W A R N I N G
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), (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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(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 complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, 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).
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
Doherty, Laskin and Goudge JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
G.C.
Appellant
Peter Copeland, for the appellant
Kim Crosbie, for the respondent
Heard: March 4, 2010
On appeal from the conviction entered on June 27, 2008 by Justice B. Thomas of the Superior Court of Justice.
INTRODUCTION
1The appellant was charged with sexually assaulting S.L. on September 16, 2006, contrary to s. 271 of the Criminal Code. On June 27, 2008, he was convicted by Thomas J., sitting alone.
2The appellant has an identical twin brother, C.C., with whom the complainant had a consensual sexual relationship. On September 16, 2006, the complainant was asleep alone in the bed in C.C.’s bedroom in his apartment. The appellant entered the bed. The two had sexual intercourse, which ended when the complainant discovered that the man was not C.C., but his brother G.C., the appellant.
3The appellant appeals this conviction. He argues that the trial judge erred in finding that (i) the complainant’s mistake about the identity of her sexual partner meant she did not consent to the sexual activity; and (ii) the appellant did not have an honest but mistaken belief in her consent. The appellant also challenges the sufficiency of the trial judge’s reasons.
4For the reasons that follow, I conclude that all three arguments fail and that the appeal must be dismissed.
FACTUAL BACKGROUND
5After separating from her husband, the complainant moved into an apartment in Amherstberg. C.C. lived alone in an apartment in the same building. He and the complainant became good friends and eventually the relationship became intimate. The complainant subsequently moved to Brampton, but returned to Amherstberg regularly to visit her children, often staying at C.C.’s apartment over the weekend. That is what she was doing on the weekend of September 16-17, 2006.
6On Saturday, September 16, C.C. had a party at his apartment. Both his twin brother, the appellant, and the complainant were there. Everyone was drinking alcohol and by midnight, the complainant indicated that she had consumed most of a bottle of wine and was intoxicated. Rather than leave with the others to go to a bar, she went to bed in C.C.’s bedroom and fell asleep.
7Some three hours later, the appellant returned to the apartment with the others where they continued to party. The appellant soon became tired. C.C. told him to go sleep in his bedroom in order to escape the noise of the party. When the appellant entered the darkened room, he saw that the complainant was already asleep in the bed. He nonetheless got in because, although he had no significant relationship with her, he thought no harm would come from it since they were both adults and were friends.
8The complainant’s evidence was that she was awakened by a person she presumed to be C.C., proceeding to have sex with her. She protested, saying she was on her period. However he persisted, despite her calling out C.C.’s name perhaps a dozen times, and entreating him to stop. Her evidence was that throughout, he said nothing. She began to be concerned, thinking it was odd that C.C. was acting so out of character. She finally managed to get him off her and find a light switch. When she saw that it was the appellant, not his brother, she reacted with anger and disbelief.
9The appellant’s evidence was that shortly after he entered the bed, the complainant initiated heavy petting which led in due course to sexual intercourse. He said that at no point did she call out his brother’s name, although at some point something clicked and he decided that he better make sure that she knew it was him, so he said: “are you sure”. He said that her response was to guide his erect penis into her vagina. However, he confirmed that when she turned the light on, her reaction was much as she described it.
THE TRIAL JUDGE’S DECISION
10After reciting the evidence summarized above, the trial judge first addressed the actus reus necessary for sexual assault. He concluded:
Clearly the activity between G.C. and S.L., in the absence of consent, amounted to a sexual assault within the meaning of s. 271. Equally transparent to me is that the sex occurred without S.L.’s consent. Whatever version of events the defence chooses to argue here all lead to the same ultimate conclusion. The complainant may have been agreeable when the activity started. She was not agreeable at its conclusion. Meaning she may have consented to sex, but not this sex, that is sexual intercourse with G.C.. I say that because on all versions of events once S.L. is able to disengage and turn on the light her reaction is one of disbelief and anger. She expresses her view of being duped by G.C. immediately. She confirms that with C.C.. She removes herself from the apartment with haste and reports the incident to friends, nurses and police. One can only see her reaction to the knowledge of the identity of her partner as confirmation of her lack of consent to sex with G.C.. [Emphasis in original]
11He then disposed of the defence of honest but mistaken belief in this way:
And so with the belief of this legal framework and accepting for the purpose of this analysis that G.C. thought S.L. was consenting to sex with him, let us look at the accepted facts as they existed at about 3:00 A.M. on September the 17th, 2006.
S.L. was at the time in bed, in a darkened room, under the influence of alcohol and asleep. She had an ongoing relationship with the twin brother of the accused, which included consensual sex from time to time and she was asleep in his bed. She had never had anything that approached a relationship with the accused before, sexual or otherwise, and G.C. admits that there was nothing about her conduct at the party that evening that caused him to imagine that she would ever consent to this.
All of these facts were known to the accused G.C. at the time he entered the room. We know from his own evidence that the significance of these facts are not lost on him even during his time in that bed because he has told us that before the act of intercourse, he said something just “clicked” and he thought he should be sure and so he asked Ms. S.L., “Are you sure?”
It is significant to me that he never went further to make his identity perfectly clear, and never said anything else during the bedroom events until he was near culmination of the sex act when his phrases of personal gratitude finally revealed his identity to the complainant. Even if I accept all of the evidence of Mr. G.C., he should have done more. I believe he knew that and chose to play it as close to the line as possible in an attempt to ensure that sex in fact would take place.
I believe it is open for the court to conclude that the actions of G.C. on the issue of consent were both reckless and wilfully blind and that in any event did not approach reasonable steps in the circumstances known to him at the time. I come to that conclusion. [Emphasis in original]
12Finally, the trial judge applied R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, and finding nothing in the appellant’s evidence or the evidence as whole that raised a reasonable doubt, he concluded that the appellant must be found guilty as charged.
ANALYSIS
13The offence of assault is created by s. 265(1) of the Criminal Code. It reads as follows:
- (1) A person commits an assault when
(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe upon reasonable grounds that he has, present ability to effect his purpose; or
(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
14Section 265(2) makes the section applicable to all forms of assault, including sexual assault. While nothing in s. 265 provides a definition of consent, s. 265(3), which is applicable to all forms of assault, sets out circumstances in which the defence of consent is not available:
(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of
(a) the application of force to the complainant or to a person other than the complainant;
(b) threats or fear of the application of force to the complainant or to a person other than the complainant;
(c) fraud; or
(d) the exercise of authority.
15Section 273.1 speaks specifically to sexual assault. Section 273.1(1) sets out a definition of “consent” in the context of this form of assault, and s. 273.1(2) provides a non-exclusive list of circumstances in which the defence of consent to sexual assault cannot be raised:
273.1 (1) Subject to subsection (2) and subsection 265(3), “consent” means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.
(2) No consent is obtained, for the purposes of sections 271, 272 and 273, where
(a) the agreement is expressed by the words or conduct of a person other than the complainant;
(b) the complainant is incapable of consenting to the activity;
(c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;
(d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or
(e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.
(3) Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained.
16To establish the actus reus of sexual assault, the Crown must prove three elements: (i) touching; (ii) the sexual nature of the contact; and (iii) the absence of consent. See R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330 at para. 25. The first two elements are not in issue in this case. However, the appellant argues that the complainant’s mistake as to the identity of her sexual partner was insufficient to vitiate her consent to the sexual activity. He says that the offence could only have been made out if it was found that the appellant committed fraud so as to vitiate that consent pursuant to s. 265(3)(c) of the Code. In essence, the appellant argues that unless the complainant’s mistake of identity was caused by his fraud, the Crown cannot establish the absence of consent. Since the trial judge made no finding of fraud by the appellant, the appellant argues that the appeal must be allowed.
17In my view, this argument fails. The analysis of the presence or absence of consent in this case must begin with the definition provided by s. 273.1(1) of the Code, which defines “consent” to mean the voluntary agreement of the complainant to engage in the sexual activity in question. It is the absence of consent defined in this way that the Crown was obliged to prove. In other words, the Crown had to establish that the complainant did not voluntarily agree to the sexual activity that took place that night. In Ewanchuk, the Supreme Court of Canada made clear that the absence of consent must be assessed only on the basis of the complainant’s subjective state of mind towards the sexual activity in question and that assessment must be as of the time the activity occurred.
The absence of consent, however, is subjective and determined by reference to the complainant’s subjective internal state of mind towards the touching, at the time it occurred: see R. v. Jensen (1996), 1996 CanLII 1237 (ON CA), 106 C.C.C. (3d) 430 (Ont. C.A.), at pp. 437-38, aff’d 1997 CanLII 368 (SCC), [1997] 1 S.C.R. 304, R. v. Park, 1995 CanLII 104 (SCC), [1995] 2 S.C.R. 836, at p. 850, per L’Heureux-Dubé J., and D. Stuart, Canadian Criminal Law (3rd ed. 1995), at p. 513.
Confusion has arisen from time to time on the meaning of consent as an element of the actus reus of sexual assault. Some of this confusion has been caused by the word “consent” itself. A number of commentators have observed that the notion of consent connotes active behaviour: see, for example, N. Brett, “Sexual Offenses and Consent” (1998), 11 Can. J. Law & Jur. 69, at p. 73. While this may be true in the general use of the word, for the purposes of determining the absence of consent as an element of the actus reus, the actual state of mind of the complainant is determinative. At this point, the trier of fact is only concerned with the complainant’s perspective. The approach is purely subjective.
The rationale underlying the criminalization of assault explains this. Society is committed to protecting the personal integrity, both physical and psychological, of every individual. Having control over who touches one’s body, and how, lies at the core of human dignity and autonomy. The inclusion of assault and sexual assault in the Code expresses society’s determination to protect the security of the person from any non-consensual contact or threats of force. The common law has recognized for centuries that the individual’s right to physical integrity is a fundamental principle, “every man’s person being sacred, and no other having a right to meddle with it, in any the slightest manner”: see Blackstone’s Commentaries on the Laws of England (4th ed. 1770), Book III, at p. 120. It follows that any intentional but unwanted touching is criminal.
18That is what the trial judge did here. The evidence was clear that the complainant had an ongoing consensual sexual relationship with C.C., but had nothing approaching the same with the appellant. It was also clear that the sexual activity in question was the appellant’s sexual intercourse with her that night.
19Based on the evidence, the trial judge concluded that while in the beginning the complainant may have been agreeable to the activity because she thought it was with C.C., at no time did she consent to sexual intercourse with the appellant. Thus, at no time did she voluntarily agree to the sexual activity in question.
20Not only are these findings well grounded in the evidence, in my view, they are entirely reasonable. In the beginning, the complainant mistakenly thought the sexual activity was with someone with whom she had an ongoing consensual sexual relationship. Such a relationship is a deeply personal one in which the identity of the sexual partner is fundamental. It is hardly surprising that, from the complainant’s perspective that night, the identity of her sexual partner was an inseparable component of any consent to sexual activity. Subjectively, she did not voluntarily agree to sexual intercourse with anyone other than C.C.. That included the appellant.
21The appellant argues that the offence of sexual assault could only have been made out if it was found that he had committed fraud so as to vitiate the complainant’s consent pursuant to s. 265(3)(c) of the Code.
22It is certainly true that this subsection provides that fraud can vitiate consent for sexual assault, as for all other forms of assault. Moreover, in R. v. Cuerrrier, 1998 CanLII 796 (SCC), [1998] 2 S.C.R. 371, the Supreme Court of Canada decided that one form of fraud that can be found to vitiate consent is fraud pertaining to the identity of the partner. It also made clear however, that fraud was not limited to this, but included fraud pertaining to the nature and quality of the act, or to other acts of dishonesty that on a principled basis can be shown to vitiate consent. In other words, the purpose of s. 265(1)(c) encompasses more than fraud pertaining to identity.
23More importantly, there is nothing in the language of s. 265(1)(c) or the jurisprudence to suggest that only a mistake as to the identity of the sexual partner that is induced by fraud vitiates consent. Moreover, the appellant suggests no policy reason why an identity mistake caused by something else will not do. Indeed s. 273.1 suggests the opposite. It does not confine consent to voluntary agreement except where that is negated by an identity mistake due to fraud. Where the subjective state of mind of the complainant is that her consent hinged on the identity of her sexual partner, her mistake about that identity renders his conduct non-consensual, whether or not the mistake is induced by fraud. The presence or absence of fraud may however be significant to whether the Crown can prove that the accused did not have an honest belief that the complainant was consenting.
24Where, as here, the complainant’s consent to sexual activity depended on it being with a particular person, her mistake about the identity of that person whether induced by fraud or not, necessarily means that subjectively she did not voluntarily agree to the sexual activity that occurred with someone else. That is precisely what the trial judge found happened in this case.
25In summary, I would dismiss the appellant’s argument and conclude that the trial judge did not err in finding that the Crown successfully proved the absence of consent.
26The appellant’s second argument is that even if the absence of consent was established, the trial judge erred in his analysis of the defence of mistaken belief. The appellant argues that the trial judge held the appellant to a standard higher than taking reasonable steps to ascertain consent and made no finding that the appellant’s mistaken belief was due to his recklessness or wilful blindness.
27Section 273.2 describes the circumstances in which an accused cannot rely on his belief that the complainant consented to the activity as a defence to a charge of sexual assault.
WHERE BELIEF IN CONSENT NOT A DEFENCE.
273.2 It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where
(a) the accused’s belief arose from the accused’s (i) self-induced intoxication, or (ii) recklessness or wilful blindness; or (b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.
28The trial judge dealt first with whether the appellant took reasonable steps in the circumstances known to him at the time to ascertain that the complainant was consenting. He found that the appellant’s actions “… did not approach reasonable steps in the circumstances known to him at the time.” The trial judge did not require that the appellant take all reasonable steps. I therefore disagree with the appellant’s assertion that the trial judge required him to do anything more than s. 273.2(b) requires.
29The jurisprudence makes clear that what is required of an accused in the way of reasonable steps depends on the particular circumstances of the case, and can be more or less, depending on those circumstances, even to the point of requiring an unequivocal indication of consent from the complainant at the time of the sexual acitivity. As the British Columbia Court of Appeal explained in R. v. R.G. (1994), 1994 CanLII 8752 (BC CA), 38 C. R. (4th) 123 at para. 29:
However, that does not conclude the matter, for s. 273.2(b) clearly creates a proportionate relationship between what will be required in the way of reasonable steps by an accused to ascertain that the complainant was consenting and “the circumstances known to him” at the time. Those circumstances will be as many and as varied as the cases in which the issue can arise, and it seems to me that the section clearly contemplates that there may be cases in which they are such that nothing short of an unequivocal indication of consent from the complainant, at the time of the alleged offence, will suffice to meet the threshold test which it establishes as a prerequisite to a defence of honest but mistaken belief. On reading his reasons for judgment as a whole, I am not persuaded that the trial judge intended to say anything more than that this was one such case.
30The trial judge concluded that, in the circumstances of this case, reasonable steps required the appellant to make his identity perfectly clear to the complainant. That conclusion was amply justified on these facts. The appellant knew the complainant had an ongoing consensual sexual relationship with his twin brother, but nothing remotely like that with him. He knew she had gone asleep intoxicated in his brother’s bed, as she had done many times before. The bedroom was pitch dark. Nothing about her conduct that night caused him to think that she would ever consent to sexual intercourse with him. The trial judge’s conclusion that reasonable steps required the appellant to do more than he did and make his identity perfectly clear to the complainant is fully supported by this evidence.
31Although it was enough for the trial judge to find that any one of the disqualifying circumstances in s. 273.2 existed here, he went on to conclude that the facts also supported the conclusion that the complainant’s absence of resistance arose because the appellant proceeded with recklessness and wilful blindness. The trial judge made clear that in coming to that conclusion, he understood the distinction between the two concepts as described in R. v. Sansregret, [1985] 1 S.C.R. 510. He applied that legal test correctly. Here too, the evidence amply sustained his conclusion that for the appellant to forge ahead in the circumstances was reckless or at the very least displayed a wilful blindness about whether the complainant consented. There is no basis for us to interfere. The appellant’s second argument therefore fails.
32The appellant’s third argument is that the reasons of the trial judge in rejecting the defence of mistaken belief in consent, failed to meet the standard required by R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869.
33Once again, I do not agree. The trial judge explicitly found that the complainant did not consent to sexual intercourse with the appellant and described in detail the findings of fact on which that conclusion rested.
34He then considered the defence of honest but mistaken belief, accepting for the purpose of his analysis that the appellant thought the complainant was consenting. The trial judge recited the relevant facts of that night known to the appellant and concluded that without doing more than he did to make his identity perfectly clear to the complainant, the appellant could not be said to have taken reasonable steps necessary to ascertain that the complainant was consenting. Moreover, in proceeding, he was reckless and wilfully blind. The path that the trial judge followed to reject this defence is clearly marked, is based on facts well established by the evidence, and is ample for appellate scrutiny. This argument fails.
35For these reasons, the appeal from conviction must be dismissed.
RELEASED: JUN 17, 2010 (“J.I.L.”)
“S. T. Goudge J.A. “
“I agree. Doherty J.A.”
“I agree. John I. Laskin J.A.”
