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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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 Information

Court of Appeal for Ontario

Date: 2018-11-26

Docket: C61975

Panel: Sharpe, Hourigan and Trotter JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

Sascha Jermaine Dixon Appellant

Counsel

William Luke, for the appellant

Andrew Cappell, for the respondent

Hearing

Heard: November 22, 2018

On appeal from: the conviction entered by Justice Beth A. Allen of the Superior Court of Justice sitting without a jury on September 25, 2015.

REASONS FOR DECISION

A. Overview

[1] The appellant was convicted of sexually assaulting the complainant following a party at the home of mutual friends. At trial, he did not dispute that he had sexual intercourse with the complainant during the evening in question, but testified that the encounter was consensual. On appeal, he submits that the trial judge erred in her consideration of: the complainant's capacity to consent, a toxicology report, DNA evidence, and his criminal record. We do not give effect to any of these grounds of appeal and, accordingly, dismiss the appeal.

B. Facts

[2] On December 15, 2012, the complainant attended a Christmas party hosted by her female friend, S.J. The appellant, who had known the complainant for over ten years, also attended the party. It is uncontested that the appellant was drinking vodka and smoked marihuana during that evening, although his level of intoxication was the subject of conflicting evidence at trial. The testimony of the complainant and the appellant contrasts sharply regarding the nature of their interactions that evening.

[3] According to the complainant, at some point that evening she made her way to S.J.'s bedroom and laid down fully clothed beside S.J. She testified that she did so because she was feeling dizzy and sick as a consequence of her alcohol consumption. She fell asleep almost immediately but was awoken after being slapped on her bottom. Her evidence was that she did not see who slapped her and did not turn around to see who it was because she could barely keep her eyes open. The complainant testified that she did not know what was happening and felt like she was going in and out of consciousness. She says that she has no recollection of physical contact with the appellant. However, she did remember feeling that she was swaying, like she was being pushed and pulled.

[4] The complainant further testified that the next thing she remembered was S.J. and her partner, M.A., waking her up and screaming at her to get out of their apartment. She says that she felt very drunk and disorientated. M.A. threw the complainant's pants and underwear at her and escorted the complainant out of the apartment. She asked S.J. and M.A. for cab fare. M.A. threw her a $5 bill and she threw it back. The complainant remembers meeting the appellant in the corridor and next remembers being in the appellant's car in the front passenger seat. According to the complainant, she looked over and saw the appellant sitting in the driver's seat masturbating.

[5] The complainant's next memory was waking up on her living room floor at 6:30 p.m. that evening. She was surprised to discover that she was not wearing any underwear and that a tampon she had put in the night before was gone. She became concerned about what had happened the previous evening and called S.J. to enquire about what had transpired. S.J. told the complainant that she had sex with the appellant. The complainant later attended at the Rouge Valley Hospital because she did not know if the tampon was still inside of her. Eventually she went to Scarborough Grace Hospital to complete a sexual assault kit, which revealed the appellant's DNA inside her.

[6] The testimony of the appellant is at odds with the evidence of the complainant in most material respects. He testified that sometime after 3:30 a.m., as the party was starting to wind down, he saw the complainant in the hallway between the master bedroom and washroom. He says that she gestured for him to come over and speak to her and that she did not seem intoxicated. After a brief conversation, the complainant grabbed the appellant's hand and led him into the bedroom, where he believes she took off her pants. The appellant's evidence is that the complainant led him to the bed and pulled him on top of her. He was still wearing his clothes at the time. According to the appellant, he started stimulating the complainant's genitals with his hands.

[7] The appellant testified that about a minute later, S.J. woke up and was very angry. She left the room and came back with M.A. The appellant went to wash his hands in the bathroom and could hear screaming among the complainant, S.J., and M.A. The complainant then joined him in the bathroom and told him that she did not have a way home. The appellant testified that he offered her a ride and the complainant accepted and told him to wait for her outside of the apartment. A short time later, the complainant exited the apartment and he walked her to his minivan. He testified that this occurred at approximately 6:30 to 7:00 a.m. The appellant's evidence was that at this point he was very sober and the complainant "seemed fine". He said that the complainant drank more vodka and they then engaged in consensual intercourse in the minivan. Afterwards, he drove her home.

[8] S.J. testified at trial that she was awoken to sound of moaning and she observed the appellant, whose pants were pulled down, on top of the complainant, who was wearing a shirt but no pants or underwear. She says that she screamed, "What the fuck?" and went to get M.A. in the living room. The appellant went into the bathroom and the complainant followed him in there. S.J. believes that it was about 5:30 to 6:00 a.m. at this point. She says that she was very upset and that she and M.A. kicked out everyone who was still in the apartment. Later when cleaning her bedroom, S.J. discovered a used tampon under her bed.

[9] S.J. next heard from the complainant at about 12:30 p.m. that day. She testified that the complainant seemed confused and "out of it". S.J. explained to the complainant that she had sex in her bed with the appellant. At about 8 p.m. that evening the complainant called again; she was crying and seemed groggy.

[10] M.A. also testified. He gave evidence that around 4 a.m. S.J. started a commotion and he went to the bedroom. He was told by S.J. that she had woken up to the appellant and complainant in their bed. The appellant came out of bedroom with his clothes on and went into the bathroom. The complainant followed shortly thereafter in a t-shirt and panties. M.A. confirmed the complainant's testimony about tossing her a $5 bill and having it thrown back at him. He also said that she retrieved her vodka bottle before leaving the apartment.

C. Decision of the Trial Judge

[11] The trial judge began her analysis by making credibility findings about the witnesses. She found the complainant to be a credible witness and concluded that the defence did not make meaningful inroads into her credibility. S.J. was also found to be credible. The trial judge provided detailed reasons why she found the appellant and M.A. not to be credible. She preferred the evidence of the complainant and S.J. regarding the complainant's level of intoxication over the evidence of the appellant and M.A., finding that the latter witnesses downplayed her level of intoxication.

[12] After commenting on the credibility of the witnesses, the trial judge found that the Crown had proved beyond a reasonable doubt that the complainant was sexually assaulted by the appellant when he engaged in non-consensual intercourse with her in S.J.'s bedroom. With respect to the issue of consent, she accepted the testimony of the complainant and S.J. that the complainant was very intoxicated and noted that this evidence was supported by a toxicology report on the complainant's blood alcohol level tendered by the Crown. The trial judge made a specific finding that the complainant had no capacity to consent to sexual activity.

[13] In support of her finding that the appellant sexually assaulted the complainant in S.J.'s bedroom, the trial judge relied on, among other things, the evidence of S.J. that she saw the appellant on top of the complainant in her bed with his pants down and her pants off, the presence of the used tampon, the discrepancy between the evidence of S.J. and the appellant regarding whether his pants were down, and inconsistencies in the appellant's testimony regarding the timing of when he left the bedroom and when he arrived at his minivan.

[14] The trial judge went on to consider the issue of what occurred in the appellant's minivan. She concluded that there was no evidence of the complainant's conscious agreement to engage in any sexual activity in the vehicle.

D. Issues

[15] The appellant submits that the trial judge erred in:

(a) Applying the incorrect test regarding consent;

(b) In her use of the toxicology report;

(c) In her use of the DNA evidence; and

(d) In her use of the appellant's criminal record.

[16] These arguments are considered in turn below.

E. Analysis

(1) Consent

[17] The appellant submits that the trial judge erred by failing to advert to the law of capacity to consent and the inferences that can be drawn with respect to the complainant's capacity to consent. Specifically, he argues that intoxication is only indicative of a lack of capacity to consent if the complainant, by reason of her intoxication, could not understand the sexual nature of the act or realize that she could decline to participate. He points to the complainant's purposive behaviour after she left the bedroom, including asking for a ride, throwing the $5 bill at M.A., and retrieving her vodka bottle, along with her willingness to let the appellant drive her home, as raising a reasonable doubt about whether she was incapable of consent moments earlier in the bedroom.

[18] In considering this submission, we note that the defence theory at trial was not that the complainant consented to sexual intercourse while in the bedroom, but that the intercourse took place later in the appellant's minivan. We also note the trial judge's finding that the complainant was intoxicated to the point where she went into a deep sleep, faded in and out of consciousness, and did not know what was happening to her. Given this finding, it would have been impossible for her to consent to sexual activity: R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at para 66. We see no error in the trial judge's conclusion that the complainant was incapable of consenting to sexual activity.

(2) Toxicology Report

[19] The trial judge made reference to the toxicology report tendered by the Crown in support of her conclusion that the complainant was too intoxicated to consent to sexual activity. That report indicates that between 1:00 a.m. and 7:30 a.m. on the date of the offence, the complainant's blood alcohol level ranged between a minimum of 177mg/100ml and a maximum of 512mg/100ml of blood.

[20] In addition to noting the broad range of blood alcohol levels in the report, the appellant submits that the trial judge failed to consider that the complainant's alcohol levels would have been impacted by the vodka she consumed while in the minivan. He argues that when the post-offence drinking is factored in, the complainant's blood alcohol level would have been lower at the time of the offence. The appellant's position is that this was a misapprehension of evidence by the trial judge entitling him to a new trial.

[21] In our view, when the trial judge's reasons are read as a whole, her finding regarding the complainant's level of intoxication is based primarily on her acceptance of the evidence of the complainant and S.J. on this issue. The toxicology report was merely referenced as being supportive of and consistent with that evidence. Further, we are not satisfied that the trial judge misapprehended that the blood alcohol levels in the toxicology report would have included post-offence alcohol consumption.

(3) DNA Evidence

[22] The trial judge relied on the presence of the appellant's DNA inside the complainant in finding that the appellant had non-consensual intercourse with the complainant in the bedroom. The appellant submits that this was an error because the trial judge also found that the appellant and the complainant engaged in intercourse in the minivan. He argues that the DNA evidence might have resulted solely from intercourse in the minivan.

[23] We do not read the trial judge's reasons as making a finding that the complainant and the appellant engaged in intercourse while in the minivan. The trial judge was obliged to consider this scenario as it was the centrepiece of the appellant's defence. A fair reading of her reasons makes clear that the trial judge had grave doubts about the appellant's evidence in this regard. However, even accepting his evidence for the purpose of her analysis, she rejected the idea that the complainant was capable of consenting to sexual activity while in the minivan.

(4) Criminal Record

[24] In the section of her reasons dealing with the appellant's credibility, the trial judge makes reference to his criminal record. The appellant properly concedes that his criminal record can be used by the trial judge to assess his credibility. However, he argues that there is nothing in the reasons stating what use the trial judge made of the criminal record and that she failed to caution herself not to use the record for an improper purpose, such as propensity reasoning.

[25] The manner in which the evidence was elicited at trial is troubling. The trial Crown started this area of his cross-examination by asking the appellant if he was a violent person. He then proceeded to go beyond the criminal record itself to ask questions about the circumstances of the offences. Crown counsel on appeal conceded that the questioning was improper and that if this were a jury trial, this cross-examination would be very problematic.

[26] Despite these concerns, we would not give effect to this ground of appeal. The trial judge is presumed to know that an accused's criminal record cannot be used as evidence of his propensity to commit the crimes with which he was charged. While it would have been preferable if the trial judge included a specific caution in her reasons that she could not use the evidence for a prohibited purpose, such a caution is not absolutely necessary. Further, there is nothing in the reasons to suggest that the trial judge used the appellant's criminal record for an improper purpose. The fact that it was referenced in the section dealing with her analysis of the appellant's credibility logically supports the conclusion that it was properly used.

F. Disposition

[27] The appeal is dismissed for the foregoing reasons.

"Robert J. Sharpe J.A."

"C.W. Hourigan J.A."

"G.T. Trotter J.A."