WARNING

This appeal is subject to a mandatory publication ban under s. 278.95. This section of the Criminal Code provides:

278.95 (1) A person shall not publish in any document, or broadcast or transmit in any way, any of the following:

(a) the contents of an application made under subsection 278.93;

(b) any evidence taken, the information given and the representations made at an application under section 278.93 or at a hearing under section 278.94;

(c) the decision of a judge or justice under subsection 278.93(4), unless the judge or justice, after taking into account the complainant’s right of privacy and the interests of justice, orders that the decision may be published, broadcast or transmitted; and

(d) the determination made and the reasons provided under subsection 278.94(4), unless

(i) that determination is that evidence is admissible, or

(ii) the judge or justice, after taking into account the complainant’s right of privacy and the interests of justice, orders that the determination and reasons may be published, broadcast or transmitted.

(2) Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction.

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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: 20230704 DOCKET: C69256

Miller, Zarnett and Coroza JJ.A.

BETWEEN

His Majesty the King Respondent

and

Aayush Choudhary Appellant

Counsel: Janani Shanmuganathan, for the appellant Katherine Beaudoin, for the respondent

Heard: October 17, 2022

On appeal from the conviction entered on December 1, 2021 by Justice Julie Bourgeois of the Ontario Court of Justice.

Coroza J.A.:

I. Introduction

[1] Following a judge-alone trial, the 26-year-old appellant was convicted of sexually assaulting the 16-year-old complainant. He appeals the conviction, alleging that the trial judge erred by: excluding evidence of other sexual activity that was relevant to his defence under s. 276 of the Criminal Code; failing to resolve material inconsistencies in the complainant’s evidence; and misapprehending material evidence. He seeks a new trial.

[2] On June 12, 2018, the parties met at a bus stop, and after exchanging phone numbers, communicated by text and phone. The complainant agreed to meet the appellant the next day at his home with other friends, and the appellant agreed to provide alcohol at the gathering.

[3] The following day, the complainant and her friends arrived at the appellant’s house. Drinking ensued. At some point, the complainant started to feel unwell and stepped out to get fresh air with her friend. Upon returning, the complainant and the appellant interacted in the kitchen. Other guests were present at this time.

[4] The appellant then carried the complainant to the bedroom, where consensual kissing occurred. Subsequently, the parties engaged in oral, vaginal, and anal sex. The core issue at trial was whether the complainant consented to this sexual activity in the bedroom.

[5] Before the trial, the appellant sought directions before the trial judge related to an application under ss. 278.93 and 278.94 of the Criminal Code, R.S.C. 1985, c. C-46, as amended by S.C. 2018, c. 29, ss. 21(1)-22, seeking to adduce evidence of two events that preceded the sexual activity in the bedroom under s. 276 of the Criminal Code. [^1] The first event occurred [this paragraph refers to material that is subject to a publication ban pursuant to s. 278.95 of the Criminal Code and has been redacted. The full text of the reasons is available at the Court of Appeal Registry Office]. The second event was that consensual sexual activity took place in the kitchen area of the house before the parties went upstairs to the bedroom (“the kitchen incident”). The appellant argued that the [redacted] incident did not constitute other sexual activity while the kitchen incident formed part of the subject-matter of the charge such that both events did not require an application under s. 276. The trial judge disagreed and held that the admissibility of this evidence had to be determined under s. 276. Ultimately, she determined that both incidents were not capable of being admissible under s. 276(2). [^2]

[6] At trial, both the appellant and the complainant testified. The complainant testified that she consented to kissing the appellant in the bedroom, but not to oral, vaginal or anal sex. She communicated her non-consent by telling the appellant “no”, and she tried holding her belt while the appellant tried to undo it. The appellant testified that he did not notice the complainant was impaired by alcohol and that she was a willing participant. According to him, the complainant provided her non-verbal consent by being an active participant to each sexual act; and by nodding, smiling, moaning, and giggling throughout the sexual activity. In the alternative, the appellant argued that he mistakenly believed the complainant was consenting through non-verbal expressions by nodding, smiling, and making eye contact throughout the sexual activity in the bedroom.

[7] The trial judge rejected the appellant’s testimony and accepted the complainant’s evidence that she was in a semi-conscious state because of alcohol consumption. The trial judge also rejected the argument that the complainant had consented by non-verbal communication and instead found that she had expressed her non-consent to the appellant in the bedroom verbally and by gesture. Accordingly, the trial judge rejected the appellant’s reliance on the defence of honest but mistaken belief in consent.

[8] The appellant raises three issues on this appeal. First, he argues that the trial judge was wrong to find that the kitchen incident had to be screened through the s. 276 regime and she erred by ruling it inadmissible. Second, he contends that the trial judge failed to properly address material inconsistencies in the complainant’s evidence and that this error taints the trial judge’s positive credibility finding of the complainant. Third, he claims that the trial judge misapprehended evidence relating to eye contact between the complainant and the appellant during the impugned sexual activity, and the complainant’s consumption of alcohol before the sexual activity occurred in the bedroom. According to the appellant, these misapprehensions of evidence were material and led directly to a miscarriage of justice.

[9] I would dismiss the appeal. I would not interfere with the trial judge’s decision to screen the kitchen incident under s. 276. Nor would I disturb her conclusion that the evidence was not relevant to the issue of consent or the appellant’s defence of honest but mistaken belief in consent. In any event, even if the trial judge erred in excluding the kitchen evidence, that error did not affect the conviction.

[10] I also reject the submission that the trial judge failed to deal with material inconsistencies in the evidence. The submissions under this ground can be distilled to an overarching request to disturb the trial judge’s careful factual findings regarding the reliability and credibility of the complainant. I see no basis to grant that request.

[11] Finally, while the trial judge did misapprehend some of the trial evidence, that error does not impact the conviction or her careful credibility findings. The trial judge made a positive finding of credibility of the complainant and a negative credibility finding against the appellant. Leaving aside the misapprehended evidence, she provided other cogent reasons for accepting the evidence of the complainant and careful reasons for finding the appellant to be an incredible witness. Any misapprehension of evidence was, therefore, inconsequential.

II. Background

Application under s. 276 of the Criminal Code

[12] As indicated above, the appellant brought a motion for directions seeking a ruling as to whether the kitchen incident was admissible pursuant to s. 276. The appellant’s position was that this evidence did not require screening pursuant to s. 276, as it formed part of the same transaction and was indissociable from the sexual activity that took place in the bedroom. Put another way, the appellant argued that since the s. 276 regime only applied to sexual activity other than the sexual activity that formed the subject-matter of the charge, the screening process did not apply to this evidence.

[13] The trial judge rejected this argument and found that the kitchen interaction was “captured within the ambit of s. 276” and an application was warranted for the kitchen incident. She then went on to consider the parties’ submissions and held that the kitchen incident was not relevant to the issue of consent in the bedroom and could not have shaped the appellant’s mistaken belief in consent to the sexual activity in the bedroom without resorting to twin-myth reasoning. She therefore dismissed the application because it was incapable of being admissible under s. 276(2).

The trial judge’s reasons for conviction

[14] At trial, both the complainant and the appellant testified. The complainant’s position was that she was intoxicated, did not consent to the sexual activity in the bedroom, and expressly communicated her non-consent. The complainant testified that during the impugned sexual activity, she was in and out of consciousness due to her alcohol consumption. In contrast, the appellant’s position was that he did not notice her level of intoxication, the complainant did not say no, and in fact, she communicated her consent through non-verbal expressions.

[15] The trial judge accepted the complainant’s evidence. She found the complainant to be a “fair and candid” witness while she found that the appellant’s evidence was “unreasonable” and he was not a credible witness. The trial judge convicted the appellant of one count of sexual assault.

Grounds of appeal

[16] The appellant raises three grounds on this appeal: (i) the trial judge legally erred in excluding evidence relating to the kitchen incident; (ii) the trial judge failed to properly address material inconsistencies in the complainant’s evidence; and (iii) the trial judge misapprehended evidence relating to the eye contact between the complainant and the appellant during the impugned sexual activity, and relating to the complainant’s consumption of alcohol before the sexual activity in the bedroom.

III. Analysis

ISSUE 1: Did the trial judge properly exclude the sexual activity in the kitchen pursuant to s. 276 of the Criminal Code?

[17] I begin with the standard of review. Section 276 screens “sexual activity other than the sexual activity that forms the subject-matter of the charge” (see s. 276(2)). The determination of whether sexual activity evidence is admissible under s. 276 raises a question of law (see s. 276.5). In this appeal, the appellant’s core complaint on this ground of appeal is that the trial judge erred in her interpretation of s. 276 by concluding that the sexual activity that forms the subject-matter of the charge did not include the kitchen incident. This is a matter of statutory interpretation, and the trial judge’s ruling on this matter is reviewable on a correctness standard: R. v. McKnight, 2022 ABCA 251, 416 C.C.C. (3d) 248, leave to appeal to S.C.C. refused, [2022] S.C.C.A. No. 341, at para. 120.

[18] It is helpful to contextualize the appellant’s arguments by reviewing the screening regime in place to determine the admissibility of a complainant’s sexual activity other than the sexual activity that forms the subject-matter of the offence (“other sexual activity”). Where an accused applies to have this type of evidence admitted, they must follow the two-stage procedure established by ss. 278.93 and 273.94.

[19] Section 276(1) declares other sexual activity that is sought to be introduced by the accused, as presumptively inadmissible. As Doherty J.A. put it in this court’s decision in R. v. L.S., 2017 ONCA 685, 40 C.R. (7th) 351:

Section 276(1) does not create a new rule of evidence. Rather, it is an expression of the fundamental rule that to be admissible, evidence must be relevant to a fact in issue. Section 276 identifies two illegitimate inferences from a complainant’s sexual activity that have historically infected the criminal trial process. The section declares that neither inference provides a road to admissibility of evidence of other sexual activity: see R. v. Darrach, [2000] 2 S.C.R. 443, at paras. 32-34.

[20] There are two stages involved in an application to introduce other sexual activity. Section 278.93 provides for an initial screening of the application. If the judge is satisfied that the accused has complied with the notice requirements and that the evidence sought to be adduced is capable of being admissible under s. 276(2), the judge shall grant the application and hold a hearing under s. 278.94 to determine whether the evidence is admissible under s. 276(2). If the s. 278.93 threshold is not met, then the application is terminated. If the evidence overcomes the threshold, the application proceeds to the second stage where it must be determined whether the proposed evidence meets the statutory criteria set out in s. 276(2).

[21] Section 276(2) provides that evidence of other sexual activity is inadmissible at the instance of the accused, regardless of the purpose for which it is tendered, unless the accused meets the four criteria set down in s. 276(2). The evidence of other sexual activity must:

• not be adduced for the purpose of supporting twin-myth reasoning – that the complainant, by reason of sexual activity, is more likely to have consented to the sexual activity forming the subject matter of the charge, or is less worthy of belief (s. 276(2)(a));
• be relevant to an issue at trial (s. 276(2)(b));
• be evidence of specific instances of sexual activity (s. 276(2)(c)); and
• have “significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice” (s. 276(2)(d); see also L.S., at para. 46).

[22] I now turn to the appellant’s submissions.

(1) Was the kitchen evidence other sexual activity that did not form the subject-matter of the charge?

[23] The appellant argues that a s. 276 application is only required when the accused seeks to introduce other sexual activity which does not form the subject-matter of the charge. According to the appellant, realistically viewed, the kitchen incident was part of a chain of events that formed the subject-matter of the charge and was, therefore, beyond the reach of s. 276. He argues separating what occurred in the kitchen from the bedroom was an artificial exercise that defied common sense and the trial judge committed a legal error in separating the two and subjecting the kitchen incident to the s. 276 screening regime.

[24] The question of whether other sexual activity forms the subject-matter of the charge beyond the reach of a s. 276 application is often difficult to resolve. [^3]

[25] In McKnight, a decision rendered after the decision in this case, the Court of Appeal of Alberta determined that to form the subject-matter of the charge, the sexual activity must, at the very least, “be part of the specific factual events of which the offence is a component”: at para. 254. The court clarified that “‘proximate sexual activity” (as that term was used by the trial judge in that case) is not a category of evidence and the determination of whether a particular sexual activity forms part of the subject-matter of the charge necessarily turns on the facts and merits of each case: at paras. 257-8. The court saw no conflict between the cases which exempted certain proximate sexual activity from s. 276 and those which did not because ultimately this was a factual determination.

[26] The court expressly qualified that to the extent the trial judge’s reasons in that case might be understood as categorically foreclosing the possibility that proximate sexual activity could form the subject-matter of the charge, that interpretation was “overly broad and an error of law”: McKnight, at para. 259. For example, certain consensual acts, such as kissing outside a bedroom, which is inextricably tied to subsequent alleged non-consensual sexual intercourse taking place inside that bedroom, may form the subject-matter of the charge. The court also approvingly reviewed the decision in R. v. X.C., 2020 ONSC 410, where Dawe J. gave an example of a complainant alleging that what began as a consensual sexual encounter became non-consensual when the complainant withdrew consent or when the defendant performed some specific sexual act (presumably, during an otherwise consensual activity) to which the complainant did not consent. In such situations, he was of the view that the specific consensual activity that immediately preceded or followed the allegedly non-consensual activity should not be subject to a s. 276 application: see X.C. at para. 38; McKnight, at para. 241.

[27] In McKnight, the court ultimately upheld the trial judge’s decision to subject all sexual activity occurring on the night of the alleged sexual assault to the s. 276 regime considering, in part, that she did not have the detailed evidence of the proximate sexual activity when she rendered the pre-trial ruling. On appeal, the parties adduced specific instances of sexual activity prior to the alleged sexual offence, including kissing, touching, flirting, and dancing, which took place mostly at one or more bars earlier on the night in question and in some instances, at the appellant’s apartment. When examining these specific instances, the court distinguished between the sexual activity taking place at the bars and in the apartment:

It may well be that some of the proposed evidence as later detailed in [the appellant’s] affidavit should have been exempt from the s 276 regime, particularly that occurring in his apartment just prior to the sexual intercourse. However, this was a comparatively small portion of the proposed “proximate sexual activity”, the majority of which having been said to occur in bars hours prior to the activity alleged by the Crown to constitute sexual assault. There would have been little basis for refusing to apply s. 276 to this evidence in most if not all cases.

[28] In sum, the court held that certain instances of “proximate sexual activity” could, depending on the facts, not require screening pursuant to s. 276: at para. 257. The court explained that “proximate sexual activity” was not a category of evidence, rather the focus ought to be on sexual activity which is “integrally connected” to the alleged offence: at para. 258. The assessment of whether the sexual activity in question is “integrally connected”, the court said, is a fact-driven exercise: at para. 259.

[29] I would adopt the language of McKnight to say that other sexual activity that is integrally connected, intertwined or directly linked to the sexual activity that forms the subject-matter of the charge should not be screened under s. 276. Again, as highlighted in McKnight, the determination of whether other sexual activity should be screened pursuant to s. 276 is necessarily a fact-driven, contextual exercise.

[30] In engaging in that exercise, trial judges may want to keep the following in mind.

[31] First, while there are no bright line rules, trial judges should use their common sense and not artificially parse a sequence of events that may be integrally connected. [^4] For example, other sexual activity may include sexual words and gestures that are anchored to the sexual activity that forms the subject-matter of an alleged sexual assault because they were made immediately before, during or immediately after the sexual activity at issue. [^5]

[32] Second, it is important to keep in mind that one of the underlying purposes of the regime is to prevent trials from becoming infected with twin-myth and stereotypical reasoning based on the complainant’s sexual history. Section 276(2)(a) expressly prohibits the admissibility of evidence of other sexual activity for twin-myth reasoning. Keeping this underlying purpose in mind may help guide the analysis of what this provision was meant to exclude and whether this other sexual activity should be screened.

[33] Third, if a trial judge is uncertain about whether the other sexual activity is integrally connected to the sexual activity that forms the subject-matter of the charge, the trial judge should proceed with screening the evidence. This is consistent with the approach of the majority decision in R. v. J.J., 2022 SCC 28, 471 D.L.R. (4th) 577. In that case, the majority upheld the constitutionality of ss. 278.92 to 278.94 of the Criminal Code and the procedure to determine if a “record” relating to the complainant and in the possession of the accused is admissible. Such evidence is inadmissible unless a judge determines that the conditions for admissibility in those provisions have been met. The majority noted that if it was unclear whether the evidence is a “record” as defined under s. 278.1, counsel should err on the side of caution and initiate the screening process as reviewed above. The majority also had the following guidance for trial judges, at para. 104:

The test we have articulated for interpreting s. 278.1 is designed to assist counsel and judges in reducing the need for motions for directions. However, in cases where the accused does bring a motion for directions, the presiding judge must decide whether the proposed evidence is a “record”. Where, in the opinion of the judge, the evidence is clearly a “record”, the judge should deal with the matter summarily and order the accused to proceed with a private record application. Equally, where the judge is uncertain whether the proposed evidence is a “record”, they should instruct the accused to proceed with an application. Only if the judge is clearly satisfied that the proposed evidence does not constitute a “record” should they direct that the accused need not bring an application. [Emphasis added.]

[34] Although this appeal does not involve a motion for directions to determine if something is a “record”, the same approach would be warranted considering the shared purpose of the legislation. I note that the determination as to whether other sexual activity is within the ambit of s. 276 does not determine admissibility. In short, if a judge harbours some reservations that the other sexual activity does not form the subject-matter of the charge, they should act with caution and proceed with a s. 276 analysis. Ultimately, the evidence may be ruled admissible. [^6]

[35] I return now to the trial judge’s reasons. I see no legal error in her analysis. During oral argument of trial counsel, the trial judge clearly engaged with the appellant’s submissions as to why the kitchen incident was exempt from s. 276. She acknowledged that the activity was temporally connected, but rejected the appellant’s argument that the kitchen incident and the bedroom activity constituted one single unbroken transaction. The trial judge accepted the Crown’s argument that the kitchen activity was dissociable in nature and space. After noting that this court in R. v. D.K., 2020 ONCA 79, stated that the reach of s. 276 is broad, she reached the following conclusion at the end of her reasons:

The circumstances in this case are such that the complainant’s consumption of alcohol and the kitchen interaction appear to be intertwined. The sexual contact in the kitchen is alleged to be consensual and as such not part of the subject matter of the charge. But this is not a case of a single transaction as in R. v. S.M.R.. The Crown clearly indicated the kitchen interaction does not form part of the subject-matter of the charge. The kitchen interaction and the bedroom allegations are two distinct and separate set of circumstances, rather than a chain of events forming part of the charge of sexual assault. [Emphasis added.]

[36] I agree with her conclusion. As will become clear from the review of the evidence below, the activity in the kitchen was not integrally connected, intertwined or directly linked to what occurred in the bedroom. As I read the record, unlike what transpired later, the sexual activity in the kitchen occurred in the presence of others, rather than alone and behind a closed door. It was at a far lower degree of physical intimacy. Nor did this activity immediately precede the sexual activity in question and because of its nature I cannot say that it formed part of an unbroken chain of events such that it was a precursor of what transpired later. This is especially so because there was evidence before the trial judge that the complainant thought she was being carried upstairs to go to sleep, not to continue what had occurred in the kitchen between the parties.

[37] In contrast, the activities in the bedroom took place in private. I note that the consensual kissing that occurred on the bed and immediately before the sexual activity was admitted in this trial without any screening pursuant to s. 276. This only fortifies my conclusion that the trial judge was correct to view what occurred in the bedroom and the kitchen as two separate transactions. The kissing on the bed provided necessary context for understanding and assessing the competing evidence of what transpired immediately after. Events in the kitchen did not. Accordingly, I reject the submission that that the trial judge erred by screening the kitchen incident under s. 276.

(2) Did the trial judge err in her decision to prohibit the appellant from adducing this evidence in support of his honest but mistaken belief in consent defence?

[38] The appellant submits that even if the trial judge had properly subjected the evidence under the s. 276 regime, she erred in finding that the evidence was incapable of admission and excluding it at the first stage. Specifically, the appellant argues that the complainant’s non-verbal communication during the consensual sexual activity in the kitchen was relevant to the appellant’s mistaken belief that she was communicating consent to the sexual activity in the bedroom and that the application should have proceeded to the second stage of the hearing.

[39] The trial judge found that twin-myth reasoning would be engaged if the appellant’s argument that the kitchen interaction shaped his belief in consent to the sexual activity in the bedroom were to be accepted. I agree. She did not err in rejecting the appellant’s argument that this evidence was relevant and critical to an honest but mistaken belief in communicated consent defence.

[40] In R. v. Sanclemente, 2021 ONCA 906, 408 C.C.C. (3d) 429, this court summarized the principles of the honest but mistaken belief in communicated consent (which is a form of a mistake in fact defence). Writing for the court, Watt J.A. held:

[89] The requirement for the defence that an accused have an honest but mistaken belief that the complainant actually communicated consent by words, conduct, or both means that the principal considerations in determining its availability are:

i. the complainant’s actual communicative behaviour; and

ii. the totality of the relevant and admissible evidence explaining how the accused perceived the complainant’s behaviour to communicate consent.

[90] The availability of the defence of honest but mistaken belief in communicated consent is circumscribed by the provisions of s. 273.2. Those limitations include restrictions on the source or origins of the appellant’s belief and the requirement in s. 273.2(b) that the accused take reasonable steps, in the circumstances of which the accused was aware at the time, to ascertain that the complainant was consenting to the sexual activity in which they were engaged. No reasonable steps, no defence: Barton, at para. 104.

[92] Some things are not reasonable steps. For example, any steps grounded in rape myths or stereotypical assumptions about women and consent cannot constitute reasonable steps. Reliance on a complainant’s silence, passivity, or ambiguous conduct cannot constitute a reasonable step: Barton, at paras. 107, 109.

[93] In some cases, the reasonable steps requirement will be elevated. Such as the invasive nature of the sexual activity in issue. Or the enhanced risk posed to health and safety of those involved. Or the lack of familiarity between the participants: Barton, at para. 108.

[96] Honest but mistaken belief in communicated consent is a mistake of fact defence. A mistake of fact defence operates where an accused mistakenly perceives facts that negate or raise a reasonable doubt about the fault element in an offence. It is a defence that is rarely invoked. It does not arise by necessary implication in every case in which a complainant says sexual assault and an accused says consent. The evidence, taken as a whole, must satisfy the air of reality standard to put the defence in play in light of the statutory limitations imposed on its availability. [Citations omitted. Emphasis added.]

[41] Further, in R. v. Hay, 2023 SCC 15, the Supreme Court of Canada upheld the appellant’s conviction for sexual assault substantially for the reasons of the Court of Appeal of Alberta, 2022 ABCA 246, finding in part that evidence of prior sexual activity was inadmissible. The Court of Appeal of Alberta reasoned, based on the facts of that case, that consent to a prior sexual act did not inform the accused’s mistaken belief in consent to a distinct sexual act:

[15] Despite meticulously outlining the applicable legal principles, the trial judge nevertheless admitted evidence of the complainant’s nonverbal communication from the previous encounter on August 24, finding that her moaning and body language was a specific instance of sexual activity as required by s 276(2)(c). She reasoned that this evidence was relevant to how Mr Hay came to understand consent in their relationship and its exclusion would impede Mr Hay’s ability to make full answer and defence:

In this case, if the evidence of the prior sexual activity was excluded outright, I would not know if the accused’s belief in nonverbal communication was buttressed by the strength of any prior understanding of the complainant. He would not be able to explain the basis for his belief which would impede his right to make full answer and defence. Additionally, I would be unable to fully evaluate the strength and/or weaknesses of his claims. It is my job, as the trier of fact, to evaluate the evidence; to weigh it, and determine the truth.

I find therefore, that the evidence from August 24, such that it demonstrates both verbal and non-verbal expressions of consent made between the complainant and Mr Hay, are relevant to how he came to understand consent in their relationship.

[16] In admitting evidence of the specific act of digital anal penetration on August 24, the trial judge held that the act, and the complainant’s reaction to it, was “capable of contributing to Mr Hay’s belief that the complainant’s moans of approval on September 13, meant he had permission to proceed with anal intercourse”.

[17] The trial judge erred in law in admitting this evidence. While she cautioned herself against twin-myth reasoning, the admitted evidence unfortunately followed the path of prohibited propensity reasoning. It served no other purpose than to support an inference that because the complainant had consented to digital anal penetration on August 24, she consented to this same sexual activity on September 13; or worse, that because she had twice consented to digital anal penetration, she must have consented to anal intercourse. There was no link between a prior incident of digital anal penetration and the sexual act for which Mr Hay was charged - anal intercourse.

[18] As the trial judge recognized, communicated consent must be given to every sexual act in a particular encounter. To make out the defence, Mr Hay must show “he believed that the complainant communicated consent to engage in the sexual activity in question”. The trial judge conflated anal digital penetration with anal intercourse, an error that permeated the trial decision. These are distinct sexual acts. “[A]greement to one form of penetration is not agreement to any or all forms of penetration and agreement to sexual touching on one part of the body is not agreement to all sexual touching”. [Emphasis and citations omitted.]

[42] As indicated above, at trial, the appellant and the complainant engaged in consensual sexual activity in the kitchen area of the house. The appellant’s position was that the kitchen incident was relevant to illuminate the ways in which the complainant gave non-verbal but communicated consent to oral, vaginal, and anal sex.

[43] The trial judge disagreed with these submissions:

Consent to sexual activity must be communicated, by words or conduct, for each act of the sexual activity at the time it occurred. Also, silence, passivity, broad advance, assumed or implied consent are no consent. (see R. v. Barton, 2019 SCC 33, at paras. 91-96).

This legal background also applies to the kitchen interaction evidence... This is not a case where legitimate expectations about how consent is communicated between the parties can be said to have shaped the applicant's perception of communicated consent to the sexual activity in the bedroom (see Barton, supra, para. 93). They had just met the day before; the nature and surroundings of the sexual contact in the kitchen and in the bedroom are different, even if closer in time. This interaction was in the kitchen, not in the bedroom; in the presence of others, not behind a closed or locked bedroom door; and consisting of touching and kissing, not oral, vaginal and anal penetration. It is difficult to imagine how the kitchen interaction could have shaped the applicant's belief in consent to sexual activity alleged in the bedroom under these circumstances without reverting to impermissible inferences of the twin-myth or to the unavailable defence of mistake of law as to what constitutes ‘consent’. [Emphasis added.]

[44] The trial judge was correct to exclude this evidence at the first stage. On this record, the appellant faced an uphill climb and could not succeed on the application. It was his onus to identify a specific, explicit link between the evidence or specific facts that was not merely helpful to the defence, but fundamental to his honest but mistaken belief in consent defence. I see no error in the trial judge’s rejection of the appellant's submission that the proposed evidence was relevant to such defence. She observed that simply because there was non-verbal consent to certain sexual activity in the kitchen, this could not inform the appellant’s belief that the complainant was consenting to a more invasive sexual activity in the bedroom which consisted of oral, vaginal, and anal sex. I agree with the trial judge’s conclusion. The kitchen incident could not inform his belief that she was consenting to a very different type of sexual activity.

[45] In any event, even if the trial judge was wrong to exclude this evidence, the error had no impact on the conviction. Crucially, the trial judge found that the complainant did verbally communicate her non-consent by saying “no” and trying to resist. That is a finding of fact that cannot be overturned absent overriding and palpable error which is not present here. At the end of the day, even with benefit of the kitchen evidence, the appellant’s purported defence must be rejected and his appeal dismissed because the complainant told the appellant “no”. Indeed, the appellant’s trial counsel recognized this reality during his submissions on the s. 276 application. During the voir dire, counsel outlined his position to the trial judge:

Do you believe beyond a reasonable doubt that non-consent was expressed verbally as she said. Do you believe her when she says I said no. Because if that’s the version you accept beyond a reasonable doubt none of this [the kitchen incident] becomes relevant. But because we anticipate advancing the theory that [indiscernible] potentially that consent was not, non-consent was never expressed explicitly. And on the contrary, it was expressed non-verbally as it had been downstairs, and it continued throughout….

[46] The trial judge resoundingly accepted the complainant’s evidence that she said “no” and attempted to hold her belt up as the appellant tried to undo it. The kitchen incident would not have mattered in light of these findings. I reject this ground of appeal.

ISSUE 2: Did the trial judge properly address the inconsistencies in the complainant’s evidence?

[47] This ground of appeal was not pressed in oral argument. The appellant’s factum asserts that there were three inconsistencies in the complainant’s evidence that the trial judge did not address in her reasons for judgment. The appellant argues that these inconsistencies ought to have been addressed by the trial judge, and her failure to do so was a material error warranting a new trial.

[48] First, the appellant argues that the complainant’s account of the sexual activity she consented to changed between her police statement and trial testimony. The appellant asserts that this was a key inconsistency that showed the complainant’s willingness to change her testimony in a way that reflected badly on the appellant and his defence. According to the appellant, the “[n]on-verbal consensual kissing on the part of the complainant in the moments leading up to the sexual intercourse was critical to the issue of whether the appellant reasonably believed the complainant consented.”

[49] In her police statement, the complainant described that the kissing in the bedroom had been consensual and that she was an active participant. At trial, she testified that the appellant began to kiss her in the bedroom, and she started to feel afraid and was unable to do anything about it. When she was cross-examined and confronted with her police statement, she agreed with counsel that she was “fine” with the kissing.

[50] The trial judge did not mention counsel’s argument or this inconsistency in her reasons for judgment. However, the omission does not warrant appellate intervention. While there may have been some vacillation in the complainant’s evidence, ultimately, the complainant testified that she consented to the kissing in the bedroom “until it got to the extent where I knew it would lead to other things”. There was no material inconsistency in her evidence.

[51] Second, the appellant submits that there were inconsistencies between the testimony of the complainant and her friend C in relation to the events that took place after the alleged sexual assault. The complainant said that while the sexual assault was taking place in the bedroom, someone opened the door, she “shot up” from the bed and saw C and another person standing there. She claimed she called out to C for help, but C did not respond. She then struggled on the floor to put her clothes back on. Meanwhile, C testified the complainant never yelled out to her. C said that at around 5:00 p.m., she realized that the appellant and the complainant had left the kitchen area. She went upstairs and discovered the appellant in a bedroom on top of the complainant who had one leg hanging off the bed. According to C, the complainant had no shirt or pants on, and the appellant had his shirt off and pants around his thighs. C saw the complainant falling off the bed and helped her to get her clothing back on.

[52] While I appreciate that there may have been inconsistencies between the complainant and C as to what had occurred after the sexual activity in the bedroom, these inconsistencies were inconsequential and immaterial. In the end, the trial judge remained focused on what occurred in the bedroom and she did grapple with the impact of the evidence of the complainant’s friends on the credibility and reliability of the complainant. The trial judge stated:

She [the complainant] also acknowledged having discussed some of the surrounding details with her friends as she did not remember them. After carefully considering the nature and the extent of the details discussed, I can only conclude that it has very little, if any, impact on her credibility and reliability as to how she recalls the events unfolding in the bedroom. It is of very little impact, but for recognizing her level of intoxication and therefore the reliability of her evidence, that, for example, she does not remember when, in the sequence of events, her friends asked in the bedroom and what was said and by whom at that time. Her friends were not present or witnesses as to what took place in the bedroom between her and [the appellant]. [Emphasis added.]

[53] Finally, the appellant submits that the trial judge did not deal with a glaring inconsistency in the complainant’s evidence that suggested the complainant was dishonest. The complainant’s evidence at trial was that she had asked the appellant to provide alcohol for her and her friends, but in a previous written statement to the police she had described this request as a joke. I am not persuaded by this submission. The complainant explained why there was an inconsistency between her written statement to the police and trial testimony, and the trial judge considered that explanation. The trial judge concluded that the complainant was a fair and candid witness because she acknowledged wanting the appellant to bring alcohol, but not wanting the police to think all she wanted was to drink alcohol. That was a finding open to her on the record.

[54] The reasons of the trial judge, read as a whole and in the context of the issues raised and evidence given at trial, reveal no legal error in her assessment of the complainant’s evidence. It bears repeating that the Supreme Court of Canada in R. v. G.F., 2021 SCC 20, 459 DLR (4th) 375, at para. 82, has emphasized that a review of a trial judge’s credibility findings must proceed with the presumption that the trial judge has correctly applied the law, particularly regarding the relationship between reliability and credibility. That presumption has not been displaced in this appeal and I would not interfere with the trial judge’s credibility finding.

ISSUE 3: Did the trial judge misapprehend material evidence at trial?

[55] The appellant submits that the trial judge misapprehended two pieces of evidence that he says played a central role in her credibility assessment. First, he argues that the trial judge erroneously found that his evidence about eye contact was incredible because he could not have had eye contact while being positioned in the way he was when having oral sex with the complainant. The respondent concedes that this was not the appellant’s testimony. The appellant’s testimony was that they were making eye contact while he was pulling off the complainant’s underwear and he then performed oral sex on her.

[56] While the respondent’s concession is proper, I am not persuaded that this is a material misapprehension. Not every misapprehension of evidence will vitiate a finding of guilt. The misapprehension “must be material rather than peripheral to the reasoning of the trial judge”: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2.

[57] Where the alleged misapprehension relates to evidence used to assess credibility, the decision whether a miscarriage of justice has occurred turns on the extent to which the misapprehended evidence played a role in the trial judge’s credibility assessment: R. v. Alboukhari, 2013 ONCA 581, 310 O.A.C. 305, at paras. 36-37. If the trial judge mischaracterized parts of the accused’s evidence that were central to the assessment of credibility, there is more likely to be a miscarriage of justice: Alboukhari, at para. 38, citing R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5; and Whitehouse v. Reimer (1980), 1980 ABCA 214, 116 D.L.R. (3d) 594.

[58] While the trial judge erred in her description of the appellant’s testimony on this point, this error did not lead to a miscarriage of justice. That is because this finding was one of several findings made by the trial judge in her reasons that supported her rejection of the appellant’s evidence. The crucial findings of the trial judge included the following:

• The appellant tried minimizing the complainant’s level of intoxication;
• The appellant’s evidence that the complainant undid his pants and she voluntary lifted her buttocks to help him remove her pants was not credible in light of her level of intoxication; and
• It was unreasonable to believe that after being oblivious or unable to observe that the complainant was intoxicated, he was only relying on watching for non-verbal cues to anal sex with someone he had met the day before.

[59] Accordingly, I agree with the respondent that even if the evidence about eye contact were removed from the trial judge’s assessment, there was other ample evidence that she actually relied on to support her negative credibility finding, such that this misapprehension did not play an essential part in her reasoning process leading to the conviction.

[60] Second, the appellant argues that the trial judge misapprehended evidence in relation to a Crown toxicologist called at trial. The Crown led evidence from a toxicologist who provided evidence that at the time the complainant’s blood was collected at the hospital (at 11:56 p.m.), she had a blood alcohol content (BAC) of 53 mg of alcohol in 100 ml of blood. The toxicologist’s opinion was that given this reading, the complainant’s projected BAC between 4:15 p.m. and 5:00 p.m. (the time that the parties were in the bedroom and engaging in sexual activity) would have been between 103 and 208 mg. The toxicologist testified that a light to moderate drinker with a BAC of 100 would feel euphoria and diminished inhibitions with some loss of motor control. Slurring and stumbling would likely signify impaired consciousness. And at the upper end of the projection, someone could become confused and experience impaired consciousness.

[61] However, the toxicologist qualified his opinion. He based it on the assumption that a female with the complainant’s stature had not consumed three standard drinks within 15 minutes of the incident; in other words, she must have had more time between the drinks consumption and the incident to allow her body to absorb the alcohol. If three standard drinks had been consumed in this time frame, the projected BAC could be as low as 19 and as high as 104.

[62] The appellant argued at trial that the trial judge could not discount the possibility that the complainant had consumed alcohol shortly before the sexual activity and that her BAC was rising steadily during the time she was in the bedroom. This would support the appellant’s evidence at trial that the complainant did not display signs of serious intoxication, such as loss of balance or difficulty with processing her thoughts.

[63] The trial judge concluded that there “is no evidence to suggest, let alone conclude, that she consumed three drinks 15 minutes prior to the sexual activities in the bedroom” because this was the time she was in the kitchen interacting with the appellant.

[64] The appellant argues that the trial judge misapprehended the evidence because the complainant and her friends testified that she rapidly consumed alcohol on the night in question and that the complainant could not recall the timing of her drinks. Accordingly, there was a real possibility that the complainant’s BAC rose significantly after the sexual activity was already underway.

[65] I am not persuaded by this submission. The trial judge found that there was no evidence to suggest, let alone conclude, that the complainant had consumed three drinks precisely within 15 minutes prior to the sexual activity in the bedroom. The complainant testified that she could not recall how many drinks she had or when she had them. During cross-examination, she acknowledged that she had more drinks when she came back inside from the patio but could not recall how much or what she had to drink. Recall that the toxicologist’s opinion was based on the assumption that she had not consumed the three drinks within 15 minutes prior to the time of 4:15 p.m. to 5:00 p.m. It was open to the trial judge to accept this assumption and find that during that 15-minute period the complainant was not drinking because she was interacting with the appellant.

[66] Even if the trial judge misapprehended the evidence of the complainant’s drinking before the bedroom activity, her findings about the complainant’s intoxication was also supported by other evidence aside from the expert opinion of the complainant’s BAC. The toxicologist opined that the degree to which an individual experiences intoxication and exhibits its visible signs is also dependent on the individual’s tolerance to alcohol. The trial judge observed that “there is no doubt [the complainant] was a naïve drinker” and she found that the complainant and the other guests all displayed signs of intoxication “ranging from being loud, giggling and even having to go outside to get fresh air, and to being unbalanced.” Specifically, the complainant testified that when she was in the kitchen, everything was blurry and dizzy. Her friends also observed that the complainant was not walking properly and slurring her words prior to being carried by the appellant into the bedroom. Therefore, the trial judge’s finding that the complainant was highly intoxicated during sexual activity in the bedroom stands on firm ground.

[67] This finding was an important one because it did not align with the appellant’s evidence that he did not notice that the complainant exhibited any signs of intoxication. The trial judge found that assertion to be incredible and there is no reason to overturn that finding. That was the essential part in the reasoning process of the trial judge not the complainant’s BAC.

[68] While there may have been misapprehensions of evidence, these errors did not rise to a level of a miscarriage of justice. I would dismiss this ground of appeal.

IV. Disposition

[69] For these reasons, I would dismiss the appeal.

Released: July 4, 2023 “B.W.M.”

“S. Coroza J.A.”

“I agree. B.W. Miller J.A.”

“I agree. B. Zarnett J.A.”

[^1]: As I will explain, the screening regime to determine whether evidence of other sexual activity under s. 276 is admissible is set out in the two-stage procedure outlined in ss. 278.92 to 278.94 of the Criminal Code. For ease of reference, I will refer to the regime as the s. 276 regime. As an issue on this appeal concerns a ruling made under s. 276, by order of the panel, portions of the appeal were heard in camera. [^2]: However, the trial judge noted that some of the evidence related to the complainant’s consumption of alcohol in the kitchen was relevant and admissible, and she held a further hearing to determine what questions could be asked of the complainant in relation to evidence of alcohol consumption. No issue is taken to this part of the trial judge’s ruling on appeal. [^3]: Several trial judges, academics and practitioners have outlined the different approaches in this area: see e.g., R. v. X.C., 2020 ONSC 410; R. v. Kebede, 2023 ONSC 1851; R. v. Manttari, 2022 ONSC 6989; and R. v. C.T., 2023 ONCJ 124; Lisa Dufraimont, “Competing Approaches to Evidence of Proximate Sexual Activity” (2022) 79 C.R. (7th) 148; and see Daniel Brown and Jill Witkin, Prosecuting and Defending Sexual Offence Cases, 2nd Ed. (Toronto: Emond, 2020), Chapter 13, at pp. 360-2. [^4]: R. v. Lennox, 2019 ONSC 3844, at paras. 25-26; and R. v. Cole, 2020 ONSC 6239, at para. 43; and R. v. Fryday, 2021 ONSC 3201, at para. 27. [^5]: See e.g., R. v. MacMillan, 2019 ONSC 6018, at para. 19. [^6]: See e.g. R. v. Kebede, 2023 ONSC 1851, at para. 37.