Publication Restriction 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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 File and Parties

Court of Appeal for Ontario

Date: 20240722 Docket: COA-23-CR-0142

Judges: MacPherson, Dawe and Madsen JJ.A.

Between:

His Majesty the King Appellant

and

Swayne Gordon Respondent

Counsel: Katherine Beaudoin, for the appellant Brendan Monk, for the respondent

Heard: July 4, 2024

On appeal from the acquittal entered on January 10, 2023 by Justice Michael K. Wendl of the Ontario Court of Justice.

Reasons for Decision

[1] The respondent was charged with one count of sexual assault under s. 271 of the Criminal Code. Following a short trial in which the complainant and one of her close friends were the main Crown witnesses, and the respondent did not testify or call evidence, Wendl J. of the Ontario Court of Justice found the respondent not guilty. He said:

In the end, while I find [the complainant] to be a credible witness, I cannot find her evidence reliable as to whether she gave consent or not. There are simply too many gaps in her memory.

[2] The Crown appeals the acquittal. The appellant submits that the trial judge erred in his analysis of capacity to consent and subjective consent.

[3] The actus reus of sexual assault requires the Crown to prove three elements: (1) touching, (2) of a sexual nature, and (3) in the absence of consent: R. v. Ewanchuk, [1999] 1 S.C.R. 330, at para. 25. The first two elements are objective while the third element – consent – is subjective: Ewanchuk, at paras. 26-27. The consent element of the actus reus is only concerned with the complainant’s perspective and state of mind toward the touching at the time it occurred: R. v. G.F., 2021 SCC 20, at paras. 25, 29. Capacity to consent is a precondition to subjective consent: G.F., at para. 45. To have capacity to consent a complainant “must be capable of understanding four things: (1) the physical act; (2) that the act is sexual in nature; (3) the specific identity of the complainant’s partner or partners; and (4) that they have the choice to refuse to participate in the sexual activity”: G.F., at para. 57.

[4] The appellant submits that the trial judge made two errors in his analysis related to the complainant’s consent to the sexual activity.

[5] First, the appellant asserts that the trial judge erred in his analysis of capacity to consent. According to the appellant, he did so in two respects: first, by misapplying the test for capacity to consent; and second, by failing to consider all the evidence on capacity to consent. Both objections are rooted in the trial judge giving brief oral reasons for finding that the complainant had the capacity to consent, in which he referred to the evidence of her ability to walk and send text messages, but did not mention other evidence that the Crown at trial had argued was also relevant to the capacity issue.

[6] We do not accept this submission. Although the complainant’s ability to walk, talk and perform other basic functions was not determinative of the issue of capacity, those facts were relevant circumstantial evidence bearing on the question of whether the Crown had proved beyond a reasonable doubt that the complainant lacked the capacity to understand one or more of the four G.F. factors. There was no direct evidence that she did not possess this capacity, and the fact that she was able to walk herself to and from the Uber, and that she had the presence of mind and physical ability to text her friends and send them her location, was relevant circumstantial evidence that made it less likely that she was so impaired by alcohol that she could not understand the facts necessary for her to have the capacity to subjectively consent. The trial judge was simply highlighting what he found to be important relevant circumstantial evidence that left him with a reasonable doubt about whether the Crown had proven incapacity to consent as a route to satisfying its burden of proving lack of subjective consent by the complainant on the criminal standard. Nothing in G.F. says that this line of reasoning was in error.

[7] Nor do we think that the trial judge failed to consider all the relevant evidence relating to the complainant’s capacity to consent. While the short oral decision given by the trial judge could have benefitted from including greater detail as to evidence considered, a trial judge is not required to address explicitly every item of evidence relied on by the Crown.

[8] In R. v. Walle, 2012 SCC 41, Moldaver J. said, at para. 46:

A failure of a judge to consider all the evidence relating to an ultimate issue of guilt or innocence constitutes an error of law: R. v. Morin, [1992] 3 S.C.R. 286, at p. 296; R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at paras. 31-32. However, as Sopinka J. made clear in Morin, there is “no obligation in law on a trial judge to record all or any specific part of the process of deliberation on the facts”, and “unless the reasons demonstrate that [a consideration of all the evidence in relation to the ultimate issue] was not done, the failure to record the fact of it having been done is not a proper basis for concluding that there was error in law in this respect” (p. 296). I see no failure to consider all the relevant evidence in this case.

[9] There is no doubt that the complainant was intoxicated on the evening in question. However, the video shows her walking to the respondent’s apartment and, 25 minutes later, walking back to an Uber she had ordered to take her back to the location where she and her friends had initially gathered. In the end, we cannot say that the trial judge erred by concluding that the Crown had not met its burden of proving lack of capacity to consent, nor can we conclude that he failed to properly apply the G.F. legal framework.

[10] The appellant’s second ground of appeal is that the trial judge misapplied relevant legal principles on subjective consent in capacity cases. In particular, according to the appellant, the trial judge erred by taking an “all or nothing” approach to the assessment of subjective consent by considering only the complainant’s direct testimony on this issue and then finding it was “categorically unreliable” due to her memory blackouts.

[11] In our view, this is an inaccurate labelling of the trial judge’s reasoning, which was significantly more balanced than the appellant suggests. The core of the trial judge’s reasoning was not criticism of the complainant’s memory blackouts. Rather it was a conclusion based on a constellation of factors, including the Crown’s high onus of proof, that was expressed respectfully in relation to the complainant:

I am not saying here that because she voluntarily went up to the apartment that she was more likely to consent. What I am indicating here is that I have concerns about her impression and her evidence of being kidnapped because the evidence that I do have does not corroborate that and it is not supported by her having access to her phone, texting her location, getting out of the Uber at the apartment and following the accused into the apartment.

At the end of the day, this is not a condemnation of the complainant in this case, it just simply means that the high burden of proof beyond a reasonable doubt has not been met by the Crown.

[12] In our view, in these paragraphs the trial judge identified the key evidence that grounded his decision. We cannot say that there are errors, of reasoning or omission, in these paragraphs or in his reasons read as a whole.

[13] The appeal is dismissed.

“J.C. MacPherson J.A.”

“J. Dawe. J.A.”

“L. Madsen J.A.”