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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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.
486.6(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 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.
COURT OF APPEAL FOR ONTARIO
DATE: 20231124 DOCKET: C70825
MacPherson, Pepall and van Rensburg JJ.A.
BETWEEN
His Majesty the King Respondent
and
S.B. Appellant
Counsel: Matthew R. Gourlay and Brandon Chung, for the appellant Heather Fregeau, for the respondent
Heard: May 31, 2023
On appeal from the conviction entered on December 15, 2021, and the sentence imposed on July 8, 2022, by Justice Patrick J. Boucher of the Superior Court of Justice, sitting without a jury.
MacPherson J.A.:
A. INTRODUCTION
[1] The appellant, S.B., was convicted of one count of sexual assault contrary to s. 271 of the Criminal Code following a judge alone trial before Boucher J. of the Superior Court of Justice.
[2] The trial judge imposed a three-year custodial sentence on the appellant. He also made several other orders, including an order pursuant to the Sex Offender Information Registration Act, (S.C. 2004, c. 10) (“SOIRA order”) for a period of 20 years.
[3] The appellant appeals from the conviction and the sentence.
B. FACTS
(1) The parties and events
[4] On May 18, 2014, the appellant (S.B.) and the complainant (C.F.) engaged in kissing, oral sex and sexual intercourse in the appellant’s car.
[5] The appellant and the complainant knew each other. They grew up on the same street and went to the same school. On the night in question, they met in a local nightclub. The complainant went there with some girl friends. She drank with her friends before going to the nightclub and continued to drink after arriving at the nightclub. The appellant did not drink at the nightclub and offered to be the designated driver for several people in the nightclub.
[6] After the nightclub closed, around 2 a.m., the appellant ended up driving the complainant and several of her friends to their homes. Eventually, only the appellant and the complainant were still in the car. They parked briefly just outside the complainant’s home where some kissing took place. They then drove to a nearby school parking lot and, soon after, to a more secluded school parking lot. It is the sexual activity that took place at this final location that, ultimately, led to the criminal charge against the appellant.
[7] At trial, the complainant testified that she was in and out of consciousness during the sexual encounter at the final location. When she was conscious, she repeatedly communicated her refusal to engage in sex.
[8] The appellant testified that he asked the complainant if she wanted to have sex and in response she asked if he had a condom.
[9] After the appellant retrieved a condom from his car trunk, both the appellant and the complainant agree that the complainant said she was not sure if they should continue. The appellant testified that they continued to talk for about 40 minutes. Then they went to the back seat of the car.
[10] The appellant says that at this juncture the complainant willingly performed oral sex on him before he performed oral sex on her.
[11] Then the parties engaged in sexual intercourse. The complainant testified that she was partially unconscious and did not consent to the sexual intercourse. The appellant testified that the complainant communicated her consent by way of her conduct.
(2) The trial judge’s decision
[12] The trial judge convicted the appellant of sexual assault. He found that the complainant was not capable of consenting due to alcohol consumption and concluded that the appellant had not established an honest but mistaken belief in communicated consent.
[13] In reaching this conclusion, the trial judge reviewed the evidence of four witnesses who testified about the complainant’s consumption of alcohol on the night of the contested events. Ultimately, the trial judge accepted the complainant’s evidence of the sexual encounter and the impact of her intoxication as credible and reliable. He found that the complainant said “No” during the sexual activity and that she was too intoxicated to consent. The appellant did not have an honest but mistaken belief in communicated consent because, while he may have had a subjective belief that the complainant was communicating her consent to sexual activity, he did not take steps, beyond noting her physical engagement in the incident, to confirm that she was consenting to sexual intercourse.
[14] The trial judge imposed a sentence of three years’ imprisonment. He acknowledged that the appellant was a first-time offender, had complied with his release conditions since 2018 without incident, and was of Indigenous descent. He rejected a conditional sentence, saying that “the need for deterrence and denunciation is so great that a conditional sentence would simply be insufficient to send out the necessary message.” He imposed a SOIRA order for a period of 20 years.
C. ISSUES
[15] The appellant advances five grounds of appeal:
(1) The trial judge erred in rejecting the defence of honest but mistaken belief in communicated consent;
(2) The trial judge erred in finding that the mens rea of sexual assault was proven;
(3) The trial judge erred in finding that the complainant lacked capacity to consent;
(4) The appellant’s sentence was demonstrably unfit; and
(5) The appellant’s SOIRA order ought to be vacated.
D. ANALYSIS
Issue 1 – Trial judge’s rejection of the defence of honest but mistaken belief in communicated consent
[16] The defence of honest but mistaken belief in communicated consent is not a true affirmative defence but negation of the mens rea required for sexual assault: R. v. Ewanchuk, [1999] 1 S.C.R. 330, at paras. 43-44. It is satisfied by raising a reasonable doubt that the accused possessed an “honest but mistaken belief that the complainant actually communicated consent, whether by words or conduct”: R. v. Barton, 2019 SCC 33, at para. 91.
[17] After the nightclub closed at around 2 a.m., the appellant and complainant were together in his car for about three hours, until about 5 a.m. Initially, there were other passengers but they were soon dropped off, leaving the appellant and complainant alone together in the car. During this time together they went to three locations: the front of the complainant’s home, a school parking lot, and finally a more secluded school parking lot.
[18] The trial judge acknowledged that some consensual sexual activity, including holding hands, kissing, and touching various parts of their bodies, took place in these locations. He stated that when the appellant asked the complainant if she would like sex, her response was to inquire whether he had a condom. The appellant then retrieved a condom from his car trunk. When he returned, the complainant expressed an unwillingness to have sex. They then talked for 30-40 minutes, and eventually resumed kissing. The appellant testified that this kissing was “mutual” and from there the situation “re-escalated”. Then the appellant and the complainant moved to the back seat of the car. The appellant testified that they performed oral sex on each other, at which point the complainant asked if he still had the condom, which he did. The appellant testified that the complainant then straddled him and they began sexual intercourse.
[19] Without rejecting the appellant’s testimony, the trial judge concluded:
[The appellant] did not ask her again if she wanted to have sex and instead relied on her physical engagement to continue to sexual intercourse. In the circumstances I have described, which were known to SB, the reasonable person would conclude CF’s physical engagement was not sufficient. SB should have taken greater care to determine if CF consented to sexual intercourse, such as by asking her again. He did not.
I accordingly find the Crown has proven beyond a reasonable doubt that SB did not take reasonable steps to ascertain CF’s consent to sexual intercourse, and the defence of honest but mistaken belief in communicated consent is not available.
[20] I recognize that an appeal court must be very wary of overturning convictions in sexual assault cases where the trial judge has the benefit of hearing all the testimony and considering all the evidence: R. v. G.F., 2021 SCC 20, at para. 76. Nevertheless, after extended and anxious consideration, I do not think that the guilty verdict in this case is a safe one.
[21] There is no doubt that the complainant drank a substantial quantity of alcohol on the evening in question. However, she drank nothing after the nightclub closed. She spent approximately the next three hours in the appellant’s car, during which time she drank no alcohol.
[22] The objective evidence about the complainant’s condition and conduct during these three hours is:
(1) she walked to the appellant’s car and sat in the front passenger seat;
(2) she rode in the car in the company of the appellant and three other passengers;
(3) she, and other people in the car, went to McDonald’s and ordered and consumed some food;
(4) after the other passengers were dropped off, the appellant drove her to three different locations, the third being a secluded school parking lot;
(5) in all three locations, there was some sexual activity – holding hands, touching body parts and kissing;
(6) according to the appellant, he asked if the complainant would like sex and she responded by inquiring whether he had a condom; he did and retrieved it from the car trunk;
(7) according to the appellant, after some initial reluctance on the complainant’s part, the appellant and complainant moved to the back seat and performed oral sex on each other;
(8) the appellant and complainant engaged in sexual intercourse; and
(9) the appellant dropped off the complainant at her home at about 5 a.m.
[23] Viewing this chronology as a whole, and against the backdrop of a careful reading of the complainant’s and appellant’s trial testimony, I cannot support the trial judge’s ultimate conclusion: “SB should have taken greater care to determine if CF consented to sexual intercourse, such as by asking her again. He did not.”
[24] In Barton, Moldaver J. said, at para. 90:
For purposes of the mens rea, and specifically for purposes of the defence of honest but mistaken belief in communicated consent, “consent” means “that the complainant had affirmatively communicated by words or conduct her agreement to engage in [the] sexual activity with the accused” (Ewanchuk, at para. 49). Hence, the focus at this stage shifts to the mental state of the accused, and the question becomes whether the accused honestly believed “the complainant effectively said ‘yes’ through her words and/or actions” (ibid., at para. 47).
[25] In my view, the constellation of the complainant’s words and, especially, actions set out in the list above strongly supports the appellant’s position that he had an honest belief in the complainant’s communicated consent to the sexual intercourse that was the culmination of several hours of conversation and preliminary consensual sexual activity.
[26] The trial judge’s finding that the appellant did not have an honest but mistaken belief in communicated consent relates only to the sexual intercourse, and not to any of the activity that preceded it, including the oral sex. It is well established that consent to sexual activity can be communicated through conduct as well as words: Barton, at para. 90; Ewanchuk, at para. 49. The appellant’s evidence of the complainant’s conduct leading up to the sexual intercourse was that she took off her clothes, engaged in mutual oral sex, asked if he had a condom, watched him put on the condom, and then straddled him. The trial judge did not reject this evidence, nor did he point to any ways in which it was inconsistent with the complainant’s testimony, which he accepted. Nor did he make any finding that the appellant ought to have known that the complainant’s intoxication rendered her incapable of consenting.
[27] Accordingly, I am of the view that the trial judge erred in rejecting the defence of honest but mistaken belief in communicated consent. This conclusion was “demonstrably incompatible” with evidence that was not contradicted by other evidence nor rejected by the trial judge, which renders the verdict unreasonable: R. v. Sinclair, 2011 SCC 40, at para. 21.
[28] In light of this conclusion, it is not necessary to consider the four other grounds of appeal relating to conviction and sentence.
E. DISPOSITION
[29] I would allow the appeal, quash the conviction and order a new trial. In light of the content of these reasons and the passage of nine years since the events giving rise to the criminal charge, I would invite the Crown to consider carefully whether a new trial would be in the interests of justice at this juncture.
“J.C. MacPherson J.A.”
van Rensburg J.A.:
A. OVERVIEW
[30] I have read the reasons of my colleague proposing to allow the appeal and to order a new trial. While I agree with this disposition, respectfully, I do not agree with my colleague’s analysis. The trial judge could properly have found on the facts that he assumed in considering the issue of honest and mistaken belief in communicated consent (his acceptance of S.B.’s testimony on this issue), that S.B.’s belief that C.F. consented to sexual intercourse was objectively unreasonable. I have concluded however that the trial judge erred in his analysis of the actus reus of the offence. In finding that C.F. lacked capacity to consent to sexual intercourse because she was “in and out of consciousness”, the trial judge did not consider S.B.’s evidence relating to the relevant time period – when the two were alone in S.B.’s car together. S.B.’s evidence, while not determinative, was relevant circumstantial evidence on the question of C.F.’s incapacity to consent, and was relevant to the assessment of the credibility and reliability of C.F.’s evidence. The trial judge’s failure to consider S.B.’s evidence on the issue of capacity to consent was a material error that justifies allowing the appeal.
B. THE TRIAL JUDGE’S REASONS
[31] The Crown’s position at trial was that C.F. had not consented to the sexual acts and that she lacked the capacity to consent because of her extreme intoxication. The defence was that C.F. had the capacity to consent, had in fact consented, and that, in the alternative, S.B. had honestly and reasonably believed that C.F. had communicated her consent.
[32] The source of the trial judge’s error, in my view, was in how he structured his reasons, and then undertook his analysis. After setting out the relevant legal principles, the trial judge’s reasons addressed two issues under separate headings: (1) Did C.F. have the capacity to consent to the sexual activity? and (2) Did S.B. have an honest but mistaken belief in communicated consent?
[33] The trial judge adopted a siloed approach to C.F.’s evidence and to S.B.’s evidence about what happened in the car. He considered C.F.’s evidence, including its credibility and reliability, without regard to S.B.’s evidence when he decided that C.F. lacked the capacity to consent, and he considered S.B.’s evidence, without regard to C.F.’s evidence, in deciding whether S.B. had an honest and reasonable belief in consent. While it was open to him on the second issue to find that S.B.’s belief in C.F.’s consent was objectively unreasonable, even on S.B.’s account of what happened the trial judge erred in failing to consider S.B.’s evidence on the issue of C.F.’s capacity. In order to situate this error, it is necessary to summarize the trial judge’s reasons on the first issue. I will also provide a brief summary of his reasons on the second issue.
Capacity to consent
[34] In dealing with the first issue, the trial judge began by observing that consumption of alcohol and its effect on C.F. were central to the determination of whether C.F. had the capacity to consent to the sexual acts in question, and that four witnesses had provided evidence in this regard.
[35] First, the trial judge summarized, at paras. 33-37, the evidence of C.F.’s two friends, K.L. and B.S., about C.F.’s apparent level of intoxication that evening. Neither could say how much alcohol C.F. consumed. They described C.F.’s physical state (not slurring her words or stumbling) and rated her level of drunkenness on a scale of 1 to 10 (7-7.5 and 9 respectively). B.S. recalled C.F. grabbing her arm when they were going down some stairs, and said she was “pretty intoxicated” when they left the nightclub. Following this, at para. 38, the trial judge referred briefly to S.B.’s evidence. He noted that S.B. testified that when he first met C.F. at the nightclub, she gave him a hug and he felt she might have had a “buzz on”, that at the end of the evening C.F. had no problem walking to his car or communicating, and that S.B. denied C.F. was visibly intoxicated, describing her as “probably buzzed” when they left the nightclub.
[36] The trial judge then turned to the evidence of C.F., which he summarized at paras. 39-51. C.F. recalled pre-drinking vodka with her friends, and she put herself at 3 or 4 on the drunkenness scale when she arrived at the nightclub at between 11 and 11:30. Other than a tequila shot and a mixed drink, she did not remember what or how much alcohol she consumed at the nightclub. She recalled speaking with S.B., his offer of a drive home, and their exchange of phone numbers so they could meet up at the end of the night. She put herself at 5 or 6 on the drunkenness scale at the time and said that, after that she started to have blackouts and could not recall any other details until it was time to leave. While she recalled leaving the nightclub, C.F. did not remember the drive home too well, and she had a vague memory of going to McDonald’s.
[37] The trial judge then set out in detail C.F.’s evidence about what occurred when she was alone in the car with S.B.: that she was heavily intoxicated and not conscious; that she had only a brief memory of their kissing, but not whether she wanted or did not want it, but that she had said she did not want to do anything more; that her next memory was of S.B.’s hands inside her underwear, touching her vagina, and her telling S.B. he shouldn’t do that; her memory of S.B. saying he should get a condom and her response that he didn’t need one because she did not want to have sex; her recollection of being in the backseat, with S.B. performing oral sex on her and then, after he took off his shirt, the insertion of his penis into her vagina; and finally her memory of sitting up in the backseat, feeling distraught and confused as to what had happened, and asking S.B. if they had sex and if he at least used a condom. C.F. recalled telling S.B. on the ride home that she did not want to have sex and asking why it happened, that he told her not to tell anyone, including her ex-boyfriend, and that they agreed to talk about it the next day. She recalled being distraught when she got home around 4 or 5 a.m., and calling her ex-boyfriend, but could not remember what they spoke about. C.F. denied vomiting or having a headache the next day.
[38] After this summary of the evidence, the trial judge began his analysis. He referred to R. v. Kaczmarek, 2021 ONCA 771, 407 C.C.C. (3d) 34, where, in assessing whether a complainant was intoxicated to the point that she lacked the capacity to consent, Trotter J.A. had rejected the defence submission that objective evidence of the complainant’s condition was required. The trial judge observed that the evidence of C.F.’s friends about her increasing intoxication during the evening supported her evidence about how intoxicated she was.
[39] The trial judge then assessed C.F.’s evidence, concluding that it was both credible and reliable. He referred to the fact that C.F.’s memories were “different from S.B.’s which will be described later”. The trial judge found that what C.F. described as blackouts were “essentially periods of alcohol-induced unconsciousness” from which she awoke to find herself in various types of sexual activity with S.B.: “Simply put, her unconsciousness made it impossible to provide contemporaneous consent”: at para. 78.
[40] In the next three paragraphs, the trial judge said that he rejected certain defence arguments: first, that C.F.’s physical condition the next day suggested an absence of profound intoxication; second, that C.F. could not lack capacity to consent and at the same time have memories of verbalizing her refusal to engage in the sexual activities; and third, that her physical abilities that evening betrayed a finding of incapacity. In rejecting this argument, the trial judge stated that “[t]he suggestion…that someone that can dance, walk, talk, get into a car, eat, kiss, get into the back seat of a small car and have sex cannot lack capacity” had been dealt with in R. v. G.F., 2021 SCC 20, 163 O.R. (3d) 480, at para. 65.
[41] The trial judge concluded, at para. 82, that C.F. lacked the capacity to subjectively consent and that, accordingly, the Crown had proven the actus reus of the alleged offence beyond a reasonable doubt. Having found that C.F. could not subjectively consent, he stated that “[he] need not address the question of whether she consented at this stage”.
Honest and mistaken belief in communicated consent
[42] After concluding that there was an air of reality to the defence of honest and mistaken belief in communicated consent, the trial judge turned to whether the Crown had negatived the defence.
[43] The trial judge then summarized S.B.’s testimony, including that C.F. hugged and kissed him on the neck as he was dropping her off at home, that she suggested they go somewhere more private, and that they engaged in touching and kissing when they were sitting in the front seat. He noted S.B.’s testimony that C.F. asked if he had a condom, and that after he got one, she told him she was not sure they should continue, and she was concerned about her ex‑boyfriend; that they spoke for 30 or 40 minutes and started kissing; that they moved to the back seat where they performed oral sex on each other; and that after C.F. asked if he had the condom, they had sexual intercourse in various positions.
[44] The trial judge noted that there were “several key points where S.B.’s evidence and C.F.’s evidence intersect[ed]”, the most important of which was the discussion in the front seat of the car about a condom. While both agreed that C.F. expressed a reluctance to continue at that point, C.F. recalled saying she did not want to have sex, and S.B. testified that C.F. said she did not know if she should continue.
[45] The trial judge did not assess S.B.’s credibility and reliability. Instead, based on S.B.’s account, he determined that the defence of honest and mistaken belief in communicated consent failed at the objective stage. He concluded that, in the circumstances known to S.B., including that C.F. had refused sexual intercourse 30 to 40 minutes earlier and had asked an equivocal question about the condom, S.B. should have taken greater care to determine if C.F. consented before proceeding with sexual intercourse.
C. DISCUSSION
1. Positions of the Parties
[46] S.B. contends that the trial judge erred in law in failing to consider all of the relevant evidence when he found that C.F. lacked the capacity to consent, and that accordingly the Crown had proven the actus reus of the offence beyond a reasonable doubt. In particular, the trial judge did not consider S.B.’s evidence in relation to the actus reus element.
[47] In response, the Crown asserts that the trial judge’s reasons are sufficient, that he did not have to advert to all of the evidence that he considered in finding that C.F. lacked capacity to consent, and that he was entitled to rely on C.F.’s evidence in concluding that she lacked capacity.
2. Legal Principles
[48] Section 273.1(1) of the Criminal Code defines consent as the “voluntary agreement of the complainant to engage in the sexual activity in question”. Consent must be present at the time the sexual activity in question takes place: s. 273.1(1.1), and, as Karakatsanis J. stated in G.F., “there is no reason why the entire course of sexual activity must be blanketed with a single finding of consent, non-consent or incapacity”: at para. 63. Section 273.1(2) provides that no consent is obtained in certain circumstances, including if (a.1) the complainant is unconscious; or (b) the complainant is incapable of consenting to the activity for any reason other than that they are unconscious.
[49] Being awake, although necessary, is not sufficient. Proof of intoxication or of a complainant’s lack of memory are not enough to establish lack of capacity, although evidence of both is relevant: see G.F. at para. 86; Kaczmarek at paras. 33-34; R. v. C.P., 2019 ONCA 85, 373 C.C.C. (3d) 244 at para. 65, aff’d 2021 SCC 19, 71 C.R. (7th) 118. To have capacity to consent to a sexual act, the complainant must have an operating mind, capable of understanding (1) the physical act; (2) that the act is sexual in nature; (3) the specific identity of the participants; and (4) that she has the choice to refuse to participate: R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at paras. 3, 36-37, 66; G.F., at paras. 29, 43, 47, 55-58.
[50] The Supreme Court, in R. v. Ewanchuk, [1999] 1 S.C.R. 330, observed that the absence of consent is subjective, and that the complainant’s evidence that they did not consent is a matter of credibility to be weighed in light of all the evidence, including the complainant’s words and actions before and during the incident, and by reference to “the totality of the evidence, including any ambiguous or contradictory conduct by the complainant”: at paras. 29, 61. With respect to consent, where the complainant testifies that they did not consent, the question is one of credibility. The evidence of other witnesses, including the accused, about the “totality of the complainant’s conduct” can be considered to determine whether it is consistent with the complainant’s claim of non-consent. As the court noted in Ewanchuk, at para. 30, however “[t]he accused’s perception of the complainant’s state of mind is not relevant. That perception only arises when a defence of honest but mistaken belief in consent is raised in the mens rea stage of the inquiry”.
[51] With respect to capacity to consent, while the complainant will often provide relevant evidence, the question is not whether she subjectively believed that she had or did not have capacity, but whether, based on all the evidence, the Crown has proven lack of capacity beyond a reasonable doubt. The evidence of an accused person can be relevant both to the assessment of the complainant’s credibility, and as circumstantial evidence to be considered on the question of capacity. While the complainant’s evidence and their credibility are important, the court must consider all the relevant evidence, including as in this case, the observations of other witnesses of the complainant’s consumption of alcohol, level of intoxication and conduct, to determine whether the complainant lacked the capacity to consent when the sexual act occurred: see, for example, C.P., at paras. 56-57; Kaczmarek at paras. 40-45; and R. v. F.B.P., 2019 ONCA 157 at paras. 4-6. Although not required, in some cases there is expert evidence on the issue of capacity: see, for example, R. v. Al-Rawi, 2018 NSCA 10, 359 C.C.C. (3d) 237.
3. Application to this Case
[52] In concluding that C.F. lacked the capacity to consent, the trial judge accepted C.F.’s evidence about the consumption of alcohol and her level of intoxication at the nightclub (which he found was corroborated by the evidence of her two friends), as well as her evidence about memory gaps and that at times she was unconscious, both at the nightclub and during the sexual acts.
[53] The trial judge accepted that C.F. had periods of alcohol-induced unconsciousness which made it impossible to provide contemporaneous consent, and that C.F. “awoke during sexual activities to which she could not have provided consent”. He based these conclusions on his acceptance of C.F.’s own evidence.
S.B.’s Evidence Was Relevant Circumstantial Evidence and Relevant to the Assessment of C.F.’s Credibility
[54] Unfortunately, the trial judge did not refer to S.B.’s evidence that was relevant to C.F.’s capacity to consent at the time the sexual acts occurred. The trial judge did not consider, and assess, S.B.’s evidence as circumstantial evidence of C.F.’s mental state. Nor did he take into consideration S.B.’s evidence in his assessment of C.F.’s credibility and reliability. While S.B. could not provide direct evidence on the issue of C.F.’s capacity, his observations of C.F.’s physical state – whether she appeared to be unconscious or asleep, and how she conducted herself – was evidence that was relevant to the issue of C.F.’s capacity to consent. The trial judge was entitled to reject some or all of S.B.’s evidence about C.F.’s behaviour as it related to her intoxication, level of consciousness and accordingly her capacity to consent, but he did not do so.
[55] The trial judge did not review and assess S.B.’s evidence about C.F.’s conduct bearing on the issues of her level of intoxication and her capacity to consent because he considered such evidence to be irrelevant. This is apparent from para. 81 of his reasons where, in addressing the defence arguments, he stated:
I also reject the argument that [C.F.’s] physical abilities that evening betray a finding of incapacity. The suggestion is that someone that can dance, walk, talk, get into a car, eat, kiss, get into the back seat of a small car and have sex cannot lack capacity. Karakatsanis J. dealt with this as well as the convenient memory argument as follows at para. 65 of G.F.:
As a final note, I reject the respondents’ argument that the complainant’s claim of incapacity was belied by her thorough recollection of the sexual activity. Whether the complainant has a memory of events or not does not answer the incapacity question one way or another. The ultimate question of capacity must remain rooted in the subjective nature of consent. The question is not whether the complainant remembered the assault, retained her motor skills, or was able to walk or talk. The question is whether the complainant understood the sexual activity in question and that she could refuse to participate.
[56] In dismissing evidence that C.F. could “get into a car, eat, kiss, get into the back seat of a small car and have sex”, the trial judge conflated the issue of C.F.’s capacity to consent with circumstantial evidence bearing on that issue. While there is no question that the “ultimate question of capacity” was whether C.F. understood the sexual activity in question, and not whether she could walk, talk and perform other actions, and while S.B.’s evidence about C.F.’s behaviour was not determinative of the issue of capacity to consent, it was relevant circumstantial evidence. Just as the evidence that C.F. was “a little off balance” and grabbed her friend’s arm when they were going down some stairs at the nightclub a few hours before the alleged sexual assault was considered to be relevant to her level of intoxication, and therefore her capacity to consent, S.B.’s evidence about C.F.’s apparent level of sobriety and her behaviour, particularly at the time the sexual contact occurred, was also relevant. The trial judge concluded that C.F. was in and out of consciousness, and at one point stated that she awoke during a sexual act. He arrived at this conclusion after considering C.F.’s evidence, and without referring to S.B.’s evidence. While S.B. could not provide direct evidence on the issue of capacity, his observations amounted to circumstantial evidence and were relevant in assessing the credibility of the complainant’s evidence relating to capacity. S.B.’s evidence was part of “the totality of the evidence, including any ambiguous or contradictory conduct by the complainant”: Ewanchuk, at para. 61.
[57] Even if the trial judge was of the view that the issue of capacity turned largely on C.F.’s evidence, he erred in failing to assess the credibility and reliability of such evidence based on all of the evidence, including S.B.’s account. A trial judge is obliged to consider the whole of the evidence in deciding the case: R. v. Gostick (1999), 137 C.C.C. (3d) 53 (Ont. C.A.), at paras. 14-18. It is an error for a trial judge to fail to reconcile the inconsistencies between the Crown and defence evidence: R. v. D.A., 2012 ONCA 200, 289 O.A.C. 242, at para. 11.
The Failure to Consider S.B.’s Evidence was a W.(D.) Error
[58] At paras. 30 and 31 of his reasons, the trial judge instructed himself correctly on the need to apply the principles of W.(D.) [1] and he recognized that “[t]o obtain a conviction, the Crown must negate all exculpatory evidence, whether it arises in its own case or the defence case”. However, contrary to his self-instruction, the trial judge did not consider S.B.’s evidence in relation to the issue of C.F.’s capacity to consent, and he did not require the Crown to “negate all exculpatory evidence”.
[59] The failure to consider S.B.’s evidence in relation to the Crown’s proof of the actus reus of the offence was a W.(D.) error. The trial judge was obliged to consider S.B.’s evidence to determine whether he accepted it, or whether it raised a reasonable doubt. He could only convict if, reaching the third stage, on all the evidence he was satisfied beyond a reasonable doubt. “The ultimate issue [is] not whether [the trial judge] believed [the complainant or the accused], or part or all of what they each had to say. The issue at the end of the trial [is] not credibility but reasonable doubt”: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 65.
The Crown’s Argument
[60] The Crown acknowledges that the trial judge failed to “engage meaningfully with” S.B.’s account of what C.F.’s behaviour indicated in relation to her capacity to consent. The Crown asserts however that the trial judge’s reasons in respect of capacity to consent were sufficient, in that his acceptance of C.F.’s evidence could be interpreted as a rejection of S.B.’s evidence.
[61] The Crown relies on the statement in R. v. J.J.R.D. (2006), 218 O.A.C. 37 (C.A.), at para. 53, that a trial judge’s reasoned acceptance of a complainant’s evidence can be sufficient to conclude that the trial judge must have rejected the evidence of the accused. While the general principle set out in J.J.R.D. is unassailable, it does not assist in this case. In J.J.R.D. the argument on appeal was that the trial judge’s reasons were not sufficient. In that case, the trial judge had summarized the evidence of both the complainant and the appellant, whose evidence consisted of a denial of the events recounted by the complainant. In determining that the reasons were sufficient, Doherty J.A. observed that the failure to specifically address weaknesses in the appellant’s evidence did not foreclose appellate review. He noted that, while “different results [in other cases] reflect the functional and contextual assessments of the adequacy of reasons”, the trial judge’s reasoned acceptance of the complainant’s evidence explained in that case why the appellant’s evidence had been rejected: at para. 39.
[62] The Crown also relies on R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 17-21, another sufficiency of reasons case, and submits that the trial judge was not required to list each piece of evidence and explain how it was assessed in a “watch me think” fashion; what matters is that an appellate court can discern the findings connecting the evidence to the verdict.
[63] Contrary to the Crown’s submissions, however, the alleged error in respect of the actus reus of the offence in this case is not insufficiency of reasons, but the trial judge’s failure to take into account S.B.’s evidence on the issue of capacity. Nor is there any basis for saying that it is implicit in the trial judge’s reasoned acceptance of C.F.’s evidence that he must have rejected S.B.’s evidence. To the contrary, the trial judge dismissed such evidence with reference to a passage from G.F., and he did not provide an overview of S.B.’s evidence until he addressed the second issue (without assessing its credibility and reliability), after he had already concluded that C.F. lacked capacity to consent. S.B.’s evidence was simply not considered on the issue of actus reus. There is nothing in J.J.R.D. or R.E.M. that authorizes a judge to convict based on the complainant’s evidence without considering other relevant evidence, including the evidence of the accused.
[64] The Crown asserts that the trial judge followed Trotter J.A.’s approach in Kaczmarek where he rejected the argument that something more than a complainant’s evidence about her intoxication and state of mind was required. In that case, however, the accused did not testify, and the only evidence bearing on capacity was that of the complainant and her friend. While Trotter J.A. rejected the defence argument that some objective evidence of severe intoxication such as vomiting was required, he went on to observe that the complainant’s evidence did not stand alone, and that, “based on all the evidence” it was open to the trial judge to find that she lacked the capacity to consent: at paras. 45-46. In this case, where the appellant testified, S.B.’s evidence was part of all the evidence that ought to have been considered on the issue of capacity.
[65] Finally, I note that the Crown does not seek to support the conviction on the basis that the trial judge found, as an alternative to lack of capacity, that C.F. did not consent to the sexual acts. In G.F. the Supreme Court instructed that capacity to consent and consent need not be considered in any particular order or separately. In this case however the trial judge specifically addressed capacity to consent as the first issue, and he stated, at para. 82, that he did not have to consider consent “at this stage”. While this might suggest that the trial judge would return to the question of consent later in his reasons, he did not do so. Instead, the balance of the reasons addressed whether S.B. had an honest but mistaken belief in communicated consent, and in determining that issue on the basis of the objective reasonableness of S.B.’s belief, the trial judge proceeded on the basis of S.B.’s evidence without assessing its credibility and reliability.
D. CONCLUSION AND DISPOSITION
[66] For these reasons, I have concluded that the appeal should be allowed based on the trial judge’s failure to consider the appellant’s evidence in relation to the actus reus of the offence. S.B.’s testimony about what happened when he and C.F. were alone in the car was relevant circumstantial evidence and ought to have been considered in assessing C.F.’s credibility and reliability. In not engaging with S.B.’s evidence on the issue of C.F.’s capacity to consent the trial judge departed from the requirements of W.(D.).
[67] The appellant asserts that the proper result is to allow the appeal and to direct an acquittal. I disagree. There is evidence in this case that, on a proper application of the relevant legal principles, would support a conviction. In view of my conclusion on the conviction appeal, it is unnecessary to consider the sentence appeal.
[68] Accordingly, I would allow the appeal and direct a new trial.
“K. van Rensburg J.A.”
Pepall J.A.:
[69] I concur with the reasons of van Rensburg J.A.
“S.E. Pepall J.A.”
Released: November 24, 2023 “J.C.M.”