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), (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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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
Watt, van Rensburg and Pardu JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
David Vant and Marcia Vant
Appellants
David E. Harris, for the appellant David Vant
Wayne A. Cunningham, for the appellant Marcia Vant
John Patton, for the respondent
Heard: December 4, 2014
On appeal from the convictions entered by Justice Silja S. Seppi of the Superior Court of Justice, sitting without a jury, on June 17, 2010.
1H.P. and J.M. went to a restaurant. Sijan Restaurant. They had a few drinks. A stranger came over to their table. He bought them some drinks and he talked to them.
2David and Marcia Vant were also in the restaurant. H.P. and J.M. eventually joined the Vants at their table. The Vants bought H.P. and J.M. some more drinks.
3H.P. and J.M. had never met the Vants before. Yet, they spent the night and much of the following day at the Vants’ apartment. Eating a little. Drinking a lot. Doing things with these strangers they had not done before. All because of their stupefied state that began at the restaurant.
4David and Marcia Vant were convicted of two counts of causing another person to take a stupefying thing with intent to enable themselves to commit the offence of sexual assault and a single count of sexual assault causing bodily harm. They appeal their convictions. These reasons explain why I have decided that their appeals fail and should be dismissed.
THE BACKGROUND FACTS
5The grounds of appeal advanced render an extensive review of the evidence adduced at trial unnecessary. H.P. and J.M. supply the narrative to the extent their memory persists. The Vants did not testify.
The Principals
6H.P. and J.M. had been dating for a few months. H.P. was 22. J.M. was 31. Each had used and was familiar with the effects of a variety of recreational drugs.
7David and Marcia Vant are spouses and were regulars at the Sijan Restaurant.
8Ken Gengasingh was also a regular.
The Arrival at the Restaurant
9H.P. and J.M. arrived at the Sijan Restaurant around 7:30 p.m. on February 8, 2009. Their plan was to have dinner. They had nothing to eat.
The Friendly Stranger
10Gengasingh came over to H.P. and J.M.’s table. He sat down and began to talk to the couple. He bought them some drinks.
11H.P. and J.M. sat with Gengasingh for about two hours. They drank and talked. Sometimes, the couple left their drinks unattended. They started to feel the effect they associated with drug consumption while they were sitting with Gengasingh.
The Prostitute and Her Pimp
12Gengasingh pointed out David and Marcia Vant to H.P. and J.M. as they sat together. Gengasingh described the Vants as “regulars” at the restaurant. He said Marcia was a prostitute and that David was her pimp.
The Washroom Meeting
13Shortly after Gengasingh had described Marcia Vant as a prostitute, H.P. got up from the table and followed Marcia into the women’s washroom. H.P. told Marcia what Gengasingh said about her. Marcia claimed that Gengasingh had “put something” into H.P.’s drink.
14H.P. and Marcia Vant agreed that, when they left the washroom, they would pretend to be old school friends so that Gengasingh would leave the couple alone.
The Table Switch
15A short while later, H.P. and J.M. joined the Vants at their table. Neither H.P. nor J.M. felt well. Each felt as if they had been drugged. J.M. called his cousin, C.J., to come and pick them up at the restaurant. Despite not feeling like themselves, H.P. and J.M. continued to sit and drink with David and Marcia Vant.
Closing Time
16H.P. and J.M. were feeling the effects of some drug that they had not experienced before by the time the restaurant closed at 11 p.m. They had also each consumed about six beer and two shots of tequila.
17Before leaving the restaurant, David and J.M. split the cost of a case of 24 beer, which J.M. claimed he had no intention to drink. J.M. then drove the Vants and H.P. to the Vants’ apartment.
The Apartment
18They arrived at the Vants’ apartment shortly after 11 p.m. As soon as they arrived, H.P. was violently ill. Marcia Vant, who claimed to be a nurse but was not, helped H.P.
19Despite their condition, both H.P. and J.M. continued to drink beer. The Vants prepared some green tea for the couple to drink. Each drank some. The tea tasted salty.
The Telephone Calls
20J.M. telephoned his mother from the Vants’ apartment. He explained that he was sick but that he was being taken care of by a woman who was a nurse. J.M. also telephoned his cousin, C.J., and asked her to come and pick him and H.P. up at the Vants’ apartment. C.J. agreed.
The Arrival of C.J.
21When C.J. arrived at the Vants’ apartment, H.P. was on the couch. She felt sick. C.J. helped her to the bathroom and attended to her there. C.J. remained at the apartment for about an hour and a half. She had a drink of cola.
22H.P. and J.M. left the apartment and walked with C.J. to her car. C.J. wanted them to leave with her. Neither did. And neither proffered any explanation for why they stayed with the Vants, a couple whom they had met only hours earlier.
23C.J. noticed, while driving home, that her vision was “blurry”. She experienced hangover-like symptoms but acknowledged those symptoms could have been related to an illness from which she was then suffering.
The Party Continues
24In the Vants’ apartment, the party continued. Marcia Vant and H.P. danced together provocatively. H.P. wore tight-fitting clothes provided by Marcia Vant. J.M. recorded some of the activities on his cellphone.
25H.P. testified that the clothing she wore and the behaviour in which she participated with Marcia Vant was not her usual mode of dress or conduct.
The Sexual Assaults
26J.M. fell asleep on the couch early the following morning. H.P. recalled being in the Vants’ bedroom. She remembered performing cunnilingus on Marcia Vant. David Vant also performed oral sex and had sexual intercourse with her. She felt a burning sensation in her vagina that she had experienced previously from a particular brand of condom.
The Morning After
27H.P. and J.M. spent the night in the Vants’ apartment. H.P. woke up in bed with David Vant. All her body piercings, more than 15 of them, had been removed. Her body was extremely sore. She was wearing her t-shirt and a pair of yoga pants.
28J.M. entered the Vants’ bedroom and saw H.P. in bed with David Vant. H.P. did not appear to recognize him at first. J.M. tried to persuade H.P. to leave the apartment. She refused.
29At some point during the morning, J.M. and David Vant went out shopping. They bought some food and another case of beer. When they returned, David Vant, H.P. and J.M. began to drink the beer.
The 911 Call
30H.P. and Marcia Vant began to cook the food David Vant and J.M. had purchased that morning. The two men went out again to buy a phone card for David Vant. Before leaving, J.M. grabbed some condoms from the nightstand and some of H.P.’s belongings including her identification. He believed that the condoms had been in his car.
31David Vant got out of the car to purchase a phone card. J.M. remained in the vehicle, drove away and called 911. He reported that H.P. had been raped and was being held against her will.
The Conversation
32David Vant returned to the apartment. Both he and Marcia told H.P. to dump J.M. She did not need J.M., the Vants said. They told H.P. that she had made money the previous night by talking to a man on the telephone. The money was at Money Mart. H.P., the Vants said, could make a lot more money if she would go to London with them. H.P. believed that what she would be expected to do to earn this money was similar to what she had done the previous evening – talk with a man on the telephone.
The Police Response
33When police responded to the 911 call, H.P. opened the door to the Vants’ apartment. She appeared edgy. Her responses were incoherent. She explained that she had been drugged the night before at the Sijan Restaurant. In answer to a direct question from the officer, H.P. denied that any sexual activity had taken place at the apartment the previous night. She wanted to stay in the apartment and would only leave if she were handcuffed.
34A police officer handcuffed H.P. and took her out of the apartment. She and J.M. returned to his mother’s residence. H.P. made no complaint about being drugged or raped on the way to J.M.’s mother’s home. Soon after arriving, however, H.P. spoke to a friend on the telephone. She expressed concern to her friend that she had been sexually assaulted.
35Several friends of H.P. and J.M. arrived at J.M.’s mother’s residence. The friends noticed strange behaviour on the part of both H.P. and J.M. The pupils in their eyes were dilated.
The Hospital
36H.P. and J.M. went to the hospital on February 10, 2009, the day following their return from the Vants’ apartment.
37An examination of H.P. revealed no indications of internal vaginal trauma although some small tears appeared on the vaginal wall and blood was detected in the urinanalysis. Some blood spots were apparent on H.P.’s underwear.
38Forensic examination of H.P.’s underwear disclosed amylase from saliva containing David Vant’s DNA.
The Search
39Police searched the Vants’ apartment on February 12, 2009, two days after they had been there to answer J.M.’s 911 call. They found a full case of beer bottles and a second case (Miller Genuine Draft) with two bottles missing, as well as a two litre bottle of cola and retrieved several teabags from the garbage.
The Toxicological Evidence
40Scientific analysis for the presence of drug residue revealed nothing of toxicological significance on glasses, bottles or teabags retrieved during the search of the Vants’ apartment. Nordiazepam was detected in H.P.’s blood and urine and cannabinoids in that of J.M., a marijuana smoker. H.P. is prescribed nordiazepam for anxiety.
41Drugs like Vigorix, used to treat allergic reactions and to calm nausea, as well as Gravol, have some characteristics of an ideal “date-rape” drug. Both were located in the Vants’ apartment.
42In answer to a hypothetical question approximating the circumstances of the case, a forensic toxicologist described the behaviour of the complainants as consistent with the administration of central nervous system (CNS) depressants, specifically GHB. Alcohol is also a CNS depressant.
The Defence Case
43Neither David nor Marcia Vant testified. In a statement admitted as part of the case for the Crown, David Vant gave an account generally consistent with the testimony of H.P. and J.M. except that he denied any sexual activity occurred and that H.P. and J.M. were provided with any tea. He also claimed that both H.P. and J.M. told him they believed that they had been drugged.
The Grounds of Appeal
44The appellants advance several grounds of appeal. Each relates to a misperception, misapprehension or misuse of evidence adduced at trial. I would paraphrase the grounds of appeal as expressed in the appellants’ joint factum as errors in:
i. relying on evidence of friends of H.P. and J.M. that their conduct, as it appeared on the cellphone videos, was out of character;
ii. failing to consider excessive consumption of alcohol as a factor relevant to an assessment of the credibility of H.P. and J.M. and the reliability of their evidence;
iii. assigning too much weight to the toxicological evidence;
iv. misapprehending the evidence of H.P. and J.M. about when they first experienced a “drugged” feeling and the expert toxicological evidence about the significance of loss and recovery of memory;
v. relying on evidence of post-offence conduct; and
vi. admitting evidence of a prior sexual assault by David Vant as evidence of a similar act.
45In oral argument, the appellants abandoned ground ii and we did not require submissions from the Crown on ground vi.
Ground #1: The “Out of Character” Evidence
46The first ground of appeal, pressed most firmly by Mr. Harris in oral argument, alleges that the trial judge misused evidence given by friends of H.P. that her conduct, as it appears on the cellphone videos, was “out of character” for her.
The Additional Background
47D.R. and H.K. were friends of H.P. Each testified about events that took place after H.P. and J.M. were taken by police to J.M.’s mother’s home. D.R. and H.K. also watched the videos recorded on J.M.’s cellphone. Each gave evidence that the way in which H.P. was dressed and behaved was “out of character” for her.
48H.K. gave evidence that H.P. did not perform revealing dances or participate in sexual conduct when she was intoxicated. H.P. did not sleep in other people’s homes. What H.K. saw on the video was behaviour by H.P. that, as H.K. knew her, was inconsistent with H.P.’s usual conduct and her personality.
49D.R. was a long-term acquaintance of J.M. and had only become acquainted with H.P. more recently. D.R. had never seen H.P. act as she appeared on the video. Nor did H.P. wear revealing clothing like the type she wore in the video.
The Reasons of the Trial Judge
50The trial judge summarized the evidence of the witnesses D.R. and J.G. (another close friend of J.M.’s), as well as H.K., as part of the recital of the evidence given at trial. The principal focus of the appellants’ complaints are three paragraphs in the reasons that describe the effect of this evidence.
51After a brief reference to the position advanced by the appellants at trial – that the evidence of H.P. and J.M. about being drugged and sexually assaulted was incredible – the trial judge turned to the complainants’ evidence:
9That is not this court’s assessment of the evidence of the complainants. To the contrary, both H.P. and J.M. presented as straightforward and vulnerable individuals, truly upset and holding the honest belief of having been drugged, manipulated and sexually assaulted by the Vants. Neither complainant has a criminal record, or a history of the bizarre and wild behaviour the defence claims was voluntarily pursued by them that night with these two strangers. On credible evidence from numerous other reliable witnesses this experience was completely at odds with their usual behaviour and character.
14Both J.M. and H.P. were employed at the time of these events. He loved to go fishing and she loved to play the guitar. They would spend their time “jamming” together. These pursuits were also described by other witnesses. Witnesses close to them credibly described how the portrayal of this couple on video clips taken at the Vants, and their dazed and confused condition on February 9th evening, materially differed from how they acted normally.
52In her consideration of whether the Crown had proven that either or both appellants had caused either or both H.P. and J.M. to take a stupefying thing, the trial judge found:
222J.M. was drugged to the point that he completely blacked out leaving H.P. vulnerable without his protection and without ability to resist the forces of the Vants. Even awake J.M., under the effects of the drugs, had lost his ability to react normally. This is evidenced by his laughing when Mr. Vant hits H.P. after the pillow fight. It is also evidenced by his uncharacteristic cheering of H.P. during the actions on the video clips. Such behaviour normally would cause him to react to protect H.P. As all the witnesses who knew the couple testified both J.M. and H.P.’s behaviour and demeanour as observed and heard on the video clips was completely out of character for them.
The Arguments on Appeal
53Trial counsel for the appellants (who are not counsel on the appeal) did not contest the admissibility of the evidence of the complainants’ friends about their “out of character” conduct. Mr. Harris, who argued the point for the appellants, confined his submissions to a claim that the trial judge misused the evidence in reaching her conclusions of guilt. That said, the submissions could scarcely avoid a glancing blow about admissibility.
54Mr. Harris says this testimony was evidence of character or propensity that involved a double inference. From conduct to disposition. And from disposition to conduct in conformity with that disposition. Character evidence, offered as circumstantial evidence of conduct by a person on a specific occasion, is generally excluded because it has minimal probative value and engenders substantial prejudice. This evidence, even if properly admitted, lacked probative value and should have formed no part of any analysis of the adequacy of the Crown’s case.
55Mr. Harris accepts that, in an appropriate case, the Crown may adduce evidence of habit as circumstantial evidence of conduct in accordance with that habit on a material occasion. But this was not evidence of habit. Evidence of habit does not extend to behaviour that is rooted in the internal psychology or propensity of an individual nor to conduct that is variable and eludes categorization. Reliance on this evidence as part of the demonstration of guilt led to an unreasonable verdict and caused a miscarriage of justice. Neither consequence, Mr. Harris says, can be salvaged by the application of the proviso.
56For the respondent, Mr. Patton submits that any evidence with a tendency, as a matter of logic and common sense, to prove a fact in issue is relevant and prima facie admissible. Its weight, once admitted, is for the trier of fact to determine. Evidence of habit, like manner of dress or sexual conduct, is a type of circumstantial evidence that is relevant proof of conduct on a specific occasion. The evidence is admissible where, as here, its probative value exceeds its prejudicial effect.
57In this case, Mr. Patton says, the critical issue at trial was whether the Crown had proven beyond a reasonable doubt that the appellants, or either of them, had caused H.P. and J.M. to take a stupefying thing and that their conduct was not the result of having had too much to drink. The evidence of the complainants’ friends provided a benchmark of normalcy that assisted in a determination of the complainants’ claims that they were drugged. The probative value of the evidence exceeded its prejudicial effect.
58Mr. Patton points out that the videos taken on J.M.’s cellphone were admissible and, on their own, demonstrated H.P.’s condition and proved a sexual assault. The witnesses did not offer evidence of H.P.’s sexual behaviour while intoxicated. Rather, they gave evidence of past experience with intoxicants and thus offered a standard against which to assess the claim of drugging.
59In the end, Mr. Patton submits, this evidence occupied no central or pivotal place in the trial judge’s analysis and findings of guilt. It was peripheral and assisted the trial judge in understanding the complainant’s previous behaviour. The trial judge accorded it limited and appropriate weight.
The Governing Principles
60The principal argument advanced here is that the trial judge assigned disproportionate weight to this evidence. The appellants did not launch a frontal attack on its admissibility because no objection was raised by trial counsel. The nature of the relationship between admissibility and weight, especially where a cost benefit analysis is involved, requires some consideration of the rules of admissibility which govern the reception of this evidence.
61An essential element of the Crown’s case under s. 246(b) of the Criminal Code, R.S.C. 1985, c. C-46, was that David and Marcia Vant, or one of them, administered or caused to be administered to either or both complainants a stupefying drug, matter or thing. As with any controverted issue of fact, the Crown could prove this element by direct evidence, by circumstantial evidence or by a combination of direct and circumstantial evidence.
62In this case, Crown counsel adduced evidence from the complainants about what occurred throughout the time they were with the appellants, what they recalled of it and how they felt. The Crown also relied on real evidence – the cellphone videos – to demonstrate the appellants’ involvement and the condition and conduct of the complainants. From these evidentiary sources, the trial judge, as the trier of fact, was invited to infer the administration of a stupefying agent and the absence of voluntary agreement to participate in the sexual activity charged.
63The evidence of the complainants’ friends that referred to H.P.’s character or habit of dress and sexual conduct described how she appeared and acted on the videos as “out of character”. The purpose of this evidence was to support an inference, from the nature of the conduct shown to the underlying cause – the administration of a stupefying thing – that at once established an essential element of the s. 246(b) offence and vitiated any consent to sexual activity.
64Courts determine the admissibility of evidence of character and habit according to a number of rules, with some exceptions, that reflect the recurring patterns with this mode of proof and the utility of it. These rules generally exclude most of what can be designated “character evidence” – evidence offered for the sole purpose of proving that a person acted in conformity with a character trait on a material occasion: Kenneth S. Broun, McCormick on Evidence, 7th ed. (Thomson Reuters: Westlaw, 2013), § 186, at pp. 1013-1014. The principal reason that underlies this general exclusionary rule is that the evidence lacks probative value. Character traits, after all, are more dynamic than static, and vary over time and across situations and individuals.
65The general rule just canvassed is directed at a mode or chain of reasoning. The evidence is used to fund two inferences. The first is from disposition to a general pattern of conduct in accordance with that disposition. The second is more specific: conduct in accordance with the disposition on a particular occasion.
66Leaving to one side the exclusionary rule relating to the disposition of an accused, as a general rule, the character or disposition of the victim of an offence is irrelevant: R. v. Diu (2000), 49 O.R. (3d) 40 (C.A.), at para. 39. This general rule is not unyielding where the evidence of the disposition of the victim relates to a material issue and where its probative value outweighs its prejudicial effect: Diu, at para. 41; and R. v. Scopelliti (1981), 63 C.C.C. (2d) 481 (Ont. C.A.), at p. 493.
67Closely akin to evidence of disposition is evidence of habit, which describes a person’s regular response to a repeated situation: McCormick, § 195, at pp. 1080-1081. Habitual acts may become semi-automatic. Taking stairs two or more at a time. Signalling (or not) a lane change. Evidence of habit has greater probative value than evidence of general traits of character or disposition. Further, the potential for prejudice is substantially lessened in cases of habit since the detailed patterns of situation-specific behaviour that constitute habits seem unlikely to provoke much sympathy or antipathy in the trier of fact: McCormick, § 195, at p. 1082.
68When habit involves an invariable regularity of action, a fixed sequence of acts lends strong support to an inference of occurrence on a specific occasion. But in the ordinary affairs of life, a habit or custom seldom has such an invariable regularity. And without such sufficient regularity, it seems unlikely that it would be carried out in all or most instances. In the end, whether such sufficient regularity exists depends largely on the circumstances of each case: John Henry Wigmore, Wigmore on Evidence, revised by Peter Tillers (Toronto: Little, Brown and Company, 1983), § 92, at pp. 1608-1609.
69A related problem associated with evidence of habit is how to evidence it. At bottom, there must be specific instances numerous enough to support an inference of systematic conduct: John Henry Wigmore, Wigmore on Evidence, revised by James H. Chadbourn (Toronto: Little, Brown and Company, 1979), § 376, at p. 385.
70The introduction of evidence of disposition or habit may also implicate another exclusionary rule. As a general rule, once again not irrefragable, a party is prohibited from introducing “oath-helping” evidence to bolster the credibility of a witness by the introduction of evidence of his or her character or disposition: Diu, at para. 39.
The Principles Applied
71For several reasons, I would reject this ground of appeal.
72First, counsel for the appellants at trial did not contest the relevance, materiality or admissibility of this evidence. Failure to object to admissibility at trial is not fatal, of course, to complaint on appeal, especially where the complaint relates to misuse of the evidence. But the absence of objection does tend to suggest that counsel did not consider the evidence generated significant prejudice apt to compromise the fact-finding process inherent in the determination of guilt.
73Second, the primary evidence on the issues of administration of a stupefying thing and lack of consent was the testimony of the complainants and the videos recorded on J.M.’s cellphone. The trial judge found both credible and their evidence reliable. Neither finding was infected by improper reliance on the disposition evidence.
74Third, the appellants’ principal complaint seems more about the weight the trial assigned to this evidence. It is axiomatic that it is for the trial judge to determine the weight to be assigned to individual items and to the whole of the evidence adduced at trial. We do not retry cases or reweigh evidence save to the limited extent required to assess the reasonableness of a verdict.
75Fourth, this evidence was not central or pivotal to the trial judge’s determination that the complainants were credible and their evidence reliable.
Ground #2: Failure to Properly Consider Excess Alcohol Consumption in Determining the Complainants’ Credibility
76This claim of error was abandoned at the outset of oral argument. Nothing more need be said about it.
Ground #3: Alleged Error in Weighing the Expert Evidence
77The appellants contend that the trial judge erred in her characterization of the expert evidence as “strong evidence” and in her reliance upon it as supportive of the administration of a stupefying substance when it was equally consistent with voluntary excess consumption of alcohol.
The Toxicological Evidence
78Police searched the Vants’ apartment two days after the complainants left it. A forensic toxicologist testified at trial that nothing of toxicological significance was found on or in any glasses, teabags or empty beer bottles recovered during the search.
79The toxicologist also described a variety of “date-rape” drugs and the symptoms associated with their administration. Sedation. Impairment of movement. Inhibition of memory. And quick elimination making their detection difficult unless blood and urine samples were taken shortly after ingestion. Some common drugs found in the Vants’ apartment, like Vigorix and Gravol, have some characteristics of “‘ideal’ date rape drugs”.
80In answer to a hypothetical question similar to the circumstances of this case, the toxicologist agreed that the symptoms described by the complainants were consistent with ingestion of CNS depressants, specifically GHB. A salty and vinegary taste in tea, as reported by H.P., is also consistent with GHB. The effects of CNS depressants, which also include alcohol, are a hangover feeling, nausea, lack of coordination, out-of-body sensations, blackouts, weakness and feelings of euphoria.
The Reasons of the Trial Judge
81The trial judge found that the symptoms described by the complainants were consistent with the evidence of the toxicologist about the synergistic effect of alcohol when combined with other “date-rape” drugs that are CNS depressants. The trial judge stated that the evidence did not permit her to conclude that a specific drug had been administered, but did prove beyond a reasonable doubt that the appellant administered a stupefying thing during the course of the evening, night and day. She explained:
173Having regard to Mr. House’s evidence, and other credible evidence, including the video clips, and testimony of H.P., J.M. and C.J., the complainant’s symptoms of acting in an uninhibited and socially lively manner and later falling into a state of unconsciousness or semi-consciousness are consistent with having been drugged by GHB.
174Based on the authorities it is open to a trial judge to find that a complainant was drugged contrary to section 246 even where the specific identity and dosage of the drug is unknown. Drugging of a complainant can be established by the complainant’s evidence alone and such evidence need not be corroborated. Extrinsic evidence such as toxicological evidence, rapid deterioration in the complainant’s mental and physical functioning and the accused’s behaviour and words are evidence to establish the accused administered a stupefying substance. Toxicological evidence is not necessarily determinative. It is open to the court to find drugging took place even where drugs are not detected or the expert evidence is inconclusive.
175In the case at bar, Mr. House’s evidence is consistent with the conclusion that GHB was administered to the complainants. Based on the relevant jurisprudence this court need not find which particular stupefying thing was used to drug the complainants. In short, the Vants may be found guilty under section 246(b) of the Code in the absence of any specific finding as to the identity and dosage of the drug that was used. A recent series of cases from the Ontario Court of Appeal establishes that it is open to the trial judge to find beyond a reasonable doubt that an accused did administer or cause to be taken a stupefying thing, even where the evidence does not establish the identity or dosage of the drug in question.
201Contrast this with the case at bar. Here there is strong evidence from both complainants and the expert to support the administering of a “date-rape” drug such as GHB. It is not speculative to find the complainants’ diminished capacities while at the Vants’ apartment were due to a stupefying thing or things the Vants caused them to take.
The Arguments on Appeal
82The appellants say the trial judge’s characterization of the testimony of the toxicologist as “strong evidence” was at once inconsistent with the evidence and unreasonable. This evidence had diminished probative value. The evidence was that the symptoms described by the complainants were consistent with the ingestion of GHB, but equally consistent with other CNS depressants like alcohol. The language “consistent with” is imprecise and renders the evidence of little value in the assessment of the adequacy of the Crown’s proof on an essential element of the offence. On this issue, the trial judge was required to determine whether the evidence, taken as a whole, was consistent with drugging by GHB and inconsistent with any other rational conclusion, such as voluntary consumption of alcohol. The judge erred by failing to ask this question and the evidence was incapable of sustaining such a conclusion.
83The respondent takes issue with the appellants’ submission that the trial judge characterized the testimony of the toxicologist as “strong evidence”. The descriptive “strong evidence” referred to the combined effect of the complainants’ testimony about their state throughout their contact with the Vants and the toxicological evidence about the consistency of those characteristics with administration of CNS depressants like GHB. The trial judge did not overvalue or misuse the toxicological evidence. Further, the trial judge also had the video recordings that provided live coverage of what occurred and buttressed the complainants’ claims.
84The respondent also reminds us that the trial judge did not make, and was not required to make, a finding that GHB was administered. The indictment was not so particularized. Indeed, this element could equally have been established by oversupply of alcohol, another CNS depressant that could produce similar reactions.
The Governing Principles
85No authority need be summoned to establish two fundamental principles of appellate review. The first is that the weight to be assigned to individual items of evidence adduced at trial, as well as to the evidence as a whole, is for the trier of fact to determine. The second, related to the first, is that a reviewing court affords substantial deference to a trial judge’s assessment of the weight to assign to individual items of evidence, to the evidence as a whole, and to the factual findings inherent in the decision-making process.
86Three basic principles inform an assessment of the adequacy of proof of what might be termed the “supply” component of the offence created by s. 246(b) of the Criminal Code.
87First, where the allegation is that an accused actually supplied a stupefying drug,1 matter or thing, this essential element may be established by direct or circumstantial evidence or a combination of both types of evidence. No principled reason would foreclose proof by the evidence of the complainant: R. v. Fleming, 2007 ONCA 808, at para. 4.
88Second, a trial judge may infer that a stupefying thing was administered without knowing the precise thing or the quantity of it: R. v. Bell, 2007 ONCA 320, leave to appeal to S.C.C. refused, [2007] S.C.C.A. No. 351, at para. 35.
89Third, no procedural, evidentiary, or substantive rule or principle requires confirmation or corroboration of the testimony of a complainant in connection with this or any other essential element of the offence in s. 246(b).
The Principles Applied
90As I will explain, I would not give effect to this ground of appeal.
91First, I agree with the respondent that a fair reading of the whole of the trial judge’s reasons belies the appellants’ claim that the trial judge characterized the toxicologist’s testimony as “strong evidence”. The reference to “strong evidence” relates to the combined force of the evidence of the complainants and the expert opinion of the toxicologist. This description is neither unreasonable nor unwarranted.
92Second, the trial judge’s assessment of the weight to be assigned to individual items of evidence and the probative force of the evidence taken as a whole are subject to significant deference on appellate review. Neither finding is unreasonable nor infected by legal error.
93Third, the evidence of the toxicologist was relevant, material and admissible. It was not rendered irrelevant, immaterial or inadmissible because the expert described the reported symptoms as “consistent with” a CNS depressant like GHB or because the expert could not identify the drug or dosage involved.
94The submission that the expert’s evidence should have been subjected to what amounts to a standard that invokes the rule in Hodge’s case is unfounded. The submission effectively invites the application of the standard of proof applicable to the evidence as a whole to a specific item of evidence. The law is otherwise: R. v. Morin, [1988] 2 S.C.R. 345; and R. v. Ménard, [1998] 2 S.C.R. 109.
95Fourth, implicit in this complaint about mischaracterization of the cogency of the opinion evidence of the toxicologist is an assumption of the requirement for such evidence in a prosecution under s. 246(b). As we have already seen, our controlling precedents impose no such requirement.
Ground #4: Misapprehension of Evidence
96The appellants contend further that the trial judge misapprehended two aspects of the evidence, an error that flawed essential findings of fact. The first misapprehension has to do with when the complainants first began to feel the effects of what they attribute to having been drugged. And the second concerns the significance of memory recovery over time for a conclusion that they had been administered a date-rape drug.
The Additional Background
97H.P. testified that she began to feel “a bit off” when she went up to the bar with J.M. before they met the appellants. J.M. had a similar feeling after they had met Gengasingh, but before joining the appellants at their table.
98H.P. also testified that she felt “off” and not like herself when she left the restaurant. However, she did not feel drunk. She did not recall going up to the appellants’ apartment.
99J.M. drove from the restaurant but had no memory of going upstairs to the Vants’ apartment. He usually does not drive when intoxicated. He did not think about how much he had to drink when he left. He “just wanted to get out of there.”
100The opinion evidence of the toxicologist referred to the entire class of “date-rape” drugs including CNS depressants. He contrasted GHB with other drugs of the same genre and explained that GHB had clearly demonstrated a direct effect on memory formation. The drug has a salty taste, may induce vomiting, lead to a hangover effect and contribute to outlandish behaviour.
101The toxicologist gave evidence that the literature recounted the direct effects of GHB on the ability to recall events after use. He pointed out that the literature was less descriptive about whether events during and after GHB use could be recalled with cues.
The Reasons of the Trial Judge
102The appellants’ complaints of misapprehensions of evidence by the trial judge focus on three paragraphs in a judgment of 253 paragraphs. The first two passages relate to the evidence of the complainants, the third to the evidence of the toxicologist:
161Having regard to the evidence in this case this court finds beyond a reasonable doubt that Ms. Vant and Mr. Vant both caused each of H.P. and J.M. to take a stupefying thing during the evening to night of February 8th and overnight to the day of February 9th, 2009. The evidence of the events at the Sijan Restaurant firmly points to drugging having occurred in the last half hour or so while at the restaurant, not during the period that the complainants were sitting with Ken. Ms. Vant purposely lured the couple to the Vants’ table by Ms. Vant’s account alleging Ken was drugging them. This resulted in the couple putting their complete trust in the Vants to take care of them. They became particularly vulnerable to the tactics of the accused after the drugs began to take effect. As testified by both J.M. and H.P., each were feeling effects never felt before by the time they were leaving the restaurant. The opportunity for the drugging was there as Mr. Vant brought drinks to this couple from the bar while they were at the table.
212In the case at bar this court has accepted the evidence of the complainants about the conduct of the accused and their own diminished capacity after they met the Vants. From the time H.P. and J.M. sat down at the Vants’ table at the Sijan, Mr. Vant was in control of serving beer to J.M. and H.P. The complainants believed the Vants were protecting them from Ken. They were thus diverted from being alerted to the possibility of any nefarious conduct by the accused towards them.
157Mr. House testified that all of the CNS depressive drugs impair memory and affect how information is processed. Effects like an alcohol induced blackout can happen with any CNS depressant. There are reports in the literature of a direct loss of memory as a result of GHB dosages. Most of the reports describe the loss of memory with events being recalled later.
103The appellants contend that the trial judge misapprehended the evidence about when the complainants first felt they had been drugged. This error, the appellants say, led the trial judge to an erroneous finding that the appellants were responsible for the administration of the drugs. The evidence was that the symptoms first appeared after the complainants sat with Gengasingh and before they joined the appellants. In the result, the trial judge erroneously excluded Gengasingh as a person responsible for the drugging.
104The appellants say the first misapprehension was compounded by a further misapprehension of the toxicological evidence. The evidence was that the nature of the recall claimed by the complainants was consistent with excess alcohol consumption, not necessarily ingestion of GHB. The failure to appreciate the nature of this evidence exacerbated the other misapprehension and was gravely prejudicial to the appellants.
105The respondent rejects any suggestion of a misapprehension.
106The complainants did give evidence about first experiencing some effects prior to joining the appellants. But their evidence described a course of conduct over several hours well into the next day. The appellants gave them tea with a salty taste consistent with GHB and plied with them with copious amounts of alcohol. That Gengasingh may have done something similar is beside the point when the entire course of conduct is considered.
107The respondent observes that the alleged misapprehension of the toxicologist’s evidence was no misapprehension at all. He described the effects of the entire range of “date-rape” drugs, including the CNS depressants, like alcohol and GHB. The effect of GHB on memory formation and recall was not overstated and of no moment anyway in the absence of a specific finding that GHB was actually administered.
The Governing Principles
108A misapprehension of evidence includes a failure to consider relevant evidence, a mistake about the substance of evidence and a failure to give proper effect to evidence: R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at para. 83. Not every misapprehension of evidence will vitiate a finding of guilt. The nature and extent of the alleged misapprehension and its significance to the verdict rendered requires consideration in light of the fundamental principle that a verdict be based exclusively on the evidence adduced at trial: Morrissey, at para. 93.
109When an appellant alleges a misapprehension of evidence, our first task is to consider the reasonableness of the verdict. An appellant who establishes an unreasonable verdict is entitled to an acquittal. Absent an unreasonable verdict, our task is to decide whether the misapprehension of evidence occasioned a miscarriage of justice. An appellant who shows that a misapprehension of evidence resulted in a miscarriage of justice is usually entitled to have his or her conviction quashed and a new trial ordered. If an appellant fails to demonstrate that any misapprehension resulted in an unreasonable verdict or produced a miscarriage of justice, he or she is then left to persuade the appellate court that the misapprehension amounted to an error of law. If the court is convinced of such an error, the Crown then bears the burden of showing that there was no miscarriage of justice under s. 686(1)(b)(iii): Morrissey, at para. 88.
The Principles Applied
110I would not give effect to this ground of appeal for three reasons.
111First, the trial judge did not misapprehend the evidence about when the drugs were administered or their effect first felt. It was reasonable for the trial judge to conclude that the drugs were ingested at the restaurant in the appellants’ presence. The first significant effects occurred proximate to the departure from the restaurant. This occurred after the complainants left Gengasingh and were captives of the appellants. It was only after some time with the appellants that the complainants’ behaviour went significantly offside.
112Second, proof of the “supply” element of the offence s. 246(b) in this case was not limited to what occurred at the restaurant. Neither are the appellants without fault if Gengasingh deposited a stupefying substance in the complainants’ drinks. The complainants were under the exclusive control of the appellants for several hours, plied with alcohol (a stupefying substance) and tea with a salty taste consistent with contamination by GHB. At least some of the behaviour at the Vants’ apartment captured on video confirmed the complainants’ account.
113Third, the trial judge did not decide the essential element of “supply” on the basis that the drug administered was GHB. Proof of the offence did not require identification of the substance or evidence of the specific amount administered.
Ground #5: Evidence of Post-offence Conduct
114The appellants also complain about the trial judge’s reliance on evidence of post-offence conduct in reaching her conclusion of guilt. The testimony included:
i. evidence that two bottles of beer were missing from an otherwise full case of empty beer bottles when police searched the apartment two days after the relevant events had concluded; and
ii. evidence that as the police arrived at the Vants’ apartment, in answer to J.M.’s 911 call, Marcia Vant ran around the apartment as if she were hiding or searching for something.
The Arguments on Appeal
115The appellants acknowledge that the evidence about which they complain was properly admitted as part of the narrative at trial. But, they say, its use as evidence of post-offence conduct to support an inference of guilt was improper and flawed the verdicts rendered at trial.
116The evidence, the appellants say, was inherently ambiguous and thus incapable of supporting the inferences required for its use as evidence of post-offence conduct. The trial judge failed to consider any alternative inferences or explanations for the conduct that emerged from the evidence at trial.
117The respondent submits that the evidence about which the appellants complain was properly admitted and used as evidence of post-offence conduct.
118The respondent points out that the appellants’ defence at trial was that they did not administer or cause the complainants to take any stupefying substance. Further, no non-consensual sexual activity occurred in their apartment. Indeed, in his statement to the police, David Vant said no sexual activity occurred.
119The respondent says the evidence was capable of sustaining the inferences required for use as evidence of post-offence conduct. No alternative explanations emerged from the evidence for this conduct. The missing bottles could support an inference of removal to foreclose scientific analysis that could reveal traces of a stupefying substance. Likewise, the frenetic activity of altering the scene. But even if the evidence could not be of service for this purpose, it is of no moment. The evidence formed no essential part of the trial judge’s reasoning leading to her findings of guilt.
The Governing Principles
120A few brief points about evidence of post-offence conduct will provide a suitable environment for the determination of this ground of appeal.
121First, evidence of post-offence conduct is a species of circumstantial evidence that invokes a retrospectant chain of reasoning. The inference looks backward from what an accused said or did later to participation in prior conduct alleged to be criminal: R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at paras. 17 and 22; and R. v. Figueroa, 2008 ONCA 106, 232 C.C.C. (3d) 51, at para. 33.
122Second, evidence of post-offence conduct is not subject to any special evidentiary rule: White, at paras. 105 and 185.
123Third, most evidence of post-offence conduct is admitted routinely as part of the narrative of events presented at trial. As part of the case for the Crown this evidence is relevant, material and offends no exclusionary rule of the law of evidence: White, at para. 140.
124Fourth, as with any item of evidence, relevance depends on the tendency of an item of evidence, as a matter of logic and human experience, to make the proposition for which it is advanced slightly more probable than that proposition would be without the evidence: White, at para. 36; and R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600, at para. 47. There are no per se rules of relevance. The relevance or probative value of evidence of post-offence conduct depends and must be assessed on the facts of each case: White, at para. 38.
125Finally, the reasonable inferences available from circumstantial evidence, like evidence of post-offence conduct, must depend primarily on the nature of the evidence and the issue to which that evidence is directed: Figueroa, at para. 41.
The Principles Applied
126I would reject this ground of appeal for four reasons.
127First, the evidence about which the complaint is made was properly received at trial as an essential part of the narrative. It was relevant, material and did not offend any exclusionary canon of the law of evidence. Its probative value was not overborne by any calculable prejudicial effect.
128Second, the defence advanced at trial was a denial of the actus reus of the offence charged. No stupefying drugs were administered. No unlawful sexual activity occurred. No suggestion emerged from the evidence of any other explanation for conduct relating to the destruction or seclusion of potentially incriminating evidence.
129Third, evidence of the post-offence destruction of potential evidence and alteration of the scene where an offence is alleged to have occurred are commonplace examples of evidence of post-offence conduct.
130Fourth, on a reading of the reasons of the trial judge as a whole, this evidence did not form a significant component of the credibility or reliability analysis of the complainants’ evidence or the findings of fact essential to a determination of guilt. The scattered references to it in the lengthy reasons of the trial judge are indicative of its role as part of the narrative not of any core findings on proof of the essential elements of the offence.
Ground #6: The Similar Act Evidence
131The final ground of appeal advanced by the appellants relates to the admissibility of evidence of what was said to be an act of similar sexual misconduct by David Vant.
132We did not call on Crown counsel to respond to this ground of appeal. The trial judge made no reference to this evidence in her lengthy reasons for judgment. Even if the evidence were not admissible, an issue I need not decide, I am not prepared to consider the absence of any reference to it as indicative of its tainting influence on the determination of guilt or the essential findings of fact.
CONCLUSION
133For these reasons, I would dismiss the appeals of both appellants from conviction. David Vant abandoned his sentence appeal. I would dismiss that appeal as an abandoned appeal.
Released: June 29, 2015 (DW)
“David Watt J.A.”
“I agree K. van Rensburg J.A.”
“I agree G. Pardu J.A.”
