Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog


In R. v. Myles, 2023 ONCA 90, the accused was convicted of the offence of sexual assault. In convicting the accused, the trial judge stated:  

Mr. Myles’ explanation as to how and why the complainant came to be at his home for the night was, for me, illogical and contrived. On N.C.’s evidence, she had not been feeling well. Mr. Myles seemed to agree that she was feeling poorly as they left the club. She told him she had vomited in the car, although he seemed to have been at pains in his evidence to distance himself from knowing that she had been sick. Their plan had been for him to drive her home. She lived two minutes away. He had an early morning with his son the next day. She had never before slept over at his home. Yet, for reasons that were very unclear to me, on the drive home, he asked her whether she was alright and whether she wanted to go home or go to his place. He agreed that he wanted her to come over even though she was not feeling well. I cannot accept that he would have asked her to come to his home for the night unless he wanted to pursue his sexual interest in her. I conclude that he used this opportunity to take her to his home for the night with the intention of pursuing some sexual activity with her.

The accused appealed from conviction, arguing that “the trial judge used the stereotype that men are interested in sex and more aggressive in pursuing it, in order to find that, by sleeping on the couch with the complainant, the appellant showed his interest in having sex with her”.

The appeal was dismissed.  The Ontario Court of Appeal concluded as follows (at paragraph 14):

We do not agree that the trial judge impermissibly relied on myths and stereotypes about human sexual behaviour in concluding that the appellant would not have slept on the couch unless he wanted to engage in sexual activity with the complainant. Her reasoning was rooted in the evidence, which was noted in para. 130, and elsewhere in her reasons.