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), (2.1), (2.2), (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(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 victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, 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); 2010, c. 3, s. 5 ; 2012, c. 1, s. 29 ; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18 .

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

Date: 2021-02-22 Docket: C67840

Judges: Fairburn A.C.J.O., Juriansz and Huscroft JJ.A.

Between: Her Majesty the Queen, Appellant and I.A.D., Respondent

Counsel: Dena Bonnet, for the appellant Sean May, for the respondent

Heard: February 9, 2021 by video conference

On appeal from the acquittals entered by Justice Julie Bourgeois of the Ontario Court of Justice on December 4, 2019.

Reasons for Decision

Overview

[1] The respondent was charged with one count each of sexual assault and sexual interference. There were two main questions at trial: (a) did the appellant prove beyond a reasonable doubt that the complainant did not consent to the sexual activity; and, if so, (b) did the respondent have an honest but mistaken belief in communicated consent?

[2] The trial judge answered the first question in the affirmative, concluding that the complainant did not consent to the sexual activity in question.

[3] The trial judge then went on to consider the second question, whether the respondent had an honest but mistaken belief in communicated consent at the time that the sexual activity took place. On this point, the trial judge concluded that she could not “reject his defence of honest but mistaken belief in communicated consent” and, therefore, entered acquittals on both counts.

[4] The appellant appeals to this court on the basis that the trial judge erred in her analytical approach to the defence of honest but mistaken belief in communicated consent. Specifically, the appellant argues that the trial judge failed to consider a statutory prerequisite to the availability of that defence, which is the need for the respondent to have taken “reasonable steps” in ascertaining the complainant’s consent: Criminal Code, R.S.C. 1985, c. C-46, s. 273.2(b). The absence of any reasoning on this point is said to lead to inadequate reasons that do not give full effect to the relevant provisions of the Criminal Code: see R. v. Gagnon, 2018 CMAC 1, 427 D.L.R. (4th) 430, at paras. 36, 44-45, aff’d 2018 SCC 41, [2018] 3 S.C.R. 3. Hence, such a failure to consider s. 273.2(b) of the Criminal Code is a reversible error. We agree. Therefore, we allow the appeal, set aside the acquittals, and order a new trial on both counts.

Brief Factual Background

[5] The complainant was 15 and the respondent was 18 at the time of the alleged offences. They knew one another because the complainant would sometimes buy cannabis from the respondent.

[6] The complainant appears to have been experiencing difficult life circumstances in and around the time of the alleged offences. She had moved away from her parental home and was living at a friend’s place in the months preceding the alleged offences. One evening, she decided to go out with the respondent and two of his friends. The police stopped the group at around 2:47 a.m. The complainant testified that she was asked by the respondent to take a Xanax pill so that the police would not catch the respondent in possession of the pill. As it was dark at the time, the complainant was unsure as to whether it was a full-sized pill. At this time, the police arrested one of the friends for breach of probation.

[7] Eventually, the complainant and the respondent ended up at the home of the remaining friend. The three individuals were all in the basement of that home together. The friend soon fell asleep in his bed. While the complainant and respondent were initially on two separate couches, the respondent motioned to her to come to the larger couch where he was laying down with the only blanket in the room. She was cold and decided to accompany him on that couch.

[8] From here, the complainant’s and the respondent’s evidence diverged at trial. The complainant acknowledged that she initially moved close to him and rubbed against him. He was aroused. She said that the respondent started to digitally penetrate her. He pulled her pants down. She attempted to get off of the couch, but she tripped. The respondent pulled her back onto the couch, held her closer to him, and then, as she put it, “He started having sex with me and I said no.” When she realized he was not going to stop, she said that “we should put a condom on and he told me that that was childish of me, and then he continued until he was done and then he rolled over and that was that.” The complainant said that the respondent withdrew his penis just prior to ejaculation, leaving ejaculate on and around her vagina.

[9] The respondent testified that it was the complainant who initiated the sexual contact. According to the respondent, he got aroused when the complainant started rubbing against him. He testified that he asked her if she wanted to “fuck”, and she said “yes, do you have a condom?” His evidence on this point was as follows:

I asked her if she wanted to fuck, and she says yes, do you have a condom? And so I said no, those are for children. I was trying to blow off the fact that I didn’t really have a condom on me and we were – so just the bum grinding still keeps happening and I end up start pulling down the right side of her leggings, and she ends up lifting the left side of her hip to get down the left side of her pants with me to help.

[S]he had to sit up and like perk her hip up, and then pull down the left side to help me get it down. They were leggings, so they were quite tight. And – yeah so just after that we had sex, it didn’t last very long[.]

[10] When asked what his understanding was with respect to whether the complainant was consenting to this sexual activity, the respondent answered: “For the most part, I knew she said yes. However, she never made it, she never said no, she never showed me that she didn’t want any sex or anything, she said yes and continued giving me signs that like there was – this is okay.” On the issue of the condom, the respondent acknowledged the following later in his evidence:

[S]he never told me no we’re not having sex if you don’t have a condom. She said yes – yes do you have a condom, I said no, those are for children and we continued to fool around on the couch.

The Trial Judge’s Failure to Address Reasonable Steps

[11] The trial judge correctly resolved the issue of the absence of the complainant’s consent for the purposes of the actus reus of the offences. Here, the trial judge adverted to the need to focus upon the complainant’s subjective state of mind. Ultimately, the trial judge concluded that she was satisfied beyond a reasonable doubt that the complainant did not consent to the sexual activity.

[12] The trial judge then moved on to consider the only other triable issue: “This leaves the final question, is there an air of reality to the defence of honest but mistaken belief in communicated consent, and if so, does it raise a reasonable doubt?” Unfortunately, the trial judge’s reasons are wanting in relation to this issue.

[13] Section 273.2 of the Criminal Code places important limits on the defence of honest but mistaken belief in communicated consent, including s. 273.2 (b), which states “[i]t is not a defence” where “the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting”. As Moldaver J. held in R. v. Barton, 2019 SCC 33, 376 C.C.C. (3d) 1, at para. 104, s. 273.2(b) “imposes a precondition to the defence of honest but mistaken belief in communicated consent – no reasonable steps, no defence” (emphasis added).

[14] There are both objective and subjective dimensions to this defence. The accused must take steps that are objectively reasonable in the circumstances, and the reasonableness of the steps must be considered in light of the circumstances known to the accused at the time: Barton, at para. 104.

[15] We agree with the appellant that this case required a clear inquiry into the reasonable steps potentially taken by the respondent. This is particularly true given both the complainant and respondent’s clear evidence that she asked for a condom, yet the sexual intercourse ensued without one. Even taking the respondent’s evidence at its highest, this is a circumstance that was known to him at the time that the intercourse commenced, yet he did not inquire of the complainant whether she wished to proceed without a condom. Instead, he chose to rely upon what he perceived from the complainant’s actions, as described by him: the continued physical grinding by the complainant; the movement of her hip; and her assistance with pulling down one side of her pants.

[16] The trial judge’s reasons are entirely silent as to whether the respondent took any objectively reasonable steps in light of the circumstances known to him at the time. Instead, the trial judge reviewed the evidence, made conclusions about what she could not reject, and then satisfied herself that it was impossible to reject the defence of honest but mistaken belief in communicated consent. The trial judge’s reasoning can be summarized as follows:

(i) She could not reject the respondent’s evidence that he asked the complainant if she “wanted to fuck” or the complainant’s evidence that she asked if he had a condom.

(ii) She was “not convinced by his evidence that [the complainant] actually said the word ‘yes’”, but could not reject the respondent’s evidence that when he “tried to brush off the fact that he did not have a condom”, the complainant continued to rub against his penis and “perked her hip up and pulled the right side of her pants.”

[17] On this basis, the trial judge concluded:

It is impossible to reject his evidence that he honestly but mistakenly believed she was communicating her consent by her actions of rubbing against his penis, and then assisting him in the removal of her pants. I certainly accept his evidence that this only lasted a minute or two, and that it was bad sex.

[I]n the end, given the totality of the evidence, one cannot reject his defence of honest but mistaken belief in communicated consent.

[18] We cannot accept the respondent’s position that the reasonable steps inquiry is implicit in the trial judge’s reasoning set out above. To the contrary, the reasoning seems to focus exclusively upon why the respondent could be said to have honestly but mistakenly believed the complainant to be consenting. In our view, the trial judge’s reasons do not explicitly or implicitly address the prerequisite of reasonable steps.

[19] The reasonable steps inquiry is a fact-specific one. Clearly, those steps cannot arise from the complainant’s silence, passivity, or ambiguous conduct: R. v. Ewanchuk, [1999] 1 S.C.R. 330, at para. 51; Barton, at para. 107. Whether the complainant “perked” her hip or not, or helped with pulling down one side of her pants or not, is at best ambiguous conduct, particularly ambiguous as to what the complainant may or may not have been consenting to. This is especially true given the trial judge’s finding of fact that the complainant “asked if he had a condom.” In the circumstances of this case, failing to specifically address the prerequisite of reasonable steps, constitutes a reversible error.

The Remedy

[20] The appellant asks us to allow the appeal and, pursuant to s. 686(4)(b)(ii) of the Criminal Code, enter convictions on both counts. While we agree that the acquittals must be set aside, we decline to enter convictions.

[21] Although the appellant’s position has much force, the trial judge’s reasons are insufficiently clear to permit this court to confidently enter convictions. Among other issues, the reasons for judgment lack clarity on factual findings and are devoid of credibility assessments. For instance, it appears that the trial judge concluded that the actus reus of the sexual assault was made out, not because she believed the complainant, but because of the respondent’s evidence, where he testified that “for the most part he knew she said yes”. Indeed, nowhere in the reasons does the trial judge articulate credibility findings with respect to either the complainant or respondent.

[22] The combined absence of clear credibility and factual findings deprives this court of the type of clarity required when determining whether the respondent is, in fact, guilty. This task is better left to a new trial judge, who will be best positioned to make all requisite credibility and factual findings.

Disposition

[23] The appeal is allowed, the acquittals are set aside, and a new trial is ordered on both counts.

“Fairburn A.C.J.O.”

“R.G. Juriansz J.A.”

“Grant Huscroft J.A.”