Ontario Court of Appeal critical of sexual-assault ruling made by judge now on Supreme Court

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Ontario’s top court has delivered a strong critique of a sexual-assault ruling from the newest member of the Supreme Court of Canada, made when she was on a lower court.

Two years ago, when Justice Michelle O’Bonsawin was a member of the Ontario Superior Court, she threw out an acquittal and ordered a new trial in an alleged washroom sexual attack at a restaurant’s staff party.

In her ruling, Justice O’Bonsawin criticized the lower-court judge who had originally decided the case, Justice Robert Graydon of the Ontario Court, for “myth-based reasoning” – specifically, for saying that sexual assault is something that happens in private, not public. Myth-based reasoning is considered a legal error.

But a two-man, one-woman panel of the Ontario Court of Appeal said in a unanimous ruling on Wednesday that Justice Graydon had not engaged in myth-based reasoning at all, and never said sexual assault happens only in private.

“With respect,” the Ontario Court of Appeal wrote, “that is not what the trial judge did. What the trial judge did was draw reasonable inferences from the particular facts that were before him.” Rather than correct a legal error, Justice O’Bonsawin had replaced a trial judge’s conclusions with her own, wrote Justice Ian Nordheimer, Justice Lorne Sossin and Justice Jill Copeland.

The appeal court went on to list a half-dozen major errors it said Justice O’Bonsawin had made in her ruling on Justice Graydon’s decision. It rejected her order for a new trial, and substituted an acquittal.

Such criticisms of a sitting Supreme Court judge are highly unusual, because almost all appointees since 1982 have come from appeal courts. One exception is those who were chosen straight from the practice of law. And the other exception is Justice O’Bonsawin, who came directly from the Superior Court, a trial court.

Ontario’s Ministry of the Attorney-General declined to comment Wednesday on whether it would ask the Supreme Court of Canada to hear an appeal. Appeal court rulings are often reversed by the Supreme Court. In the past five years, it has reviewed 15 sexual-assault rulings from appeal courts that favoured the accused, and overturned them all.

Many of those rulings turned on the fundamental issues of consent and credibility. That is what the appeal hearing in the case of Cody Spicer, before Justice O’Bonsawin, was focused on. (Justice O’Bonsawin would be required to recuse herself if this case did reach the Supreme Court.)

Mr. Spicer entered a men’s washroom and found a female co-worker there. She said she had not seen the door to the women’s washroom. After they laughed together briefly, she said in testimony, the much larger and older Mr. Spicer told her to go into one of the stalls, then tried to force her to perform oral sex on him. Two co-workers entered the washroom and she left. Mr. Spicer denied touching her breasts before entering the stall, but said she had gone willingly into the stall, where he grabbed her breasts and took his penis out of his pants.

Justice Graydon said he was left with reasonable doubt as to whether Mr. Spicer had grabbed the complainant’s breasts before they went into the stall. He said he also had reasonable doubt that she did not consent to what happened. He based his ruling on an inconsistency in her testimony about how they ended up in the stall. Initially, she said she had been told to enter. Later, she said she had been told “let’s go,” whereupon she put her hand in his.

Justice Graydon also said an assault would have been in plain view of anyone entering the washroom, and that the employer had a zero-tolerance policy that would have resulted in the immediate firing of Mr. Spicer if he had grabbed the complainant’s breasts. Justice Graydon determined that “reason and common sense” left him with reasonable doubt that Mr. Spicer had done so.

Justice O’Bonsawin wrote: “The trial judge’s finding rested on myth-based reasoning predicated around the myth that sexual assaults happen only in private.” She also said taking Mr. Spicer’s hand was not evidence of consent, and that at no time was there evidence of consent.

Prime Minister Justin Trudeau appointed Justice O’Bonsawin last summer, replacing Michael Moldaver, who retired. Justice O’Bonsawin is an Abenaki from Northern Ontario, and the court’s first Indigenous member. She had been a member of the Ontario Superior Court in Ottawa for the previous five years.

The Ontario Superior Court is a trial court, but it hears appeals of lower-court rulings in what are known as summary conviction offences – offences less serious than indictable ones.

The closest parallel to the criticism of Justice O’Bonsawin is from 2017, when the Supreme Court overturned a ruling that one of its members, Justice Malcolm Rowe, had written in a sexual-assault case while on the Newfoundland and Labrador Court of Appeal. In that case, the Supreme Court left its criticisms implicit, by deciding the case from the bench, in a single sentence delivered orally, immediately after hearing arguments.

Mark Ertel, a lawyer who represented Mr. Spicer, said the Court of Appeal had found that Justice O’Bonsawin “completely misunderstood her function as an appeal judge.”

The appeal court said it was up to the prosecution to prove beyond a reasonable doubt that the complainant did not consent. “There is a difference between a finding of a lack of consent, and a finding that there is a reasonable doubt about consent,” the appeal court wrote.