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 or 486.6 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 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) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order;

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

(c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.

(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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;

(b) on application of the victim or the prosecutor, make the order; and

(c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.

(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.

(3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall

(a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order;

(b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and

(c) in any event, advise the prosecutor of their duty under subsection (3.2).

(3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have

(a) informed the witnesses and the victim who are the subject of the order of its existence;

(b) determined whether they wish to be the subject of the order; and

(4) An order made under this section does not apply in either of the following circumstances:

(a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or

(b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person.

(5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness.

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.

(1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor,

(a) the person knowingly failed to comply with the order;

(b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and

(c) a warning to the individual is not appropriate.

(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: 20240612 DOCKET: COA-23-CR-0284

Pepall, Thorburn and George JJ.A.

BETWEEN

His Majesty the King Respondent

and

J.B. Appellant

Counsel: J.B., acting in person Dan Stein, appearing as duty counsel Erica Whitford, for the respondent

Heard: May 8, 2024

On appeal from the conviction entered by Justice Catrina D. Braid of the Superior Court of Justice, sitting with a jury, on June 6, 2022, and from the sentence imposed on February 9, 2023.

REASONS FOR DECISION

OVERVIEW

1The appellant appeals his conviction for sexual assault after trial by jury and seeks a new trial. He claims the trial judge erred by not putting the defence of honest but mistaken belief in consent to the jury. He also claims the trial judge erred in failing to correct improper comments made by the Crown in closing submissions and in imposing a sentence that was excessive.

2The issues at trial were (1) whether the complainant consented to sexual intercourse and (2) whether she had the capacity to consent to sexual intercourse.

THE EVIDENCE

Undisputed Facts

3The complainant met the appellant for the first time at a bar where she and her friend were having a few drinks. The complainant came back to the appellant’s home and she and the appellant and their friends consumed some marijuana. The evidence at trial was that the complainant consumed up to 350 ml of rum, approximately three shots of tequila, and some marijuana.

4After they smoked marijuana, the appellant picked the complainant up and carried her downstairs. They both testified that she was laughing. He placed her on the couch. He kissed her and she remembered kissing him back several times.

5He told her to take something to wake up as she was sleepy. She said no, and he told her he was fine with that and went upstairs.

The Appellant’s Evidence

6The appellant said that he told the complainant he wanted to have sexual intercourse to which she replied, “What are you waiting for?” The appellant said he went upstairs to get a condom and returned. He testified that the complainant actively participated in sexual intercourse with him and was at some points on top of him, until he noticed that she was tired:

Right after we got into that third position, I noticed she – like, she looked drowsy. And I saw – saw her neck go like that, and I tried to wake her up. She persisted to, like, want to roll over on her side. And at that point, I said, "I'll be right back." I put a blanket over her.

7He testified that after he noticed how tired she was:

Right away I was concerned. I – I felt like, I hope she's not fainting on me or something. It better just be she's tired 'cause if I just, like, randomly just fainted right here and now, I'm pretty sure that would raise some concern to everybody. The second I saw her eyes close, what I said back to her was, "Are you okay? Wake up." And she was – she was still conscious when I was kind of just trying to see if she was awake, but I could tell she just wanted to go for a little nap. And then I respected those wishes… I went to the washroom.

The Complainant’s Evidence

8The complainant testified that after the appellant carried her downstairs he left the room and went upstairs. When he returned, the appellant asked her if she wanted to have sex. In response, the complainant did not say yes or no. The complainant said that a few minutes later the appellant again asked her if she wanted to have sexual intercourse. She testified that she had difficulty remembering what happened after the appellant returned from upstairs:

Everything feels, in terms of my memory from that point, everything feels very like a flashback moments of - of memory that are coming back. That have come back now, and it was like one minute I had like awareness, a vague awareness of what was happening, and then another minute it's just black, and I don't - I don't remember, and I don't know. So in terms of, yeah, the awareness of my - and my understanding, that - that's what I knew where there's moments where either I could hear or occasionally see what was going on, but then there were other moments where I just - I had no idea.

9At trial, when asked by Crown counsel, “What happened between those two times he asked?”, she replied, “I don't recall. I can't - I can't remember the sequence of events of when I - I remember he had asked and then he had asked again, but I can't remember the sequence of events as to what happened in between.” She also agreed with defence counsel that, “during the sexual encounter, there may be times where [she was] awake, but [doesn’t] recall what happened”.

10The Crown’s position was that the complainant did not consent, had passed out during sexual intercourse, and lacked capacity at the material times.

ANALYSIS

11The sentencing judge noted that there were two theories on which the jury could have convicted the appellant: (1) that the complainant never did, and never was able to consent to the sexual intercourse; or (2) that the complainant was able to and did consent but lost the capacity to consent during the sexual intercourse.

12The trial judge asked defence counsel prior to giving her jury charge: “I just want to confirm on the record, so your client is not wishing to submit that an honest but mistaken belief in communicated consent should be left with the jury?” Defence counsel replied that the only defence was consent.

13As the Supreme Court noted in R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, “[a] trial judge must put to the jury all defences that arise on the facts, whether or not they have been specifically raised by an accused. Where there is an air of reality to a defence, it should go to the jury”: at para. 51; see also R. v. Mayuran, 2012 SCC 31, [2012] 2 S.C.R. 162, at para. 20; Criminal Code, R.S.C. 1985, c. C-46, s. 265(4). The object is to provide the jury with the necessary tools to reach a decision on the evidence adduced at trial: R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760, at paras. 50-54.

14Whether or not there is an air of reality to a defence is a question of law: Cinous, at para. 55. A defence has an air of reality if “the evidence put forward is such that, if believed, a reasonable jury properly charged could have acquitted”: Cinous at para. 60, quoting R. v. Osolin, [1993] 4 S.C.R. 595, at p. 682.

15A defence of honest but mistaken belief in consent is a denial of the mens rea of sexual assault: R. v. Ewanchuk, [1999] 1 S.C.R. 330, at paras. 42-44. The honest but mistaken belief must be that the complainant “actually communicated consent, whether by words or conduct”: R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 91 (emphasis in original).

16The court will consider the complainant’s actual communications and the evidence “explaining how the accused perceived that behaviour to communicate consent”: Barton, at para. 91, quoting R. v. Park, [1995] 2 S.C.R. 836, at para. 44, per L’Heureux-Dubé J. (emphasis in original). Section 273.2 of the Criminal Code provides that reasonable steps must have been taken to ascertain consent and that there must be evidence of words or conduct by which the complainant expressed consent: see Barton, at para. 104.

17For there to be an "air of reality" to the defence of honest but mistaken belief, there must be: “(1) evidence of lack of consent to the sexual acts; and (2) evidence that notwithstanding the actual refusal, the accused honestly but mistakenly believed that the complainant was consenting”: R. v. Esau, [1997] 2 S.C.R. 777, at para. 14, quoting Osolin, at pp. 648-49, per McLachlin J. An absence of memory on the part of the complainant as to what happened may make it “easier to ‘cobble together’ parts of both the accused and complainant's evidence to reach a reasonable conclusion of honest but mistaken belief”: Esau, at para. 19.

18In this case, the appellant testified that the complainant was an active and willing participant in sexual intercourse, was on top of him, and as soon as he realized the complainant was falling asleep, he stopped and put a blanket on her. The complainant admitted that although she remembered the appellant asking her if she wished to engage in sexual intercourse, she did not remember all that happened and that, during the sexual encounter, there may have been times where she was awake, but she does not recall what happened. The complainant agreed that the appellant had not caused her any physical injuries.

19On this evidence, the trial judge herself properly raised the issue because there was evidence from the complainant that she did not consent to the sexual acts and evidence that, if believed, the appellant honestly but mistakenly believed the complainant was consenting. Moreover, there is some possibility of cobbling the two stories together given the complainant’s evidence that, “there's moments where either I could hear or occasionally see what was going on, but then there were other moments where I just - I had no idea”.

CONCLUSION

20For these reasons, we find that there was an air of reality to the appellant’s defence of honest but mistaken belief in consent until such time as the complainant passed out or fell asleep, at which point he stopped. This defence therefore should have been put to the jury for their consideration.

21In view of our decision on the issue of honest but mistaken belief in consent, there is no need to address the remaining grounds of appeal - the Crown’s remarks in closing submissions, and sentence.

22For the above reasons, the appeal is allowed and a new trial is ordered.