DATE: 20011105 DOCKET: C34000

COURT OF APPEAL FOR ONTARIO

CATZMAN, ABELLA and FELDMAN JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Karen Shai for the respondent

Respondent

• and -

ROBERT R.

William R. Gilmour for the appellant

Appellant

Heard: April 17, 2001

On appeal from conviction by Justice Robert M. Thompson dated December 9, 1999 and from sentence imposed March 31, 2000.

ABELLA J.A.:

[1] In the early evening of August 23, 1997, the appellant went to the neighbouring house of the complainant, a young developmentally disabled woman, and asked her if she wanted to pick vegetables from his garden with him. This was the origin of events that led to the appellant engaging in sexual activity with the complainant that evening.

[2] The defence argued that the complainant was capable of consent, did in fact consent, and if she did not consent, that the appellant had an honest but mistaken belief in her consent and capacity to consent. The Crown argued that the complainant was incapable of consenting to the sexual activity, but that even if she could, she did not consent in these circumstances.

[3] After a six day trial, the appellant was convicted of sexual assault and was sentenced to an eight month period of incarceration. This appeal is grounded on the following alleged errors by the trial judge:

1. He erred in permitting the testimony of the complainant to be admitted into evidence by videotape;

2. He erred in rejecting the appellant’s defence of honest but mistaken belief in consent;

3. He erred in dismissing the appellant’s motion pursuant to s. 11(b) of the Charter of Rights and Freedoms for unreasonable delay; and

4. The sentence of eight months’ incarceration was excessive.

BACKGROUND

[4] The appellant, Robert R., was 57 years old at the time of the incident, a part-time Presbyterian minister who had been a full-time minister for 23 years, and a neighbour of the 21-year-old complainant and her family for over 10 years. He knew that despite her chronological age and physical maturity, she was developmentally disabled. He believed her to have the mental capabilities of an 8‑10 year old child for most purposes, but thought she was far more mature in sexual matters because of her demonstrably inappropriate sexual behaviour with young men, including his two sons.

[5] On August 23, 1997, the appellant came to the complainant’s house where she was having dinner with her mother, and invited her to pick vegetables in his garden. She accepted the invitation. After they picked vegetables, the appellant and the complainant went into the appellant’s home to wrap them. In the front hall of his home, the complainant told him he was not wearing any underwear under his jogging pants. The appellant responded that he was, but said "if you don’t believe me, check it out." The complainant put her hand inside his pants and touched his penis. The appellant testified that he then put his hand inside the complainant’s pants, fondling and digitally penetrating her. The complainant’s pants and underwear were down at her feet and the appellant’s pants were lowered to expose his genitals. He kissed the complainant’s vaginal area and the complainant had oral contact with his penis.

[6] A few days after the incident, the complainant told her mother about the incident. The appellant was questioned by the police and arrested shortly thereafter. Two weeks after the incident, the appellant provided a voluntary statement to the police.

[7] Because of her severe emotional distress and consequent institutionalization, the complainant did not attend at the trial, even though she was under subpoena. She had not been required to testify previously since the accused had waived his right to a preliminary hearing.

[8] Two voir dires were conducted at trial. One resulted from a defence application pursuant to s. 276 of the Criminal Code seeking to admit four affidavits as evidence of prior sexual activity and sexually inappropriate behaviour on the part of the complainant. All four affidavits, including two from the appellant’s sons, referred to incidents where the complainant is said to have "come on" to various individuals, including the appellant’s sons, who both rejected her "advances." The appellant knew of these incidents.

[9] Dr. Angus McDonald, a staff psychiatrist with the Metropolitan Toronto Forensic Service, testified for the defence at this voir dire. He did not interview the complainant, but stated that based on the facts set out in the affidavit material, he was able to form an opinion as to the complainant’s capacity to consent to the sexual activity with the appellant.

[10] The trial judge ruled the affidavit evidence to be admissible, not for the purpose of showing that the complainant was more likely to have consented to the sexual activity or to attack her credibility, but for the purpose of making available to Dr. McDonald the evidentiary foundation for his opinion about the complainant’s capacity and consent, thereby permitting the defence to make full answer and defence to the charges. No issue is taken with this ruling.

[11] A second voir dire was held to determine whether the complainant’s statements to the police and to her mother were admissible because of the complainant’s inability to attend court. The trial judge’s ruling that these out-of-court statements met the requirements of necessity and reliability is at the heart of this appeal.

ANALYSIS

(i) The "Khan" Voir Dire

[12] A voir dire was held to determine the admissibility of the complainant’s videotaped statements made to the police on August 30, 1997, as well as two statements made to her mother, one on August 29 and one on August 30, 1997. The Crown sought to introduce these statements as evidence going to the truth of the contents without calling the complainant. This court has had the benefit of watching the videotaped statement.

[13] The basis of the application by the Crown was that the complainant had been subpoenaed, was unavailable to testify, and that her statements were sufficiently necessary and reliable to meet the admissibility requirements in R. v. Khan, 1990 77 (SCC), [1990] 2 S.C.R. 531. The trial judge, ruling that both the necessity and reliability tests had been met, admitted the statements.

[14] The Crown had notified defence counsel the previous Friday, when he received the information, that the complainant would not be available to testify at trial. Based on the evidence the Crown had that it was unclear when or whether she could ever testify, he informed the court that he was prepared to proceed that day with the voir dire. No resulting request for an adjournment was made at any time before or during the trial by the defence. Nor did defence counsel on the appeal argue that the trial judge erred in not granting an adjournment on his own motion.

[15] The Crown called three witnesses on the voir dire: the complainant’s mother, a police officer, and a psychologist. The defence called no evidence.

[16] The police officer, Detective Constable Woods, gave evidence of the circumstances surrounding the taking of the videotaped statement from the complainant on August 30, 1997. The videotaped interview lasted around 20 minutes. The taking of the statement was his responsibility jointly with Detective Constable Arden Farrow, but it was Farrow, a female officer, who was present at and conducted the actual interview. Defence counsel waived Farrow’s evidence.

[17] Detective Constable Woods also read in the following September 12, 1997 statement, conceded by the defence to have been voluntary:

I have considered [the complainant’s] family neighbours and friends since approximately 1986. Our boys have been and continue to be friends. We did not socialize with them a whole lot. Each year, as the garden would begin to produce, I would sometimes deliver bags or baskets of produce to them, sometimes dropping them off at their door, sometimes calling and asking if they wanted some, sometimes asking if they wanted to drop by and pick some up. On the date in question, I was out walking, and on my return I stopped at the [complainant’s] home. [The complainant] and her mother were present having supper. I asked if they wanted some beans, [the complainant’s mother] said yes. I asked if [the complainant] wanted to come up and help pick the beans after she was done her supper. With that, I went home, began doing some dishes. My wife was gone to town to do some shopping. While doing the dishes, [the complainant] and my son … came in the door at the same time. My son had forgotten something and had just dropped back to pick it up. The three of us went out the door at the same time, [complainant] and I heading for the garden and my son to wherever he was going. He left. [The complainant] and I picked the beans and some flowers for her mother. We returned up to the house and I told her to wait outside while I put a wet towel around the base of the flowers, after which I came out and sent her on her way. Then I asked the question; did you touch [the complainant] in a sexual manner, and the answer was; yes I did. She came close and she said, you don’t have any underwear underneath your jogging suit. I responded, yes I do, but if you don’t believe me, take a look. Naturally she wouldn’t see, so I invited her ...

[Crown] Sorry, is that wouldn’t or couldn’t?

[APPELLANT’S STATEMENT] Naturally she couldn’t see, sorry so I invited her to physically check it out. That happened. With my hand, I checked her crotch. After a few minutes, I started to feel quite worried and tremendous pain so I told her to do her pants up and go home. I asked her the question, did you have sexual intercourse with her, and his answer was; no, I did not. I asked the question; did she say anything when you and her were touching in a sexual manner? His answer was; the only thing I recall saying was . . . I want a baby, I want a baby. I have heard her say that a hundred times if I’ve heard her say it once. I asked the question; did you say anything to her at this time? He answered; sure, I asked her if she enjoyed it and she said yes. I asked the question; did you have your penis in her mouth? And his reply was; just as we finished, she kissed me on the penis, and I kissed her on the vagina. I asked the question; was anyone around? His reply; no. I asked; how long did the sexual act last? His answer; I would say no more than three or four minutes. I asked; has anything like this happened before, and his reply; no. I asked; how would you describe [the complainant]? His answer was; moody, she’s always the same, she has always in some way displayed a desire to have sexual relations with men from the time she was 12 years of age, since we first moved there. She was always much bigger than her age. She was like a 16 year old. I can still hear her on the lake yelling, [his son’s name] I love you, …

. . . [My son] was 13 or 14 at the time. He is almost two years older than her. She has been attracted to every male that comes around. She has come on to [another young male].

He was sitting on the trailer in front of our house with some person. [The complainant] was there with her brother … [He] had to keep telling her to keep her hands off of her bra. Also, last spring my son … had a broken ankle. On at least two occasions [the complainant] came up and was trying to come on to him, with which he phoned her parents on at least one occasion. I asked the question; how would you describe [the complainant’s] mental capacity? His reply was, I think she knows the difference between right and wrong. … she appears mentally to be about an eight or a ten year old. There is so many incidents where we had to send her home, less since she hasn’t been going to school. On another occasion my son … and I were in the front of the house. His friends took off in their car, [the complainant] was with [my son] and I tried to get her to stay with us. She took off walking south from our house. I had no idea where she was going. I tried to call her but she wouldn’t listen. A few minutes later . . . her brother, came back. We told him what she had done and he said, I know exactly where she’s gone, she has gone to [another young male’s]. With that, [her brother] took off to get her. [The male friend] was a young fellow that rode the school bus and she had the hots for him, another one. I asked the question; did [the complainant] ever say no to this sexual incident? And his reply was; no, never. I am in tremendous pain since this has taken place. I do want to get help for this. It won’t happen again. And then he signed it, and Constable Darmon and myself signed it. [Emphasis added.]

[18] The complainant’s mother testified that on August 29, 1997, six days after the incident, she had a conversation with her daughter about what had happened with the appellant. Her recollection was assisted by notes she made that night and on the next day at the suggestion of the police. Her evidence was, in part, as follows:

A. Okay. I don’t know if I can do this. [The complainant] said that [the appellant] asked her to touch his private spot and put it . . . into her mouth.

A. She said that he kissed her using his tongue. She said that, that he asked her to touch his private spot and he did the same to her, or he did, no, he touched his, her private spot and he did the same to her. And he, he put his penis into her vagina and he told her that he liked her. And he told her not to tell anything. And, when I asked her why she didn’t say anything sooner, she, she said that it’s because he told me not to tell. And he, I had asked her then where, where it happened, if it happened in the garden, and she said no, he took me to the house, it happened in the house. And I said well where was Mrs. R., and she says she was not at home.

Q. And did [the complainant] tell you what she said to Mr. R.?

A. Okay, . . . I said what did you say. She said well I, I said no and I’m not married yet. . . .

Q. This is what [the complainant] told you?

A. Yes.

Q. How did she appear to you when she’s telling you this?

A. Well, she was not just, just saying something. It must have probably bothered her, I don’t know, and she just said all these . . . things. But I don’t really know, I don’t know how . . . to describe it. She, she just seemed upset that, that something must have happened to her.

Q. And that’s how she appeared to you?

A. Yes, yes.

Q. And was there any more discussion between the two of you about what happened then between [the appellant] and [the complainant]?

A. No, we left it at that. I didn’t want to pry, I didn’t want to put ideas into her head of any sort, so I didn’t say much. All I said okay, you – and like when we came home . . . we discussed it at home just like that and, and [my son] and I, and then because [the complainant] had then gone upstairs to, to her room, . . . we decided that we were going to go to the police because this, this is something that is, is just not acceptable. And from there like we were sent over to the O.P.P.

And . . . we didn’t much talk about any of this after again, just like little things [the complainant] . . . came out with like that Saturday night, like this is after we’ve been to the O.P.P., … [the complainant] and I were playing cards, and then she said this, just without any other conversation of any sort, . . . and . . . she says [the appellant’s son’s] dad had no hair on his penis and it’s big. And I just looked at her, I just didn’t know what to say. Then on the Sunday following, she didn’t get up at all, she didn’t eat.

Then on Monday – so like there was not much talk or not much conversation on the Sunday. And on the Monday when we went out we took our lunch, it was the holiday Monday, I think, we had our lunch out on our boat, and then she just says oh mom, it still hurts. And I just didn’t really know what she really meant because I thought maybe it was her ankle cause she had her ankle, she had twisted her ankle or hurt her ankle in . . . some way and I thought she meant her ankle. And I said wow, what is wrong, is your ankle still hurting, and she said no, it’s the neighbour, from the neighbour, she said, from the neighbour.

And then after, after that there was really never a lot of talk about it. If I wanted to say something and do, she just wouldn’t, and it, from then on she just got like more and more that she didn’t talk, didn’t want to sleep long, didn’t want to do things, and that’s all I . . . .

[19] According to her mother, the complainant had started seeing a psychiatrist within two months of the assault, as a result of which she took Prozac. The quantity of drugs increased through 1999, including sleeping pills. Her mother described her deteriorating behaviour as follows:

. . . There were days where she just, wouldn’t get up, wouldn’t eat for days, and finally it came up to that, you know, she had to go to Penetang now for an extensive period of time. . . . Then, you know, if you finally got her to do something, and then all of a sudden, well, yeah, okay I’m coming, and then all of a sudden it would change again, no, I am not going to be there. She would hit, you know, start lashing out at me. Always she would break things. It’s just been a nightmare the last two years. And, so, it’s usual though, like breaking things, and hitting or kicking and like, screaming, like, getting, you know, when she got upset, like, screaming, using vulgar language, like swear words…

[20] The complainant’s mother also testified that in February 1998, when the preliminary hearing was scheduled to be heard, her daughter would have been available to come to court had her attendance been required. At that time, her emotional state, which had started to deteriorate shortly after the assault took place, was not yet as severe as it increasingly became. Throughout 1999, the complainant’s condition had deteriorated so much that on September 3, she was hospitalized. The extent of the deterioration resulted in her being transferred to Penetanguishene on September 9, where she still was when the trial started on September 27, 1999. When she last saw her daughter at the end of the week before the trial, she described her as being "very very withdrawn""very upset""crying very hard" and "just not herself".

[21] The third witness called by the Crown on the voir dire was Dr. Mirek Richter, a registered psychologist who has worked at the Mental Health Centre in Penetanguishene since 1985. He is on staff in the dual diagnosis programme, which specializes in individuals who suffer more than two major mental disorders, one of them being "mental retardation", as he called it. Dr. Richter described 'mental retardation' as a medical term, the essence of which is the onset, before the age of 18, of a "significantly sub-average level of intellectual functioning" as well as a related reduced level of "adaptive behaviour", meaning the level on which the patient is able to "relate to life in general." Since she was dually diagnosed as having a combined mental disorder consisting of 'mental retardation' and attention deficit hyperactivity disorder, the complainant was one of his patients.

[22] Dr. Richter was qualified as an expert to give an opinion about the ability of the complainant to attend court from a psychological point of view. He saw her four times since her admission, including the day she was admitted. The last time he saw her was four days before the trial was scheduled to start.

[23] He described her condition when he saw her on September 10 as "unstable." In the three subsequent meetings, she was, Dr. Richter testified"teary""distraught""emotionally unstable" and "basically . . . resistant or unable" to discuss the main reason he was meeting with her, namely, her willingness or ability to appear in court. He described her reaction to the incident as follows:

. . . [O]nce we would reach the topic, . . . she would get very emotional, she would start crying, she would, she would keep crying for several minutes, and then she would change the issue and seem to be unwilling, or reluctant or unable to actually discuss that issue.

And whenever . . . the court issue was introduced, she would simply start crying.

[24] Dr. Richter concluded that because of her instability, she was "currently unable, rather than unwilling" to relate to the issue or to appear in court. If the change in her medication proved to be effective, she might be able to appear "at some point in the future", but there was, in his view, no guarantee.

[25] On cross-examination, Dr. Richter’s response to defence counsel’s question about whether the complainant would be able to answer questions with respect to the matters before the court sometime in the future was as follows:

A. I think it is possible, but I don’t see a guarantee for it. It – but it probably is possible, yes.

[26] However, in response to several resulting questions about timing from the trial judge, Dr. Richter concluded his evidence with the following opinion:

If . . . Dexedrine on 15 milligrams . . . shows to some stabilization, but more of it doesn’t, doesn’t do any better, if we discharge her from the hospital and the different environment than, than the very structured hospital environment triggers the, the same old behaviours again, then we kind of go back to square one and we need to change, we need to try different medication again. And that has been the story of her life.

So ideally yes, she could be able to appear at the court and to perform, I mean, in a productive manner here in a number of weeks, but in reality it, it would be difficult, it would be difficult for me to predict because I don’t know when that could happen. Simply, it remains to be seen. It’s very frustrating.

[27] Based particularly on Dr. Richter's evidence of how traumatized the complainant was by the topic of the sexual incident, and on his being "unable to advise the court when or even whether the complainant would be capable of testifying", the trial judge concluded that the complainant was unable to testify and that the necessity test had therefore been "clearly" met:

On a "Khan" type voir dire, the Crown must establish, on a balance of probabilities, that the out-of-court statement is necessary and that the statement is reliable. On the issue of necessity, such necessity can be found if the witness is physically unavailable, is not competent to testify, if the experience of testifying would prove to cause undue emotional harm to a witness, or is unable to give a coherent and comprehensive account of the event in court…

Dr. Richter testified that the complainant, upon admission to the facility, was found to be distraught and emotionally unstable. She was admitted to change her medication and to observe the effect of that change. The desire was to stabilize her condition. Dr. Richter testified that he was unable to ascertain whether the complainant was unable or unwilling to attend Court. Whenever the subject of court proceedings was broached, the complainant burst into tears and was incapable of discussing the matter. The doctor was unable to advise the Court when or even whether the complainant would be capable of testifying.

The necessity test has clearly been met. The complainant is not available to testify. At issue, therefore, is the reliability of the complainant’s out-of-court statements.

[28] As the trial judge noted, the Supreme Court of Canada in Khan held that necessity can be established on numerous bases: incompetence to testify, inability to testify, unavailability to testify, or harm to the complainant.

[29] Although the trial judge made no specific finding of harm, a finding which is not in any event a pre-condition for compliance with the necessity test, he did take into account the deteriorating, traumatized condition of this developmentally disabled complainant in accepting Dr. Richter's conclusion that there was no way of knowing when - or whether - she could ever testify in court.

[30] In arguing that the complainant’s out-of-court statements were reliable, the Crown relied on the complainant's understanding of the difference between a truth and a lie and submitted that the videotape allowed for an assessment of her demeanour. The following exchange occurred at the start of the video statement as the complainant was questioned about her ability to tell the difference between the truth and a lie:

Q. . . . I need to know if you know the difference between truth and a lie. OK? So, if I had said there was a big pink elephant sitting on that table over there, or this table here say, is that a truth or a lie?

A. That’s a lie.

Q. That’s a lie. And why is it a lie?

A. It is not on it.

Q. Because there is not a pink elephant there. That’s right. OK. Is it a good thing or a bad thing to tell a lie?

A. A bad thing.

Q. It’s a bad thing. OK. So everything you tell me here today, we want it to be the truth.

A. OK.

[31] On re-examination, to clarify whether the complainant understood the difference between the truth and a lie, the following exchange took place between Crown counsel and the complainant’s mother:

Q. . . . [H]as [the complainant] been a person that reports to you events that she says are real which you know never happened?

A. No, no, that she has never done. This is the first time ever that she has done or said anything like this. This is why, you know I, I know this is what happened because [the complainant] has never ever up to that point told me anything oh this has happened or that had happened and there was no truth to it.

Q. And just so I’m clear, . . .

A. Um hmm.

Q. … when [defence counsel] asked you to distinguish …

A. Um hmm.

Q. … between the truth and a lie, . . .

A. Yeah.

Q. … I heard you to say to him that she didn’t understand the difference between truth and fantasy. Can you explain why you said that to [defence counsel]?

A. No, I don’t. Like all I know is that [the complainant] never lied or never came up with something that wasn’t true. And whatever is something like, you know, she would come and say oh mom, this happened or mom, that happened, or I did this or I did that. But I, I never had to question her on, . . . if she knows the difference between true and lie because it never happened, like it never was there.

[32] After instructing himself on the distinction between threshold and ultimate reliability, the trial judge ruled that the complainant’s out-of-court statements had "sufficient indicia of reliability" to meet the threshold. He noted in particular that in the appellant’s voluntary statement, the appellant admitted acts which were almost identical to those described by the complainant.

[33] The "principled" approach to hearsay first developed in R. v. Khan, supra, and amplified in R. v. Smith, 1992 79 (SCC), [1992] 2 S.C.R. 915 and R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, permits flexibility in the application of rules governing the admissibility of hearsay evidence. This approach allows the court to be more responsive to situations in which the evidence emanates from a particularly vulnerable witness or complainant. Pursuant to this approach, if out-of-court statements are reliable and reasonably necessary, they may be admitted for their truth.

[34] The particular facts of each case will determine whether the criteria have been met (see Smith, at pp. 933-34; R. v. F. (W.J.), 1999 667 (SCC), [1999] 3 S.C.R. 569; and R. v. Rockey, 1996 151 (SCC), [1996] 3 S.C.R. 829.) Former Chief Justice Lamer in R. v. U. (F.J.), 1995 74 (SCC), [1995] 3 S.C.R. 764 observed at p. 787 that:

. . . both necessity and reliability must be interpreted flexibly, taking account of the circumstances of the case and ensuring that our new approach to hearsay does not itself become a rigid pigeon-holing analysis.

[35] I do not accept the appellant’s submission that this case sufficiently resembles the facts in R. v. Parrott (2001), 2001 SCC 3, 150 C.C.C. (3d) 449 (S.C.C.) such that the statements should not be admitted. The fundamental difference between this case and Parrot, is that, in Parrott, the issue was testimonial capacity, not the capacity to consent to sexual activity. Moreover, as the court in Parrott noted, at p. 471"the complainant was available to testify and there was no suggestion by anybody that she might be harmed thereby." The opposite is the case here.

[36] In Rockey, necessity was established without calling the hearsay declarant, by evidence that testifying would have traumatized the young witness. This supports the approach taken by the trial judge in this case that evidence of the complainant’s indefinite unavailability to testify in person because of her intensely traumatized condition precluded her from attending at trial and rendered her out-of-court statements necessary.

[37] In my view, the principles concerning a child, as set out by McLachlin J. in Rockey at p. 840, can also apply to an adult who has severe developmental disabilities:

This Court ruled in Khan that a child’s out-of-court statements about events at issue in a trial such as this may be received notwithstanding that it is hearsay, provided that the reception of the statement is made necessary by the unavailability of the child's direct evidence on the stand and provided that the out-of-court statement is reasonably reliable . . . Necessity, on the Khan test, may be established if the child is incompetent to testify, unable to testify, unavailable to testify, or if the trial judge is satisfied"based on psychological assessments that testimony in court might be traumatic for the child or harm the child . . .": R. v. Khan, supra, at p. 546.

[38] In Khan, at p. 105, McLachlin J. dealt with reliability as follows:

Many considerations such as timing, demeanour, the personality of the child, the intelligence and understanding of the child, and the absence of any reason to expect fabrication in the statement may be relevant on the issue of reliability. I would not wish to draw up a strict list of considerations for reliability, nor to suggest that certain categories of evidence (for example the evidence of young children on sexual encounters) should be always regarded as reliable.

[39] In his review in R. v. U. (F.J.) of prior Supreme Court decisions injecting increased flexibility in the approach to the hearsay rule, Lamer C.J. emphasized that the ultimate reliability of the statement and the weight to attach to it are to be determined by the trier of fact. As he said in R. v. B. (K.G.) (1993), 1993 116 (SCC), 79 C.C.C. (3d) 257 at 291:

…I do not wish to create technical categorical requirements duplicating those of the old approach to hearsay evidence. It follows from Smith that there may be situations in which the trial judge concludes that an appropriate substitute for the oath is established and that notwithstanding the absence of an oath the statement is reliable. Other circumstances may serve to impress upon the witness the importance of telling the truth, and in so doing provide a high degree of reliability to the statement. While these occasions may not be frequent, I do not foreclose the possibility that they might arise under the principled approach to hearsay evidence.

[40] Applying these foregoing principles, it was open to the trial judge, based on the evidence before him, to find that the complainant’s out-of-court statements were reasonably necessary and reliable.

[41] Aside from noting the similarity between the acts described by the appellant and the complainant, the trial judge heard evidence from her mother that the complainant knew the difference between the truth and a lie and was not someone who lied. In addition, the trial judge could observe the complainant’s level of understanding, personality and demeanour during her statement by videotape, the videotaped statement was made shortly after the incident, and there was an absence of evidence of any reason to expect fabrication from her.

(ii) Consent, Capacity to Consent and Honest but Mistaken Belief

[42] Defence counsel at trial took the position that there were essentially two issues for determination:

1. Whether or not the complainant had the capacity to consent; and

2. Even if the complainant did not have this capacity, whether or not the appellant had an honest but mistaken belief that she had the capacity to consent and had in fact consented.

[43] The trial judge concluded that on the facts before him, the defence of consent did not arise, and that there was virtually no evidence raising any reasonable doubt on a defence of honest but mistaken belief, or as to whether the appellant failed to appreciate the complainant’s incapacity. On the contrary, the trial judge observed that the evidence indicated that the appellant was "fully aware" of the complainant’s mental disability, but "gave no thought to her capability to consent or otherwise to sexual activity." He found the appellant not to be a credible witness and rejected his evidence, except for his doubt about whether intercourse had taken place, a doubt based on the complainant’s sexual inexperience and developmental disabilities. I see no basis for interfering with those conclusions.

[44] It is useful to set out some of his reasons:

On the facts before me there is no defence of consent. Defence counsel has submitted that [the appellant] had the mistaken but honest belief that [the complainant] consented to the sexual activity with the belief that she had the ability to give such consent. I will refer to that later.

Section 273.1 of the Criminal Code defines consent to mean the voluntary agreement of the complainant to engage in the sexual activity in question. That section goes on to state that no consent is obtained where the complainant is incapable of consenting to the activity.

The issue of whether a person did or did not consent to a particular action or event is a question of fact to be determined in each individual case. It is not sufficient to simply determine whether an individual said yes when asked if they would submit to or engage in a particular activity. It must be determined whether that individual made such a decision of their own free will, fully aware of or apprised of the proposed activity and its consequences.

No one could argue that an unconscious individual is capable of giving consent. Quite simply such an individual has been deprived of the ability to make an informed decision. If this is the case, what then should be the determination for those who may not, for other reasons, possess the cognitive abilities to make such an informed decision? Surely that decision must be a question of fact to be determined by the trier of each case, having regard to the circumstances.

In this case, evidence has been called by the Crown to the effect that [the complainant’s] mental disabilities are such that she was incapable of giving consent. The defence on the other hand has presented evidence that [the complainant] was indeed capable of consenting to the sexual intercourse.

[45] The Crown led evidence that the complainant was incapable of consenting to sexual activity with the appellant and that even if she were capable, she did not consent to it. The expert called by the Crown, Dr. Laurence Cousins, was a psychologist who had been involved with the complainant for over 12 years. By consent of both parties, he was qualified as an expert in developmental psychology and "mental retardation" and in the area of the capacity of persons with "mental retardation" to engage in certain behaviour. Based on a number of psychological and cognitive assessments undertaken between 1984 and 1996, Dr. Cousins concluded that the complainant was functioning cognitively at a mental age of 5 years, 5 months. His report showed the following:

1. Communication: Age equivalent:

0.1 percentile 5 yrs., 6 mos.

2. Daily living skills: Age equivalent:

0.1 percentile 8 yrs., 9 mos.

3. Socialization: Age equivalent:

0.1 percentile 4 yrs.

4. Expressive language Age equivalent:

4 yrs., 3 mos.

5. Written language Age equivalent:

7 yrs., 5 mos.

6. Receptive language Age equivalent:

3 yrs., 1 mo.

7. Socialization Age equivalent:

4 yrs., 1 mo.

8. Interpersonal relationship Age equivalent:

4 yrs., 5 mos.

[46] To Dr. Cousins’ knowledge, there is no specific test for determining capacity to consent to sexual activity, but based on the interview he conducted with the complainant and the tests he did administer to determine her abilities and mental age, he formed the opinion that she lacked the capacity to consent to the sexual activity with the appellant. Her sexually inappropriate behaviour was, in his opinion"hormonally driven" rather than a reflection of any degree of cognitive ability.

[47] His viewing of the complainant’s videotaped statement led him to conclude that to the extent that it demonstrated any knowledge of sexual activity, it was reflective of the knowledge of a child of her mental age.

[48] On the other hand, Dr. McDonald, the defence's expert who testified as to the complainant’s capacity both on the s. 276 voir dire and at the trial itself, was of the view that the complainant was capable of consenting to the sexual activity. Although he never met her, he based his opinion on the complainant’s videotaped statement, the four affidavits describing her sexually inappropriate behaviour, and Dr. Cousins’ reports. In his view, the purpose of the complainant’s sexually inappropriate behaviour was to initiate sexual relationships and she demonstrated a sufficient degree of knowledge and understanding to have the capacity to consent to sexual activity.

[49] As to her mental limitations, Dr. McDonald testified as follows:

Well, I’m not suggesting that she would make as informed decision as a person of average or above-average intellect, but it seems to me going rather far to suggest that she can’t be capable of appreciating that she may have sexual feelings which, after all, are pretty basic to human nature and that simply by reason of not being too smart doesn’t mean that you don’t know you have sexual feelings and you want to do something to satisfy those feelings; therefore, you behave in a way that documentably she has toward males in an attempt to achieve gratification … But does she understand that she has sexual feelings and would like to do something about them in terms of gratification; it seems pretty clear that she does … if the issue is is she capable of understanding that she has these feelings and wants to act on them, and that she’s capable of giving voluntary agreement to participate in them, I don’t see any persuasive evidence that that’s not the case.

[50] The trial judge reviewed the expert evidence and concluded, as he was entitled on the evidence to do, that he preferred the evidence of Dr. Cousins:

I accept the evidence of Dr. Cousins that [the complainant] did not have the ability to consent to sexual activity. Dr. Cousins testified that "consent . . . requires some knowledge of what the act will lead to, both in the short and the long term and I don’t believe she has the cognitive abilities to fully comprehend the consequences of the outcome of sexual liaison."

I reject the evidence of Dr. Angus McDonald, that [the complainant] did possess ability to consent. Dr. McDonald’s evidence did not raise a reasonable doubt in my mind on this issue. While Dr. Cousins focused on the cognitive abilities of [the complainant] and considered them vis-à-vis "informed" consent, Dr. McDonald focused more on the physical responses of [the complainant] as opposed to her ability to give an informed consent.

I am convinced beyond a reasonable doubt that [the complainant] was incapable of giving her consent to sexual activity between she and [the appellant].

[51] The trial judge defined consent as "the voluntary agreement to participate in an act, having full appreciation and knowledge of the consequences." Based on this definition of consent and on the evidence, the trial judge concluded that the complainant’s cognitive limitations would "most certainly … negate the possibility that she had either the requisite knowledge or appreciation." In his words:

I am convinced beyond a reasonable doubt that [the complainant] was incapable of giving her consent to sexual activity between she and Mr. R. I am of the view that consent means the voluntary agreement to participate in an act having full appreciation and knowledge of the consequences. Accepting this as the meaning of consent, then most certainly [the complainant’s] cognitive abilities will negate the possibility that she had either the requisite knowledge or appreciation.

The defence advanced the position that even if [the complainant] did not have the capacity to consent to the sexual activity, the defence of honest but mistaken belief is available to [the appellant]. It is their position that if a reasonable doubt is raised that [the appellant] did not appreciate that [the complainant] was incapable of consent and believed that she had consented, there should be an acquittal.

[52] Capacity is integral to consent. The extent of that capacity depends on the circumstances of each case. Section 273.1(2)(b) of the Criminal Code states that no consent is obtained where the complainant is incapable of consenting to the activity. In this case, the trial judge had the benefit of extensive expert evidence, and was entitled to accept Dr. Cousins’ evidence that the complainant functioned cognitively at the level of a 4 to 6 year old and lacked the capacity to consent to the sexual activity between herself and the appellant, particularly given Dr. Cousins’ familiarity with the complainant’s development over a 12-year period.

[53] After concluding that the complainant was incapable of consenting to the sexual activity between herself and the appellant, the trial judge analyzed whether there was any foundation for the defence of honest but mistaken belief. He concluded that there was "no foundation whatsoever in the evidence that raises any reasonable doubt on a defence of honest but mistaken belief." I agree that the evidence on this issue is clear and compelling. The trial judge’s reasons for rejecting this defence were, in part, as follows:

It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject matter of the charge if:

(a)(ii) the accused’s belief arose from the accused’s recklessness or wilful blindness; or,

(b) The accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.

Let us look at the evidence to see if there is any foundation for this defence:

1. Mr. [R.] testified, in chief, that he came to the belief that [the complainant] was consenting to the sexual activity because she grabbed his penis, because at no time did she say no or stop and because of his previous knowledge of how she acted around males. The latter two reasons advanced by Mr. [R.] afford no foundation at all. The first reason given must be examined in the context of the events as they were unfolding.

2. Mr. [R.] testified, in cross-examination, that he recognized, at the time, that mentally retarded individuals function at a different level from normal people.

3. Mr. [R.] testified that he knew that [the complainant] was a mentally retarded individual with a mental age of between 8 and 10 years. He testified he had known as much for 10 years prior to the incident.

4. Mr. [R.] testified that he had no sexual feeling for [the complainant] until she touched his penis and that then in a moment of weakness touched her sexually.

5. Mr. [R.] testified he asked [the complainant] "if she was enjoying it while he was sexually touching her (to which she did not reply), because he was trying to discover consent … continuing consent."

6. Mr. [R.] agrees in cross-examination that he did not give any thought as to capacity or capability of [the complainant] to engage in sexual activity.

I find that there is no foundation whatsoever in the evidence that raises any reasonable doubt on a defence of honest but mistaken belief. I have no reasonable doubt as to whether [the appellant] failed to appreciate the incapacity of [the complainant]. The evidence indicates that [the appellant] was fully aware of her mental disability but gave no thought to her capability to consent or otherwise to sexual activity.

[54] To appreciate the evidentiary foundation for this conclusion, it is useful to reproduce the appellant’s description of the sequence of events leading to the sexual activity as found in the following portions of his examination in-chief:

A. … She said to – when we finished [picking vegetables] that she asked if she could have some flowers for her mother, and I said by all means. Picked the flowers, went up to the, to the house and wrapped them in a, in a wet towel, which I did.

Q. Yes.

A. And then I brought them over to her at the door. She said to me, she said you don’t have any underwear under your jogging pants.

Q. So who else was at the house?

A. No one else.

Q. All right. So what happened then?

A. As I said, [the complainant] said to me at the door you don’t have any underwear under those jogging pants, and I said yes I do, if you don’t believe me check it out.

Q. Okay. What happened then?

A. She put her hand inside my pants. She began to fondle my penis.

Q. And what did you take that to mean?

A. I believed that she was consenting to, to going further.

Q. Okay. What happened then?

A. I put my hand inside her pants.

Q. Yes.

A. I began to fondle her.

Q. Yes.

A. I asked her if she was enjoying it. I don’t remember whether she responded verbally but certainly physically she did.

Q. When you say "physically she did", what do you mean?

A. Kissing very passionately.

Q. Yes. Then what happened?

A. Her pants …

Q. I beg your pardon?

A. Her pants came down.

Q. Yes.

A. And I …

Q. When you say "her pants came down", how did her pants come down?

A. Well, when I put my hand inside hers, the button came open at the top, zipper down …

Q. Yes.

A. … and I asked her if she’d take her pants down, and she did. Her underwear, that is.

Q. Yes.

A. I continued to fondle her with my hand and just basically rub up against her.

Q. Yes.

A. At this point I was getting very, very nervous.

Q. Yes. Why?

A. Because I wasn’t happy with what I was doing and I was concerned about my wife.

Q. Yes. Then what happened?

A. I bent down to help get her pants up.

Q. Yes.

A. And I kissed her on the pubic hair.

Q. Yes.

A. I stood up. I asked her if she wanted to kiss my penis.

Q. Yes.

A. And I told her that was it, we were going – she was going home.

Q. Did she kiss your penis?

A. I presume so.

Q. But you don’t know?

A. I really don’t know for sure. It was not – she was not down very long, a second or two seconds.

Q. All right. Mr. R., tell me, tell me what was said by [the complainant] at any time during this encounter?

A. She was constantly saying I want a baby, I want a baby, particularly when pants came down.

Q. Did she say anything else?

A. Not that I can recall.

Q. What happened then?

A. She went home.

Q. Now, you – could you tell us why you came to the belief that you testified earlier that she was consenting to this sexual encounter?

A. What makes me believe …

Q. What made you believe that she was consenting?

A. She grabbed my penis.

Q. Anything else?

A. That at no time did she ever say no or stop.

Q. And is there anything else?

A. My previous knowledge, I guess, of how she acted around other males.

Q. How did you come by that knowledge?

A. Well, I have two sons who have been good friends with [the complainant’s family] almost as long as we have been there, and they, on several occasions, told me and my wife about things that had happened sexually, or should I say [the complainant’s] overt sexual behaviour towards them.

Q. How long did this encounter encompass?

A. Three or four minutes maybe. [Emphasis added.]

[55] In chief, the appellant explained that the bases for his belief that the complainant was consenting to the sexual activity were that she grabbed his penis, that at no time did she say "no" or "stop", and that he knew how she acted around males. Yet in cross-examination, he acknowledged that mentally challenged individuals function at different cognitive levels from those who are not so challenged. He also acknowledged that for 10 years he not only knew that the complainant was mentally challenged, but thought she had a mental age of between 8 to 10 years. It is instructive to relate his evidence on cross-examination about his knowledge of her intellectual limitations and prior behaviour, as well as his evidence about consent.

Q. Did you have any parishioners who were mentally retarded?

A. Many.

Q. All right. So you recognized that there’s a difference, before 1997, in the sort of level of understanding of mentally retarded individuals?

A. Yes.

Q. You knew that?

A. Yes.

Q. And you knew that they function at different levels than what I’ll characterize as normal people. Am I right about that?

A. That’s correct.

Q. And you had known [the complainant] since 1986. Am I right about that?

A. That’s correct.

Q. And you knew that she was a mentally retarded person, didn’t you?

A. I knew that she was mentally challenged.

Q. … And you knew that [the complainant] was mentally about an eight to a ten year old. Right?

A. That is what I believed.

Q. All right. And you believed that because of the contacts that you’d had with her over the years between 1986 and 1997. Am I right about that?

A. That’s correct.

Q. And you knew that because of information that you had received from your sons about her behaviour. Am I right?

A. Yes, I did.

Q. And you knew as well that physically she had the appearance of a woman. Am I right about that?

A. You’re correct.

Q. And you knew that from the time she was 12 that she had a desire to have sexual relations with men. Am I right about that?

A. Yes.

Q. … And your basis for saying that she had a desire to have sexual relations with men is that she engaged in what I would characterize as sexual acting-out. Do you understand that term?

A. Yes.

Q. All right. And you agree that that is the sort of behaviour that you were aware of . . .

A. Yes, I was.

Q. . . . since she was 12?

A. Yes.

Q. And that would be sort of inappropriate, inappropriate sexual comments?

A. Exactly.

Q. Is that right? And I’m going to suggest to you inappropriate sexual touching of some nature?

A. Correct.

Q. Am I right about that?

A. Yes.

Q. And in August of ’97 you knew that when one of your boys was sick one day, that [the complainant] came in the house and tried to get into bed with him?

A. Yes.

Q. Did you know that? And did you know as well that your son did not have, didn’t engage in any sexual activity with her?

A. Yes.

Q. You knew that?

A. Yes, I knew that.

Q. Why did you have sex with her?

A. I didn’t have sex with her.

Q. Did you fondle her vagina?

A. Yes.

Q. So you didn’t have a sexual interest in the young lady?

A. No, I did not.

Q. Why were you touching her in a sexual way?

A. I believe because she invited it.

Q. . . .Why did you ask her if she enjoyed herself?

A. Basically, I was trying to discover consent.

Q. Because you knew you didn’t have it.

A. No, I ….

Q. Isn’t that true?

A. No, continued consent.

Q. Did you give it any thought at all while the two of you were engaging in this sexual activity? Did you give any thought at all to the capacity or capability of this woman to engage in sexual activity?

A. No, I did not.

Q. No. Now, when you do talk about the sexual activity you’ve told us – you told [defence counsel] that you heard [the complainant] say you don’t have any underwear on under, or you don’t have any underwear under those jogging pants. Correct?

A. That’s correct.

Q. And you heard [the complainant] say that. Right?

A. Yes, I did.

Q. And she didn’t say I want a baby, I want a baby at that point, did she?

A. No, she didn’t.

Q. No. And do you have any clue at all where her interest in what you were wearing under your jogging pants came from, do you have any idea at all where that came from for this woman?

A. All I can say is simply that I believe that this was an invitation.

Q. Oh, in what sense, in what sense, sir?

A. In what sense?

Q. Yes.

A. I believed by that statement that she was inviting sexual contact.

Q. I see. And what is it about you don’t have any underwear under those jogging pants that’s sexual?

A. Well, I, I don’t normally hear people asking that sort of a question.

Q. And isn’t that the key, sir; she wasn’t normal and you knew it?

A. No.

Q. She wasn’t normal?

A. No, that is not my reference to normal.

Q. What, what is your reference?

A. I am saying that people don’t normally ask that question.

Q. And was [the complainant] a normal person?

A. I did not say anything about her …

Q. No.

A. . . . in that statement.

Q. No. I’m suggesting that you did because what you were saying to yourself is this is my opportunity now, she’s given me the cue, I can go ahead. That’s the message you took from those words, isn’t it?

A. That’s correct. [Emphasis added.]

[56] As this exchange shows, the appellant acknowledged that he gave no thought to whether the complainant had the capacity to engage in sexual activity. His effort at determining whether she was consenting consisted of asking her "if she was enjoying it" while he was engaged in the sexual activity.

[57] The appellant argued that before guilt is found based on an incapacity to consent, there should be some evidence to show with certainty that a person who is severely or moderately mentally disabled does not understand the sex act. This distorts how the issue of consent is to be approached. Under any circumstances, there is a responsibility, prior to engaging in sexual activity, to take reasonable steps to ascertain consent: Criminal Code s. 273.2(b). But in circumstances such as these, where one of the participants has demonstrable mental limitations, the threshold of responsibility escalates exponentially. This is not to suggest that persons who are developmentally disabled cannot consent; [1] rather, it requires that prior caution be exercised to avoid the exploitation of an exceptionally vulnerable individual. The issue in any event was not the capacity of persons with developmental disabilities to consent to sexual activity; rather, the issue was the capacity of this particular complainant to consent to sexual activity with the appellant and whether he had an honest but mistaken belief in that capacity.

[58] The appellant had known the complainant for 10 years. He was her neighbour, was fully aware that she had cognitive disabilities, acknowledged that she functioned at the same mental level as an 8 to 10 year old, and admitted that he gave no thought to her capacity to engage in sexual activity. Notwithstanding his unfettered knowledge of her disabilities, he based his assumption about the complainant’s consent on a palpably inappropriate question about whether he was wearing underwear, and reinforced it by her touching his penis when he invited her to "check it out" and then by her silence. It is difficult to see how these facts, in the context of what the appellant knew about the complainant, could create an entitlement on his part to ignore his responsibility to consider her capacity.

[59] It is utterly unrealistic for the appellant to argue that he had an honest but mistaken belief in the complainant’s consent, when he acknowledged that he gave no thought whatever to her capacity to consent. The appellant's willingness to suspend all knowledge of her profoundly reduced mental abilities and assume her capacity to consent in these circumstances, defies reality. (see R. v. Ewanchuk, 1999 711 (SCC), [1999] 1 S.C.R. 330; R. v. Davis, 1999 638 (SCC), [1999] 3 S.C.R. 759; R. v. Esau, 1997 312 (SCC), [1997] 2 S.C.R. 777; R. v. Park, 1995 104 (SCC), [1995] 2 S.C.R. 836; R. v. Livermore, 1995 43 (SCC), [1995] 4 S.C.R. 123; and R. v. Bulmer, 1987 56 (SCC), [1987] 1 S.C.R. 782.)

[60] The following words of then Justice McLachin in Esau at p. 808 are, it seems to me, directly applicable to the facts in this case:

The term wilful blindness connotes a deliberate avoidance of the facts and circumstances. It is the legal equivalent of turning a blind eye, of not seeing or hearing what is there to hear or see. It is the making of an assumption that the complainant consents without determining whether, as a matter of fact, the complainant consents. Blindness as to the need to obtain consent can never be raised by an accused as a defence … [Emphasis in original.]

[61] I agree with the trial judge that the appellant’s defence of honest but mistaken belief had no air of reality, given the appellant’s knowledge of the complainant’s disabilities and his failure to take reasonable steps to ascertain her capacity.

(iii) Remaining Grounds of Appeal

[62] The two remaining grounds of appeal can be dealt with briefly. The first is the appellant’s submission that the trial judge erred in dismissing his motion under s. 11(b) of the Charter of Rights and Freedoms. I can see no such error. The trial judge, in concluding that the delay was not unreasonable in the circumstances, properly took into account all the relevant factors, including the number of consent adjournments, the exigencies of the case, the institutional realities of the region in which the trial was scheduled, and the absence of undue prejudice to the appellant, who had been released on a recognizance after his arrest. There is no basis for interfering with his conclusion.

[63] The trial judge also delivered careful reasons for sentence. Although the appellant had no criminal record, the trial judge deemed a conditional sentence to be inappropriate in the circumstances. The offence was a serious one and, as the trial judge noted, involved the sexual exploitation of a young woman he knew had profound mental limitations. The eight month period of incarceration in these exploitative circumstances, far from representing an error in principle, represents a generous acknowledgment of the appellant’s personal circumstances and background.

[64] The appeal from conviction is dismissed. Leave to appeal sentence is allowed, but the appeal from sentence is dismissed.

Signed: “R.S. Abella J.A.”

“I agree M.A. Catzman J.A.”

RELEASED: NOVEMBER 5, 2001

“MAC”

FELDMAN J.A. (Dissenting)

[65] I have had the benefit of reading the draft reasons for judgment of my colleague. I am unable to concur in upholding the conviction. In my view, the trial judge erred in law on the issue of necessity in his decision following the Khan voir dire to allow into evidence the videotaped statement of the complainant to the police and the statements she made to her mother. Although the complainant was unavailable to attend on the trial date, the evidence was that she may have been able to attend within a few weeks. In finding necessity in those circumstances, the trial judge failed to have regard to the need to safeguard the interests of the accused. The effect of the error was to allow the trial to proceed without the complainant. Because the main defence in this case was consent on the basis that the complainant had the capacity to consent, that error compromised the appellant's ability to make full answer and defence in respect of the defence of consent, the complainant's capacity to consent, and his alternative defence of honest but mistaken belief in consent.

The Khan Voir Dire and the Admission of the Out of Court Statements of the Complainant

[66] The trial of this matter commenced on a Monday. On the Friday before, defence counsel, who was also appeal counsel, was first informed by the Crown that the complainant would not be available for trial and that the Crown would be seeking to admit into evidence the videotaped statement of the complainant to the police as well as the two oral statements she made to her mother a few days following the incident.

[67] The first procedural issue for the defence was the motion to have the charges stayed because of unreasonable delay contrary to s. 11(b) of the Canadian Charter of Rights and Freedoms. There was a nineteen and one half month delay from the date of committal for trial until the trial commenced in the Superior Court. The appellant argued that eleven and one half months of the delay was attributable to the Crown. The trial judge held that the overall lapse of time was not unreasonable and dismissed the motion.

[68] The Crown then brought the Khan motion for the admission of the complainant's videotaped statement given to the police and of the statements she made to her mother after the event. On the Friday before the trial was to begin, Crown counsel had advised defence counsel that the complainant was hospitalized in a mental institution and was not available to attend the trial and testify. At the trial, Crown counsel therefore took the position that he needed the previous statements in substitution for the evidence of the complainant; otherwise the trial would not proceed at all. Crown counsel stated to the court:

Let me just say this: I have no complainant. The complainant is not available to me. So that in order to put this allegation before the court, I am left only with a Khan or K.G.B.-style voir dire, I mean to come right to the point.

And in his submissions on the voir dire he told the court:

This is not a case, Your Honour, in spite of the evidence of the psychologist to the effect that at some point in time this young lady will be able to testify, where I am seeking that the case be adjourned to permit her to get well. That, that is not the position I'm taking. This case will either succeed because I am able to persuade you that the various statements that are the subject of this voir dire are admitted or it will not. I think for a number of reasons, even on the prosecution side, let alone the trial within reasonable time considerations, that this matter should not be adjourned beyond, beyond where we now are. So I am not, in spite of what the psychologist says, asking you to defer the decision about whether this young lady could ever be available. I'm taking the position that she will not [be] available for purposes of this trial, and as I said to you, I'll either succeed in this case because, or the prosecution will have a prima facie case because you permit me to admit the evidence of the various statements or not.

In other words, Crown counsel recognized that because of the lapse of time before the case reached trial, he could not reasonably ask for an adjournment even though the evidence he presented only showed that the complainant was not able to attend the trial at that time, but not that she would be unable to attend in the future. My colleague refers to the fact that the appellant failed to ask for an adjournment. However, in the circumstances, it was not for the defence to seek an adjournment. The defence had already taken the position that the delay to that point, September 27, 1999, was unreasonable. The Crown in effect conceded that any further delay could well be considered unreasonable and therefore presented the issue on a "now or never" basis to the court.

[69] The complainant had been admitted to the Penetanguishene Mental Health Centre on September 10, 1999. She was unstable at the time and was admitted so that her condition could be evaluated and her medication reviewed. The Crown's psychologist, Dr. Richter, was asked in cross-examination whether it was possible that she would become stable and later be in a position to testify. He responded:

A. That may be possible. That is still to be determined. In case of the, the new medication helps her more than the, the previous medication, in case, in the case that her Attention Deficit Disorder will stabilize, her impulsivity will, will go down, and her emotionality will become more stable, it is possible that she would be able to, to testify at some point in the future, yes.

Q. And that stability is what you're working towards through your treatment?

A. Yes.

Dr. Richter was later asked for clarification of the complainant’s prognosis:

Q. Okay. And I'm not sure I got an answer to my last question, but what I'm asking you is what's your prognosis that she will become stable again?

A. I think if I were to, to talk to the prognosis issue I would say that it's fair, meaning that there is some good evidence to assume that some of the medication that usually affect her condition would be more effective in her case than they were in the past.

Q. Q. Even if you didn't attain this additional stability with respect to [the complainant], would it be possible that she would be able to answer to questions with respect to the matters before the court sometime in the future?

A. I think it is possible, but I don't see a guarantee for it. It -- but it probably is possible, yes.

[70] Following the cross-examination by defence counsel, the trial judge asked Dr. Richter some questions:

THE COURT: But right now all you've got is a young lady who becomes distraught as soon as the idea of court comes up?

DR. RICHTER: Yeah. But she's generally distraught, she's generally unstable, quite emotional right now. It's not just about this issue.

THE COURT: Yes.

DR. RICHTER: But this issue seems to push her over the edge. So the way I read her behaviour right now is that there, her thresholds are generally very low right now due to several, several factors; one being changing the medication; one being changing environment; another, another being environmental factors immediately preceding the admission, meaning her previous admission to Owen Sound, which was quite stressful too; the, the events which took place in family during the summer. My understanding is the combination of all, all of these things, with the medical illness being supple mentally [sic] treated, being the hallmark of it, but the combination of these causes her to be extremely unstable right now.

And while she can discuss certain issues, there are many issues given -- I mean if I catch her on, on her good day, or a good time, or if she's being questioned by a right person, this particular issue seems to be out of her capacity right now, and that's, that's, that's all I can see, all I can say based on those three sessions with her and the information I got from Dr. Fleming. We got this response, consistently response. She's very emotional, unable to discuss that issue, and that is probably because that is way over beyond and above her, her current stress management capacity, I guess.

So once again if I, if I were pressed to decide between unwillingness and lack of ability, I would tend to, to, I would tend to name lack of ability because it seems to be truly out of her, out of the scope of her stress management, stress management capacity right now. We've seen her four times. I've seen her four times; Dr. Fleming saw her two.

THE COURT: Is there any way of telling what amount of time is required to allow her to stabilize her position?

DR. RICHTER: Usually, the rule of thumb is that people usually need at least several weeks, let's say around four weeks, to respond to a change of medication and to allow, to allow us to evaluate whether or not it's working. And when it is working, then she, she could be better following that time.

THE COURT: But we don't know?

DR. RICHTER: But we don't know. That, that still remains to be seen. I mean I could have talked about this in a, in a similar way a year ago, but the, the real circumstances of her life have not really allowed us to pursue the medication treatment the way we planned. It's, it's often time that case.

So once again under ideal conditions, when we have the environment which allows us to explore different medications, when we have valued reliable feedback about the behavioural changes, when we have patient who is sufficiently compliant, and so on and so on, in that case you usually need several weeks to explore the medication or to conclude whether this is right medication.

Then you need a few weeks to explore the optimal dose, all right, because if one, if the medication works on helping me and doesn't do anything bad to me, it makes sense to explore it more of it wouldn't be even better. So usually need a number of weeks for each of those steps.

If, if Dexedrine on 15 milligrams show, I mean show to some stabilization, but more of it doesn't, doesn't do any better, if we discharge her from the hospital and the different environment than, than the very structured hospital environment triggers the, the same old behaviours again, then we kind of go back to square one and we need to change, we need to try different medication again. And that has been story of her life.

So ideally yes, she could be able to appear at the court and to perform, I mean, in a productive manner here in a number of weeks, but in reality it, it would be difficult, it would be difficult for me to predict because I don't know when that could happen. Simply, it remains to be seen. It's very frustrating.

[71] In his ruling, the trial judge dealt with the issue of necessity in the following way:

On a "Khan" type voir dire, the Crown must establish, on a balance of probability, that the out-of-court statement is necessary and that the statement is reliable. On the issue of necessity, such necessity can be found if the witness is physically unavailable, is not competent to testify, if the experience of testifying would prove to cause undue emotional harm to the witness, or is unable to give a coherent and comprehensive account of the event in court. Concerning the issue of reliability, the Court must determine whether the out-of-court statement exhibits sufficient indicia of reliability to afford the Court a satisfactory basis for evaluating the truth of the statement. It is to be noted that this latter requirement of reliability is not a final resolution of the issue but rather a determination as to whether the threshold has been achieved.

At the time of the incident giving rise to the charge before the Court, the complainant was 21 years of age. She is now 23 years of age. She is under subpoena to testify at this trial. She was not required to testify at the preliminary hearing as the accused waived his right to a preliminary hearing.

Dr. Mirek Richter, a psychologist, testified that the complainant was admitted as an inpatient in a mental health care facility on September 10, 1999. She continues to be a patient at this time. Dr. Richter testified that the complainant is a dually diagnosed individual. In other words, she is medically mentally retarded (medical terminology) and suffers from another form of mental illness (Attention Deficit Hyperactive Disorder).

Dr. Richter testified that the complainant, upon admission to the facility, was found to be distraught and emotionally unstable. She was admitted to change her medication and to observe the effect of that change. The desire was to stabilize her condition. Dr. Richter testified that he was unable to ascertain whether the complainant was unable or unwilling to attend court. Whenever the subject of court proceedings was broached, the complainant burst into tears and was incapable of discussing the matter. The doctor was unable to advise the Court when or even whether the complainant would be capable of testifying.

The necessity test has clearly been met. The complainant is not available to testify. (Emphasis added)

The trial judge then addressed the issue of threshold reliability:

At issue, therefore, is the reliability of the complainant's out-of-court statements.

In the course of the voir dire, the accused's cautioned statement was presented as evidence. The statement was admitted to have been voluntarily given. In that statement, the accused admits acts which, absent the issue of consent or honest belief in same, would clearly constitute a sexual assault. The accused's statement corroborates the complainant's statement that a sexual activity took place, although the degree of the sexual activity differs (i.e. whether intercourse took place).

It should be noted that, in the course of determining the admissibility of out-of-court statements, a distinction must be made as to whether the threshold of reliability has been met as opposed to the issue of ultimate reliability. Two very different criteria must be applied to these issues. In determining admissibility the test is one of a balance of probabilities. On the ultimate test of reliability a far more stringent test must be applied.

I am of the opinion that the out-of-court statements of the complainant that the Crown seeks to have declared admissible exhibit sufficient indicia of reliability to afford me a satisfactory basis for evaluating the truth of those statements. Accordingly, those statements are ruled admissible.

[72] In my view, the trial judge erred in his finding that the necessity test had clearly been met on the basis that the complainant was hospitalized at the time of the trial and was unable to attend court at that time. Although she was unavailable to attend the trial on the scheduled date, her unavailability may well have been temporary. Had there been no trial delay issue, there would have been no reason not to adjourn the case for a few weeks in order to ascertain the status of the complainant’s health and whether she was sufficiently stable on her new medication to attend and testify.

[73] Moreover, this was not a case where necessity was determined on the basis that testifying would cause harm to the complainant. The psychologist, Dr. Richter, was neither asked for that opinion nor was that his evidence. Defence counsel pointed out in his submissions to the trial judge, that Dr. Richter did not say that testifying would harm the complainant. In his reasons for finding necessity, the trial judge also did not say that testifying would harm the complainant, but only noted that when the subject of the court proceedings was broached with her, she cried and could not discuss the matter. The fact that the complainant cried when the subject of the court proceedings was raised with her was the basis for the doctor's conclusion that she was either unable or unwilling to attend court. He was not postulating a situation where the complainant would or could be forced to attend.

[74] As the appellant had made a voluntary statement wherein he admitted the facts and circumstances of the offence (except for sexual intercourse, which the trial judge did not accept occurred), the issue in this case was the defence of consent, the availability of which depended on the complainant's capacity to consent. No questions were posed to the complainant on the videotaped statement on the issue of consent. There was one reference to it in the complainant’s conversation with her mother. Therefore, in order to present his defence, the appellant required an opportunity to cross-examine the complainant, in particular on the issue of whether she had consented to the sexual activity, and to try to demonstrate that she had the capacity to consent, or to show why he had an honest but mistaken belief in her consent.

[75] The necessity issue in this case is similar to that in R. v. Wyatt (1997), 1997 12488 (BC CA), 115 C.C.C. 288 (B.C.C.A.). There, the complainant gave her evidence in chief and underwent part of her cross-examination, but was unable to complete the cross-examination as she was affected by brain damage. The defence in that case was consent. The Crown sought to save the case by seeking a Khan voir dire to admit into evidence prior statements and preliminary inquiry transcripts. The case was adjourned when the cross-examination broke down, to allow the Crown to obtain professional reports regarding the ability of the complainant to continue and to consider how to proceed in light of those reports. It was only after receiving those reports that the court could rule on the Khan motion. The court denied the Khan motion and stayed the sexual assault charge. The Court of Appeal upheld the decision of the trial judge that the accused could not receive a fair trial without the opportunity of full cross-examination of the complainant, and that the previous statements would not assist the court on the issue of consent.

[76] As would have been the case in Wyatt, the critical effect of the Khan ruling here allowing the admission of the out-of-court statements, was that it allowed the case to proceed without the complainant. This was not a case such as where there is a child complainant and the Crown takes the position that the complainant is not competent to testify under s. 16 of the Canada Evidence Act, and where the defence of consent is not available. Had the complainant not been hospitalized and unstable at the time of trial, it appears that she would have been competent to testify and to be cross-examined.

[77] In R. v. Khan, 1990 77 (SCC), [1990] 2 S.C.R. 531, the Supreme Court addressed the accused's interest in cross-examining the child in order to challenge the credibility of the statement itself and whether the assault occurred. Here, sexual contact was admitted. The appellant needed the opportunity to cross-examine the complainant on the issue of consent, her capacity to consent, and to demonstrate to the court why he would have had an honest belief that she had the capacity to consent. The trial judge understood that the purpose and effect of his ruling was to allow the trial to proceed in the absence of the complainant, depriving the appellant of the right to cross-examine the complainant on those critical issues.

[78] In his submissions on the Khan voir dire, defence counsel emphasized the fact that the appellant was being deprived of the opportunity to cross-examine the complainant in circumstances where the Crown had not shown that her unavailability was not temporary. That concern goes to the issues of prejudice to the accused and trial fairness.

[79] Khan was the seminal case where the principles of admissibility of hearsay statements of children based on the criteria of necessity and reliability were first comprehensively articulated. McLachlin J. cautioned at p. 547:

In determining the admissibility of the evidence, the judge must have regard to the need to safeguard the interests of the accused. …[I]n most cases the concerns of the accused as to credibility will remain to be addressed by submissions as the weight to be accorded to the evidence, and submissions as to the quality of any corroborating evidence.

[80] The need to safeguard the interests of the accused and of the trial process is always a factor to be weighed when considering the admissibility of any piece of evidence, particularly evidence which is otherwise inadmissible: R. v. Harrer (1995), 1995 70 (SCC), 101 C.C.C. (3d) 193 at 205-6 (S.C.C.); R. v. Hawkins, 1996 154 (SCC), [1996] 3 S.C.R. 1043 at 1089.

[81] In the circumstances of this case, where the prejudice to the accused was potentially so significant, it was incumbent on the trial judge, when deciding the issue of necessity, to give effect to the evidence that the complainant's unavailability may have been temporary, and that within a few weeks, after a change in her medication, she may have been available. The necessity was created by the Crown’s position putting the matter on a “now or never” basis. The fact that the elapsed time to trial is on the cusp of becoming a constitutionally unreasonable delay, should not become a factor used against an accused person in deciding whether hearsay evidence is to be admitted on the basis of temporal necessity.

[82] The basis for the necessity ruling in this case can be usefully compared with the case of R. v. Menard (1996), 1996 685 (ON CA), 108 C.C.C. (3d) 424 (Ont. C.A.), where this court held that a doctor’s note that a witness, Mr. Graves, was too ill to travel to be at the trial, was sufficient to satisfy the necessity criterion. In that case, Mr. Graves had been fully examined and cross-examined as part of the preliminary inquiry process. In upholding the decision of the trial judge on the issue, this court concluded at p. 435:

Mr. Graves was an expert witness whose credibility was not contested. No prejudice resulted to the appellant from the admissibility of Graves’ evidence in that fashion.

[83] In this case the only basis for establishing the criterion of necessity was the complainant's current unavailability to testify. Where the defence was consent and capacity to consent, and where cross-examination of the complainant was essential for the accused to have an opportunity to make full answer and defence, in my view it was incumbent on the trial judge to deny the Khan motion. Had the Crown been prepared to adjourn the trial, the trial judge could have considered that alternative, as was done in Wyatt, in order to determine whether the change in the complainant's medication would allow her to become able (or willing) to testify. Any delay issues could be addressed on the return date if necessary.

Effect of the Error of Law

[84] Because of the Khan ruling, the trial judge’s opportunity to make his own assessment of the complainant's capacity or understanding of sexual matters was limited, and he relied essentially on the expert evidence to make that finding of fact. Had the trial proceeded with the complainant, the trial judge may well have reached the same conclusion that the complainant did not have the capacity to consent to sexual activity, or at least to this kind of casual sexual activity. [^2] However, one cannot be certain that he necessarily would have done so. [^3] It therefore cannot be said that the trial judge’s error caused no substantial wrong or miscarriage of justice. In any event, the issue would not have arisen because of the Crown's position that it would not have proceeded further with the prosecution had the Khan ruling not been made in its favour.

CONCLUSION

[85] In my view the trial judge erred in law by admitting the complainant's out-of-court statements in lieu of the testimony of the complainant, when the criterion of necessity had not been met and where the fair trial interest of the accused was not fully considered. Without the opportunity to cross-examine the complainant where the defence of consent and the issue of the complainant's capacity to consent were critical, the appellant's ability to make full answer and defence was undermined. As a result, I would allow the appeal and set aside the conviction. I agree with my colleague's conclusion that the appeal would not be allowed on the s. 11(b) Charter issue. I would therefore order a new trial.

Signed: “K.N. Feldman J.A.”

[^1]: See R. v. A.A., 2001 3091 (ON CA), [2001] O.J. No. 1718 (C.A.) where the complainant was a forty year old, developmentally disabled married woman.

[^2]: In cross-examination, the Crown’s expert agreed that the complainant did have the capacity to consent to marriage.

[^3]: Also, the role of expert evidence on the issue of capacity to consent when the complainant is available to testify may be different: see R. v. Parrott, 2001 SCC 3, [2001] 1 S.C.R. 178 and R. v. A.A. (2001), 2001 3091 (ON CA), 155 C.C.C. (3d) 279 (Ont.C.A.).