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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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

(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.

(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(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.

(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.

(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.

(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

CITATION: R. v. Norris, 2020 ONCA 847

DATE: 20201231

DOCKET: C65226

Fairburn A.C.J.O., Huscroft and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Norris

Appellant

Paul Lewandowski, for the appellant

Christine Tier, for the respondent

Heard: November 6, 2020 by video conference

On appeal from the conviction entered by Justice C. McKinnon of the Superior Court of Justice, dated December 7, 2015.

Fairburn A.C.J.O.:

A. overview

[1] The appellant held himself out to be a healer of ailments. He saw patients in a treatment room located in the basement of his home, a home that was tucked away in the countryside of a small, rural community. From that location, he purported to administer various treatments, including cranio-sacral therapy, lymph drainage therapy and visceral manipulation. From time-to-time the appellant would also utilize what he referred to as an “orgasm technique”.

[2] The appellant was eventually charged with five counts of sexual assault, all arising from having touched adult female patients in circumstances of a sexual nature. The conduct underpinning the charges included the touching of patients’ breasts, vaginal and anal areas, and, in one case, masturbating on a patient’s feet.

[3] The appellant was convicted on all five counts of sexual assault. He appeals those convictions on the basis that the trial judge erred:

(a) in allowing for the cross-count application of similar act evidence; and

(b) in his approach to consent in relation to one of the complainants – the one who had her feet masturbated on.

[4] For the following reasons, I would dismiss the appeal.

B. Did the trial judge err in his approach to similar act evidence?

(i) Overview

[5] The indictment contained five counts of sexual assault, one count for each of the complainants. At the conclusion of its case, the trial Crown applied to have the evidence of all five complainants apply across all five counts.

[6] The Crown’s application was met with partial success. The trial judge concluded that the evidence of only three of the complainants was sufficiently similar to qualify for consideration across counts. The trial judge specifically rejected the defence suggestion of collusion on the part of the complainants. In the end, he decided that the probative value of H.S., B.W. and D.A.’s evidence outweighed any minimal prejudicial impact that may result from the cross-count application of that evidence.

[7] The appellant contends that the similar act ruling reflects two fundamental errors. First, he maintains that the evidence of H.S., B.W. and D.A. was insufficiently similar to qualify as similar act evidence, capable of consideration across counts. Second, he maintains that the trial judge erred by dismissing the allegation of collusion in circumstances where the trial Crown failed to call a critical witness who was alleged to be one of the colluders.

[8] I will deal with the appellant’s arguments in that order. Neither of them can succeed.

(ii) Was there Sufficient Similarity in H.S., B.W. and D.A.’s evidence?

[9] Two purposes were served by allowing for the cross-count application of H.S., B.W. and D.A.’s evidence. The first purpose related to the Crown’s ability to rebut any possible suggestion of inadvertent or accidental touching. The second purpose related to, as the trial judge put it, the Crown’s ability to prove that the touching “happened at all.” Touching forms part of the actus reus of the crime of sexual assault, the full actus reus of course being the non-consensual touching of a complainant in circumstances of a sexual nature: R. v. Barton, 2019 SCC 33, 435 D.L.R. (4th) 191, at para. 87; R. v. A.(J.), 2011 SCC 28, [2011] 2 S.C.R. 440, at para. 23.

[10] The appellant contends that where the purpose for the admission of similar act evidence is to assist in establishing the actus reus of the offence, as a prerequisite to admission, the evidence must be strikingly similar in nature. Since this was one of the purposes for applying the similar act evidence across counts in this case, the appellant maintains that the trial judge committed reversible error by failing to consider whether the evidence first met the threshold of striking similarity.

[11] While I accept that the trial judge did not consider whether H.S., B.W. and D.A.’s evidence was strikingly similar in nature, I reject that he was required to do so.

[12] The appellant points to a single, dated authority for the proposition that, where similar act evidence is proffered to establish the actus reus of an offence, it must first be found strikingly similar in nature: R. v. McNamara (1981), 1981 3120 (ON CA), 56 C.C.C. (2d) 193 (Ont. C.A.), at pp. 287-88 (aff’d. without reference to this point, 1985 32 (SCC), [1985] 1 S.C.R. 662). I disagree that McNamara stands for this proposition and, even if it does, the long line of authority that has evolved since McNamara was decided has made clear that this is not the test.

[13] In support of his proposition, the appellant appears to rely upon a brief reference in McNamara to the decision of Boardman v. Director of Public Prosecutions, [1975] A.C. 421, at p. 462. The McNamara court noted that similar act evidence was tendered in Boardman to prove the “commission of the offence by the accused”: at p. 288. This court said that, in the circumstances operative in Boardman, “the strikingly similar test [was] properly applied as a condition precedent to admissibility”: at p. 288. Even so, the McNamara court refused to apply that high threshold test to the similar act evidence in McNamara because the evidence was tendered to prove, among other things, state of mind, knowledge and intent: McNamara, at p. 288.

[14] I do not intend to review the Boardman decision, briefly commented upon by this court in McNamara. Suffice to say that, as noted by The Honourable Marc Rosenberg: “The English Court of Appeal quickly recognized that this test [the Boardman test] was too restrictive and no single test could be articulated to fit all the circumstances in which similar fact evidence could be admissible”: The Honourable Marc Rosenberg, “Similar Fact Evidence”, Law Society of Upper Canada Special Lectures 2003: The Law of Evidence, (Toronto: Irwin Law, 2003), at p. 411. See also: R. v. Rance and Herron (1976), 62 Cr. App. R. 118 (C.A.) and R. v. Mansfield (1977), 65 Cr. App. R. 276 (C.A.).

[15] Even if the passage in McNamara could be read as supporting the appellant’s position, it is an entirely obiter comment and, in any event, does not accurately capture the law today. To accept the appellant’s position would be to ignore a long line of authority that has evolved since McNamara, clarifying that the strikingly similar test does not operate as a condition precedent to admission, even where the purpose of admission is to establish the actus reus of the offence.

[16] Indeed, as the majority in R. v. B.(C.R.), 1990 142 (SCC), [1990] 1 S.C.R. 717, noted 30 years ago now: “Catchwords have gone the same way as categories”: at p. 733.[^1] Instead, the focus is upon whether the proposed similar act evidence constitutes an exception to the general rule prohibiting the introduction of bad character evidence on the basis that its probative value outweighs its prejudicial effect. Therefore, in any similar act application, the onus falls squarely on the Crown to establish on a balance of probabilities that the probative value of the evidence exceeds any prejudicial effect that may flow from its admission into the trial or, as in this case, from its application across counts in a multi-count indictment: R. v. Perrier, 2004 SCC 56, [2004] 3 S.C.R. 228, at para. 18; R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 55.

[17] Like many similar act evidence applications in trials involving multiple complainants, the probative value of the evidence in this case lay in the objective improbability of coincidence that more than one person (acting independently) would coincidentally give the same type of evidence: R. v. Arp, 1998 769 (SCC), [1998] 3 S.C.R. 339, at para. 48; Handy, at paras. 76, 110; R. v. Durant, 2019 ONCA 74, 144 O.R. (3d) 465, at para. 87. As Binnie J. put it in Handy, at para. 47: “Probative value exceeds prejudice” where the “force of similar circumstances defies coincidence or other innocent explanation.”

[18] The degree of similarity required in any given case depends upon the issues at work in that case and the purpose for which the evidence is sought to be admitted into the trial or across counts. The cumulative effect of similarities in the way the acts were committed will often push toward admission into the trial or across counts. But there is no categorical approach. Factors to be considered involve: proximity in time, the similarity between the acts, the number of alleged occurrences of similar acts, the circumstances surrounding the acts, any distinctive features involved in the similar acts and whether there exist any intervening events: Handy, at para. 82. Dissimilarities must also be considered.

[19] The trial judge fully appreciated these factors and went through them in some detail. He carefully reviewed the evidence of each complainant, ultimately comparing and contrasting that evidence to tease out both the similarities and dissimilarities at work in each version of events. Revealing the seriousness with which he took his gatekeeping role, the trial judge cautiously arrived at the conclusion that the evidence of only three of the five complainants was sufficiently similar to sponsor consideration for admission across counts. In those cases, the trial judge pointed to the following factors informing the similarity in the evidence:

(a) all three women were adults;

(b) they were each asked to remove their pants and tops while the appellant stood by and watched;

(c) all three had their breasts touched;

(d) all three had their vaginal areas touched;

(e) all three had their tailbones manipulated;

(f) two of the complainants had their labias touched, after which the appellant sniffed his fingers, also licking his fingers in one case and running them through his hair in another case;

(g) the appellant made sexual comments to two of the women; and

(h) he spoke to two of the women about his “orgasm technique”.

[20] The appellant suggests that some of the trial judge’s analysis was flawed in the sense that he failed to appreciate the finer distinctions between the complainants’ versions of events. For instance, the appellant contends that the appellant only ran his fingers along B.W.’s pubic hairline, while H.S. and D.A. recounted having had their labias touched. He points to another example relating to how the women’s breasts were touched. In D.A.’s case, the appellant was said to have placed his hands “slightly in between my breasts”, whereas the other complainants recounted a greater extent of touching of the breasts.

[21] Bearing in mind the entire context in which the touching took place, and all of the points of similarity, the differences that the appellant points to are without force. The point is that the complainants were touched in similar circumstances of a sexual nature, in and around the same parts of their bodies, and in the context of the same patient/health care worker relationship. Whether touched a little to the left or a little to the right, in these circumstances, are distinctions without a difference.

[22] Having determined the probative value of the evidence, the trial judge properly turned his mind to its prejudicial effect.

[23] The presumptive inadmissibility of similar act evidence – a form of bad character evidence – is rooted in concerns over moral and reasoning prejudice. Moral prejudice results where triers of fact decide cases, not based on what the accused has done, but based on the kind of person the trier of fact perceives the accused to be: Handy, at paras. 31, 36; R. v. Lo, 2020 ONCA 622, at para. 110. Reasoning prejudice results where similar act evidence gives rise to confusion and distracts the trier of fact from its proper focus on the charges before the court.

[24] In this case, the trial judge determined that little prejudice would flow from the cross-count application of the three complainants’ testimony. The appellant does not take issue with that conclusion and for good reason. As this was a judge-alone trial, involving only the cross-count application of evidence intrinsic to the indictment, the potential for moral and reasoning prejudice was seriously attenuated: R. v. J.M., 2010 ONCA 117, 251 C.C.C. (3d) 325, at paras. 87, 88.

[25] Accordingly, it was the task of the trial judge in this case to balance that admittedly attenuated prejudice resulting from the cross-count application of evidence with the probative value of what would result from any such approach. Calibrating the probative value of evidence against its prejudicial impact can sometimes involve difficult exercises of discretion. Similar act evidence applications are no exception to that observation.

[26] Trial judges occupy the best position from which to view the entire trial landscape and consider the trial dynamics at work. Together, those contextual factors form a critical backdrop against which discretionary admissibility rulings are made. For this reason, a high degree of deference should be given to trial judges’ decisions respecting where, within the wider context of the entire trial, the balance between probative value and prejudicial effect lies: B.(C.R.), at p. 733; R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 73.

[27] I see no basis upon which to interfere with the trial judge’s careful exercise of discretion in this case and would grant his admissibility decision deference.

(iii) The Analysis on Collusion

[28] Where the admissibility of similar act evidence into a trial or across counts rests on the improbability of coincidence, anything that serves to shake that improbability will serve to shake the probative potential of the evidence: Lo, at para. 113. Genuine collusion will do just that.

[29] The defence made an allegation of collusion in this case and the trial judge found that there was an air of reality to that suggestion. Having found that the air of reality threshold had been crossed, it was for the trial Crown to disprove collusion on a balance of probabilities: Lo, at para. 113; Handy, at para. 112; Shearing, at para. 41. The appellant accepts that the trial judge well understood this fact.

[30] The appellant maintains, though, that in meeting its onus, the trial Crown was duty-bound to call a particular witness who the appellant says was one of the colluders: G.J. Yet the Crown did not elicit evidence from G.J. The appellant argues that, in the absence of G.J.’s evidence, the trial Crown necessarily fell short on disproving collusion and, therefore, it was not open to the trial judge to find that there had been no collusion. I do not agree with this chain of reasoning.

[31] B.T. was a massage therapist who worked in the same geographical area as the appellant. His wife was G.J. In 2009, G.J. was experiencing nerve pain and so the couple attended at the appellant’s office so that G.J. could obtain treatment. B.T. went into the treatment room with his wife. Part way through that treatment session, the appellant started explaining his “orgasm technique”. In his testimony at trial, B.T. described what happened next as involving G.J. stroking B.T.’s fingers, in a masturbating type motion, while the appellant did something to the palm of her hand to bring on an orgasm.

[32] B.T. and G.J. later wrote a letter to the appellant, expressing concern over the treatment session. The letter cautioned the appellant against this type of activity and expressed concern over the fact that it could seriously compromise “informed consent”.

[33] Although B.T. testified at trial, G.J. did not.

[34] Anticipating that there may be a suggestion of collusion, the trial Crown pre-emptively asked B.T. questions about any interactions he may have had with the complainants whose allegations formed the essence of the indictment at trial. Equally, the complainants were asked about any interactions they had with each other and with B.T. and G.J. The trial judge carefully considered all of that evidence, made credibility findings concerning it, and provided reasons for rejecting the suggestion of collusion.

[35] I reject the proposition that the only way that the Crown could disprove collusion was by calling G.J. as a witness. It is important to remember that contact does not amount to concoction or collaboration: Handy, at para. 111; R. v. J.W., 2013 ONCA 89, 302 O.A.C. 205, at paras. 36-38. While G.J. may have had some contact with the witnesses, there was no evidence that they had concocted their stories or collaborated in developing their complaints. Indeed, there was evidence coming from each of the complainants that they did not collude with G.J. The trial judge accepted the complainants’ evidence as entirely credible. It was open to him to do so.

[36] Moreover, while the Crown held the burden of establishing that there was no collusion, this did not mean that the Crown was required to elicit the testimony of every person who may have had relevant evidence to give on the point. To the contrary, in an exercise of clear prosecutorial discretion, it is for the Crown to decide how to meet its burden: R. v. Jolivet, 2000 SCC 29, [2000] 1 S.C.R. 751, at para. 14; R. v. Cook, 1997 392 (SCC), [1997] 1 S.C.R. 1113, at paras. 19, 32, 39. If the Crown fails to meet its burden of proof, this is because the court is not satisfied to the requisite degree of proof, not because a witness list was not exhaustive or as extensive as it could have been. In this case, based upon the evidence heard, the trial judge was satisfied to the requisite degree of proof that there was no collusion.

[37] As well, not that the Crown needed a reason, there happened to be a very good one for why G.J. was not called to testify. As the trial Crown explained on the record, one of G.J.’s friends had been murdered not long before trial and G.J. was experiencing significant trauma as a result. Even so, the trial Crown offered, again on the record, to assist the defence with obtaining G.J.’s attendance should the defence wish to have her examined. While I remain cognizant of the Crown’s onus on this issue, the fact is that the defence chose not to take the Crown up on this offer.

[38] I see no error in how the issue of collusion was disposed of.

C. The Conviction Relating to A.R.D.

[39] A.R.D. was one of the appellant’s patients. She saw the appellant on three occasions. On the last occasion, the appellant pulled his erect penis out in the treatment room and masturbated on her feet. The conviction for sexual assault related to that event.

[40] The appellant argues that the trial judge’s reasoning on the A.R.D. count reflects three errors.

[41] First, the appellant argues that the trial judge erred in how he approached the issue of consent: (a) by failing to appreciate that the complainant actually consented to the sexual activity in question; and, in the alternative, (b) by failing to properly address whether the appellant had an honest but mistaken belief in consent.

[42] Second, the appellant argues that the trial judge failed to appreciate that the complainant had insufficient recall of the events to permit a conviction.

[43] And third, the appellant argues that the trial judge erred by applying different standards of scrutiny to the evidence of the appellant and that of A.R.D.

[44] I do not accept any of these arguments.

(i) The Issue of Consent

a. Did the trial judge fail to appreciate that A.R.D. actually consented?

[45] The appellant points to a single passage in the cross-examination of A.R.D. to suggest that she consented to having her feet masturbated upon as she lay on the treatment table. In that passage, which I will set out in detail shortly, A.R.D. acknowledged that she may have assisted with the masturbation by moving her feet on the appellant’s penis and that she may have said “yes” to the foot masturbation taking place. The appellant argues that “yes must mean yes” and, therefore, it was not open to the trial judge to find a lack of consent to the sexual activity on A.R.D.’s part.

[46] I will first explain the factual context within which this legal issue arises and then address why I would reject the appellant’s “yes must mean yes” position.

i. The Factual Context

[47] A.R.D. saw the appellant in his treatment room, located in the basement of his countryside home, on three occasions in total. While she originally sought his help with respect to migraine headaches, during the second appointment the appellant worked on A.R.D.’s breasts, claiming that he could assist her with pain during menstruation. He told her that her breasts looked “perkier” at the end of that appointment. While A.R.D. was uncomfortable at that appointment, she felt “professionally safe” because she considered the appellant to be a “doctor”.

[48] A.R.D. attended the third and final appointment at the appellant’s suggestion that he could assist her with stress that she was experiencing in her life. What happened during that appointment was the subject of dispute at trial.

[49] A.R.D. testified that the appointment started with the appellant showing her astrology books. He had marked sexually explicit passages for her to read. She was uncomfortable and did not know “where this was going”.

[50] After having reviewed those passages, the appellant told A.R.D. to lie on her back on the treatment table, close her eyes, and think about relaxing and happy thoughts. After about 20 minutes she opened her eyes to find the appellant with his pants down and his erect penis near her face. He asked if she wanted him to put his penis in her mouth. She said no. He then moved to the end of the table and placed his erect penis on her feet and began masturbating on them.

[51] A.R.D. was questioned at length about how the appellant’s erect penis came to rest on her feet, how the foot masturbation took place, and what followed that masturbation. I will come back to those details shortly. A.R.D. testified about the fear she was experiencing while the appellant’s penis was exposed to her in the treatment room. When asked, “Did you want any of those things that you’ve described with his penis to happen?”, A.R.D. provided the unequivocal answer: “Absolutely not.”

[52] The appellant also testified. While he agreed that he showed A.R.D. astrology books at the beginning of the treatment session, his version of what happened next differed wildly from A.R.D.’s account. He said that after A.R.D. was done with the books, their eyes met and there was a clear “connection” between them. According to the appellant, A.R.D. then placed her hand into his pants and started “working with” and “exploring” his genitals. He testified that he had been experiencing erectile dysfunction prior to that appointment and, so, it “surprised the hell out of [him]” when his penis, as he put it, “springs to life”.

[53] According to the appellant, A.R.D. suggested that they have sex on the treatment table. While he was “amenable to her request”, he decided that sex was “not going to happen” and so he asked A.R.D. if there was “anything else” she might like. According to the appellant, the “foot thing” was A.R.D.’s idea.

[54] The appellant testified that he did not get a lot of pleasure out of the foot masturbation, but added that he was not doing it for his own pleasure. Once he removed his penis from A.R.D.’s feet, the appellant testified that he asked A.R.D. if she wanted to have his penis in her mouth because, according to the appellant, “I never take, I always offer and I always ask.” He said that he offered to place his penis in her mouth just in case she wanted it or needed it. He said that his intentions were “always honourable”.

[55] The trial judge rejected the appellant’s testimony as “preposterous”. He gave multiple reasons for doing so. In contrast, the trial judge accepted A.R.D.’s evidence as being both credible and reliable. Those credibility findings are owed deference by this court.

ii. Consent and the Complainant’s Subjective State of Mind

[56] When it was suggested to A.R.D. in cross-examination that the appellant asked if he could put his penis on her feet, A.R.D. said that she could not recall him doing so, “but I would say that he – I just let him.” She went on to describe the significant fear she was experiencing at that time and the fact that she may have been in shock while the appellant’s penis was out in the treatment room. With that context in mind, she said, “I don’t know if I said no, but I didn’t say yes either” and “I don’t believe I would say he could.”

[57] The trial judge focused on that evidence in coming to the conclusion that A.R.D. did not consent to the sexual activity in question.

[58] The appellant points to a single passage close to the end of A.R.D.’s cross-examination to suggest that the trial judge erred by failing to appreciate that A.R.D. actually acknowledged that she had consented to the appellant masturbating on her feet:

Q. You were taking steps to present as a willing participant?

A. Umm, yes because I didn’t actually take my feet away and get up and run.

Q. Well, but even more than that, not only do you not take your feet up and get away and run, you actually assist with the masturbation motion?

A. I believe – I guess that’s how it went, yes. Yeah.

Q. All right and then again, going back to this, and when he even asks, can he put his penis on your feet, I’m again suggesting you would have said, “yes” or something that indicated ….

A. I probably did, yes. [Emphasis added.]

[59] The appellant argues that, in light of this single passage, taken from a lengthy cross-examination, it was not open to the trial judge to conclude that the complainant did not consent to having her feet masturbated on because, as the appellant put it in this court: “yes must mean yes.” Respectfully, not only does this position take A.R.D.’s evidence out of context, but it reflects a fundamental misunderstanding of how consent operates as part of the actus reus of the crime of sexual assault.

[60] As previously dealt with in these reasons, the non-consensual touching of a complainant in circumstances of a sexual nature constitutes the actus reus of sexual assault. Therefore, one of the essential elements of the actus reus of the crime of sexual assault is the absence of consent.

[61] For purposes of the actus reus, a complainant’s consent is determined solely by reference to the complainant’s subjective state of mind at the time of the sexual activity in question: R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at para. 23; R. v. Ewanchuk, 1999 711 (SCC), [1999] 1 S.C.R. 330 at paras. 25-26.

[62] Consent for purposes of sexual assault is defined in s. 273.1(1) of the Criminal Code, R.S.C. 1985, c. C-46, as being “the voluntary agreement of the complainant to engage in the sexual activity in question.” Section 273.1(1.1) requires that the complainant’s consent be present at the time the relevant sexual activity takes place. Therefore, the complainant’s subjective state of mind is critical to “each and every sexual act” engaged in: J.A., at paras. 34, 43.

[63] Sections 273.1(2) and (3), along with s. 265(3), operate together to provide a non-exhaustive list of those situations in which no valid consent is given, such as where the complainant is unconscious, incapable of consenting, induced to consent by virtue of a position of trust or authority, fraud and so on.

[64] Therefore, the accused’s belief as to whether the complainant is consenting is not a factor when determining the absence of consent for purposes of the actus reus of sexual assault. It is all about whether the complainant “in her mind wanted the sexual touching to take place”: Ewanchuk, at para. 48. It is the complainant’s perspective on the touching that exclusively drives the analysis. It is entirely subjective in nature: Ewanchuk, at para. 27.

[65] Whether the complainant subjectively consented must be resolved by taking into account both the complainant’s testimony about her state of mind at the time of the events, and other evidence that may inform the question of what was on her mind at the time. That evidence may include the complainant’s words and actions in and around and at the time of the incident in question.

[66] Accordingly, it is always open to the accused to attempt to raise a reasonable doubt about a complainant’s direct evidence regarding her or his state of mind at the time of the incident, by pointing to the complainant’s “words and actions, before and during the incident”: Ewanchuk, at para. 29. Ultimately, though, whether the complainant subjectively consented to the sexual activity in question is a matter of credibility to be determined by the trial judge in light of all the evidence.

[67] Therefore, the suggestion that the word “yes” or a “probably … yes” necessarily drives the result of an inquiry into whether the complainant subjectively consented at the time the touching was taking place is wrong in law. While it is a relevant factor to take into account when assessing the veracity of the complainant’s assertion that she was not consenting – that she did not want the sexual touching to take place – the word “yes” is not determinative and, in fact, can sometimes present as the antithesis of what the complainant actually wanted to take place at the time of the sexual touching.

[68] While the trial judge could have provided a more detailed explanation for why he concluded that the Crown had met its burden on the absence of consent, his reasoning is clearly rooted in the broader context of A.R.D.’s evidence. That context plainly underscored the fact that A.R.D. did not subjectively consent to the foot masturbation.

[69] A.R.D. clearly testified that she did not want the appellant’s penis anywhere near her: not out in the treatment room, not in her mouth, and not on her feet. As she said in response to the question, “Did you want any of those things that you’ve described with his penis to happen?”, she responded, “Absolutely not.” Therefore, the complainant’s evidence, the only source of direct evidence as to her state of mind, was clear: she did not subjectively consent to anything involving the appellant’s penis.

[70] Despite the one answer she gave to the one question put to her in cross-examination about what she may have said to the appellant, A.R.D.’s direct evidence about what she wanted and, more importantly, what she did not want to happen to her in the appellant’s treatment room was believed by the trial judge. Not only do we owe deference to that finding, it is an entirely understandable one in the circumstances of this case.

[71] The trial judge accepted that A.R.D. was terrified during the entire encounter. As he correctly and reasonably pointed out, A.R.D. had a “lack of power in relation to Mr. Norris in a therapeutic setting”, she was in a “completely vulnerable situation” and “frightened, far from a highway, not knowing what Mr. Norris might do.” A.R.D.’s fear is palpable even on the transcript. She was clear throughout her evidence that from the moment she saw the appellant’s penis out in the treatment room, she was in fear for her safety. As she put it:

I was very nervous, especially at the end. I didn’t know – I knew where I was. He’s out in the bush several miles away from a major highway, and so I didn’t – I didn’t want to – I didn’t know if he would do any more things. I – I just wanted to leave as soon as possible.

At another point she said:

I’m in shock when … I open my eyes and his penis is in my face and I – and am asked to put my mouth around it, and realizing where I am, in the basement and then he goes down to the foot of the bed, or the table, and has – I’m not really thinking I – of – of giving him any sexual pleasure. Like I’m thinking, how am I going to get out of here.

[72] Therefore, despite the fact that A.R.D. acknowledged once, close to the end of the cross-examination, that she may have uttered the word “yes”, to a question about the appellant putting his penis on her feet, that evidence must be viewed within its broader context. That context includes A.R.D.’s evidence about the fact that she did not want the appellant to masturbate on her feet and could not recall him asking to do so. It also includes her expressed fear at the time of the sexual activity and the fact that her focus was trained on how to safely get out of the appellant’s basement. In these circumstances, it was open to the trial judge to conclude, as he did, that she did not subjectively consent to the foot masturbation taking place.

[73] For the reasons that I have set out, I see no error in the trial judge’s conclusion that the Crown had proven the absence of consent beyond a reasonable doubt.

b. Did the trial judge err in rejecting the suggestion of an honest but mistaken belief in communicated consent?

[74] The appellant also claims that the trial judge erred when he rejected the defence of an honest but mistaken belief in communicated consent. He argues that, at a minimum, the confluence of factors in this case cried out for a successful application of the defence.

[75] As I will explain, the appellant’s argument really amounts to an attempt to relitigate what was litigated and reasonably rejected at trial.

[76] The mens rea for sexual assault is made out in circumstances where the accused knows that the complainant is not consenting to the sexual act in question or is wilfully blind or reckless to the absence of consent.

[77] In some situations, an accused will deny the mens rea of sexual assault by suggesting that he or she had a mistaken belief that the complainant communicated, by words or conduct, her or his agreement to engage in the sexual activity in question: Ewanchuk, at paras. 48-49. This defence is sometimes referred to as a mistake of fact defence.

[78] The appellant points to the fact that he was dealing with, as he describes it, a sober, adult woman who had driven herself to his home and was “in no way captive”. The appellant argues that he asked A.R.D. if she wanted to fellate him and she declined, meaning that he would have understandably thought that she was “in control of her actions, fully capable of making decisions in spite of an illusory therapeutic ‘power imbalance’ that A.R.D. herself [did not] reference as a barrier.” Combined with the fact that she “probably” said yes and might have used her feet to masturbate his penis, the appellant argues that this was a classic case of honest but mistaken belief in communicated consent. The trial judge’s failure to come to that conclusion is said to reflect error.

[79] I start with the practical observation that, although the appellant advanced the defence of mistaken belief in communicated consent at trial, it did not fit comfortably with his testimony. The A.R.D. count on the indictment involved diametrically opposed versions of events.

[80] Importantly, the appellant’s version of events did not turn on a nuanced understanding about what A.R.D. was agreeing to. For instance, he did not suggest that because her feet may have moved on his penis, he inferred she was consenting. Rather, the appellant’s version was that the complainant was the sexual aggressor and that it was she who suggested the “foot thing”. In contrast, A.R.D.’s version was that it was the appellant who was the sexual aggressor, that she did not want any of it and was terrified throughout the entire encounter.

[81] In these circumstances, with two diametrically opposed versions of events, it is not surprising that the trial judge did not spend a lot of time explaining why he rejected the defence of an honest but mistaken belief in consent. Indeed, given the diametrically opposed versions as to what took place, it would not be beyond the realm of possibility in a case such as this to hear a suggestion made that there was no air of reality to the defence: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 153, R. v. Esau, 1997 312 (SCC), [1997] 2 S.C.R. 777, at para. 61.

[82] In any event, the defence in this case is constrained by the fact that there is no doctrine of implied consent. One is not deemed to have consented because one does not protest or resist: Barton, at para. 98; Ewanchuk, at para. 103, per McLachlin J. (as she then was). Any such thinking would reflect a mistake of law and not a mistake of fact.

[83] As well, the defence is statutorily limited by virtue of s. 273.2 of the Criminal Code. Among other things, the statute removes the defence in circumstances where the accused’s belief arises from “recklessness or wilful blindness”: s. 273.2(a)(ii). It also removes the defence where “the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting”: s. 273.2(b).

[84] Reasonable steps have both objective and subjective components – they must be objectively reasonable steps and the reasonableness of them are assessed according to the circumstances known to the accused at the time: Barton, at para. 104. As Moldaver J. put it in Barton, at para. 105, the “reasonable steps requirement rejects the outmoded idea that women can be taken to be consenting unless they say ‘no’.”

[85] At many turns, the honest but mistaken belief in consent defence was destined for failure in this case. I include in that observation the fact that the contextual nature of what occurred in the appellant’s basement treatment room, at a minimum, points toward the presence of both recklessness and wilful blindness. I will focus, though, on the trial judge’s reason for rejecting the defence: the failure to take reasonable steps to ascertain consent.

[86] The appellant was duty bound to take objectively reasonable steps in the circumstances known to him at the time. In the circumstances here, anything short of a full engagement with the complainant on whether she subjectively wanted the penis-foot masturbation to happen, would reflect a failure to take reasonable steps.[^2]

[87] A.R.D. was the appellant’s patient, lying in a vulnerable position in her health care practitioner’s office, the middle of the countryside, as she described it, far from neighbours or help.

[88] Combine that with the fact that the appellant had been previously warned about concerns over his overly sexualized practices and how they could undermine consent. One of those occasions arose from the letter that I have previously referred to, where B.T. and G.J. wrote to the appellant following G.J.’s appointment to express concerns that he was placing “clients at risk” and warned him about the fact that his actions could be seen as “sexual abuse”. That letter specifically addressed concerns about the obtaining of consent.

[89] In addition, and importantly, the appellant had been specifically cautioned by the police prior to his interaction with A.R.D. He had previously come to the attention of the police because other women had made complaints about his treatment practices. Those women did not wish to pursue the matter criminally, but the police were sufficiently concerned that an officer decided to explain the law of sexual assault to the appellant. In a recorded interview, that officer told him in no uncertain terms, that consent is a “very clear thing” and a “huge thing”.

[90] I wish to emphasize that, with or without having been previously cautioned about his overly sexualized practices and the concerns they raised over voluntary consent, the appellant would have been required to know the essential nature of voluntary consent during sexual touching. In other words, there is no defence arising from an error of law on this point.

[91] Importantly, though, the evidence was not led for that purpose. Rather, the evidence about what the appellant had been told by B.T., G.J. and the police was elicited to rebut the suggestion of an honest but mistaken belief in communicated consent.

[92] The letter from B.T. and G.J., and the police caution about sexual assault and the importance of consent, all formed part of the “circumstances known to the [appellant] at the time” of his interaction with A.R.D.: Barton, at para. 104. Those circumstances vested in the appellant knowledge of what would otherwise be called common sense: that the appellant’s patients were in highly vulnerable positions and that any consent to sexual activity in his treatment room would be decidedly questionable in nature. As the appellant’s evidence was rejected by the trial judge as a fabrication, it left only A.R.D.’s evidence to inform the potential reasonable steps. There were none.

[93] In light of the circumstances known to the appellant at the time, the health care relationship at work, the setting where the sexual activity occurred, and the repeated warnings about consent, I agree with the trial judge that, at a minimum, it cannot be said that the appellant took objectively reasonable steps to ascertain A.R.D.’s consent.

[94] This ground of appeal fails.

D. The Purported Lack of Recall

[95] The appellant also suggests that A.R.D. had memory problems and that this should have led to an acquittal. The appellant seems to suggest that the trial judge conflated the complainant’s lack of evidence on certain material points with the availability of evidence on the same point. This is not so.

[96] Although A.R.D. had difficulty recalling with precision some of the peripheral details around some of the things that occurred during that fateful day in the appellant’s basement, her memory on the salient points was excellent. The trial judge was well alive to the memory gaps and dealt with them. I see no reason to interfere with how he did so.

E. Different Levels of Scrutiny

[97] Finally, the appellant argues that the trial judge applied a higher level of scrutiny to his evidence than to that of A.R.D. Regardless of whether uneven scrutiny of evidence amounts to “an independent ground of appeal or a separate and distinct error of law”, the reasons for conviction do not bear this submission out: R. v. Mehari, 2020 SCC 40, at para. 1. The trial judge’s reasons for rejecting the appellant’s evidence as preposterous are detailed and careful. He gave equally compelling reasons for why he believed the complainant.

[98] I see no point in reviewing the details of those reasons here. They are exhaustive, even-handed and compelling.

F. Conclusion

[99] I would dismiss the appeal.

Released: “J.M.F.” DEC 31 2020

“Fairburn A.C.J.O.”

“I agree. Grant Huscroft J.A.”

“I agree. I.V.B. Nordheimer J.A.”

[^1]: The only arguable exception to the general movement away from catchwords in the context of similar act evidence is in those cases where the evidence is tendered to prove identity: R. v. Arp, 1998 769 (SCC), [1998] 3 S.C.R. 339, at para. 45; R. v. MacCormack, 2009 ONCA 72, 241 C.C.C. (3d) 516, at para. 61. This is not an identity case.

[^2]: My comments here are confined solely to the legal issue involving reasonable steps. My comments should not be taken as suggesting that any consent that may be given in situations such as these would be immune to potential vitiation.