complainant and several other students went to the Vietory Café to celebrate. The complainant texted the appellant und asked him to come over to the bar, Specifically, her text read “I'm at victory come drink and then we can have ht sex.” He initially ‘said that he was feeling ill, but then told her, in @ subsequent text which was produced at tril, that he would come in a while. The complainant deleted these text messages fd did not mention she “hot sex” text to the police. In addition, she initially testified thatthe ‘appellant never fold ber that he was coming tothe café, an just showed up, surprising her. She texted a friend the next morning and said that i just heppened that she and the appellant were at the same bar the night before, [8] _ The complainant testified that the appellant arrived atthe Victory Café between 9 and 10, pam. She said that when the appellant artived, they didn't talk that much and sat at separate lables, Aer a few hors, the complainant, her fiend Lacey and the appellant went to another bar called Pauper’s. She said that she socialized with other people at Pauper's and didn’t speak much to Lacey and the appellant. [9] The complainant sai that she remained at Pauper's until 2:30 a.m. Because she had had a Tot to drink, she askec the appellant ifshe could spend the night at his apartment. He lived within ‘walking distance of Pauper’. He told her that she could spend the night at his apartment but that the was not feeling well and would not have sex with her. She also testified that the appellant wanted Lacey to join them but that Lacey went home by taxi [10] After Lacey le, the complainant said that the appellant became angry. He told her that she did not meet his sexual needs and that he wanted three-way sex with her and Lacey. He called her needy and an embarrassing drunk. His anger kept esealating. [11]. Once they get to the apartment, the complainant said that that the appellant's anger escalated further. She was sitting on the Corner ofhis bed when te grabbed the back of her heed land pushed his penis nto her mouth, As a result of the risk of violence and her fear, she stopped faring and engaged in oral sex, but did not consent. The appellant then pushed her onto the bed ‘and had intercourse with her until he ejaculated. She then fell asleep. When she awoke, she found the appellant masturbating, She became angry. He tried to force her to perform oral sex again, bt she refusec, got dressed and left [12] That same day, January 31, shé told a number of friends what happened. They encouraged her to report the incident. The following day, February 1, she remained indecisive ‘bat went to a hospital to do a sexual assault kit, On February 2, she reported the incident to the police (13) The appellant testified that he had a girlftend atthe time named Alison Moore, She lived in Montreal, They had an open relationship snd had relations, including sexual relations, with ‘other people while they lived in separate cities. Ms, Moore testified and confirmed the nature of hher and the appellan”s relationship, As I have already noted, the appellant testified that he had ‘been seeing the complainant for a couple of weeks prior to the alleged assault and they had a casual sexual relationship,= Page 4 [14] The appellant agreed that he came tothe Victory Café after receiving text messages from the complainant, He was focling a bit under the weather but thought that they might have sex. Tate. He sat with erat the Victory Café and they spoke and Mlrted. She put her hand on his leg ‘and rubbed it, but he didn't think that this was appropriate behaviour and asked her to sop, Which she did. He was not comfortable with public displays of affection. When they went to Pauper's they sat together again and continued to drink, talk and have a good time, [15] The appellant agreed that when they let Pauper's, he invited Lacey t© come to his ‘partment with them ‘0 drink but that she declined. He denied that be had any conversation with the complainant or Lacey about having three-way sex that night. He said that as he and the complainant walked to his apartment, he put his arm around her and they talked and flirted. The ‘complainant told hi that she was looking forward to staying the night and having sex. There ‘Was no arguing, no berating, no raised voices and no anger. When they got to his apartment, they Undressed and got into his bed. When she trod to kiss bim, he moved away. He had’ been thinking about the complainant's behaviour at the bar and wondered whether they were compatible, Inadditicn, although he had an open relationship with his grlfiend, she was moving to Toronto and he felt uncomfortable about continuing his relationship with the complainant. [16] When the appellant told the complainant about his feelings, she started to ery. He consoled her and apologized for making such a big. deal about the touching at the bar. They [Kissed and he stid tat this should be the last time they slept together. She got on top of him, pulled his pants dows and started to perform oral sex. He asked her if she wanted him inside her land she said yes. They had intercourse, cuddled and fell asleep. [17] When they avoke the nextday, the complainant was upset and angry. He thought that she felt used because they broke up but still had sex. He denied masturbating or forcing her onto his penis before she lef ANALYSIS [18] The six grounds of appeal from conviction almost exclusively focus on the tial judge's 179-page written ressons for judgment and call into question his reasoning process. In his reasons, the tral judge devoted approximately 130 pages to recitation of the evidence, twelve ‘ages t0 a recitation of the law, cleven pages to a summary of the positions of the Crown and efence, two pages ba brief recitation ofthe legal significance of evidence of a sexual history between an accused and a complainant, nine pages to a discussion of the topic of credibility, twelve pages to “Findings” and, finally, thee pages to atopic entited “I Know Why the Caged Bird Sings.” [19] Throughout the last three sections, the trial judge places reliance on academic literature that was preseited neither by nor to the partes, as well as numerous expressions of the trial judge's own views cbout the nature of sexual assault and the way allegations of sexual assault should be dealt within the legal system. [20] 1 propose to 2egin my analysis of the grounds of appeal with a consideration of ground four. ‘Was the verdict unreasonable because the trial judge's reasoning process was irrational, and, at times, impossible to follow?= Page 5 - i. Thelaw [21] A trial judge's reasons for judgment serve three purposes: to explain to the losing party ‘why they have lost; te satisfy the public that justice has been done ~ or not done; and to permit ‘meaningful appellate review: Rv. Bont, 2016 ONCA 651, 342 C.C.C. Gd) 343, at para, 78. ‘Reasons that explain to the parties and the public the result arrived at by the trial judge are ‘crucial to meiniainicg the proper level of transparency and accountability essential to the maintenance of the iiiegrity of the tial process and public confidence in that process: R. v. ‘Slnska, 2017 ONCA 426, [2017] 0.1. No. 2661, at para. 24. [22] Despite the importance of reasons for judgment, inadequacy of reasons is not a freestanding ground of appeal from conviction. A more contextual approach is required. An ‘appellant in a criminal case must show not only that there isa deficiency in the reasons, but also ‘that tis deficiency hus occasioned prejudice to the exercise of hs or her legal right to an appeal ina criminal case: Rv. Sheppard, 2002 SCC 26, [2002] 1 S.CR. 869, at para. 33 [23] On an appeal based on the trial judge's failure to give adequate reasons, the appellate court measures the adequacy of the reasons against the requitement that the reasons permit ‘meaningful appellate review of the trial decision. Ifthe reasons serve that function, any Shortcomings fiom a due administration of justice perspective do not justify appellate intervention. However, reasons that frustzate meaningful appellate review constitute an error in Jaw. That error requires the quashing of the verdict unless the trial record as a whole permits effective appellate review ofthe verdict: Sliwka, at para. 25, [24] Inky. Dinardo, 2008 SCC 24, [2008] 1 S.CR. 788, Charron J., writing forthe Court, tuddressed how an appeal court should assess the sufficiency of atrial judge’s reasons where a case tums largely ch credibility. She stated, at para. 26, that in such circumstances, the Sufficiency of the resons should be considered in light ofthe deference afforded to trial judges ‘on credibility findings. According to Charron J. “[rjarely will the deficiencies in the tral judge's ‘redibilty analysis, as expressed in the reasons for judgment, merit intervention on appeal.” This flows from the fat tat assessing eredibiity is not a science and the hasis for an assessment of credibility is diffiul: to expross with precision. Nevertheless, where a trial judge must resolve onilicts in the evidence, the failure of the trial judge to provide some explanation for how the onilit was reconciled and to sufficiently anieulate how credibility concerns were resolved may Constitute reversible error. As stated by Charron J. in Dinardo, at para. 26, “the accused is entitled to know “why the tal judge is let with no reasonable doubt.” See also Rv: Ezard, 2011 ONCA $45, 291 C.C.C. (3d) 78, a para 15, 25] The task then, in this case is to determine whether the tial judge sufficiently articulated how he resolved the eredbility concerns inthis case and why he was let with no reasonable doubt as to the appellant's guilt. In my view, he did not. It might be thought that in the course of ‘2 179-page written judgment, the tral judge must inevitably have made his reasoning clear. However itis a mistake to equate the length of a judgment with clarity. On the contrary, a8 1 will endeavour to show, the trial judge paid scant attention to explaining his resolution of the credibility concems ‘hat arose in this case. The length of his judgment, and the topics discussed= Page 6 - in it, served only to obscure and confuse, To explain why I reached this conclusion, it is necessary to summarize the judgment in greater deta ti The reasons [26] The trial judge's 179-page writen judgment begins with a 130-page recitation of the evidence. It begins abruptly, and without preamble, with a nine-page outline of the examination inchief ofthe compleinant, which largely consists of long passages extracted from the transcript ofthe proceedings. [27] The outline ofthe examination-in-chief of the complainant is immediatly followed by an. cight-page outline of the examination in-chief of the appellant, similarly consisting largely of Tong passages extracted from the transcript of the proceedings. This unusual formula raises the suspicion thatthe reasons are proceeding a if the tral were a credibility contest. [28)__Next the trial judge summarizes the eross-examination of the complainant in 67 pages consisting almost entirely of extracts from the transcript. This is followed by a four-page Summary of the complaints re-examination consisting exclusively of extracts from the transeript, [29] The trial judge then “summarizes” the cross-examination of the appellant in 39 pages. ‘This summary consists exclusively of extracts from the transcript and is followed by a similar ‘swo-page “summary” ofthe appellant's re-examination, [30] Finally, the tial judge tums to the examination‘in-chief of Alison Moore, defence ‘witness. This section of the judgment reads, in its entirety, as follows; ‘And where do-you live? ‘Vancouver, although I lived in Montreal for two years previously. (Okay. Ard when did you begin living in Montreal? August 2013, Until when? June 2015 [31], The trial judge makes no mention in this part of the judgment of the evidence of Philip So, the appellant's rsommate, who provided evidence that could be considered as corroborative of apart ofthe testirony of the appellant, [32] _ I deseribe this part of the judgment in some detail to dispel the possibilty that in this Tengthy discussion of the evidence the trial judge made credibility findings and provided some explanation for them He did not rperere [33] The trial judge then curiously, and abruptly, again without preamble, turn tothe law. [34] The trial judge begins his discussion ofthe law by reciting the charge, listing the essential ‘lements of the alleged offence and providing e lengthy, generic review of the law in relation to these elements and, in particular, the issues of consent, the burden of proof and the assessment of credibility, Much ofthis excursion through the law deals with issues that had litle or nothing to= Page 7 do with this ease, including the treatment of exculpatory statements, when there is an sir of reality to a defence of consent, the defence of mistake of fact and wilful blindness. None of this provides any comfort that the tial judge focussed on the real issues in this case [35] The trial judge then outlines the submissions ofthe defence (in two pages) and the Crown, (Gnmine pages). Agair, these outlines consist entirely of extracts from the tanseript [36] The trial judge then continues with a topic entitled “History.” He begins this discussion ‘with the statement that “Evidence of a victin's sexual behaviour and sexual predisposition “ordinarily is inadmissible.” I presume thet he meant to use the word “complainant,” rather than “victim.” He then said ‘The “hot sex” text falls short of making anything apparent. The “bot sex” text can bee read in meny ways. If anything, Mr. Ururyar’s made his alleged guilt more likely, as perhaps providing a stimulus for his later alleged assault. The text messages do not prove thatthe complainant engaged in sexual behar ‘or misbehaviour or prove Ms. Gray had a sexual predisposition. Evidence is relevant if: (a) it has any tendency to make a fact more of less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action, If interaction occured it was not an invitation to have sex with her without consent. [7] Thisis a reference to the complainant's texto the appellant inviting him to join her atthe ‘Victory Café, in which she suid “(Come drink and then we can have hot sex.” [38] The trial judge then reviewed the limitations placed by the case law on drawing Jnferences of consent from the prior sexual history of a complainant, including the sexual history ‘between & complainant and an accused. [39] Itseems to me that the trial judge misunderstood the import of the text message evidence. He was ofcourse correct thatthe past sexual conduct or sexual predisposition of a complainant is evidence neither of the complsinant’s predisposition to have sexual relations with the accused, hor of any belief by an accused that consent to sexual relations in the past means consent to further sexual relations. But the text message here was not evidence of past sexual conduet or ‘past sexual predisposition, Instead it was part of the narrative of the present encounter. To the {extent thet it could be understood to be consent to some form of sexual activity, the trial judge ‘would have been correct 1o note tht the complainant was free to withdraw it, but otherwise, the teal judge's discussion of the lavr in relation to past sexual conduct was inelevant. Further, ‘whatever value the evidence ofthe complainant's text message might have had in this ease, the trial judge’s use of it to somehow enhance the likelihood of the appellant's guilt om the Speculative basis tha it “perhaps” provided a simalus toa later sexual assault was clearly not ‘open to him. [40] In addition, the trial judge missed the real point of the appellant's reliance on the text ‘message. The appellant argued thatthe complainant's deletion ofthe text message and her failure to mention itt the police or in her examination-in-chief, instead testifying that she wes surprised ‘when the appellant shoved up, was selective disclosure that undermined her credibility and Supported the defence position that the allegations were fabricated. The trial judge failed to= Page 8 advert to this angumert, and his discussion of the law on drawing inferences of consent from past sexual history suggests that he misunderstood it. [41] | The tril then tured to a topic that he entitled “Credibility.” He dealt with this issue in nine pages. He began by noting that while we are all experts on human behaviour, some matters Of behaviour fall outside common knowledge or “require correction of stereotypes.” He then proceeded to string together a series of references to case law and his own views about delayed lisclosure (missing che point that the defence alleged incomplete disclosure); the risk of inordinate weight being given to expert evidence (there was no expert evidence in this case); formal judicial notice the distinction between questions of law and questions of fact; what constitutes “common knowledge"; the demise of the marital exemption from rape; the principle that both men and wemen should enjoy the unchallenged right of sovereignty over thei bodies; the principle that a vietim does not need to struggle, fight or sustain injury to enjoy the protection fof the law, the revolting mature of the former view that women are chattel; misguided ‘conceptions of what constitutes “real” rape and how a “real” victim of sexual violence should behave and his view at however sophisticated the law is, any allegstion that derogates from the stereotype is likely te be approached with a degree of suspicion ~ specifically the blaming of ‘complainants for attacks where the complainant behaves foolishly or inappropriately the truisms that sexual violence san intolerable intrusion into the most personal and private rights of an individual and includes a continuum of conduct, that sexual assault includes intentional and ‘unwelcome touching, and that consent must be informed, freely given and mutually understood; that when physical foree is used there is no consent; that a victim's non-conformance with ‘behavioural stereotypes should not impact on the way we evaluate the complaint; that delayed reporting, the victim’ emotional state and lack of resistance, standing alone, are not dispositive fof consent; and a discourse on the meaning of consent. [42] The tial judge then said, “There are [sie] a host of complex issues involved with sexual tnd gender-based viclence” and “There is a need to appreciate the interplay of power, gender, tnd sexuality.” After citing several books relating to these issues, he added to his lst of complex. fssues “Why many people who experience domestic violence, choose not to report their abuser oF choose not to cooperite with official efforss to hold abusers accountable, how domestic violence ‘complainants can experience peer stigmatization and vietim response to trauma,” and then referred to journal ticle. [43] The tril judge then said, “We are often faced with the dynamics of counter-ntuitive victim responses to Tauma, memory fragmentation and delayed recall, uncooperative victims, land the interplay of power/gender sexuality,” and referred to an edditional journal article. [44] He then defined consent once again, and refered toa training manual that treats violence ts a form of contre and rejects theories’ that focus on laws in the abuser, the victim, the relationship, or all tree. He went on to expound, without any souree, on the following: that Violence isa wey of using power in a relationship; that the question “why dida’t she leave is an objectfying statement"; and that “[WJe need to challenge the coercion of choices, reveal the ‘complexity of experience and stuggle, and recast the entire discussion of separation in terms of the violent attempts at contro.” [4S] The trial judge then made reference to this case and seid that the complainant's supposed failure to protest of stop the advances of the appellant reflected several failures of= Page 9 communication common to many cases involving disputed sexual interactions, and listed five Such failures, specifically: (1) honest disagreement, (2) no direct explicit communication; (3) the male relying on inditect indications of interest; (4) the male relying on gradual escalation of intimacy, proceeding until a clear refusal is received; and (5) the complainant relying on non Verbal behaviour that could be misinterpreted as excitement rather than discomfort. He made reference to:no source in compiling this list. [46) ‘The tral judge then proceeded 1 enumerate the dilfclties he saw in determining when Consent is given! inital communication of sexual deste often occur through non-verbal cues, Sebal requests to engage in sexual activity or for clarifiaton or efsal of sexual advances ae Jess common; sexual communication is complicated by the tendency to communicate refusal through indirect meas; mutual slebel consumption is nota sign of sexual intent or consents ‘when sexual assault is alleged, both partes ae asked to recount a wealth of detail thet may tecome important only in hindsight, or may not have been attended to a the time, and are therefore not encoded in memory; human memory is reconstructive in nature, and is fallible, tnalleale and susceptible o suggestions some people engage in sex fr fer of rape ithey don't, Dertcpate voluntarily; many assaults are commited by a trusted person; there are many reasons Tor delay in or faue wo report, aleobol makes people perfect targets because they may have Aiticlty remembering what happened we have preconceptions and misconceptions about how people who have bees sexually assaulted should behave: and offen there are no witnesses to the Sexbal assault other han the accused and the complainant [47] The ‘tial judge ended this discussion with some commonplace instructions about credibly [48] Next, at page 164 of his judgment, the wal judge tumed to the topic of findings. He ‘began witha four-page summary of the evidence of the complainant and the appellant. While this feck the form of an objective recitation, the rial judge deseribed the appellant's evidence in Sareastic terms on occasion. For example, when referring tothe appellats evidence thatthe complainant groped his leg atthe Victory Café, rubbing her hand up and down the inside of his Jeg, the tial judge sai: [Asif to awaken him from anything that might dissuade him otherwise, Mr. Unuyar gave evidence that Ms. Gray personally assaulted him. Yes, assaulted him, groped im, in fact atthe Vietory Cae (49). The wal jadg then simply suid, “It ever happened” {50} After summaczing the evidence, the trial judge specifically rejected the evidence ofthe appellant He said (underlining inthe orginal) [456] Such a story, scenario we heard from Mr. Unuryar from beginning to end begs credulity, a feble, feeble tempt in hindsight that i unbelievable and incomprehensible [4ST] tnever happened this way. None of [458] The groping never happened. Did Ms. Gray grope him? No. That was not the nature of ther relationship. That was not Ms. Gray.= Page 10 - [459] Groping incident number two at Paupers [sic]. Did it happen? IMogical, tnd why? Based on what? Ms. Gray couldn't keep her hands off him? She couldn't wait to grab him? She didn’t even spend much of the evening nest him, Tet alone grope him at each bar. What a picture painted by the accused except a false picture aad in between the groping, how about a threesome? [460] Mardi and Gazem, Gazem and Mr. Ururyar, Mr. Unuryar, Mandi and presumably Lacey. Another abscene fabrication. Hot set [sie] never equated with 2 threesome to Ms. Gray. We don't even know what the phrase “hot sex” means [461] Mardi approaching Gazem to speak to Mr. Unuryar. Why? Were not ‘Gazem and Mr. Unuryar basically done as a couple? Mandi knows how to speak. ‘Never happened. Speaking to Gazem after January 31 about the threesome, never happened. [462] Lovey, dovey on the way home, never happened. Awacking Mr. Uraryar under the covers in bed, never happened, again a great illusion or Gelusion of Me, Ururyar bu lso a joke, A fabrication, credible, never. I must and do reject his evidence. [463] _ [oso without hesitation. To quote McLachlin, J, (as she then was) on the credibility ofa witness in Rv. Marquard, [1993] 4 S.C.R. 223, at para. 49: “Credibility is a matter within the competence of lay people COrdinzry people draw conclusions about whether someone is lying ‘or telling the truth ona daily basis.” [51) The tial judge then acknowledged, at paragraph 479, that even if he did not believe the testimony of the acctsed, he would sill be obliged to acquit him ifhe was “left with reasonable doubt by it.” He concluded that he was not left with a easonable doubt, He stated (unde the original) [481] Mr, Ururyar denies he sexually assaulted Ms. Gray. Consent is therefore not an issue and more importantly Ms. Gray's historieal text, even if alleged by Mb. Ururyat, may well be irelevant [482] Further since (it never took place) consent is # non-issue, there is no factual foundation, if argued, of any defence of honest, but mistaken belief in ‘consent, although this defence was not advanced at wil. See supra, Rv, Ewanchu, [1999] | SCR. 336, at paras. 41-49, [483] Reference is made to Ms. Gray’s lack of memory at the initiation of sexual activity under the covers. It is argued that Ms. Gray has litle memory of being under ‘he covers, ete. with Mr. Ururyar on January 31, 2015. Therefore, how could she give evidence as to her not being an active and willing participant? His own evitence should be accepted since there was no one else there. His evidence, he submits, was therefore uncontradicted. Unanswerable testimony as ‘an evidential submission is not the law. Consent again is « non-issue. AccordingPage 11 - to the accused, Ms, Gray was the aggressor virtually throughout the evening and carly moming, Ms. Gray has lapses in her memory, but her evidence, as find, is credible and tustworthy. Ms. Gray specifically remembered what Mr. Ururyar id to her as soon as they returned to his place and when she sat on his bed. The interaction with Ms, Gray as he argues never occurred. He says he never sexually assaulted her. [484] 1 reject Mr. Unuryar’s evidence. I cannot accept his evidence. His evidence abort Ms, Gray's behaviour the evening of January 30, 2015 and the carly moming of January 31, 2015 does not raise any reasonable doubt in my ‘mind. On all -he evidence, Tam satisfied that they went into his bedroom, Ms. Gray sat on his bed and he took advantage of her. [485] I have assessed the significance of any inconsistences in Ms. Gray's testimony. believe Ms. Gray, notwithstanding any inconsistencies which I find fare minor, ane of no consequence inthis cours accepting her evidence. See Rv. Francois, [1994] 2 SCR. 827 at 836 and Rv. W. H., 2013 S.C.C. 22 at para. 32, [2013] 2 S.CR. 180. The mere existence of intemal inconsistencies in the Testimony of a witness or inconsistencies between witnesses is not itself ‘determinative of the credibility ofthe witness or the accuracy or reliability of their testimony. [486] Mr. Ururyar was well into the idea of sex the evening of January 30, 2015 and Janeary 31, 2015. If it could be a threesome that would be even beter, ‘Mandi Gray was the wounded one, intoxicated, alone and vulnerable, Tt was Mandi Gray the accused chose to rape. This was hot a bad dream. And on top of | that Mandi is blamed, blamed because there were no symbols that it had not just been a bad dieam unless there was a reminder from the hospital in her drawer. ‘The court was constantly reminded, told, as i taumatize the helplessness (sc), the only one we can believe is Mr. Ururyar, because she, she Ms. Gray, cannot remember. What a job and a real bad one, trying to shape the evening. We must not ereate # ealture that suggest [sic] we leam that rape is wrong through tial and [487] How ean you prove it? You don't remember, He knows you don't remember, He is going 10 write the script and he did. Testimony incomplete, memory los, ete, ete. And, of couse, typically, no dialogue in the story. One full sentence by Ns. Gray? What is it? No power, no voice, defences. [488] Tolisten to Mr. Ururyar paint Ms. Gray as the seductive party animal is nothing shor. of incomprehensible, He went or tried to go to any length to diseredit Ms. Gray if not invalidate her. Such twisted loge,Page 12 - [489] Despite considerable research and publications in professional and popular journels conceming rape, {rape] myths Continue to persist in common law easoning, See Sarah Ben-David & Ofra Schneider, Rape Perceptions, Gender Role Attitudes, and Victm-Perpetrator Acquaintance, 53 Sex Roles 385 (2008). [490] There is no demographic profile that typifies a rapist, There is a danger of stereotyping rapists. When the accused is a friend of the victim and uses that relationship te gain, and then betray the complainant's trust; there may be a need to be informed in order to recognize and understand the accused”s predatory behaviour, [491] No other crime is looked upon with the degree of blameworthiness, suspicion, and doubt asa rape victim. Victim blaming [i]s unfortunately common fan is one ofthe most significant bariers to justice and offender accountability. ‘Victim blaming can be expressed in several ways: victim masochism (eg, she enjoyed it, wented it), vietim precipitation (eg. she asked for it or brought it on hhesel), of vietim fabrication (e.g. she lied or exaggerated). See Sarah Ben-David & Offa Schneider, Rape Perceptions, Gender Role Attitudes, and Victim- Perpetrator Acquaintance, 53 Sex Roles 385, 386 (2005). [492] Without consent, “No” means “No”, no matter what the situation or circumstances, It doesn’t matter ifthe victim was drinking, out at night alone, ‘sexually expleited, on date with the perpetrator, or how the victim was dressed, [No-one asks to be raped. The responsibility and blame lie with the perpetrator ‘who fakes advantage of a vulnerable vietim or violates the victim's trust to commit the eime of sexual assault. [493] Repe is an act of violence and aggression in which the perpetrator uses ‘ex as a weapon to gain power and control over the victim. Itis too common to redefine rape as sex and try to capitalize on the mistaken believe [sic] that rape is fan act of passion that is primarily sexually motivated, Its important to draw the Tegal and commoa sense distinction between rape and sex. 1494] There is no situation in which an individual eannot control histhet ‘sexual urges. See Barbara E, Johnson, Douglas L. Kuch & Patricia R. Schander, Rape Myth Acceptance and Sociodemographic Characteristics: Multidimensional Analysis, 36 Sex Roles 693, 696 (1997). Sexual excitement doesnot justify forced sex and a victim who engages in kissing, hugging, or other ‘sexual touching maintains the right to refuse sexual intercourse. Rapists do not rape because they want to have sex and many rapists also may have partners with ‘whom they engage in consensual sex. [495] We must not confuse sex with sexual violence and agaression. Most ‘adult rape vietims do not have any non-genitl injuries from sexual assaults. See= Page 13 - Callie Rennison, supra, Rope and Sexual Assault: Reporting to Police and Medical Attention, 1992-2000, Bureau of Just, Stat, US. Dept. of Just. (2002) (essuming that every rape viet suffers injury from the commission of the rape and referring ‘0 victims who suffered additional injuries in addition to the rape itsel9, [496] Raps a life-threatening event and vietims make split-second decisions bout how to react to sexual violence in order to survive. Some victims respond to the severe trauma of sexual violence through the psyehologieal phenomenon of dissociation, vhich is sometimes described as “leaving one's body,” while some others deserite a state of “frozen fright,” in which they become powerless and ‘completely pessive. Physical resistance is unlikely in vietims who experience dissociation o frozen fright or among victims who were drinking or using drugs before being assaulted. Kimberly Lonsway, Joanne Archmbault & David Lisak, False Reports: Moving Beyond the Issue to Successfully Investigate and Prosecute Non-Strangor Sexual Assault, 3 The Voice, Nat'l District Attorneys Ass'n ‘Newsleter, 8 (2009) available at hitp/svorw ncaa orp/publications/newsletersthe_voice_vol_3_n0_1_2009,paf. [497] To a rape victim, 2 threat of violence or death is immediate regardless ‘of whether the rapist ses a deadly weapon, The absence of injuries might suggest ‘thatthe victim failed to resist and, therefore, must have consented, The fact that vietim ceased resistance to the assault for fear of grester harm or chose not to resist at all does not mean thatthe victim gave consent. Esch rape victim does ‘whatever is necessary to do atthe time in order to survive. [498] Victims of sexual assaults respond in various ways, including the ‘manner in which they report incidents if at all. Many victims choose not to report ‘their victimization because they believe that itis a private or personal matter, fear the defendant, or beliove the police are biased against them. Callie Rennison, Rape and Sexual Assault; Reporting to Police and Medical Attention, 1992-2000, ‘Bureau of Jus. Stat, U.S, Dep. of Fust, (2002). [499] As far back as the Magna Carla, it was recognized that judges should have @ good knowledge of the law. This knowledge extends not only to substantive and procedural law, but tothe ral life impact of law. As one scholar pot it law isnot just what it says; law is what it does. See Robert A. Samek, “A Case for Social Law Reform” (1977), 55 Can, Bar Rev, 409 at 411. Sustained ‘efforts to maintain and enhance judging are imporiant clements of judicial diligence. [500} The zyele of violence conforms to the Walker “cycle theory of violence” named for elnical psychologist Dr. Lenore E. Walker, the pioneer researcher in the field of te battered wie syndrome. Dr. Walker first described the eyele inthe= Page 14 = ook The Batiered Woman, (New York: Harper Colophon Books, 1979). In her 1984 book, The Battered Woman Syndrome, 2nd ed. (New York: Springer Publishing Ca, 2000). {sie] Dr. Walker reported the results of a study involving 4400 battered women, Her research was designed to test empirically the theories ‘expounded in ner earlier book, “The tension reduction theory states that there are three di phases associated in a recurring battering cycle: (1) tension buildirg, (2) the acute battering incident, and (3) loving contrition, Dring the first phase, there is a gradual escalation of tension Aisplayed by discrete acts causing increased friction such as name- calling, other mean intentional behaviours, and/or physical abuse. ‘The bitterer expresses dissatisfaction and hostility but not in an cexirere or maximally explosive form. The woman atiempts to placate the batterer, doing what she thinks might please him, ealm. hh down, or at least, what will not further aggravate him. She tuies not to respond to his hosfile actions and uses general anger reducton techniques. Often she succeeds for a litle while which reinforces her unrealistic belief that she ean control this man...” [501] The tension continues to escalate and eventuslly she is unable to continue controling his angry response pattem, “Exhausted from the constant ‘tress, she usually withdraws from the batterer, fearing she will inadvertently set Off an explosion He begins to move more oppressively toward her as he observes her withdrawal... Tension between the two becomes unbearable” (Walker, 1979, page 59). The second phase, the acute battering incident, becomes inevitable without intervention. Sometimes, she precipitates the inevitable explosion s0 as to control where and when it occurs, allowing her to take better precautions to minimize her injuries and pain. [502] “Phase two is characterized by the uncontrollable discharge of the tensions that have built up duzing phase one” (Walker, 1979, page 59). The betterer typically unleashes a berrage of verbal and physical aggression that can leave the woman severoly shaken and injured. Infact, when injuries do oceur, it usually happens during this second phase. [tis also the time that police become Snvolved, if they are called at all. The acute battering phase is concluded when the batterer stops, usually bringing with its cessation a sharp physiological reduction in tension, Ths in itself is naturally reinforcing. Violence often succeeds because itdoes work. [503] Batered women do not enjoy abuse, do not provoke it and do not have psychopathology. Indeed, battered women have no psychological profile (atleast before they are abused). Being female is what makes a woman vulnerable to being abused. Ther is no way to predict which women will become victims except by knowing the abusive history of ther lovers.[32] Page 15 = [S04] tis, ofcourse, true thatthe assessment of the credibility of a witness is ‘more of an ‘art than a science”. The task of assessing credibility can be particularly deunting whore a judge must assess the credibility of two witnesses ‘whose testimeny is diameticaly opposed. It has been held that “he issue of| credibility is one of fact und cannot be determined by following a set of rules.” See White v. The King, 1947 CanL.I | (SCC), [1947] SCR. 268. Itis the highly individualistic nature of a determination of credibility and its dependence on ‘intangibles such as demeanour and the manner of testifying that leads to the well- fstablshed prneiple that appellate cours will generally defer to the trial judge's factual findings, particularly those pertaining to credibility. [505] __ Neither the partes nor the informed and reasonable observer should be Ted to believe by the comments of the judge that deisions are made based on generalizations. It is important that judges be aware of the social reality that ‘Support [sic] cisions based on an examination of the objectives ofthe legislation before him or her. One statement ofthe content and purpose of this doctrine is coutined in Varcoe v: Lee et a (1919), 180 Cal. 338, 181 P. 223, at page 226: “ began this part of his judement withthe baling statement that since the appellant denied that he sexually assaulted the complainant, “[cJonsent is therefore not an issue fad more importantly Ms, Gray's historical text, even if alleged by Mr. Uraryer, may well be inelevant.” To the contrary, the appellant agreed that he had sexual relations with the complainant but sig that they were consensual, The tral judge's failure to understand that consent was the cena issue in this case, standing alone, casts doubt on the adequacy of his reasons. But there is more. [57] The trial judge went on to say that the appellant's evidence about the complainant's ‘behaviour on the evening of January 30, 2015 and the early moming of January 31, 2015 did not raise any reasonable doubt in his mind, But the apparent explanation for this conclusion, which follows, bardly seems to engage the isve at all. Instead, it very quickly descends into a vrwally incomprehensible m3xtuze of references to literature about rape and the tril judge’s own ‘opinions on the subject. Far fiom explaining why he concluded that the appellant’s evidence did rot raise @ reasonable doubt, the tril judge raised the spectre that he rejected the appellant's ‘evidence by te simple expedient of applying rape literature and his own opinions about rape. [58] acknowledge that for the most part, what the trial judge drew from the literature, as Grown counsel put i, simply supported principles that may be found in the case law. But what ‘roubles me is the way the tial judge used these principles. The tral judge quite properly warmed against reliance on repe myths inthe assessment ofthe credibility ofthe complainant. He rightly recognized thet this has been a persistent problem in sexual assault prosecutions that has yet to be fly eradicated. But all witnesses, and not just rape complainants, are entitled to have their credibility assessed on the basis of the evidence in the case, rather than on assumptions about human behaviour de-ved from a tral judge's personal reading of social science literature. In @ cease such as tis, a trier of fact cannot reason backwards from literature about rape and how~ Page 20- rapists behave to the identification ofthe accused as a rapist. But that appears to be what the trial Siudge did. [59] For example, beginning at paragraph 483, the tril judge made reference to the fppelant's evidence that the complainant was the “aggressor” throughout the evening and early ‘moming, Then, st parigraph 488, he stated that “[tJo listen to Mr. Ururyar paint Ms. Gray asthe Seductive party animal is nothing short of incomprehensible.” He explained why it is incomprehensible in the immediately following paragraphs. He said, at paragraph 489, thet “{glespite considerable research and publications in professional and popular journals concerning rape [rape] myths continue to persist...” and then, at paragraph 490: ‘There is no demographic profile thet typifies a rapist, There is danger of stereotyping rapists, When the accused is a fiend of the victim and uses that felationship to gain, and then betray the complainant's trust; there may be a need to be informed in order to recognize and understand the accused's predatory behaviour. [Emphasis added.] {60} I understand che trial judge to be saying that the appellant's evidence is not credible because it conforms to a paitem of behaviour that might not be seen as predatory by the ‘uninformed, but can be recognized as predatory by those who are informed, presumably by rape Titerature If this i his reasoning, it is not permissible. It is one thing for a trier of fact to recognize that @ fiend of @ complainant may have raped her. It is another thing to reason ‘backwards that friendship, or niceness, properly understood, can be a badge of rape. That appears toe what the trial judge did here. I agree with the tral judge that we must be Vigilant to reject pernicious stereotypical thinking about the behavior of women. At the same time, we must not ‘sdopt pernicious assumptions about men and their tendency t0 rape. [61] There are other examples in the reasons of the tial judge that may reflect similar backwards reasoning For example, he seemed to reason that telling the complainant that he was too sick to have sex ‘as game-playing by the appellant ~ making the complainant into “the slut forthe night” and asa result vulnerable to his wielding of power. {62} 1 acknowledas that I may be over-intpreting the judge's reasons. But atthe very least, the trial judge's lengihy exercise of interspersing his analysis of the ease with excerpts from the literature about the rature of rape and rapists leaves the path thatthe tial judge took through conflicting evidence very far from apparent Indeed, 1 conclude that his reasoning is incomprehensible. [63] Counsel for the respondent very fairly acknowledged that the tial judge’s discussion about common and ssecialized knowledge of human behaviour, the correction of stereotypes and the scope of judici review went much further than necessary, apparently to set up the parameters for his credibility assessment and to alert others to the fact that stereotypes about Victims of sexual ascault would not be a part of his credibility assessment. She argued that this ‘was harmless. I coneiude other [68] In the end, lam of the view thatthe deficiencies inthe reasons for judgment in this case hhave oseasioned prejudice to the appellant's exercise of his legal right to an appeal. The reasons are in part conclusory and in part incomprehensible. As a result, they frustrate meaningful ‘appellate review. Tee trial judge failed to provide an explanation for how the conflicts in the= Page 21 - ‘evidence were reeone'led and 10 sufficiently articulate how credibility concems were resolved All ofthis amounts to reversible error. [65] Twould allow the appeal on this ground alone ‘The remaining grourds of appeal against conviction [66] In view of my conclusion about the fourth ground of appel, itis not nocesary for me to Teach a conclusion on the remaining five grounds of appeal against conviction, It should be apparent, however, ftom my reasons, that T would also give effect to the third, fifth and sixth ‘rounds of appeal, that is: that the wial judge applied different siandards of serutiny to the idence: that the trial jodge misapprehended evidence related to text messages (and public ‘splays of affection; and that the tial judge erred in his assessment ofthe isue of consent. 1 ‘will not address the fist two grounds of appeal "The trial judge erred in imposing restitution for the complainant's legal fees [67) This ground of appeal raises an important issue of frst impression. Having decided that the appeal against conviction must be allowed, a determination of this issue by me would be ‘biter and inappealasle standing alone, In my view, despite the fuet thatthe issue was fully fargued before me, it would be prudent for me to exercise restraint and to decline to reach the {ssue, This should in no way be seen as an endorsement of the conclusion reached by the wal judge. DISPOSITION [68] The appeal is allowed, and a new trial is ordered. 1 reach this conclusion with Considerable regret. Requiring a new trial because of inadequacies and excesses in the reasons for judgment of the trial judge does no service to the complainant or the appellant. But it is necessary to preserve the integrity of the administration of justice. The appellant will appear in the Ontario Court of Justice on a date agreed upon by counsel, failing which « summons or ‘warrant may issue to zompel his appearance. POSTSCRIPT [69] After concluding that this appeal must be allowed for the reasons set out above, I became fvware of «further potential issue with the wal judge's reasons for conviction that was not addressed by any of the partes to this appeal ~ namely, thst portions ofthe trial judge's reasons Teproduce oF otherwise draw on various academic and other sourees without attribution. For ample, the discussion at paragraph 398 of the reasons appears 10 use language from a law ‘Seview antile (Martha R. Mahoney, “Legal Images of Battered Women: Redefining the Issue of Separation” (1991) 40 Michigan LAR. 1, at p. 61); paragraphs 404-9 of the reasons appear to draw on portions of a book chapter (Guillermo Villalobos, Deborah Davis & Richard Leo, “His Story, Her Story: Sexual Miscommunication, Motivated Remembering, and Intoxication as Pathways to Honest False Testimony Regarding Sexual Consent” in Ros Buret, ed., Vilified Wrongful Allegations of Sexual and Child Abuse (Oxford: Oxford University Press, 2016), previously available as University of San Francisco Law Research Paper No. 2014-33) portions Df paragraphs 508 aad 510-11 appear to reproduce portions of a New York Times article and a~Page 22- [New York Times book review; and, most disturbingly, paragraphs 486-88 of the reasons, which are framed asa discussion of the evidence in ths case and the submissions of the defence, appear to contain language fiom a statement given by a vitim in a Califomia sexual assault case and subsequently reproduced in the media, including in the Globe and Mail (see “The Stanford rape ‘ase. Read the vietim’s fall courtroom statement” Globe and Mail (ast updated June 8, 2016), Saline: www thegloteandmail.com>). I ara cognizant ofthe fact thatthe parties have not had a ‘hance to make submssions on the extent to which the trial judge's reasons may indeed rely on for reproduce unattribited sources or the extent to which such reliance or the nature of such Sources may impact on this appeal. As I have already concluded that this appeal should be allowed for the reasons set out above; as this conclusion was in no part based on the tral judge having potentially relisd on unattributed or inappropriate sources; and as any such reliance by the trial judge on unattrituted or inappropriate sources could only raise further concems about the reasonableness of the tral judge's verdict and the soundness of the conviction and could not assist the respondent, [find that it is unnecessary to address this issue further. [70] 1 cannot condude these reasons without expressing my gratitude to all counsel sho Appeared on this appel fr the very high quality of assistance they provided to me.RELEASED: July 26, 2017 CITATION: R. v. Ururyar, 2017 ONSC 4428. ‘COURT FILE NO.: CR-16-10000069-00AP DATE: 20170720 ONTARIO ‘SUPERIOR COURT OF JUSTICE, BETWEEN: HER MAJESTY THE QUEEN [Respondent and MUSTAFA URURYAR Appellant REASONS FOR JUDGMENT M. Damnbrot J.