WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

486.4(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 victim of the right to make an application for the order; and

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

486.4(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

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

486.4(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.

486.4(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

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.

486.6(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. 2005, c. 32, s. 15.

Court of Appeal for Ontario

Date: 2018-12-06

Docket: C63636

Panel: Doherty, Miller and Fairburn JJ.A.

Between

Her Majesty the Queen Respondent

and

Christopher Carson Appellant

Counsel

Mark C. Halfyard, for the appellant

Jill Witkin, for the respondent

Hearing and Release

Heard and released orally: November 27, 2018

On appeal from: the conviction entered on November 15, 2016 by Justice Andrew J. Goodman of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

Facts

[1] The appellant appeals from his conviction on a charge of sexual assault.

[2] The complainant, the appellant and the appellant's girlfriend went out for the evening. Everyone was drinking. They returned to the residence shared by the appellant and his girlfriend late that evening. The complainant and the appellant had both had a lot to drink. The complainant eventually went to bed by herself in the spare bedroom. She had her pants on when she fell asleep.

[3] The complainant awoke early the next morning. She did not have her pants on and she felt wetness underneath her. The complainant spoke to her mother who recommended that she call the rape crisis centre. The complainant did so and, at the suggestion of the people at the crisis centre, she went to the hospital. The complainant underwent a complete sexual assault examination. The test results confirmed sexual activity.

[4] Several months later, at the request of the police, the appellant voluntarily provided a DNA sample. A DNA comparison confirmed that the appellant had engaged in sexual activity with the complainant.

[5] The complainant testified that she was asleep after she went to bed and had no recollection of having sex with the appellant. She was adamant that she would never have consented to having sex with her friend's boyfriend.

[6] The appellant accepted, in light of the forensic evidence, that he had sex with the complainant. He also had no recollection of the activity. He was equally adamant that he would not have had non-consensual intercourse with anybody.

Grounds of Appeal

[7] There are three grounds of appeal.

1. Did the Trial Judge Misdirect the Jury on the Requirement that the Appellant Had to "Know" that the Complainant was not Consenting to Sexual Intercourse?

[8] The appellant submits that the trial judge failed to adequately define knowledge and failed to tell the jury that the Crown had to prove knowledge beyond a reasonable doubt. The trial judge's instructions are found at pages 555 and 556 of the transcript. He told the jury in plain, clear language that knowledge of the absence of consent was an essential element of the offence. He equated knowledge of the absence of consent with the awareness on the part of the appellant that the complainant was not consenting. He also specifically told the jury that the reasonable doubt obligation on the Crown applied to the question of knowledge of the absence of consent. In our view, the charge was accurate.

2. Did the Trial Judge Err in his Instruction on Circumstantial Evidence?

[9] The appellant submits that the evidence that the complainant did not consent to the sexual activity was circumstantial and that the instructions did not make it clear to the jury that the jury could convict only if satisfied that the inference that the complainant did not consent was the only available reasonable inference. Counsel also submits that the trial judge mischaracterized the evidence on the question of non-consent as "mostly" direct evidence.

[10] We see no error in the instructions on circumstantial evidence. Nor in our view was the evidence that the complainant did not consent circumstantial. She testified that she was asleep when the sexual activity occurred. If the jury believed that evidence, the jury would, without drawing any further inference from that evidence, conclude that she had not consented to the sexual activity. A person who is asleep cannot consent to sexual activity: R. v. J.A., 2011 SCC 28. If the jury believed the complainant and concluded that she was asleep at the relevant time, it followed without the need to draw any inference that the complainant did not consent to the sexual activities.

[11] Through cross-examination of the complainant, and in the appellant's evidence, the defence put forward a different version of the events. The defence claimed that the complainant was awake and consented to the sexual activity, but could not recall the events in the morning because of alcohol induced memory loss. That position was open on the evidence, and was put to the jury by the trial judge. However, the defence contention that the complainant did consent but did not recall consenting, did not turn the complainant's direct evidence that she was asleep into circumstantial evidence that she did not consent. The defence position simply presented its version of the relevant events for the jury to consider.

[12] The Crown's case on the issue of the absence of consent rested largely on the complainant's direct evidence that she was asleep and therefore incapable of consenting to the sexual activity. The jury instructions were adequate and in our view reveal no error in respect of the instruction on circumstantial evidence.

3. Was the Verdict Unreasonable?

[13] The evidence in this case was certainly unusual. Both the appellant and the complainant professed to have no recollection of the sexual encounter. The complainant denied that she would have agreed to sex with the appellant. The appellant denied he would have had non-consensual sex with anyone. The case turned very much on the credibility of these two witnesses and the application of the burden of proof to the credibility assessments made by the jury. If the jury believed the complainant that she was asleep when the sexual activity occurred, it could reasonably convict the appellant. In our view it was not unreasonable to believe the evidence of the complainant. The verdict is therefore not unreasonable.

Decision

[14] The appeal is dismissed.

"Doherty J.A."

"B.W. Miller J.A."

"Fairburn J.A."