W A R N I N G
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1), (2) or (3) or 486.5(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of:
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C‑34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step‑daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C‑34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) In proceedings in respect of the offences referred to in paragraph (1) (a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order.
CITATION: R v. Bell, 2007 ONCA 320
DATE: 20070502
DOCKET: C42905
COURT OF APPEAL FOR ONTARIO
LASKIN, MACPHERSON and CRONK JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Elise Nakelsky for the respondent
(Respondent)
- and -
JERMAINE BELL
Boris Bytensky for the appellant
(Appellant)
Heard: February 19, 2007
On appeal from the convictions entered by Justice Todd L. Archibald of the Superior Court of Justice dated February 3, 2004, with reasons reported at [2004] O.J. No. 5066.
MACPHERSON J.A.:
A. INTRODUCTION
[1] The appellant, Jermaine Bell, was convicted of two counts of sexual assault and two counts of administering a stupefying substance following a trial before Archibald J. of the Superior Court of Justice.
[2] The appellant appeals on three grounds. He asserts that the convictions for administering a stupefying substance are unreasonable. He argues that the trial judge misapprehended the evidence in two important respects relating to evidence of collusion and the testimony of a witness about the removal of two bottles from the premises where the offences were alleged to have taken place. Finally, he contends that the trial judge erred by relying on the two complainants’ prior conservative sexual nature in assessing whether they would have consented to the sexual activity in question.
B. FACTS
[3] On Thursday, July 12, 2001, the female complainant, her roommate and the appellant went for dinner at a restaurant. They shared a bottle of wine, consuming about two glasses each. After dinner, they drove in the appellant’s car to find an open liquor store. They purchased vodka, gin and two four-packs of “Rev” coolers. Rev coolers are alcoholic and also contain Guarana, a highly caffeinated plant extract. They returned to the loft that the female complainant shared with roommates. The male complainant, who was the female complainant’s boyfriend, met the three of them at the loft.
[4] The female complainant’s evidence, which the trial judge accepted, was that, in addition to the two glasses of wine at dinner, she drank one vodka and 7-Up and most of one Rev, which was brought to her by the appellant. The male complainant’s evidence, also accepted by the trial judge, was that he consumed about five or six shots of vodka during the course of the night. He also consumed a Rev brought to him by the appellant and finished the Rev that had been given to the female complainant. The male complainant testified that the appellant brought him and the female complainant the Revs with the caps already removed. He also testified that the appellant told him there was “special stuff” in the drinks. After the Revs were consumed by the complainants, the male complainant saw the appellant take the bottles away. Later, when the police conducted their investigation, only six Rev bottles were found, although eight had been purchased.
[5] After consuming the Rev, the male complainant felt very hazy and had blurred vision and a complete loss of motor skills. He went to get a hotdog with the roommate, vomited and then blacked out. He did not recall coming back into the loft, but did remember sitting in the front room of the loft. He blacked out again.
[6] The female complainant only remembered “bits and pieces” of what happened after she drank the Rev. She remembered speaking to the appellant and hallucinating. She had trouble walking to open the door for the male complainant and the roommate after they returned from getting food.
[7] The female complainant next remembered waking up in her bed, wearing nothing but a tank top. The appellant was between her legs and sucking on her right breast. She was not able to gather the strength to push the appellant off her, but she told him to get off. The male complainant was lying on the bed beside them, not moving. She then blacked out again. When she awoke again, she was on her back. The appellant was on top of her, but she could not tell if they were having intercourse. She could not move, but told the appellant to get off her and to stop. The female complainant blacked out once more. She was awakened by a wet feeling on her feet. She jumped up and yelled that someone had ejaculated on her. The appellant ran out of the room, naked from the waist down.
[8] After the male complainant blacked out on the couch in the front room of the loft, he awoke to the appellant rubbing his chest. The appellant put his hand down the male complainant’s pants and rubbed his penis. The male complainant was not able to move or speak and he was not thinking clearly. He blacked out again. He awoke again on the couch to find his pants off and the appellant groping his penis. He still could not move and was unable to speak. He blacked out again. He awoke and saw the appellant running to the back of the loft. The female complainant was crying and some of her clothes were off. He passed out again and when he next awoke, he was lying in the female complainant’s bed. He was not able to move. The female complainant was lying beside him and crying. The appellant was on top of her. She was trying to push the appellant off and told him to stop. At the same time, the appellant was masturbating the male complainant. He passed out again. The next time he woke up, the appellant was still on top of the female complainant and she was crying much louder. The male complainant could not move and blacked out once more. He next awoke to the female complainant yelling that someone had ejaculated on her.
[9] After the appellant ran out of the room, the complainants left the loft. It was about 5:00 a.m. on Friday at this point. The female complainant missed work that day and the male complainant missed a practice.
[10] On Sunday, July 15, the complainants went to a walk-in clinic and urine samples were taken. This was approximately 60 to 66 hours after the incidents in question had taken place. No “date rape drugs” were detected in the female complainant’s urine. Only the components of ecstasy were revealed. The male complainant’s urine also revealed the presence of ecstasy, as well as THC, which is the active substance in cannabis. The complainants testified that they each took half of an ecstasy pill on Saturday night.
[11] On Monday, July 16, the complainants reported the incidents to the police.
[12] The six Rev bottles that were recovered during the investigation were tested, but revealed no “date rape drugs”. Some white pills were also discovered in the female complainant’s room. An initial test concluded that they were not “date rape drugs”, but the pills were consumed in this test and further testing for GHB (an illicit substance used in date rape scenarios) could not be conducted.
[13] The appellant argued at trial that the sexual activity was consensual. The trial judge rejected the appellant’s evidence in its entirety and determined that it did not leave him with a reasonable doubt. The trial judge accepted the evidence of the complainants that they were drugged and that they did not consent to the sexual assaults. He found the appellant guilty of two counts of administering a stupefying substance and two counts of sexual assault.
C. ISSUES
[14] The issues are:
(1) Are the convictions for administering a stupefying substance unreasonable?
(2) Did the trial judge misapprehend the evidence of the roommate?
(3) Did the trial judge err by relying on evidence of the complainants’ prior conservative sexual nature in assessing whether they would have consented to the sexual activity in question?
D. ANALYSIS
(1) Unreasonable verdict
[15] Pursuant to s. 686(1)(a)(i) of the Criminal Code, R.S.C. 1985, c. C-46, a conviction appeal may be allowed if the verdict is unreasonable or cannot be supported by the evidence. Relying on Corbett v. The Queen (1973), 1973 199 (SCC), 14 C.C.C. (2d) 385 (S.C.C.), the Supreme Court of Canada articulated the test to be applied by an appellate court in R. v. Yebes (1987), 1987 17 (SCC), 36 C.C.C. (3d) 417 at 430:
The function of the Court of Appeal, under s. 613(1)(a)(i) [now s. 686(1)(a)(i)] of the Criminal Code, goes beyond merely finding that there is evidence to support a conviction. The court must determine on the whole of the evidence whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered. While the Court of Appeal must not merely substitute its view for that of the jury, in order to apply the test the court must re-examine and to some extent reweigh and consider the effect of the evidence. [Emphasis added.]
[16] This test was affirmed by the Supreme Court of Canada in R. v. Biniaris (2000), 2000 SCC 15, 143 C.C.C. (3d) 1. Justice Arbour, writing for a unanimous court, explained at para. 37 that the test would be the same regardless of whether the verdict was delivered by a jury or a judge alone, but in the latter case, the reasons of the judge would be considered:
The Yebes test is expressed in terms of a verdict reached by a jury. It is, however, equally applicable to the judgment of a judge sitting at trial without a jury. The review for unreasonableness on appeal is different, however, and somewhat easier when the judgment under attack is that of a single judge, at least when reasons for judgment of some substance are provided. In those cases, the reviewing appellate court may be able to identify a flaw in the evaluation of the evidence, or in the analysis, that will serve to explain the unreasonable conclusion reached, and justify the reversal.
See also: R. v. Beaudry, 2007 SCC 5.
[17] Applying Yebes, Biniaris and Beaudry, in my view the trial judge’s factual findings were supported by the evidence and properly led to the conclusion that the appellant drugged the complainants.
The complainants’ consumption of alcohol
[18] As mentioned above, the female complainant testified that she consumed two glasses of wine with dinner, one vodka and 7-Up and most of one Rev. The male complainant testified that he consumed five or six shots of vodka and one Rev. Both testified that they did not consume any marijuana on the night in question, although THC was detected in the male complainant’s urine sample. Dr. Robert Langille, an expert in toxicology, testified that THC can remain in a person’s system for anywhere between 24 hours to several weeks, depending on the frequency with which that person consumes marijuana. The trial judge found it impossible to determine when the male complainant consumed the marijuana.
[19] The trial judge accepted the evidence of the complainants in its entirety, with one exception. The trial judge found that the complainants exaggerated their tolerance for alcohol. He stated, “I do not accept their evidence on this single point.” It follows that the trial judge accepted the complainants’ version of how much alcohol they consumed.
The complainants’ symptoms
[20] Given that the trial judge accepted the evidence of the complainants, it follows that he accepted their evidence of the symptoms they experienced during the night in question. The female complainant testified that she had trouble walking, hallucinated and had memory loss. The male complainant testified that he felt hazy, had blurred vision and a loss of motor skills, and regurgitated. Both testified that they went in and out of consciousness.
The symptoms were not caused by the alcohol consumed by the complainants, nor were they caused by marijuana or ecstasy
[21] The trial judge concluded that the symptoms experienced by the complainants were not caused by their alcohol consumption alone. This is supported by Dr. Langille’s evidence.
[22] Dr. Langille’s original opinion of April 15, 2003 was that the complainants’ symptoms “can be explained by alcohol alone.” During his examination‑in‑chief, however, Dr. Langille explained that this was not the only possible explanation. He elaborated on this opinion as follows:
A. Without ― given that their statements included some doubt as to the amount of alcohol consumed, in particular, according to [the female complainant], and that individuals don’t necessarily count their drinks while they’re ― in a social situation, particularly where they don’t have to drive, that they may have consumed enough alcohol to produce the ― and certainly alcohol by itself can produce all of the effects that they had indicated, with the exception specifically of the hallucination, if that event is in fact a hallucination. Moreover, some of the typically sedating drugs like GHB work very rapidly, as I explained earlier, and it appeared to me in their statements that their inebriation developed over some period of time. And so by saying “can”, it did not mean necessarily that that was the only explanation, but that there ― that their inebriation could be due to alcohol alone. [Emphasis added.]
[23] In addition, during his examination‑in‑chief, the Crown had the following exchange with Dr. Langille:
Q. Sir, based on [the female complainant’s] past history of consuming alcohol, based on the consumption of two glasses of wine, one Rev and also based on the assumption that she consumed – sorry. Let me back up. Two glasses of wine, one vodka and 7- and one Rev, based on the assumption that she did not herself consume any drugs on the evening in question, could the amount of alcohol that she consumed account for the degree of inebriation that she stated she suffered, which includes significant memory impairment, immobility, and unconsciousness.
A. Ah, it is my opinion that that amount of alcohol alone could not account for that degree of inebriation in an individual who states their familiarity with alcohol, um, puts them into a moderate drinker category and is able to consume anywhere from five to eight drinks on a weekend, and while – while feeling the effects of that, not have this significant a degree of inebriation and memory loss that was described.
[24] With respect to the male complainant, Dr. Langille stated the following:
THE WITNESS: Thank you. Ah, for a male who weighs 145 pounds and consumes six, ah, drinks of vodka, 40 percent alcohol volume per volume, three quarters of an ounce each, and one Rev, seven percent vodka volume per volume 330 milliliters, after four hours from 10:15 and – 10:15 p.m. and 2:15 a.m., that individual would have a blood alcohol concentration of between 50 and 90 milligrams of alcohol in 100 milliliters of blood using the rate of elimination of alcohol from the body that I described previously. And a moderate drinker, someone who is used to drinking on weekends, an amount that’s possibly as much as twice that level would not show the degree of inebriation that [the male complainant] described for the Court on the night in question.
[25] Further, the Crown asked:
Q. And do I understand your evidence correctly today that that amount of alcohol [six shots of vodka of three quarter ounces each over a period of four hours] would not have been sufficient to cause the effects that [the male complainant] described?
A. Yes, that’s correct.
[26] Dr. Langille also testified that the female complainant’s symptoms were not consistent with the use of ecstasy on the night in question:
Q. Now, I’ll get to this in more detail in a few more minutes, but as part of your involvement in this case you were asked to review [the female complainant’s] videotaped statement to the police in which she described a number of symptoms that she experienced on the early morning hours of July 13th of 2001, which included losing consciousness, having a patchy memory, not being able to remember parts of the evening, being stumbly and not being able to control her motor skills, an inability to physically push someone off of her who was on top of her, and feeling of haziness and hallucination and not really – not knowing much of what went on over the course of those hours. Are those symptoms associated with the use of a stimulant type drug such as MDMA and MDA [the components in ecstasy]?
A. No, they’re not.
[27] Dr. Langille was not asked specifically about whether the male complainant’s symptoms could be explained by the use of ecstasy. It can be inferred from his evidence, however, that the male complainant’s symptoms, which were similar to the female complainant’s, would not have been caused by ecstasy.
[28] Dr. Langille did say that the male complainant’s symptoms could be explained by a combination of alcohol and marijuana. However, having concluded that the male complainant did not consume marijuana on the night in question, this possibility was ruled out by the trial judge.
[29] In addition, the trial judge accepted the complainants’ evidence that their symptoms on the night in question were different from those they normally experienced from drinking alcohol alone.
The complainants were drugged
[30] Accepting that the complainants’ symptoms were not caused by alcohol alone, marijuana or ecstasy, the trial judge ultimately concluded that the complainants had been drugged without their consent. Dr. Langille’s evidence was not inconsistent with this finding.
[31] Dr. Langille testified that most, but not all, drugs would be detectable after three days. This was the length of time between the alleged incidents and when the complainants gave their urine samples. Dr. Langille testified that GHB would not be present at this time, as it is only detectable in urine within 12 hours of being consumed. Ultimately, the trial judge ruled out the possibility that GHB had been administered in the present case. This was because Dr. Langille had testified that there would be an earlier onset of the symptoms associated with GHB than what was experienced by the complainants.
[32] In addition, a number of benzodiazepenes may not be detectable after three days, including triazepam, lorezepam and nritrazepam. With respect to these drugs, Dr. Langille stated:
And depending on the dose provided, doses of lorezepam combined with a BAC [blood alcohol concentration] of 100, um, the dose of lorezepam or nritrazepam, which would – may provide significant sedation, may be low enough that even though therapeutic concentration could be detectable in that time period, that um, a lower dose, which would still have a significant effect with the alcohol, may – in fact may not be detectable by that time.
[33] He further noted:
A. And likely as well a third one, alprazolam, A-L-P-R-A-Z-O-L-A-M, may also not be detectable because its therapeutic dose can be very small.
[34] In addition to known drugs that may not be detectable, Dr. Langille testified about a variety of new drugs about which little is known:
Q. Might there be other date rape drugs that we haven’t discussed that could be responsible for the effects described that are not detectable either by the test done at the Centre of Forensic Sciences on the bottles or the test conducted on [the female complainant’s] urine?
A. There are a variety of new drugs on the market which have sedative properties which we can detect but we don’t know at what concentrations we can detect them, and so may be able to miss them, particularly in a urine sample that’s been taken several days later. There are a variety of other sedatives and other drugs that are prescribed around the world that we don’t have methods for.
[35] Therefore, the trial judge’s finding that the complainants consumed a “date rape drug” on the night in question is not inconsistent with Dr. Langille’s evidence. After rejecting that GHB was administered, there was still the possibility that a type of benzodiazepine or some “new” drug could have been given to the complainants. The appellant contends that Dr. Langille did not testify in great detail as to the effects of these drugs so that the trial judge could determine whether they were consistent with the complainants’ actual symptoms. Nonetheless, based on Dr. Langille’s evidence and that of the complainants, in my view it was open to the trial judge to infer that a drug was administered to the complainants without knowing exactly what drug and in what dose.
The appellant placed a stupefying substance in the Revs given to the complainants
[36] Finally, the trial judge concluded that the appellant administered the stupefying substance. It would not be enough to show that the complainants had been drugged; the evidence must also link the appellant to the act in question. The trial judge was satisfied that it did. A number of facts led the trial judge to this conclusion. First, he accepted that the appellant gave the Revs to the complainants with the caps already removed. Second, the trial judge believed that the appellant said that there was “special stuff” in the drinks and that he encouraged the female complainant to finish her drink herself. Third, the trial judge accepted that the two Rev bottles had been hidden by the appellant after the complainants had consumed the contents. The police investigation recovered only six out of the eight purchased bottles. Therefore, the trial judge was not concerned with the fact that the toxicological tests of those six bottles were negative; the two key bottles were not able to be tested.
Conclusion
[37] In my view, a review of the trial judge’s findings does not disclose an error in his evaluation of the evidence or in his analysis that would render the verdict unreasonable. The verdict is not “demonstrably incompatible” with the evidence in the record: see Beaudry at para. 98.
(2) Misapprehension of evidence
[38] The appellant contends that the trial judge misapprehended the evidence when, referring to the Crown witnesses, he stated that there “is no evidence before me that their evidence is based upon collusion or collaboration.” The appellant asserts that this overlooks the roommate’s testimony about why he changed his previous testimony about the male complainant’s alcohol consumption.
[39] I disagree. The trial judge dealt with the roommate’s evidence during a voir dire held to determine why he wanted to change his initial evidence. The trial judge concluded that the roommate’s initial testimony was “genuinely mistaken”. This conclusion removes the changed testimony from being a potential foundation for a collusion claim.
[40] The appellant also submits that the trial judge misapprehended the evidence by stating that the roommate did not give any evidence about the two Rev bottles that the male complainant said had been whisked away by the appellant after the complainants had drunk from them. The appellant points out that the roommate testified that he took a bottle of Rev from the female complainant when he returned from buying a hotdog with the male complainant.
[41] Again, I disagree. The roommate did not testify that the bottle he took from the female complainant was the same one that she had been given earlier in the evening by the appellant. Moreover, eight bottles of Rev were purchased that evening, but only six were found by the police, which supports the trial judge’s conclusion that “the two most important bottles were … hidden by the accused.”
(3) The complainants’ conservative sexual nature
[42] The trial judge held that the complainants did not consent to having sex with the appellant. He relied on many factors in support of this conclusion. One factor was the conservative sexual nature of both complainants:
[T]he female complainant is sexually conservative. She is a reserved person. She had not yet had sex with her new boyfriend, the male complainant.
The male complainant testified that he was not attracted to the accused. He also indicated that he has never had sex with a male and does not wish to have sex with a male.
[43] The appellant contends that these and similar passages in the trial judge’s reasons fall afoul of the principle that the prior sexual history of a complainant does not affect the probability that the complainant consented to subsequent sexual activity: see R. v. Seaboyer (1991), 1991 76 (SCC), 66 C.C.C. (3d) 321 (S.C.C.).
[44] In my view, it is not necessary to consider this issue. Once the trial judge concluded that the appellant had administered a stupefying substance that caused loss of consciousness, it follows that the complainants could not have consented to the sexual activity. While the trial judge did not explicitly state that he was convicting on this basis, it can be inferred from his reasons that he found the drugging of the complainants to be a factor supporting their non-consent to the sexual activity. He stated:
The drug was placed into the two Revs. There can be no other explanation. Whatever that drug may be and the dose of it, we will never know. The two Rev bottles in question were never found. I accept the evidence of the complainants when they testified that they were drugged that night. Their symptoms are completely consistent with that. I do not accept the theory that they were somehow inebriated with alcohol to the extent that their inhibitions were reduced. [Emphasis added.]
[45] Therefore, it can be understood from this passage that the trial judge did not accept that alcohol caused the complainants to lose their inhibitions and engage in consensual sexual activity with the appellant. Because it is accepted that sexual activity did take place during the night in question, the inference can then be drawn that the complainants’ drugged state rendered them incapable of consenting.
[46] Pursuant to s. 273.1 of the Criminal Code, consent to sex must be voluntary and the complainant must be capable of consenting. The Supreme Court of Canada stated in R. v. Ewanchuk (1999), 1999 711 (SCC), 131 C.C.C. (3d) 481 at para. 36, “[t]o be legally effective, consent must be freely given.” In R. v. Daigle (1998), 1997 9934 (QC CA), 127 C.C.C. (3d) 130 (Que. C.A.), aff’d (1998), 1998 786 (SCC), 127 C.C.C. (3d) 129 (S.C.C.), the Quebec Court of Appeal held that the complainant who had been drugged was not capable of giving valid consent. In so holding, the court relied on the reasons of Fish J.A. in R. v. Saint-Laurent (1993), 1993 4380 (QC CA), 90 C.C.C. (3d) 291 (Que. C.A.) at 311:
As a matter both of language and of law, consent implies a reasonably informed choice, freely exercised. No such choice has been exercised where a person engages in sexual activity as a result of fraud, force, fear, or violence. Nor is the consent requirement satisfied if, because of his or her mental state, one of the parties is incapable of understanding the sexual nature of the act, or of realizing that he or she may choose to decline participation.
“Consent” is, thus, stripped of its defining characteristics when it is applied to the submission, non-resistance, non-objection, or even the apparent agreement, of a deceived, unconscious or compelled will.
[47] It is also worth noting the decision of this court in R. v. Humphrey (2001), 2001 4806 (ON CA), 143 O.A.C. 151, where the appeal was allowed on the basis that the jury was not properly instructed on the issue of consent. Despite this, Charron J.A. approved of the trial judge’s instruction regarding the voluntary and continuous nature of consent at para. 38:
For the sake of completeness, I also note, on the issue of consent, that the trial judge read for the jury part of s. 273.1 of the Criminal Code, R.S.C. 1985, c. C-46. He correctly instructed them that consent means the voluntary agreement of the complainant to engage in the sexual activity in question and that no consent is obtained if the complainant is incapable of consenting to the activity. To “clarify things”, he told the jury that “you cannot consent if you are unconscious. The law requires consent that is conscious and continuous, i.e., during all acts. The consciousness must be continuous.” No objection is taken to this part of the instruction.
[48] In the present appeal, because the trial judge accepted that the stupefying substance caused the complainants to go in and out of consciousness while the sexual activity was taking place, it follows that the complainants would have been incapable of providing the necessary consent.
E. DISPOSITION
[49] I would dismiss the appeal.
RELEASED: May 2, 2007 (“JL”)
“J. C. MacPherson J.A.”
“I agree John Laskin J.A.”
“I agree E. A. Cronk J.A.”