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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20220509 Docket: C67020 & C67630

Pepall, van Rensburg and Paciocco JJ.A.

Docket: C67020

Between Her Majesty the Queen Respondent

and

Celdon Parris-Thompson Appellant

Docket: C67630

And Between

Her Majesty the Queen Respondent

and

Shevon McKitty Appellant

Counsel: Mark C. Halfyard, for the appellant Celdon Parris-Thompson Amy J. Ohler, for the appellant Shevon McKitty Rebecca Schwartz, for the respondent

Heard: April 25, 2022

On appeal from the convictions entered on February 20, 2019 by Justice Todd Ducharme of the Superior Court of Justice, with reasons reported at 2019 ONSC 1501.

Reasons for Decision

Overview

[1] The trial judge convicted the appellants, Celdon Parris-Thompson and Shevon McKitty, of sexually assaulting the complainant after being invited to her apartment, and possibly into her bed. Mr. Parris-Thompson’s conviction was based on the trial judge’s finding that he had sexual contact with the complainant in an effort to penetrate her while she was verbally and physically resisting. Mr. McKitty was found to have repeatedly penetrated the complainant’s vagina with his penis in an act of unwanted intercourse.

[2] Although the complainant was not found to be incapable of consenting at the time of the charged events, she was significantly intoxicated. The findings of guilt were based on the intermittent memories of the complainant, who had blacked out or passed out for significant periods of the time.

[3] Both men appeal their convictions. For reasons that follow, we dismiss the appeals.

Issues

[4] The parties argued jointly that the trial judge committed common errors that require both of their convictions to be set aside. Mr. McKitty adds an additional ground of appeal that applies only to him. The grounds of appeal can be described as follows:

A. Did the trial judge err in his analysis of the gaps in the complainant’s memory? B. Did the trial judge err by reversing the burden of proof? C. Did the trial judge err in relation to Mr. McKitty’s case by failing to consider a statement made by Mr. McKitty to be evidence of the complainant’s consent?

[5] For reasons that follow, we do not accept any of these grounds of appeal and dismiss the conviction appeals.

Analysis

A. Did the trial judge err in his analysis of the gaps in the complainant’s memory?

[6] The appellants argue that the gaps in the complainant’s evidence necessarily cast reasonable doubt upon the actus reus of consent because the complainant may have consented to the sexual contact in question, or other sexual contact, during the periods of blackout. They submit that the trial judge unreasonably discounted these possibilities in coming to the decisions that he did. We do not agree. The appellants made the same arguments at trial. The trial judge considered these submissions and decided, reasonably, that the gaps in the complainant’s evidence did not leave him in reasonable doubt considering all of the circumstances.

[7] First, the trial judge made an explicit finding that the complainant, who had made her non-consent to sexual intercourse clear to the appellants, “did not change her mind [and consent] during the blackout periods.” That decision was open to the trial judge, who accepted as credible the unchallenged testimony of the complainant that her virginity was “sacred” to her, and that she was “unprepared and unwilling to share that first experience with either [Mr. Parris‑Thompson or Mr. McKitty].” He also accepted the complainant’s testimony that she remembered that when Mr. Parris-Thompson was attempting to have intercourse with her, she had made a clear and emphatic general declaration in the presence of both appellants that she did not want to engage in intercourse because she was still a virgin. In these circumstances, it was open to the trial judge to rely upon the strength of the complainant’s commitment to retaining her virginity to reject the suggestion that the complainant may have consented to sexual intercourse during those periods when she does not remember what transpired.

[8] It also bears mention that even if the trial judge was prepared to accept that there was a reasonable possibility that the complainant had expressed prior consent to sexual intercourse at a point in time she does not remember, this could not have materially assisted Mr. Parris-Thompson. Consent must be present at the time the sexual activity in question took place: Criminal Code of Canada, R.S.C. 1985, c. C-46, s. 273.1(1.1). The trial judge found that the complainant was actively resisting and protesting while Mr. Parris-Thompson was touching her sexually in an attempt to have intercourse with her. These findings of non-consent would make any prior consent that the complainant may have given immaterial.

[9] We therefore reject the submission that the trial judge erred by unreasonably or inappropriately discounting the possibility that the complainant may have consented to the sexual contact that formed the subject matter of the charges during those periods when she does not remember what transpired.

[10] During her testimony, the complainant accepted that it was possible that she may have undressed voluntarily and may have given oral sex to the appellants during periods she does not remember. The appellants argued before us, as they did at trial, that these concessions, coupled with her lack of memory in the circumstances, left a reasonable possibility that the complainant had engaged in other sexual conduct with the appellants during the periods she cannot remember, and that this casts doubt upon her claimed non-consent. They submit that the trial judge erred by discounting this possibility, and by coming to an unreasonable decision.

[11] We also reject this submission. In doing so we need not address the appellants’ challenge to general comments made by the trial judge in which the trial judge largely – if not entirely – dismissed the value of concessions that are made by witnesses about what may have happened during periods they do not remember. Those comments, which may well raise concerns in isolation, are unimportant to this appeal because the trial judge analyzed the issue in the alternative and held that even if the complainant undressed and fellated the appellants, the probative value of this is “extremely limited”. That was an entirely reasonable conclusion to reach.

[12] First, as the Crown appropriately emphasized, the material issue of consent relates to “the sexual activity in question”, not other sexual activity: Criminal Code, s. 273.1. This, coupled with restrictions on rape myth reasoning, marginalizes the utility of prior consent by a complainant to other sexual activity.

[13] Second, even a willingness by the complainant to engage in other sexual activity with the men on the occasion in question was not probative of whether she would consent to sexual intercourse given the complainant’s staunch opposition to losing her virginity, as found by the trial judge.

[14] We are therefore left unpersuaded by the appellants’ submission that the trial judge erred by unreasonably or inappropriately discounting the possibility that the complainant may have agreed to other consensual sexual activity with the appellants during the periods she cannot remember.

[15] We also reject the appellants’ suggestion that the reasoning of the trial judge is inconsistent with the recognition in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 35-36 that reasonable doubt can arise from the lack of evidence. The trial judge applied reason and common sense in assessing the gaps in the complainant’s evidence, as he was required to do, and he found that reasonable doubt did not logically arise from that absence of evidence. It was open to him as the trial judge to come to the decision that he did.

B. Did the trial judge err by Reversing the Burden of Proof?

[16] As indicated, during the trial the appellants argued that the complainant’s admissions that she had voluntarily undressed and that she might have consensually provided oral sex to one or both of the appellants support an inference that she may have changed her mind and consented to intercourse after initially telling the appellants that she did not want intercourse. When the trial judge rejected this submission, he said, “I cannot infer from this that [the complainant] changed her mind after her declaration of non-consent or that she subsequently consented to intercourse.” The appellants argue that in reasoning in this way, the trial judge reversed the burden of proof by dismissing an inference that the complainant may have consented, because he could not draw a positive inference that she had consented. They argue that the trial judge should have asked whether evidence that the complainant may have voluntarily undressed and may have consensually provided oral sex to the men raised a reasonable doubt about whether the complainant consented to the sexual acts that formed the subject matter of the charges, and if so, the trial judge should have acquitted the appellants.

[17] We do not accept this ground of appeal. Although the trial judge may have expressed himself unfortunately when rejecting the invited inference, when his reasons are read in their entirety it is apparent that this experienced trial judge, who is presumed to understand the law, applied the law properly.

[18] The trial judge began his Reasons for Judgment by describing, correctly, the burden and standard of proof, twice confirming in his introductory remarks that the appellants need not prove anything. Moreover, when he began his analysis of consent he said specifically: “The burden is on the Crown to prove beyond a reasonable doubt that the complainant did not consent to the sexual activity. There is no burden on the defence to establish consent or even raise a reasonable doubt about it.”

[19] His reasoning also demonstrates that he understood how the burden of proof operates with potentially exculpatory circumstantial evidence or the absence of evidence. For example, the trial judge was left in reasonable doubt about whether the complainant was sexually touched while she was unconscious, even though he did not draw a positive inference that she was not touched. Similarly, he was left in reasonable doubt about whether she lacked the capacity to consent, without drawing an affirmative inference that she had that capacity. He also had a reasonable doubt about whether Mr. Parris-Thompson had penetrated the complainant with his penis, without making a positive finding that he had not penetrated her. And most tellingly, he had a reasonable doubt about whether the complainant may have consented to receiving oral sex from Mr. McKitty without drawing a positive inference that she had consented.

[20] This last example is telling because the doubt relating to this last finding arose on the same evidentiary record the appellants relied upon to urge that there was a reasonable doubt about consent to sexual intercourse. The difference in outcome, of course, was that, for the trial judge, in the case of sexual intercourse the complainant’s strong resistance to losing her virginity removed the remaining doubt.

[21] These illustrations of where the trial judge made exculpatory findings without drawing positive inferences strongly suggest that the trial judge simply misspoke when articulating his rejection of the exculpatory inference the appellants sought relating to whether the complainant consented to sexual intercourse.

[22] We are not persuaded that the trial judge misapplied the burden of proof and we reject this ground of appeal.

[23] The complainant testified that while Mr. Parris-Thompson was attempting to have sexual intercourse with the complainant, Mr. McKitty said, “Yo, I don’t think she wants it”. Mr. McKitty argues before us that this evidence assists in raising a reasonable doubt about whether the complainant consented to have sexual intercourse with him. His theory is that this comment demonstrates sensitivity on his part to the complainant’s state of consent, thereby supporting the inference that he would not have proceeded to sexual intercourse had she not consented. It can therefore be inferred that she did consent. He argues that the trial judge erred by failing to consider the exculpatory effect of his comment. We do not agree.

[24] First, Mr. McKitty raised this argument for the first time on appeal. For this reason alone, it is not surprising that the trial judge did not address it.

[25] Second, and more importantly, this evidence lacks the relevance Mr. McKitty suggests. This argument confuses Mr. McKitty’s belief in consent with the complainant’s consent. Even if Mr. McKitty judged the complainant to be consenting at the time, this reveals nothing about the complainant’s own subjective state of mind.

[26] Third, even if it could be inferred from the comment that Mr. McKitty may have believed the complainant was consenting, this would be circumstantial evidence of Mr. McKitty’s opinion, not a state of fact. Without his testimony to explain his opinion that she was consenting, the trier of fact would have no basis for evaluating it and would be right in disregarding it.

[27] We reject this ground of appeal.