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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of: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. L. G., 2007 ONCA 654
DATE: 20070924
DOCKET: C43257
COURT OF APPEAL FOR ONTARIO
LASKIN, SIMMONS and LAFORME JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
And
L. G.
Appellant
Victor Giourgas and Catriona Verner for the appellant
Kimberley Crosbie for the respondent
Heard: April 18, 2007
On appeal from the convictions entered by Justice Timothy R. Lipson of the Ontario Court of Justice on August 3, 2004 and from the sentence imposed on October 8, 2004.
SIMMONS J.A.:
I. Overview
[1] The appellant was convicted by Lipson J. of administering a stupefying substance for the purpose of committing an indictable offence and sexual assault. In addition to credit for fifty-six months pre-sentence custody, he was sentenced to twenty-two months imprisonment. He appeals from the convictions and seeks leave to appeal sentence.
[2] The appellant was jointly charged with P. T. R. with these offences (“the sexual assault charges”) and with certain other unrelated offences involving making, possessing and distributing child pornography. The sexual assault charges arose from a complaint by a long-time female friend of Mr. R. On May 21, 2002, the complainant and the appellant (who had never met before) spent the evening socializing with Mr. R. During the course of the evening, the appellant had sexual intercourse with the complainant. Traces of gammahyroxybutyrate (“GHB”), commonly known as the date rape drug, as well as DNA from the complainant and an unknown male, were later found in the complainant’s wine glass.
[3] Prior to trial, Mr. R. brought an application under s. 11(b) of the Charter[^1] requesting that the charges against him be stayed because of unreasonable delay. The trial judge stayed the child pornography charges against Mr. R., but held that the delay in relation to the sexual assault charges was not unreasonable.
[4] On the first day of the joint trial, the Crown indicated that she would not be proceeding with the child pornography charges against the appellant. Counsel for the appellant then proposed to the trial judge that, in order to protect the appellant’s appeal rights, counsel would file a s. 11(b) Charter application and invite the trial judge to make the same ruling he had made on Mr. R.’s application. The trial judge did not accept counsel’s proposal and the appellant did not file a s. 11(b) Charter application.
[5] After hearing the evidence, the trial judge concluded that the appellant added GHB to the complainant’s wine without her knowledge. In addition, he found that the complainant was in a drugged condition as she consumed her second and third glasses of wine (which was prior to any sexual contact) and that she was sufficiently sedated that she could not voluntarily agree to engage in sexual activity. The trial judge therefore convicted the appellant, but acquitted Mr. R. of both charges as he was not satisfied that Mr. R. knew the complainant was drugged.
[6] The appellant raises five issues on his conviction appeal:
i) did the trial judge err in failing to stay the sexual assault charges against him as a result of a violation of s. 11(b) of the Charter;
ii) did the trial judge misapprehend key evidence, namely: a) the toxicologist’s evidence concerning the concentrations of GHB in the complainant’s wine glass and concerning the effects of GHB in combination with alcohol; b) the complainant’s evidence whether she had previously experienced similar symptoms from alcohol consumption; and c) the appellant’s evidence suggesting that it was his DNA on the complainant’s wine glass;
iii) did the trial judge err in finding that the complainant lacked the capacity to consent to sexual activity;
iv) did the trial judge err in failing to find that the appellant had an honest but mistaken belief that the complainant was consenting to sexual activity;
v) was the appellant’s trial rendered unfair by the Crown’s cross-examination of the appellant and Mr. R.?
[7] In addition, the appellant argues that the global sentence imposed on him was outside the appropriate range and therefore unfit.
[8] The appellant did not make oral submissions concerning his fourth and fifth grounds of appeal against conviction. We did not call on the Crown to respond to those grounds, to the ground relating to alleged misapprehension of the appellant’s evidence, nor to the sentence appeal.
[9] Given the trial judge’s finding that the appellant added GHB to the appellant’s wine without her consent, in our view, there was no air of reality to the defence of honest but mistaken belief in consent and the trial judge made no error in failing to consider it. Further, we were not persuaded that the appellant identified any misconduct by the trial Crown capable of giving rise to a miscarriage of justice.
[10] Finally, we were not persuaded that the trial judge made any error in rejecting the appellant’s evidence that he used the complainant’s wine glass to mix GHB for his own use after he and the complainant began engaging in sexual activity. Moreover, the trial judge made an alternative finding that even if the appellant did use the complainant’s wine glass for that purpose, the complainant was drugged before any sexual activity began.
[11] For these reasons, we rejected the appellant’s fourth and fifth grounds of appeal against conviction, as well as the ground relating to alleged misapprehension of the appellant’s evidence.
[12] While we viewed the sentence imposed as stiff, we were not persuaded that it was outside the range. The appellant had a prior record for sexual assault and the trial judge identified numerous aggravating factors to justify the sentence he imposed, not the least of which is that this was a planned crime involving the administration of a dangerous drug.
[13] For the reasons that follow, I would dismiss the conviction appeal. While I would grant leave to appeal sentence, I would dismiss the sentence appeal.
II. Background
i) The Parties
[14] Mr. R. was sixty years old at the time of trial and openly bisexual. He owned and operated a small computer business and was also a self-employed photographer.
[15] The complainant was thirty-nine years old at time of trial. Prior to the incident, she and Mr. R. had been friends for years. Although their relationship was platonic, Mr. R. claimed at trial that the complainant made sexual advances to him in the months leading up to the incident.
[16] The appellant was twenty-six years old at the time of trial. He met Mr. R. in 1997 while both were incarcerated. They remained friends following their release from custody and in the months leading up to May 21, 2002, Mr. R. was assisting the appellant in putting together a modelling portfolio. Although Mr. R. was attracted to the appellant, the appellant was heterosexual and did not reciprocate Mr. R.’s feelings.
ii) Events leading up to the May 21, 2002 incident
[17] On April 1, 2002, the complainant asked Mr. R. to photograph her in various sexual poses, including a number in which she was topless. At trial, Mr. R. acknowledged that prior to May 21, 2002 he e-mailed some of the topless photographs to three of his friends, including the appellant, without the complainant’s permission.
[18] In early May 2002, the complainant left her laptop computer with Mr. R. for repairs. On May 20, 2002, Mr. R. contacted the complainant and suggested that she pick up her computer from his home on May 21, 2002 at around 9:00 p.m.
[19] In their testimony at trial, the appellant and Mr. R. claimed that they planned to meet at around 8:30 p.m. on May 21, 2002 for business purposes. The trial judge rejected this evidence. He found that prior to the complainant’s arrival, the appellant was high on GHB, Mr. R. had been consuming alcohol, and “the two men had been enjoying themselves surfing the internet for pornography.” Noting that Mr. R. had photographed the appellant in sexual situations with other women in the past, he found that Mr. R. wanted the complainant and the appellant to meet and “was clearly hoping that some kind of sexual encounter would occur involving [the complainant and the appellant] that would in turn satisfy his strong voyeuristic bent.”
iii) The May 21, 2002 incident
[20] The complainant arrived at Mr. R.’s house around 9:00 p.m. on May 21, 2002. Expecting the visit to be short, she parked on the street instead of in the driveway and left her purse and cell phone in the car. When Mr. R. greeted the complainant at the door, he said her laptop was in the basement. She accompanied him downstairs where she met the appellant. Mr. R. had purchased a bottle of red wine for her earlier in the day and he poured her a glass of it.
[21] Mr. R. eventually took the complainant into a separate room containing his computer lab to show her her laptop. While in that room, Mr. R. asked the appellant to pour the complainant another drink. The appellant left the room and the complainant did not see him pour her second glass of wine. The group continued drinking and the complainant had three or possibly four glasses of wine in total.
[22] The trial judge described the complainant’s memory of the ensuing events as “patchy.” At some point she recalled looking at a website with pictures of the appellant in various modelling poses and acknowledged calling her daughter to tell her about the website. Although reluctant to do so, she agreed to have her picture taken with the appellant. The photographs show the appellant holding the complainant’s hand, kissing her cheek and either kissing or licking her fingers. The complainant also took two photographs. The trial judge found that the various photographs depict all three participants enjoying themselves.
[23] The complainant recalled moving into the photo studio after the photo session. She said that at one point she was sitting cross-legged on the floor smoking a cigarette. Her next memory was of seeing flashing yellow lights and of the appellant penetrating her. She started yelling “what are you doing” and “let me go.” She recalled asking if the appellant was wearing a condom, and that Mr. R. told the appellant to do what she said. She also recalled that while the appellant was on top of her, Mr. R. was masturbating himself with one hand while holding a camera in the other hand and saying something to the effect of “fuck this is so great.” In addition, she recalled the appellant holding her head in the studio and telling her she was his girlfriend, to which she responded “fuck off.”
[24] The complainant’s next memory is waking up alone and naked on the studio floor at around 4:00 a.m. She went upstairs, found both men sleeping in Mr. R.’s bed, and left. She saw her doctor on Thursday, May 23, 2002, and the doctor insisted that she report the matter to the police.
[25] The complainant testified about feeling unwell as she drank her wine. In examination-in-chief she said her “head started not being normal” and that her understanding of what was going on was blurry. She said that things were becoming worse and worse as the photographs were being taken—the feeling in her head and her body “was becoming like not moveable.” After she smoked the cigarette it became worse again. She recalled that while the appellant was on top of her, she kept trying to get up but could not move; she said she felt like a “dead doll lying there.” In cross-examination, the complainant described feeling drowsy, “like [she] was falling somewhere.” She also said she could not concentrate on what was going on: “all that light [was] around [her], it was just like a movie [she] was watching.”
[26] In his testimony at trial, the appellant acknowledged having sexual intercourse with the complainant on May 21, 2002, but claimed that she had initiated it and that it was consensual. Both the appellant and Mr. R. testified that although the complainant was initially somewhat reserved, as the evening wore on she became flirtatious. They stated that while in the studio, she began undressing Mr. R. and performing oral sex on the appellant. According to the appellant, he also performed oral sex on the complainant, and then left the room to use the washroom.
[27] The appellant also acknowledged using GHB that evening to get high, testifying that he was a regular user of GHB and had consumed some both before and after arriving at Mr. R.’s home. He said that when he returned from the washroom, he decided to consume the remaining GHB and that he mixed it with wine from the complainant’s wine glass. He stated that he then had consensual intercourse with the complainant. Mr. R. took a photograph of them having intercourse, then left the room. The appellant denied drugging the complainant.
[28] Mr. R.’s evidence was similar to the appellant’s, but he did not recall much of the detail of what happened after the complainant began performing oral sex on the appellant. However, he did take a photograph of the appellant having sexual intercourse with the complainant in the studio. The photograph depicts the appellant on top of the complainant and the complainant’s legs somewhat raised and spread.
[29] On May 22, 2002, Mr. R. sent the complainant an e-mail that said, “I know a lady—who should have a big smile on her face today.”
iv) The toxicologist’s evidence
[30] Dr. Robert Langille was qualified to give expert evidence concerning the absorption, distribution and elimination of alcohol and drugs in the human body and their effects on human behaviour. He described GHB as an acid that was first produced in the 1960s as a possible anaesthetic because of its significant sedating properties in relation to the central nervous system. At low concentrations (dosages of about one gram), individuals experience relaxation and euphoria, causing a decrease in social inhibitions.
[31] At increased concentrations (dosages of about two to three grams), the effects can include a decrease in alertness and mental functioning, an increase in drowsiness, and eventually sleep, dizziness and muscle “incoordination.” As the dosage is increased slightly beyond the two to three gram level, individuals will experience a deeper and deeper sleep; at approximately five grams they will become unconscious. Beyond that range, unconsciousness can increase to coma and eventually death.
[32] Concerning GHB’s effects on rationality, Dr. Langille said that at sufficient doses, the drug decreases an individual’s awareness of what is going on around them as well as the brain’s ability to process information and make decisions. While GHB does not remove rationality, with increasing drowsiness and decreasing alertness, it slows and eventually stops an individual’s ability to think and respond.
[33] Dr. Langille described GHB as a drug of choice in a significant number of sexual assaults because it can be fairly well hidden in certain types of alcoholic beverages and has a rapid onset (about fifteen minutes at the two to three gram level). Further, he said that since alcohol is also a central nervous system depressant, the effects of these drugs will augment each other. Although he could not be precise about the extent of that augmentation, he said it would be significant.
[34] Dr. Langille testified that the concentration of GHB in the complainant’s wine glass when it was seized on May 24, 2002 was 18 milligrams of GHB to 100 millilitres of liquid (or about .03 grams of GHB in a full glass of wine). At this concentration, the complainant would have to have drunk seven to eight bottles of wine to consume one gram of GHB, the lowest intoxicating dose.
[35] In cross-examination, Dr. Langille agreed that it appeared that the alcohol content of the wine in the complainant’s wine glass had been reduced through evaporation between May 21 and May 24, 2002. While the evaporation rate of GHB is unknown, it was likely that the concentration of GHB in the complainant’s wine would have been lower on May 21, 2002 than when it was tested on May 24, 2002.
III. Analysis
i) Did the trial judge err in failing to stay the charges against the appellant based on a violation of s. 11(b) of the Charter?
[36] The appellant claims that he brought a s. 11(b) Charter application at trial and that the trial judge erred by failing to address it. In the alternative, he submits that this is an appropriate case in which to consider his application on appeal, even if he failed to bring a s. 11(b) Charter application at trial, because he was in essentially the same position as Mr. R., a complete record of Mr. R.’s s. 11(b) application is available, and the trial judge erred in failing to stay the sexual assault charges against Mr. R. I reject these arguments for three reasons.
[37] First, I am not persuaded that the appellant brought a s. 11(b) Charter application at trial. As already noted, on the first day of the joint trial (June 3, 2004), the Crown indicated that she would not be proceeding with any charges other than the sexual assault charges against each accused. The appellant’s counsel then advised the trial judge that in order to preserve his client’s appeal rights, he proposed to file a s. 11(b) Charter application and invite the trial judge to give the same ruling as he had given in relation to Mr. R. The trial judge rejected this proposal, saying that it would be without any apparent purpose having regard to the Crown’s position and that if an application were filed he would have to treat it seriously:
Q.: …I didn’t join [the s. 11(b) application] at that time, for reasons that, at this point I think are not relevant. But what happened was I learned of the ruling and the reasons for it, and I had always maintained that the delay from November to today’s date may have assisted my client in terms of his, such an application. However based on, as I understand it, the reasons of Your Honour’s ruling, my client was essentially in the same position as Mr. [R.] vis-a-vis the two outstanding counts, counts one and five. So what I proposed to my learned friend was this. That for the purposes of preserving the record or my client’s appeal rights, that I would file a motion and invite the court essentially to rule in the same fashion as the Court did with Mr. [R.], that is to say, to dismiss the application vis-a-vis [the sexual assault charges]. And my learned friend had indicated that she would be withdrawing or not proceeding on the other counts.
THE COURT: It seems to me that the issue of making or deciding the Charter application with respect to s. 11(b) is moot because the Crown has just indicated a moment ago that she’s not proceeding on the pornography related charges, nor any other charge, aside [from the sexual assault charges], so I have difficulty making any similar ruling in view of the Crown’s position, unless you can persuade me why I should, I don’t see what is to be gained from going through any kind of Charter application. Number one it will be a waste [of] time and number two I still would have to take it seriously and listen to evidence, perhaps prejudice, so I don’t believe in engaging in exercises that really are without any particular purpose.
Q.: I understand what Your Honour is saying.
THE COURT: I appreciate that, thank you.
[38] Even assuming that the trial judge misunderstood the appellant’s June 3, 2004 request as relating only to the child pornography charges, the appellant did nothing to correct that understanding. In particular, counsel made no oral submissions in response to the trial judge’s comments and did not file a written s. 11(b) application to clarify his intent. In the absence of such steps, I fail to see how the appellant can claim that he brought a s. 11(b) application on June 3, 2004.
[39] More importantly, rather than being a serious attempt to bring a s. 11(b) Charter application at trial, in my view, the appellant’s proposal was merely a tactical manoeuvre aimed at preserving the appellant’s right to raise on appeal issues that he could, and if he was serious about them, should have raised at trial. In particular, the appellant’s June 3, 2004 proposal was not that he would lead evidence and make submissions on a s. 11(b) Charter application; on the contrary, he proposed to simply file an application and invite the trial judge to dismiss it on the same basis as Mr. R.’s application.
[40] While there are no doubt circumstances in which it is appropriate for a trial judge to apply previously made rulings to a different context, in my opinion this is not one of them. The question of whether a particular accused’s s. 11(b) Charter rights have been breached requires “a judicial determination balancing the interests which the section is designed to protect against factors which inevitably lead to delay or are otherwise the cause of delay”: R. v. Morin (1992), 1992 89 (SCC), 71 C.C.C. (3d) 1 at 13 (S.C.C.). Because these factors can vary from individual to individual, even where accused are jointly charged, in my view, the determination of whether a particular accused’s Charter rights have been breached will generally require individual determination.
[41] The appellant is content for the purposes of this appeal to rely on the record filed on Mr. R’s s. 11(b) Charter application and he is not attempting to differentiate himself from Mr. R. in terms of waived time periods or to adduce evidence of specific prejudice. However, he did not make these acknowledgements before the trial judge. Further, to the extent he believed, as he contends on appeal, that the trial judge misapprehended certain evidence or misapplied the Morin factors in dealing with Mr. R.’s s. 11(b) Charter application, the appellant had the opportunity to raise those matters in an application on June 3, 2004 but chose not to do so. In my view, the appellant’s June 3, 2004 proposal should not be regarded as a serious attempt to bring a s. 11(b) Charter application.
[42] Second, I reject the appellant’s alternative submission that this is an appropriate case in which he should be entitled to raise the issue of unreasonable delay on appeal despite the fact that he did not bring a s. 11(b) Charter application at trial.
[43] Appellate courts are generally reluctant to entertain Charter arguments that are raised for the first time on appeal. This reluctance stems from concerns about prejudice to the other side arising from an inability to adduce necessary responding evidence at trial, the lack of a sufficient record to make necessary findings of fact, and society’s overarching interest in the finality of litigation: R. v. Warsing (1998), 1998 775 (SCC), 130 C.C.C. (3d) 259 at 271-72 (S.C.C.); R. v. Brown (1993), 1993 114 (SCC), 83 C.C.C. (3d) 129 at 133-34 (S.C.C.); and R. v. R.R. (1994), 1994 8728 (ON CA), 91 C.C.C. (3d) 193 at 198-99 (Ont. C.A.).
[44] In R.R., supra, at 199, this court adopted the following portion of L’Heureux-Dubé J.’s discussion in Brown, supra, at 133-134 about the importance of the finality of litigation, noting that although her comments were made in dissent, the majority did not take issue with her discussion of this principle:
…the general prohibition against new arguments on appeal supports the overarching societal interest in the finality of litigation in criminal matters. Were there to be no limits on the issues that may be raised on appeal, such finality would become an illusion. Both the Crown and the defence would face uncertainty, as counsel for both sides, having discovered that the strategy adopted at trial did not result in the desired or expected verdict, devised new approaches. Costs would escalate and the resolution of criminal matters would be spread out over years in the most routine cases. Moreover society’s expectation that criminal matters will be disposed of fairly and fully at the first instance and its respect for the administration of justice would be undermined. Juries would rightfully be uncertain if they were fulfilling an important societal function or merely wasting their time. For these reasons, courts have always adhered closely to that rule that such tactics will not be permitted.
[45] As I have said, in this case, the appellant had every opportunity to raise at trial the issues he now seeks to raise for the first time on appeal. Not only could he have brought a s. 11(b) Charter application at the same time as Mr. R., but, having obtained the benefit of the trial judge’s ruling on Mr. R.’s application, the appellant could have raised before the trial judge the precise issues he now seeks to raise on appeal.
[46] The appellant has not alleged incompetence of counsel. Given the foregoing circumstances, in my view, the compelling inference is that the appellant chose not to raise a s. 11(b) Charter issue at trial for tactical reasons. For the reasons articulated in Brown, I conclude that such tactics should not be permitted and I would not allow the appellant to raise the s. 11(b) Charter issue for the first time on appeal.
[47] Third, I am not, in any event, persuaded that the appellant has demonstrated that his s. 11(b) Charter rights were infringed. The appellant relies on the record in Mr. R.’s s. 11(b) Charter application and claims that the trial judge erred in refusing to stay the sexual assault charges against Mr. R.. Accordingly, before turning to my analysis of this issue, I will review the chronology of the case as revealed in Mr. R.’s application as well as the trial judge’s reasons for dismissing that application.
A) Chronology of the Case
[48] The appellant and Mr. R. spent just over two years in custody awaiting their trial in the Ontario Court of Justice. The following chronology sets out the relevant details of the progress of their case:
▪ May 21, 2002 The offence date.
▪ May 24, 2002 Mr. R. was arrested.
▪ May 27, 2002 The appellant was arrested.
▪ September 6, 2002 In addition to other items, Mr. R.’s counsel requested an inventory of the hard drive on Mr. R.’s computer and a copy of the e-mail Mr. R. sent to the complainant on May 22, 2002.
▪ October 2, 2002 A judicial pre-trial was held. Although counsel for Mr. R. had earlier dates available, the preliminary hearing was set for February 27 and 28, 2003.
▪ February 14, 2003 The Crown advised defence counsel that the R.C.M.P. lab in Ottawa was refusing to test the contents of some vials of liquid seized from Mr. R.’s refrigerator for GHB precursors,[^2] but that testing might be available through a Rochester lab. In addition, the Crown indicated that one of the investigators who had been working on the child pornography charges against Mr. R. had lost much of his analysis.
▪ February 27, 2003 The preliminary inquiry was scheduled to begin. As the result of learning the identity of the preliminary hearing judge about one week earlier, the accused re-elected to be tried in the Ontario Court of Justice and the preliminary inquiry judge seized himself of the trial. Although ready to conduct the preliminary inquiry, the Crown was not ready to proceed to trial. The police had completed their analysis of only two of eighteen computers that were seized and the contents of certain vials of liquid seized from Mr. R.’s refrigerator had not yet been analyzed. Although the court had dates available in September 2003, the trial was set for November 21, 24, 25, 27, 28 and December 8, 9 and 11, 2003 to accommodate defence counsel’s schedule.
▪ November 7, 2003 The Crown advised defence counsel that testing would not be done on the liquids found in Mr. R.’s refrigerator.
▪ November 10, 2003 As it appeared unlikely that a homicide trial in which Mr. R.’s counsel was involved would be completed before the end of November, counsel for Mr. R. asked that all of the scheduled trial dates be vacated. Counsel for the appellant indicated that he understood the circumstances, but that he was not in a position to consent to an adjournment and would be ready to proceed on November 21, 2003. Although counsel had January 2004 dates available, the November trial dates were replaced with the first continuous block of days (June 3, 4, 7, 8 and 11, 2004) available to the court. The December 2003 dates were retained.
▪ November 11, 2003 Counsel for Mr. R. requested disclosure from the Crown of e-mails sent by Mr. R. to the complainant in addition to the May 22, 2002 e-mail already requested. In addition, counsel for Mr. R. confirmed her understanding that the Crown would be providing disclosure of approximately 75,000 images of child pornography on November 12, 2003.
▪ November 23, 2003 The Crown provided disclosure to Mr. R.’s counsel of various e-mails and of information relating to the child pornography charges. Although the Crown believed that the requested e-mails were included in that disclosure, near the end of March 2004, Mr. R.’s counsel determined that those e-mails had still not been disclosed.
▪ November 26, 2003 Counsel informed the trial judge that Mr. R.’s counsel would not be available for the December 2003 dates. Counsel for the appellant indicated that the appellant was not consenting to an adjournment or waiving his s. 11(b) Charter rights. Additional target dates of June 21-24 and 30, 2004 were identified.
▪ December 1, 2003 A new trial date of June 3, 2004 was set for Mr. R.
▪ April 1, 2004 Mr. R.’s s. 11(b) Charter application was argued.
▪ April 14, 2004 The trial judge ruled on Mr. R.’s s. 11(b) Charter application.
▪ June 3, 2004 The trial commenced.
▪ June 30, 2004 The trial concluded.
B) The Trial Judge’s Ruling on Mr. R.’s s. 11(b) Charter Application
[49] After reviewing the chronology of the case and the principles set out in Morin, supra, the trial judge turned to the application of the Morin factors to this case. He made the following findings in relation to Mr. R.:
i) Length of the delay
▪ The total delay of just over two years was sufficient to warrant an inquiry into the reasonableness of the delay.
ii) Waiver of time periods
▪ It was undisputed that the periods of waiver totalled approximately four months: September 1, 2003 to November 21, 2003 and November 21, 2003 to January 1, 2004.
iii) Reasons for the delay
a) Inherent time requirements
▪ The Crown’s assessment of an intake period of four months and one week (May 24, 2002 to October 1, 2002) was reasonable as the case involved two accused charged with a total of seven serious offences, a lengthy investigation, voluminous disclosure and expert evidence.
▪ After deducting the intake period and waived time periods, the delay under consideration was sixteen months.
b) Actions of the Crown and the accused
▪ It was appropriate to analyze the child pornography charges and the sexual assault charges separately as they were unrelated and there were different reasons for delay in relation to each set of charges.
▪ Concerning the child pornography charges, the Crown had not provided an adequate explanation for the eighteen month delay (from Mr. R.’s arrest until November 23, 2003) in disclosing the details of its case. Further, the timing and volume of this disclosure would have necessitated an adjournment of the trial of these charges in any event.
▪ Concerning the sexual assault charges, the Crown had disclosed the bulk of its case by October 1, 2002 and a trial date or preliminary hearing date could properly have been set as of that date. Since Mr. R. did not apply for a severance of these charges, he shared responsibility for their delay in proceeding. Non-disclosure of the e-mails Mr. R. requested on November 14, 2003 should not have precluded a severance application because remedies were available at trial if necessary evidence had been lost or misplaced.
c) Limits on institutional resources
▪ Taking account of the eight months of waived time and the intake period, each hearing date had been set within the eight to ten month Morin guideline for institutional delay in the provincial courts: five months for the preliminary hearing; six months for the first trial date (i.e. up to the September date available for the court); and seven months for the second trial date. Based on the history and circumstances of this proceeding, “the ‘system’ was able to effectively respond to the need to have this case tried without unreasonable delay.”
iv) Prejudice to the accused
▪ Mr. R. had established specific prejudice arising from his incarceration, including health problems, poor living conditions and a negative impact on his business.
v) Conclusions
▪ Balancing the Morin factors in relation to the child pornography charges, Mr. R.’s s. 11(b) Charter rights in relation to these charges had been violated.
▪ Although Mr. R. had established specific prejudice arising from his incarceration, taking account of the other Morin factors, including the reasons for the delay and the strong societal interest in having sexual assault cases proceed to trial, Mr. R.’s s. 11(b) rights in relation to the sexual assault charges had not been infringed.
C) Discussion
[50] The appellant claims that the trial judge erred in two respects in refusing to stay the sexual assault charges against Mr. R. First, he says the trial judge erred by holding Mr. R. responsible for delay in relation to the sexual assault charges because he failed to apply for a severance. Second, he says that the trial judge misapprehended the evidence concerning when the defence requested disclosure of the May 22, 2002 e-mail sent by Mr. R. to the complainant.
[51] Even accepting that the trial judge made the foregoing errors, taking into account the conduct of the appellant and Mr. R. in re-electing to be tried in the Ontario Court of Justice, Mr. R.’s adjournment request, and the other Morin factors, I agree with the trial judge that the total delay in this matter was not unreasonable.
[52] I accept the appellant’s submission that the trial judge erred when, under the heading “reasons for the delay—Actions of Crown and Applicant,” he attributed to Mr. R. shared responsibility for the delay in relation to the sexual assault charges because Mr. R. failed to apply for a severance.
[53] The Supreme Court of Canada has made it clear that it is the obligation of the Crown to bring an accused to trial and that an accused has no responsibility to take positive steps to press for a speedy trial: Morin at 23-24; R. v. MacDougall (1998), 1998 763 (SCC), 128 C.C.C. (3d) 483 at para. 58. Further, in Morin, Sopinka J. explained at p. 17 that it is voluntary actions taken by an accused that cause delay that are to be included under the heading “reasons for the delay—actions of the accused”.
[54] Moreover, while it is open to the court when assessing the extent of prejudice suffered by an accused to consider the accused’s inaction where it is inconsistent with a desire for a timely trial, “the court must be careful not to subvert the principle that there is no legal obligation on the accused to assert the right”: Morin at 24. Given these principles, in my view, at most the trial judge in this case may have been entitled to take Mr. R.’s failure to apply for a severance into account when assessing prejudice.
[55] I also accept that the trial judge misspoke when he said that Mr. R. only requested disclosure of his e-mails to the complainant on November 11, 2003. While it is true that Mr. R. requested disclosure of some e-mails on that date, he in fact had requested disclosure of the May 22, 2002 e-mail on September 6, 2002. However, I am not persuaded that this misstatement materially affected the trial judge’s analysis.
[56] The trial judge was satisfied that sufficient disclosure of the Crown’s case in relation to the sexual assault charges had been made as of October 1, 2002 to permit a trial date to be set. I see no error in his conclusion. Although the e-mails were ultimately not disclosed until after Mr. R.’s s. 11(b) application was argued, it is reasonable to assume that disclosure could have been made earlier had the fact that they were not in the November 23, 2003 disclosure package been discovered sooner.
[57] Unlike the situation with the child pornography charges, the missing e-mails were not voluminous and there is no reason to believe that late disclosure would have caused an adjournment of the trial. Moreover, as was noted by the trial judge, Mr. R. had remedies available at trial if the e-mails were not produced and their non-disclosure impaired his ability to make full answer and defence.
[58] In any event, the non-disclosure of these e-mails provides little support for the appellant’s position. I see no indication in the record that he requested disclosure of the e-mails from Mr. R. to the complainant and he has not demonstrated that they impacted his defence.
[59] Despite the foregoing errors, in my view, the trial judge did not err in finding that the total delay between the date of the appellant’s arrest and the date of trial was not unreasonable.
[60] An important aspect of the trial judge’s reasons was his observation that the court was in a position to set each of the hearing dates in this matter (the preliminary inquiry, the first trial date and the second trial date) within the Morin guidelines for institutional delay in the provincial courts. Particularly in light of this observation, in my opinion, it would have been entirely appropriate for the trial judge to consider Mr. R.’s decision on February 27, 2003 to re-elect trial in the Ontario Court of Justice under the heading “reasons for delay - actions of the accused”: see Morin at 17-18. Had Mr. R. (and the appellant) elected trial in the Ontario Court of Justice from the outset, a trial date would have been set at the pre-trial on October 2, 2002 rather than a preliminary inquiry date.
[61] Viewed from this perspective, the fact that the preliminary inquiry Crown was not ready to proceed to trial on February 27, 2003 is of little consequence. February 27, 2003 was not the trial date, the preliminary inquiry Crown was only informed of the decision to re-elect about a week prior to the hearing and, in any event, the trial could not have been completed in the two days set for the preliminary inquiry. Most importantly, however, rather than delaying setting a trial date until February 27, 2003, the trial date would have been set in October 2002.
[62] Further, although the appellant did not waive the time periods waived by Mr. R. arising from Mr. R.’s two adjournment applications in November 2002, I would classify those time periods as neutral vis-à-vis the appellant. In R. v. Whylie (2006), 2006 9037 (ON CA), 207 C.C.C. (3d) 97 at para. 24, citing R. v. Sapara (2001), 2001 ABCA 59, 277 A.R. 357 at paras. 57-58 (C.A.) leave to appeal refused, [2001] 2 S.C.R. xii, this court observed that “ordinarily delay caused by the actions of a co-accused is considered neutral in the s. 11(b) analysis.”
[63] This is because, generally speaking, it is in the interests of justice that individuals charged jointly with an offence be tried together. “A single trial for two or more accuseds generally conserves judicial resources, avoids inconsistent verdicts, and avoids witnesses having to testify more than once”: Whylie at para. 24. As was noted in Whylie, severance will rarely be granted. Given these principles, delay caused by the actions of a co-accused ordinarily will not be attributable to the Crown or to the absence of institutional resources. I would therefore characterize the two month period from November 2003 to January 2004 as neutral vis-à-vis the appellant. Since Mr. R.’s counsel was ready to proceed in January 2004 but the first available court dates were not until June 2004, I would classify that six month period as institutional delay.
[64] Taking account of the foregoing analysis, in my opinion, the reasons for the delay in this matter vis-à-vis the appellant can properly be characterized as follows:
May 27, 2002-Oct. 2, 2002 4 months intake neutral
Oct. 2, 2002-Feb. 27, 2003 5 months re-election accused
Feb. 27, 2003-Sept. 2003 6 months set trial date institutional
Sept. 2003-Nov. 2003 2 months counsel accused
Nov. 2003-Jan. 2004 2 months co-accused neutral
counsel
Jan. 2004-June 30, 2004 6 months set trial date institutional
[65] Accordingly, out of a total delay of twenty-five months, four months are attributable to intake time and are neutral; seven months are attributable to the actions of the appellant; two months are attributable to the unavailability of defence counsel for Mr. R. and are neutral vis-à-vis the appellant; and twelve months are attributable to institutional delay, i.e., the period of delay that begins to run when the parties are ready for trial but the system cannot accommodate them: Morin at 18.
[66] The Morin guideline for institutional delay in the provincial courts is eight to ten months. However, the guideline is just that—a guideline. It is not a fixed limitation period, nor is it to be applied in a mechanical fashion: Morin at 19-20.
[67] In my view, an important feature of this case is that six out of the twelve months of institutional delay arose because counsel for the co-accused was unavailable for the original trial date due to a homicide trial that was not completed within the estimated time frame. While it is no doubt desirable that in-custody cases that must be adjourned be re-scheduled on a more expedited basis than occurred here, the reality of this case is that the sexual assault charges alone required ten days for trial, making it a challenging case to re-schedule in most, if not all, of the busy provincial courts in the Greater Metropolitan Toronto area.
[68] As the trial judge observed, it is preferable for all involved that serious cases such as this not be heard on a piecemeal basis. Given this factor and the need to allocate judicial resources in the Ontario Court of Justice in a way that best responds to the nature and volume of the cases in that court, I agree with the trial judge that it would be unrealistic to expect that a ten day trial such as this could be rescheduled immediately following an adjournment, even where in-custody accused are involved.
[69] In saying this, I do not intend to suggest that the government may use a heavy caseload as an excuse for any lack of resources in the Ontario Court of Justice. However, the Morin guideline recognizes that some period of institutional delay in scheduling cases is not unreasonable. As a general matter, that period should be shorter rather than longer where in-custody accused are involved. Nevertheless, in my view, the realities of scheduling in a world where resources are not unlimited means that, even in in-custody matters, the period of reasonable delay may be extended somewhat where a case is complex or lengthy and is adjourned to accommodate an accused.
[70] In this respect, I consider it at least noteworthy that the appellant re-elected trial in the Ontario Court of Justice after he learned the identity of the preliminary inquiry judge. In so doing, he was able to pick his trial judge, but he also selected a forum for trial that is unlikely to have the same flexibility as the Superior Court in rescheduling cases that may have to be adjourned. Further, in requesting that a particular judge become seized of the case, the appellant might reasonably have expected that there would be even less flexibility in the event of any necessary re-scheduling. These factors attenuate the degree of prejudice attributable to the appellant somewhat. Moreover, unlike Mr. R., the appellant did not present evidence establishing specific prejudice relating to his incarceration.
[71] As was noted by the trial judge, in R. v. Regan (2002), 2002 SCC 12, 161 C.C.C. (3d) 97 at para. 116, the Supreme Court of Canada recognized that sex offences are particularly serious charges and that there is a strong societal interest in seeing them through to a trial on the merits. While the fact that the appellant was in custody throughout the period leading up to his trial undoubtedly caused prejudice, balancing all of the Morin factors, I am not persuaded that the overall delay in bringing him to trial on the sexual assault charges was unreasonable.
ii) Did the trial judge misapprehend certain pieces of key evidence?
A) The toxicologist’s evidence
[72] In the portion of his reasons in which he reviewed the evidence, the trial judge stated that the toxicologist “was of the view that the concentration of [GHB in the complainant’s wine glass] would have been lower on May 24 than on May 21.” Later, in the analysis portion of his reasons when dealing with the issue of whether the Crown had proven that the appellant added GHB to the complainant’s wine, the trial judge said:
It was contended by the defence that the small amount of GHB that was in the seized wine glass was such that the effects of the drug could not have incapacitated [the complainant]. The difficulty with this argument is that the wine glass used by the complainant was seized three days after the incident. According to Dr. Langille, a certain amount of evaporation to both the alcohol and GHB content would have occurred. As well, the description of the complainant’s incapacity that evening as described by her is consistent with being drugged by the combination of GHB and alcohol.
[73] In the same section of his analysis, the trial judge also said:
[The complainant’s] account of events, including her incapacity to think, move and remember events is consistent with the effects of GHB, particularly when combined with alcohol as described in the testimony by Dr. Langille.
[74] The appellant submits that these extracts from the trial judge’s reasons contain three errors:
i) Dr. Langille did not say that the concentration of GHB would have been lower on May 24 than on May 21—on the contrary, he said the concentration would have been lower on May 21 than on May 24;
ii) Dr. Langille did not testify that GHB would evaporate; rather, he said that to his knowledge it would not evaporate; and
iii) Contrary to the trial judge’s finding, Dr. Langille testified that he did not know exactly how GHB and alcohol would interact. Further, Dr. Langille specifically testified that the loss of memory the complainant described was a known effect of alcohol and not of GHB.
[75] The appellant argues that these misapprehensions are material because they taint the trial judge’s finding that the complainant was drugged. The appellant claims that because of the first and second errors, the trial judge failed to recognize that the concentrations of GHB in the complainant’s wine glass on May 21, 2002 were insignificant and could not have incapacitated the complainant. In addition, because of the third error, the trial judge wrongly concluded that the complainant’s patchy memory was consistent with her being drugged.
[76] Concerning the first alleged error, I agree that the trial judge misapprehended the evidence relating to the concentrations of GHB in the complainant’s wine glass.
[77] In his evidence, Dr. Langille made it clear that it was his opinion that the concentration of GHB in the complainant’s wine glass would have been lower on May 21, 2002 than it was on May 24, 2002. During cross-examination, he expressly agreed with a suggestion by Mr. R.’s counsel to that effect:
Q.: Just to make sure that we are clear, what you’re saying to us is that on May 21st the concentration of GHB in that quantity of liquid would be lower than what it was on the 24th, but you just can’t tell us how much lower?
A.: Yes, that’s correct. It could be a trivial amount, it could be somewhat more.
[78] Concerning the second alleged error, in my view, it was open to the trial judge to draw an inference from Dr. Langille’s evidence that the GHB may have dissipated to some extent due to the effects of evaporation. In particular, Dr. Langille testified that a substance’s evaporation rate depends on the relationship of the substance’s boiling point to the boiling point of water. Substances with a lower boiling point than water evaporate more quickly, while substances with a similar or higher boiling point than water evaporate more slowly, if at all. Dr. Langille testified that the boiling point of GHB is unknown, but that GHB maintains itself in equilibrium to gamma-Butyrolactone (GBL), which has a boiling point just higher than water. Dr. Langille said, “as the GBL is evaporated at about the same rate as the water, some of the GHB will then be lost as it maintains that equilibrium.”
[79] However, even if the trial judge misapprehended Dr. Langille’s evidence concerning both the concentrations of GHB in the complainant’s wine glass and evaporation, I am not persuaded that these errors taint his finding that the complainant was incapacitated as the result of being drugged.
[80] In my view, the anchor to the trial judge’s finding that the complainant was incapacitated as the result of being drugged was his conclusion that she “was in a drugged condition as she consumed her second and third glasses of wine well before any sexual activity began.” The fact that the concentration of GHB in the complainant’s wine glass may have been insufficient to incapacitate her after she drank her third or fourth glass of wine, or after the appellant used her wine glass to mix GHB for himself, does not undermine this finding. Based on the trial judge’s findings, the complainant was already in a drugged condition before she consumed her third glass of wine.
[81] The appellant submits that the trial judge’s finding that the complainant was incapacitated as the result of consuming drugs is nonetheless tainted by his misapprehension of Dr. Langille’s evidence. This is because the trial judge did not rely on his finding concerning when the complainant began experiencing the effects of GHB to reject the argument that the concentration of GHB in the complainant’s wine glass could not have caused her to become incapacitated.
[82] I do not accept this submission. The trial judge’s finding that the complainant began to experience the effects of GHB as she consumed her second glass of wine was not premised on his erroneous statement about the concentration of GHB that would have been in her wine glass on May 21, 2002. Further, the trial judge’s finding about when the complainant began to experience the effects of GHB undermines the foundation of the appellant’s argument whether the trial judge recognized that fact or not.
[83] Concerning the third alleged error, the appellant relies on the following three excerpts from Dr. Langille’s evidence to submit that Dr. Langille testified that he did not know how alcohol and GHB interacted and that, as far as he was aware, memory lapses were not a known effect of GHB but rather were an effect of alcohol:
Ist excerpt
Q.: Is it possible for ones, for this, is it possible while consuming GH[B] along with consuming alcohol simultaneously, is it possible to have clarity come and go, ones understanding or ones awareness come and go, in other words [to] come to and not…
A.: That wouldn't be my understanding of someone significantly sedated with both GH[B] and alcohol, but however [it] is an effect of intoxication due to alcohol. However since it hasn't been well studied, I can't categorically state that that can not happen, that the general route though of intoxication with GH[B] even on top of alcohol where the individual is unconscious and goes to hospital, is that the only time they actually wake up is during the dawning effect. If they…
Q.: That's for individuals who are unconscious?
A.: That's correct.
2nd excerpt
A.: The patchy memories that occur for some of this time period. And would be less consistent and [in fact] likely not consistent with GH[B] alone... But it's possible that that could in fact occur with a combination of a lower dose of GH[B] and alcohol. The effects of that low dose though wouldn't last, in my opinion, beyond the first two hours. So that if this activity in fact lasted until 4 o'clock that wouldn't be consistent.
3rd excerpt
Q.: And if I were to … suggest that perhaps during this period of time before intercourse is occurring perhaps this woman is in fact engaging in sexual activity that she has no recollection of, would that be consistent with the consumption of GH[B] and alcohol?... Sexual activity, let me say sexual activity that she normally would not engage in where she's sober. Are you able to answer that?
A.: You haven't, I guess what you haven't told me is whether or not this individual was, is alleged to have been unconscious at the time or was conscious but just has no memory.
Q.: Conscious, but has no memory, I'm sorry. Actually, engaging in an activity, for instance performing oral sex.
A.: Generally individuals will have complete blackout of all memory with alcohol only when they are heavy abusers of alcohol and experience alcoholic blackouts. I can't find any definitive literature that states that GH[B] produce[s] that type of an amens—when consumed orally. So I'm not in a position to state that that would be consistent with GH[B] and alcohol. My understanding is generally the amount of awareness will, what's going on, will decrease in tandem with the decrease in consciousness, and individuals can have memory [deficits], but not generally, complete unawareness for a long period of time, unless they've been heavy abusers, at least of alcohol, and it's unclear what the combined effects of GHB and alcohol would have in that particular state.
[84] In my view, the first and third excerpts relied on by the appellant are of no assistance to him because they relate to scenarios that do not accord with the trial judge’s findings. The first excerpt relates to individuals who are unconscious as the result of consuming GHB and alcohol, whereas the trial judge simply found that the complainant was sedated. The third excerpt is part of a hypothetical question in which the Crown posited that the complainant performed oral sex on the appellant (in accordance with the appellant’s claim) and that she had no recollection of doing so and asked Dr. Langille to comment on whether that scenario was consistent with the combined use of GHB and alcohol. However, the trial judge did not accept the appellant’s version of the events, making this aspect of the hypothetical irrelevant.
[85] In my opinion, the second excerpt from Dr. Langille’s evidence relied on by the appellant is not inconsistent with the trial judge’s findings. Moreover, there was at least one other portion of Dr. Langille’s evidence that suggested that patchy memory could be a possible side effect of combined alcohol and GHB use:
Q. Is it possible, when combined with alcohol … to have an awareness, more clarity of awareness that might come and go?
A. What I can tell you is that in general with most central nervous system depressants, where an individual is not unconscious, that they are in a state of sedation and are still arous[ed] by some type of strong stimulants, that it is possible that those individual[s] will become aroused, [that] they will have an increase, transient and small increase in their adrenaline … which will, to some limited degree counteract the effects of CNS depressants such as alcohol, and likely this would also counter to some degree, but it’s not clear, a depressant such as GH[B]. In my experience, it’s common for individuals to respond to strong stimulus and be able to then have period of recollection, to be able to, because of their intoxicated state, they’re unable to maintain that, and they then in the parlance pass out again. That seems [to be] the common feature of people who are significantly intoxicated.
Q. Well, when you use the word intoxication, are you speaking only of alcohol or of GH[B], or a combination of both?
A. Or of any central nervous system depressants.
[86] In my view, based on the totality of Dr. Langille’s evidence, it was open to the trial judge to make the findings that he did.
B) The complainant’s evidence
[87] During examination-in-chief, the complainant described beginning to feel unwell as she drank her wine. She said her “head started not being normal” and that her understanding of what was going on was blurry. She also said she had experienced that feeling on one prior occasion, while drinking with Mr. R.
[88] After summarizing the complainant’s evidence concerning the symptoms she experienced the trial judge said, “For [the complainant], this was an unfamiliar and different kind of intoxication than she had ever experienced.”
[89] The appellant submits that because the complainant testified she had previously experienced a similar feeling of blurriness while consuming alcohol with Mr. R., the trial judge’s finding amounts to a material misapprehension of the evidence and taints the trial judge’s conclusion that the complainant was drugged.
[90] I reject this submission. When the complainant testified that she had previously experienced a similar feeling of blurriness, she was describing only how she felt as she began to feel unwell:
A. [At] that point I remember very well my head started not being normal … My head, my understanding, everything what’s going on … Becoming kind of blurry.
Q. Had you experienced those sort of symptoms before …
A. Before in my life, no. But when I was, a couple of times at Terry’s place that was kind of similar feelings too. …
[91] During cross-examination by appellant’s counsel she described how she felt as her condition worsened, saying that:
…the feeling was completely different that I never ever had before. The feeling was drowsy, like I was falling somewhere.
[92] The trial judge’s finding that the complainant experienced an unfamiliar and different kind of intoxication than she had ever experienced before related to the complainant’s description of all of her symptoms, not just the initial blurriness. In my view, this finding was open to the trial judge based on the totality of the record.
iii) Did the trial judge err in finding that the complainant lacked the capacity to consent to sexual activity?
[93] The appellant submits that the trial judge’s finding that the complainant lacked the capacity to consent to sexual activity is unreasonable. He relies on case law establishing a low threshold for a finding of capacity, and in particular, cases in which it has been held that drunkenness or loss of inhibitions and self-control do not amount to a lack of capacity: R. v. Cedeno (2005), 2005 ONCJ 91, 195 C.C.C. (3d) 468 (Ont. Ct. J.); R. v. Jensen (1996), 1996 1237 (ON CA), 106 C.C.C. (3d) 430 (Ont. C.A.), aff’d (1997), 1997 368 (SCC), 112 C.C.C. (3d) 384 (S.C.C.); R. v. J.W.M., [2004] O.J. No. 1295 (S.C.J.); and R. v. Sarson (1992), 1992 4828 (NS CA), 77 C.C.C. (3d) 233 (N.S.C.A.).
[94] Further, the appellant submits that the evidence establishes that the complainant was sufficiently conscious to be capable of giving a valid consent. In particular, the appellant claims that Dr. Langille testified that GHB would not have caused the complainant to lose awareness of what was going on around her, but rather would simply have affected her ability to recall events afterwards. Further, the appellant relies on the complainant’s description of her surroundings and Mr. R.’s activities while she was engaged in intercourse, together with her evidence that she was sufficiently conscious to ask Mr. R. if the appellant was wearing protection and to tell the appellant to let her go, as demonstrating that she had the capacity to give a valid consent.
[95] I do not accept these submissions. In my view, the appellant has taken a portion of Dr. Langille’s testimony out of context. When Dr. Langille said “[i]t’s not that an individual has no awareness of what’s going on, but afterwards has no clear memory of what took place,” he was describing a study that involved injecting GHB intravenously to test its effect in producing forward amnesia as compared to Valium for pre-anaesthetic purposes. Dr. Langille did not testify that GHB would have the same effects when taken orally.
[96] In his reasons, the trial judge correctly identified the test for capacity to consent as follows:
In order for the complainant to be found to have lacked the capability of consenting, [the complainant] must have been intoxicated to the point where she could not understand the sexual nature of the act or realize that she could choose to decline to participate.
[97] Further, the trial judge described the complainant’s state of mind on May 21, 2002 as follows: “She was experiencing real difficulty thinking and moving”; “she became increasingly drowsy”; “[she] was unable to concentrate and felt like she was watching herself in a movie”; and “she was unable to concentrate, get up off the floor and certainly unable to engage in any decision-making process about whether to engage in sexual activity.” Although the trial judge was satisfied that the complainant became fully conscious while the appellant was having intercourse with her, he found this consistent with Dr. Langille’s evidence that a person who is sedated may become aroused by strong stimuli.
[98] Based on these findings the trial judge went on to conclude:
As already stated, the Crown has satisfied me beyond a reasonable doubt that [the appellant] drugged the complainant without her knowledge. The evidence establishes that the degree of intoxication by the combination of GHB and alcohol caused [the complainant] to lose her capacity to consent to have sex with [the appellant]. The complete loss of inhibition that she experienced was the direct result of being drugged by [the appellant]. She was sufficiently sedated to have lost her ability to consent to or to resist the sexual activity with [the appellant]. She was sufficiently sedated that she could not voluntarily agree to engage in sexual activity with him. [The complainant] cannot be said to have given a valid consent to [the appellant] where she engaged in sexual activity because she had been drugged without her consent.
[99] In my view, the trial judge’s findings concerning the appellant’s state of mind on May 21, 2002 are supported by the evidence and justify his conclusions.
IV. DISPOSITION
[100] Based on the foregoing reasons, I would dismiss the conviction appeal and grant leave to appeal sentence but dismiss the sentence appeal.
RELEASED: September 24, 2007 “JL”
“Janet Simmons J.A.”
“I agree John Laskin J.A.”
“I agree H.S. LaForme J.A.”
[^1]: The Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
[^2]: In his evidence, Dr. Langille described a precursor as a chemical which is necessary for producing a second chemical.