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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

DATE: 20220223 DOCKET: C69973

van Rensburg, Nordheimer and George JJ.A.

BETWEEN

Her Majesty the Queen Appellant

and

A.M. Respondent

Counsel: Andrew Hotke, for the appellant Wayne Cunningham, for the respondent

Heard: February 4, 2022 by video conference

On appeal from the judgment of Justice Kathleen E. Cullin of the Superior Court of Justice, dated May 13, 2021, with reasons reported at 2021 ONSC 3515, allowing an appeal from the conviction entered by Justice Vanessa V. Christie of the Ontario Court of Justice, dated May 13, 2019.

Nordheimer J.A.:

[1] The Crown appeals, with leave, from the judgment of the summary conviction appeal judge, who allowed an appeal and set aside a conviction on a single count of sexual assault. For the following reasons, I would allow the appeal, set aside the judgment below and restore the conviction.

A. Background

[2] The complainant was 22 years old at the time of the offence. She testified that the respondent, who was 54 years old at the time of the offence, was a close friend of her family and like an uncle to her. He attended her family’s Christmas dinners and would speak to and visit her parents regularly. She first met him when she was 15 or 16 years old.

[3] The complainant explained that on December 19, 2017, she agreed to go to the respondent’s home to listen to music and help him decorate his Christmas tree for an upcoming Christmas party. The respondent picked her up around 1:30 p.m. They made a couple of stops on the way to his home, including at the LCBO where the respondent purchased vodka and rum. They arrived at the respondent’s home around 2:30 p.m. Soon after their arrival, the respondent began mixing drinks for the two of them. The complainant had not consumed any alcohol or drugs before arriving at the respondent’s home, save for a painkiller she had taken earlier that afternoon for her back pain.

[4] The respondent continued to mix drinks for them throughout the evening. The complainant believed she had between six and eight drinks in total. She was not aware of how much alcohol was put in her drinks. She felt “buzzed but … nothing out of the ordinary”. Two visitors stopped in for short visits but largely the respondent and the complainant were alone. The complainant remembered these visitors stopping in, and remembered decorating the tree, listening to music and having drinks, but at some point, her memory of the evening stops. At trial, she could not say with precision when the gap began. She believed it was likely around 10 p.m. What she could recall distinctly, however, was her next memory, which was waking up from sleep around 1:00 or 1:30 a.m. to find herself face down on the respondent’s bed, her pants and underwear removed, and the respondent touching her vagina with his mouth and fingers. He said to her that she was beautiful. The complainant was shocked and scared. She lay still for a moment, unsure what to do, then she moved his hand away, told him to stop, and got up.

[5] After she got up, the complainant gathered her clothes from the floor and went to the bathroom to put them on. Then she went to the kitchen and collected her jacket and bag. The respondent asked her if she was mad at him, and she said that she was. He asked her to wait and said he would call a taxi, but she refused and left. She immediately called a friend and made her way to the friend’s house on foot. The friend convinced her to call her mother to tell her what had happened. The police were contacted. After attending the police station, the complainant was taken to Sudbury Hospital for the administration of a sexual assault kit.

[6] The Crown called a forensic scientist from the Centre of Forensic Sciences to give expert opinion evidence about the presence of alcohol and drugs found in the complainant’s blood and urine samples taken the morning of December 20, 2017. With respect to alcohol, the expert testified that alcohol was detected in the complainant’s blood at a concentration of 59 milligrams of alcohol in 100 millilitres of blood, and in her urine at a concentration of 92 milligrams of alcohol in 100 millilitres of blood. The expert was asked to calculate, based on these figures, what the estimated blood alcohol concentration (“BAC”) would have been at the time of the offence, between 10 p.m. and 1:30 a.m. The expert testified that the complainant’s BAC would have been between 119 and 249 milligrams of alcohol in 100 millilitres of blood.

[7] The expert provided a description of the possible effects of a BAC of 59 milligrams of alcohol in 100 millilitres of blood, and the possible effects of the projected BAC range at the time of the offence of 119-249 milligrams of alcohol per 100 millilitres of blood. She said that a BAC of 59 per 100 could have minimal effects, depending on tolerance. However, a BAC of between 119 and 249 per 100 could have dramatic effects. Effects at the lower end of the range could include slurred speech, motor incoordination, increased sociability and talkativeness. Toward the higher end of the range, effects would become more and more dramatic, including significant instability in one’s ability to walk, vomiting, nausea and even unconsciousness. Again, a person’s tolerance would have a bearing on the effects. A person with low tolerance could experience such dramatic effects at a lower BAC.

[8] The complainant testified that she was an experienced drinker. While she said that she was not a heavy drinker, she also said that it was not unusual for her to have eight to ten drinks. The complainant also acknowledged that she had blacked out a handful of times since she turned 19 years old, and that these black outs came over her abruptly.

[9] The expert also provided an opinion on the three substances that were detected in the complainant’s urine: codeine glucuronide, morphine metabolite and acetaminophen. The expert described the effects of these substances and offered the opinion that the effects of alcohol can be increased by codeine and/or morphine, leading to increased sedation, increased drowsiness, motor skill impairment and possible memory impairment.

[10] The Crown also filed biology reports from the Centre of Forensic Sciences. The reports established overwhelmingly that the respondent’s DNA was found on the complainant’s genitals after the assault.

B. The decisions below

(1) The Trial

[11] The trial judge acknowledged that the critical issue was consent. Sexual contact was admitted, and the DNA evidence left “[n]o question that sexual activity occurred”. On the issue of consent, the trial judge concluded, based on the whole of the evidence, that the complainant was both unable to consent to the sexual activity that occurred and did not in fact consent to the sexual activity that occurred.

[12] The trial judge referred to certain principles that she drew from the decision of R. v. J.R. (2006), 40 C.R. (6th) 97 (Ont. S.C.), aff’d 2008 ONCA 200, 59 C.R. (6th) 158, leave to appeal refused, [2008] S.C.C.A. No. 189 (Daigle), and [2008] S.C.C.A. No. 231 (Roberts). The trial judge went on to address the concepts of “blacking out” and “passing out”. The trial judge noted that while people often use the terms as being synonymous, they are not. She said:

Passing out is a deep state of sleep or unconsciousness, whereas a blackout is a conscious person, a somewhat conscious person who may still be doing and saying things, but afterwards have no memory.

[13] The trial judge concluded that the complainant “was unable to and did not consent to the sexual activity that occurred”. The trial judge gave a number of reasons for that conclusion which largely turned on her review of the evidence. The trial judge also found that the complainant was “an extremely credible witness”. The trial judge ultimately concluded that the complainant was unconscious when the sexual activity occurred. She appeared to find some additional support for this conclusion from the fact that the respondent had asked the complainant, before she left his home, whether she was mad at him. The trial judge found that this indicated that the respondent knew that the complainant had not consented to the sexual activity.

(2) The Summary Conviction Appeal

[14] On appeal by the respondent, the summary conviction appeal judge (“SCAJ”) set aside the conviction and ordered a new trial. In reaching her conclusion, the SCAJ was critical of the trial judge’s reasons. In particular, the SCAJ said that the trial judge had failed to address, in her reasons, (i) when the complainant became unconscious and (ii) whether the complainant consented to the sexual activity before she became unconscious.

[15] The SCAJ said that it was impossible to know with certainty what happened on the night in question. She said that it was possible that the respondent took liberties with the complainant while she was unconscious, but it was also possible that the complainant had consented to the sexual activity while she was blacked out and conscious. The SCAJ said that the trial judge had failed to “grapple with” both possibilities.

[16] The SCAJ further criticized the trial judge for her failure to address the expert evidence of the toxicologist. The SCAJ said, at para. 36:

In short, the record disclosed no reliable lay witness evidence and no expert evidence establishing the complainant’s level of alcohol consumption or level of intoxication at any point during the evening. There was no foundation upon which to establish when or whether the complainant was rendered unconscious. There was no foundation upon which to establish the absence of consent or the [respondent]’s knowledge of the absence of consent. If the trial judge observed a pathway in the evidence to reach these conclusions, she did not disclose it in her reasons.

[17] The SCAJ then referred to this court’s decision in R. v. Garciacruz, 2015 ONCA 27, 320 C.C.C. (3d) 414, and said that the trial judge’s reasons did not “meet the functional needs of reasons for decision”.

[18] The SCAJ returned to the trial judge’s failure to mention the evidence of the toxicologist. She was especially critical of the trial judge’s failure to address the expert’s evidence “that an experienced drinker may have demonstrated no visible effects of intoxication”.

[19] Having made that remark, the SCAJ then criticized Crown counsel for failing to provide the toxicologist with information that might have permitted the toxicologist to render a conclusive opinion. The SCAJ said, at para. 44:

The Crown’s failure to fully arm their expert and the court with the facts suggests that those facts may not have supported the Crown’s theory regarding the complainant’s capacity to consent or the [respondent]’s knowledge of any lack of capacity.

[20] The SCAJ continued on this point at para. 45:

Given the complainant’s memory lapse and the absence of other witnesses, evidence of the complainant’s level and appearance of intoxication between 10:00 p.m. and 1:30 a.m. was critical to understanding her capacity to consent, the [respondent]’s knowledge regarding her capacity to consent, and the likelihood of her loss of consciousness due to alcohol consumption.

[21] Finally, the SCAJ dealt with the issue of post-offence conduct, that is, the fact that the respondent had asked the complainant whether she was mad at him. The SCAJ said, at para. 50:

The trial judge’s perfunctory conclusion that the [respondent]’s inquiry about whether the complainant was “mad” demonstrated his knowledge of her lack of consent flies in the face of all appellate court guidance about the treatment of post-effect conduct evidence.

[22] The SCAJ found that this evidence was equivocal and “did not demonstrate actions inconsistent with that of an innocent person”.

[23] The SCAJ concluded that “the trial judge’s errors of law were fatal to her decision to convict”. She allowed the appeal and ordered a new trial.

C. Analysis

[24] The appellant raises four grounds of appeal:

1. Did the SCAJ err in finding the trial judge’s reasons insufficient?
2. Did the SCAJ err in finding the trial judge had erred by failing to address perceived deficiencies in the expert evidence?
3. Did the SCAJ err in holding that there was a basis for the trial judge to draw an adverse inference against the Crown for failing to elicit certain evidence from the complainant that was deemed by the SCAJ to be necessary to evaluate the expert evidence?
4. Did the SCAJ err in finding that the trial judge had erred by not giving a reasoned explanation for her use of the post-offence conduct evidence?

[25] In my view, there is merit to at least the first three of these grounds of appeal. I will deal with each of them in turn.

(1) Sufficiency of reasons

[26] In my view, the SCAJ was unduly critical of the trial judge’s reasons. This was largely a fact driven case. The trial judge reviewed the facts and reached certain conclusions regarding them. She also explained the reasons for her conclusions. The trial judge’s reasons permitted appellate review, as is evident from the review undertaken by the SCAJ. While there may be opposing views on the conclusions reached by the trial judge, that fact does not render the reasons insufficient. In approaching the trial judge’s reasons as she did, the SCAJ committed the error in appellate review described in R. v G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at para. 76, that is, a search for error arrived at by “parsing imperfect or summary expression on the part of the trial judge”.

[27] One of the particular criticisms of the trial judge’s reasons offered by the SCAJ is her failure to mention the evidence of the toxicologist. I make two points in response to that criticism. First, a trial judge is not required to refer to every piece of evidence that is presented. This basic principle applies equally to expert evidence as it does to factual evidence. The evidence of the toxicologist was not definitive on the issue of consent, nor could it have been. It was up to the trial judge to decide whether it provided assistance to her. Because the expert evidence was not definitive, I can understand why the trial judge did not mention it. Second, I would note, on this point, that the trial judge said, at the outset of her reasons, that she had considered “the totality of the evidence” in coming to her conclusion. There is no reason, on the record, to conclude that she did not do so.

(2) Deficiencies in the expert evidence

[28] The SCAJ appears to be critical of the expert evidence, and Crown counsel’s presentation of it, on the basis that it did not provide a definitive explanation. I reject that criticism. Experts are often unable to provide definitive opinions or explanations because those definitive opinions require established facts and, as is often the case in a criminal prosecution, those facts are not established at the time when the expert renders their opinion.

[29] The SCAJ is also wrong to criticize the trial judge for accepting “the toxicologist’s most dire estimation of the complainant’s state of mind at the time of the incident”. The trial judge did no such thing. I would also note that the SCAJ’s finding on this point is entirely inconsistent with the SCAJ’s criticism that the trial judge failed to refer to the evidence of the toxicologist.

[30] The toxicologist’s evidence would have provided some support for the complainant’s account, including the reliability of her evidence that she lost consciousness and awoke to find the respondent performing sexual acts on her. To the degree that the trial judge may have found the toxicologist’s evidence of assistance to her in assessing the complainant’s evidence, she was entitled to rely on it in reaching her conclusions. However, as I have already mentioned, the trial judge was not required to rely on this evidence nor, if she did, was she required to enunciate the details of that reliance. The fact of the matter is that the expert evidence did not stand in the way of the conclusions that the trial judge reached. In fact, it provided some support for the complainant’s evidence that she had passed out as a result of her consumption of alcohol provided at the hands of the respondent. Had the expert evidence presented an obstacle to that conclusion, it would then have been necessary for the trial judge to explain why that evidence did not preclude her conclusions. That is not what occurred in this case, however.

[31] I would add, on this point, that this case is entirely different from what was dealt with in Garciacruz. In that case, there were inconsistencies in the complainant’s evidence that the trial judge had not addressed or explained. There were no such inconsistencies here. Indeed, as I have noted, the trial judge found the complainant to be an extremely credible witness. The trial judge was entitled to accept the complainant’s evidence and to reach the conclusion that she did on the issue of consent.

(3) Availability of an adverse inference

[32] The SCAJ found that Crown counsel had failed to arm their expert and the court with certain facts. She went on to suggest that those facts may not have supported the Crown’s theory regarding the complainant’s capacity to consent or the respondent’s knowledge of any lack of capacity. The SCAJ then said it would have been appropriate for the trial judge to draw an adverse inference against the Crown arising from its failure to elicit those facts.

[33] The SCAJ’s conclusion on this point is unprecedented and it is wrong in law. It unnecessarily extends the principles underlying the law on when it is appropriate to draw an adverse inference. That extension, in this case, also treads heavily on prosecutorial discretion. Neither side has produced a single case where an adverse inference was properly drawn from the failure of a party to provide certain facts to an expert. Rather, the failure of an expert to be provided with relevant facts, or the failure of an expert to consider relevant facts, are normally matters that go to the reliability of the expert opinion and the weight to be given to it: see, e.g., R. v. Gibson, 2021 ONCA 530, 157 O.R. (3d) 597, at para. 203. The failure of an expert to advert to certain facts is very often fodder for effective cross-examination of the expert’s opinion.

[34] Two principles relating to adverse inferences are important. First, the drawing of adverse inferences is to be approached with great caution: R. v. Zehr (1980), 54 C.C.C. 2d 65 (Ont. C.A.), at p. 68. Second, an adverse inference normally arises from either a failure to call a material witness or a failure to produce material evidence: R. v. Ellis, 2013 ONCA 9, 113 O.R. (3d) 641, at para. 45. The SCAJ does not appear to have considered or applied either of these principles before rendering her criticism of Crown counsel and of the trial judge.

[35] I would also observe, on this point, that there are problems with the three deficiencies that the SCAJ identified in the information that she says was not given to the toxicologist. Those deficiencies were identified by the SCAJ as: (i) when or whether the complainant consumed any substances containing codeine or morphine in the 12 to 48 hours prior to her urine sample; (ii) whether the complainant consumed any substances containing codeine or morphine with a frequency that would have caused her to develop a tolerance to them; and (iii) how often the complainant consumed alcohol and how much she typically consumed.

[36] The first two of these asserted deficiencies deal with any consumption of codeine or morphine. That was not the central issue in this case. The central issue was the consumption of alcohol. In any event, Crown counsel did ask the complainant about her consumption of drugs, both prescription and non‑prescription, during the complainant’s examination in chief. That information was before the court and, indeed, the toxicologist was asked about it. The third alleged deficiency dealt with alcohol but, contrary to the findings of the SCAJ, that evidence was also before the court. As noted in para. 8 above, the complainant gave evidence of her drinking habits during the course of her cross-examination. If either party wished to put that evidence to the expert, they could have. And, of course, if there was other evidence that the respondent considered relevant to the evaluation of the toxicologist’s evidence, he had full opportunity to elicit it.

[37] A further concern with the SCAJ’s reasoning, on this point, is that it unfairly criticizes Crown counsel for the manner in which she decided to present her case. The Supreme Court has directed that “courts should be careful before they attempt to ‘second-guess’ the prosecutor’s motives when he or she makes a decision”: R. v. Power, [1994] 1 S.C.R. 601, at p. 616. Indeed, in this case, the SCAJ goes so far as to suggest that what she thought was missing evidence would, if it had been provided to the expert, have led to a different opinion, one that would have been contrary to the Crown’s position and might have possibly undermined the complainant’s evidence.

[38] There is no basis for such an assertion. While, contrary to the SCAJ’s conclusion, there was evidence on each of these three points, even if more evidence had been adduced — and it is hard to see how much more such evidence could have been adduced — there is no basis for finding that it would have impacted on the expert’s opinion. It must be kept in mind, in considering this issue, that there were at least three hours (10:00 p.m. to 1:00 a.m.) during which there was no evidence of what had occurred. Only two people could have provided that evidence directly. One was the complainant, who had no memory of that time, and the other was the respondent, who did not give evidence as he was fully entitled not to do.

[39] Given that gap in the evidence, the expert was never going to be in a position to provide a definitive opinion because the expert could not know what had happened during those three hours. The SCAJ’s finding that evidence of the complainant’s level, and appearance, of intoxication during these three hours “was critical to understanding her capacity to consent” ignores the reality that the evidence was unobtainable. It is also decidedly unfair to use the absence of that evidence as a justification for finding that there was “a gaping hole” in the trial judge’s reasons.

(4) Post-offence conduct

[40] As was observed by this court in R. v. Hall, 2010 ONCA 724, 263 C.C.C. (3d) 5, at para. 131, leave to appeal refused, [2010] S.C.C.A. No. 499: “the problem with post-offence conduct evidence is that it is often at best equivocal”. I accept that the question by the respondent to the complainant as to whether she was mad at him is equivocal on the question of consent. I do not accept the appellant’s position that the content of the question, and the fact that the respondent asked this question in the context that he did, can only reasonably support the inference that he knew that the complainant had not consented to the sexual activity. It is equally possible that the respondent was confused as to why the complainant had suddenly stopped what might have been consensual sexual activity and he wanted to know the reason.

[41] However, the trial judge’s use of this post-offence conduct is not fatal in this case for at least two reasons. One is that it forms a very small part of the trial judge’s analysis. Indeed, it appears to be almost an obiter comment. It is addressed at the very end of her reasons where she simply says that the respondent’s question “demonstrates to this court that he knew she was not conscious”. The other reason is that this was a judge-alone trial. The concerns about the potential misuse of post-offence conduct evidence are greatly reduced from what they would be in a jury case: see R. v. S.B.1, 2018 ONCA 807, 143 O.R. (3d) 81, at paras. 118-120.

[42] I would add that the trial judge’s handling of this evidence did not warrant the degree of criticism that was levelled by the SCAJ. In particular, it was unfair to say that the trial judge’s mentioning of the evidence “flies in the face of all appellate court guidance”. It does not.

(5) Summary

[43] The SCAJ did not take the proper approach to appellate review of the trial judge’s reasons. Rather, it is clear that the SCAJ decided to retry the case and to substitute her view of the evidence, and its cogency, for that of the trial judge. That is not the appellate role. Nor is it the appellate role to go on a hunt for error: R. v. G.F., at para. 69.

[44] The SCAJ herself fell into error in her analysis by not considering the principles enunciated in R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440. In considering the issue of consent in that case, the court made the following point, at para. 66, which is particularly apt to the facts of this case:

The definition of consent for sexual assault requires the complainant to provide actual active consent throughout every phase of the sexual activity. It is not possible for an unconscious person to satisfy this requirement, even if she expresses her consent in advance. Any sexual activity with an individual who is incapable of consciously evaluating whether she is consenting is therefore not consensual within the meaning of the Criminal Code. [Emphasis added.]

[45] The respondent acknowledges that there is a period of at least three hours during which there is no evidence of what was occurring between the complainant and the respondent, especially on the issue of consent. Even if one was prepared to accept that the complainant initially consented to the sexual activity, but does not remember because she had “blacked out”, it is readily apparent that, at some later point, she became unconscious. The fact that she “woke up”, as the trial judge accepted, leaves no doubt about that fact.

[46] The trial judge was entitled, on the evidence, to conclude that the complainant awoke from her unconscious state to find the respondent engaging in sexual activity with her. The trial judge was therefore also entitled to conclude that the Crown had proved an absence of consent at that time and in the time period immediately prior to that happening. On the principle established by J.A., there could not be consent, given that the complainant was unconscious. The respondent must have known of that, as the trial judge found. A finding of guilt properly followed from those findings.

[47] The SCAJ erred in setting aside the conviction.

D. Conclusion

[48] I would allow the appeal, set aside the judgment below, and reinstate the conviction and the sentence imposed on the respondent. If appropriate arrangements cannot be made for the surrender of the respondent, a warrant for his arrest may issue.

Released: February 23, 2022 “K.M.v.R.” “I.V.B. Nordheimer J.A.” “I agree. K. van Rensburg J.A.” “I agree. J. George J.A.”