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 or 486.6 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(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) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order;

(b) on application made by the victim, the prosecutor or any such witness, make the order; and

(c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.

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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

(b) on application of the victim or the prosecutor, make the order; and

(c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.

(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.

(3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall

(a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order;

(b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and

(c) in any event, advise the prosecutor of their duty under subsection (3.2).

(3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have

(a) informed the witnesses and the victim who are the subject of the order of its existence;

(b) determined whether they wish to be the subject of the order; and

(4) An order made under this section does not apply in either of the following circumstances:

(a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or

(b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person.

(5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness.

486.6(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor,

(a) the person knowingly failed to comply with the order;

(b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and

(c) a warning to the individual is not appropriate.

(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.

Corrected decision: The text of the original judgment was corrected on February 4, 2025, and the description of the corrections is appended.

COURT OF APPEAL FOR ONTARIO

DATE: 20240605

DOCKET: C70406

van Rensburg, Roberts and Favreau JJ.A.

BETWEEN

His Majesty the King Respondent

and

A.B. Appellant

Counsel: Mark C. Halfyard and Robert Nanni, for the appellant Emily Marrocco, for the respondent

Heard: November 23, 2023

On appeal from the conviction entered by Justice David R. Aston of the Superior Court of Justice on September 24, 2021, sitting with a jury.

Favreau J.A.:

A. Introduction

[1] The appellant was charged with five counts of sexual assault and one count of choking to overcome resistance. A jury found him guilty on one of the counts of sexual assault.

[2] The complainant was the appellant’s girlfriend at the time of the alleged incidents. The relationship lasted approximately one year.

[3] The appellant submits that the trial judge made three errors in his charge to the jury: 1) his instruction on prior inconsistent statements and false testimony was insufficient, 2) he failed to provide an instruction to the jury limiting reliance on demeanour evidence, and 3) he erred in his instruction on wilful blindness.

[4] While I do not accept the first two grounds of appeal, I agree with the appellant that the trial judge erred in his instruction on the mens rea requirement for sexual assault, specifically in his description of recklessness and wilful blindness. I would therefore allow the appeal and order a new trial.

B. Background

(1) Relationship between the appellant and the complainant

[5] The appellant and the complainant were in a relationship for approximately one year, from around November 2015 to the end of October 2016. When the relationship began, the appellant was 26 years old and the complainant was 18 years old. They lived together from March 2016 to October 2016. The relationship ended in October 2016, when the complainant became aware of the appellant’s infidelity.

[6] During the relationship, on January 1, 2016, the complainant suffered acute appendicitis and had her appendix removed the next day. Her evidence was that, following the surgery, she was in a lot of pain and had difficulty walking. She also testified that her doctor told her not to have sex for six weeks following the surgery. The complainant and the appellant lived with the appellant’s parents for a period of time immediately following the surgery.

(2) Charges and conviction

[7] Following their breakup, in November 2017, the complainant was an in-patient at a hospital due to mental health problems. While the complainant was at the hospital, she spoke to another patient who disclosed her own experience of sexual assault. The complainant says that she then realized that the appellant had sexually assaulted her. She subsequently went to the police, alleging that the appellant had sexually assaulted her on a number of occasions during their relationship.

[8] The appellant was charged with five counts of sexual assault and one count of choking to overcome resistance. The first alleged sexual assault occurred three or four days after the complainant’s surgery and the other incidents occurred in the following weeks.

[9] The appellant was tried by a judge and jury. The jury found the appellant guilty on the first count of sexual assault, and found him not guilty of all the other counts.

(3) Evidence on the first count of sexual assault

[10] The first sexual assault allegedly occurred at the house of the appellant’s parents three or four days after the complainant’s surgery.

[11] The complainant’s evidence was that she was in bed recovering from the surgery. The appellant finished work around 3:00 p.m. and returned home around 3:30 p.m. The appellant was upset about something. He got into bed with the complainant. He removed his underwear. He moved the complainant’s underwear aside and started having vaginal intercourse with her. She was in pain and told him to get off her and to stop, but he did not. He ejaculated, got off her and went to take a shower. They did not talk about the incident afterward.

[12] The appellant’s evidence was that he and the complainant had sexual intercourse on that day. However, he testified that the complainant did not ask him to stop and did not express any pain or discomfort. He also testified that the appellant did not tell him she could not have sexual intercourse after the surgery. He said that he and the complainant had previously talked about having “gentle” and “cautious” sexual intercourse and that the complainant had agreed.

C. Issues raised on appeal and analysis

[13] The appellant raises three grounds of appeal that focus on the jury charge:

a. The trial judge gave an inadequate instruction on prior inconsistent statements and lying under oath;

b. The trial judge erred in his instruction on demeanour; and

c. The trial judge erred in his instruction on wilful blindness.

[14] Given my finding that the trial judge erred in the jury instruction on wilful blindness and recklessness, as requested by the Crown, a fourth issue to be decided in this case is whether to apply the curative proviso pursuant to s. 686(1)(b)(iii) of the Criminal Code, R.S.C., 1985, c. C-46.

[15] Before addressing each issue, it is helpful to remember that trial judges are not held to a standard of perfection in crafting their jury charges. When reviewing a jury charge, appellate courts are to take a functional approach: R. v. Lozada, 2024 SCC 18, at para. 14; R. v. Abdullahi, 2023 SCC 19, 483 D.L.R. (4th) 1, at para. 35. This means that appellate courts should consider whether the jury was “properly, not perfectly, instructed” such that it was equipped “to decide the case according to the law and the evidence”: Lozada, at para. 14. This requires appellate courts to read the complete charge, in the context of the trial as a whole: Lozada, at para. 14; Abdullahi, at para. 35.

Issue 1: The trial judge did not err in his instruction on prior inconsistent statements

[16] One of the central issues at trial was the complainant’s credibility.

[17] In closing submissions, defence counsel highlighted several discrepancies between the complainant’s evidence in her statement to the police, at the preliminary inquiry and at trial.

[18] With respect to the first count specifically, the appellant identified two inconsistencies. First, in her statement to the police, the complainant had said that the appellant flipped her on her stomach during the sexual assault, whereas at trial she said that she was on her back the whole time. Second, at the preliminary inquiry, the complainant said that she initially consented to the sexual intercourse but asked the appellant to stop when it started to hurt; however, at trial, she testified that she did not consent to the sexual intercourse from the beginning given her doctor’s instructions.

[19] In closing submissions, defence counsel pointed to a few other inconsistencies in the complainant’s evidence regarding the other counts. In addition, defence counsel highlighted one instance where the complainant admitted that she deliberately did not tell the truth at the preliminary inquiry. The complainant was asked about whether she had been in contact with the appellant after the breakup and said that she had not. However, at the trial, during cross-examination, the complainant confirmed that she did in fact see the appellant after January 2017 despite her statement at the preliminary inquiry that she wanted to avoid seeing him at all costs. She explained that she did not disclose that she saw the appellant because she did not want to hurt the prosecution.

[20] In his jury instruction, the trial judge gave a general instruction regarding prior inconsistent statements:

I’ll speak now, in general, about prior inconsistent statements, because that is something that has been a bit of a focus here. When a witness says one thing in the witness box but has said something that you find to be quite different on an earlier occasion, your common sense tells you that the fact that the witness gave different versions may be important in deciding whether, or how much of that person’s testimony you believe or accept. The first thing for you to decide is whether the witness in fact gave an earlier and significantly different version from, in this case, her trial testimony of the same events. If you do not find that she actually gave a different version of events, just ignore what I am going to tell you now about how you can use the earlier version to help you decide the case. If you find that the witness gave an earlier version of events, and you find that the earlier version was significantly different from her trial testimony, please listen carefully to what I tell you now about how to use that earlier version to help you decide the case. Not every difference or omission will be important. Was it significantly different? Is the fact itself significantly important? You should consider the nature and extent of any differences in deciding their importance to you, in deciding whether you believe or will rely upon the witness’s testimony. You should also consider any explanation the witness gives for the differences. [Emphasis added.]

[21] Before reviewing the evidence, the trial judge explained to the jury how they should approach the evidence of the complainant and appellant. This included a direction to consider whether inconsistencies were “an honest mistake” or “a deliberate lie”.

[22] The trial judge went on to review the evidence of the complainant and appellant on each count. When doing so, he did refer to one of the inconsistencies in the complainant’s evidence in relation to the first count:

Count Number 1 of the indictment relates to the sexual intercourse that occurred at the home of [the appellant’s] parents in Belmont shortly after [the complainant’s] surgery in January of 2016. She testified it was very painful and that she repeatedly told [the appellant] to stop. She said he continued to the point of ejaculation. At trial she testified that she was on her back the whole time, even though in her statement to the police she said that he flipped her over onto her stomach. At trial she insisted that even if she is mistaken on that detail she’s quite sure she is not mistaken about how painful it was, nor about telling him repeatedly to stop.

[23] Finally, in his instruction, the trial judge mentioned defence counsel’s closing submissions and their emphasis on the complainant’s lack of honesty and reliability:

The defence’s submission is that [the complainant’s] evidence ought to be rejected as dishonest and unreliable. The defence contends that her evidence falls short of proof beyond a reasonable doubt. Defence counsel offered you examples of inconsistences between her trial testimony and earlier statements she made to the police or at the preliminary inquiry. When you consider inconsistencies, or apparent inconsistencies, keep in mind what I said earlier in these instructions about how to use that kind of evidence. Defence counsel also characterized as not believable [the complainant’s] evidence that until talking to her friend […] in January 2017, she was unaware that what [the appellant] did constituted sexual assault. [Emphasis added.]

[24] The appellant argues that these instructions were insufficient. Given that the complainant admitted telling a deliberate lie at the preliminary inquiry, more was required. In particular, the charge should have included an instruction to the effect that telling a deliberate lie may be an indication that the complainant did not take her oath seriously.

[25] I would dismiss this ground of appeal.

[26] Taking a functional approach to the charge as a whole, and taking into account defence counsel’s closing submissions, it is evident that the jury was well-equipped to understand that the complainant’s credibility was one of the central issues in the case. This was a relatively short trial. There were only two witnesses: the complainant and the appellant. The trial judge and defence counsel highlighted a number of specific discrepancies in the complainant’s evidence and emphasized the importance of credibility in the case. It would have been evident to the jury that the complainant’s credibility was a central issue for them to decide, and that they had to grapple with apparent discrepancies in her evidence, including her own admission that she lied under oath at the preliminary inquiry. I am satisfied that the jury was well-equipped in this case to assess the complainant’s credibility.

Issue 2: The trial judge did not err in his instruction on demeanour

[27] The appellant argues that the trial judge erred in failing to provide a proper instruction warning the jury not to “over-rely” on demeanour in assessing the witnesses’ credibility. I see no error in this respect.

[28] The trial judge’s instruction on assessing the witnesses’ credibility sets out a list of standard questions members of the jury should ask themselves, including “what was the witness’s manner when he or she testified? How did he or she appear to you?”. The appellant submits that this part of the charge should have been accompanied by an instruction warning the jury to be cautious in relying on demeanour evidence. As an example, he says that the charge should have included the following instruction from the National Judicial Institute Model Jury Instructions:

Do not jump to conclusions, however, based entirely on how a witness has testified. Looks can be deceiving. Giving evidence in a trial is not a common experience for many witnesses. People react and appear differently. Witnesses come from different backgrounds. They have different abilities, values and life experiences. There are simply too many variables to make the manner in which a witness testifies the only or most important factor in your decision. [1]

[29] The appellant also relies on this court’s decision in R. v. Chacon-Perez, 2022 ONCA 3, 159 O.R. (3d) 481, at para. 133, where the court warned against the risks of over-reliance on demeanour evidence:

We permit a trier of fact to consider a witness’ demeanour in assessing their credibility. In a jury trial, we allow trial judges to instruct jurors that a witness’ demeanour is a factor, one of many, that they may consider in assessing the witness’ credibility. Although we concede the relevance of demeanour as a credibility determinant, we also recognize that, on its own, demeanour is a notoriously unreliable predictor of the accuracy of a witness’ evidence. And so we eschew assigning it a place of prominence in the credibility analysis. [Emphasis added.]

[30] It is important to note that in Chacon-Perez the issue was whether the trial judge gave a sufficient instruction to the jury to correct the Crown’s closing argument, which had improperly emphasized the demeanour of a witness. In contrast, in this case, there is no indication that the Crown improperly emphasized the complainant’s demeanour or that there was anything unusual about the complainant’s demeanour that required special attention. Notably, neither counsel at trial asked for an instruction on demeanour when provided with the draft of the written jury charge. While it would have been preferable for the trial judge to include general language about the risks of over-reliance on demeanour evidence, in this case, there is no reason to believe that his failure to do so had any impact on the trial.

[31] Accordingly, I would dismiss this ground of appeal.

Issue 3: The trial judge erred in his instruction on recklessness and wilful blindness

[32] The appellant argues that the trial judge erred in his instruction to the jury on wilful blindness because his instruction suggested that the jury should assess the appellant’s conduct from the perspective of what a reasonable person in the appellant’s position ought to have understood rather than from the perspective of what the appellant actually understood. I agree with this submission and would add that the instruction on recklessness suffers from the same defect. Moreover, this was not an innocuous error. The instruction on the knowledge element of sexual assault could have led the jury to convict the appellant if they were satisfied that the appellant should have known that the complainant was not consenting as seen from the perspective of a reasonable person rather than as seen from his subjective perspective.

[33] The mens rea element of sexual assault requires the Crown to prove beyond a reasonable doubt that an accused knew that the complainant did not consent to the sexual activity. This knowledge element can be proven through actual knowledge, recklessness or wilful blindness: R. v. Ewanchuk, [1999] 1 S.C.R. 330, at para. 23.

[34] Recklessness and wilful blindness are two distinct concepts: R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at paras. 20, 22; R. v. Morrison, 2019 SCC 15, [2019] 2 SCR 3, at para. 100. The doctrine of wilful blindness “imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries”: Briscoe, at para. 21 (emphasis in original); see also Morrison, at para. 98. Recklessness is “the attitude of one who, aware that there is danger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk. It is, in other words, the conduct of one who sees the risk and who takes the chance”: Sansregret v. The Queen, [1985] 1 S.C.R. 570, para. 16.

[35] While recklessness and wilful blindness are distinct concepts, neither looks at the accused’s knowledge from an objective perspective; that is, from the negligence standard of what a reasonable person ought to have known. Rather, recklessness and wilful blindness both require an inquiry into what the accused subjectively knew or understood at the time of the sexual activity: Briscoe, at para. 20; Sansregret, at para. 16.

[36] Accordingly, to find that the appellant was wilfully blind with respect to the complainant’s consent, the jury would have to be satisfied beyond a reasonable doubt that the appellant suspected that he was engaging in sexual activity with the complainant without her consent, and that he deliberately chose not to make inquiries despite those suspicions. It would not be sufficient for the jury to find that the appellant ought to have been suspicious and made inquiries. To find that the appellant was reckless, the jury would have to be satisfied beyond a reasonable doubt that the appellant was aware that he may be engaging in sexual activity without the complainant’s consent, but that he nevertheless persisted. It would not be sufficient for the jury to find that he ought to have been aware that the complainant was not consenting. In some circumstances, the difference between actual suspicion or awareness and what a reasonable person ought to suspect or know may be a fine one, but it is nevertheless an important distinction for the purpose of establishing the mens rea element of sexual assault.

[37] In his jury instruction, the trial judge described the mens rea requirement for sexual assault as follows:

I have mentioned the fourth element of the offence of sexual assault, and that is, that you must also be satisfied beyond a reasonable doubt that [the appellant] knew that [the complainant] did not consent. There is more than one way that the Crown can prove this element of the sexual assault offences. [The appellant’s] knowledge that [the complainant] did not consent is proven if you are satisfied beyond a reasonable doubt that he was actually aware she did not consent, such as, from her words or her actions. However, [the appellant’s] knowledge that she did not consent is also proven if you are satisfied beyond a reasonable doubt that there was a risk she was not consenting, but he went ahead anyway, not caring whether she consented or not. Alternatively, [the appellant’s] knowledge that she did not consent is proven if you are satisfied beyond a reasonable doubt that given the circumstances he should have inquired about her willingness to engage in sexual activity but did not ask, what is sometimes referred to as, “willful blindness”. Now, the Crown does not have to satisfy all of you in the same way. Any of these ways of proving [the appellant’s] knowledge is enough. All of you don’t have to agree on how the Crown has proven that knowledge as long as all of you are sure on one basis or another, that the Crown has proven beyond a reasonable doubt that [the appellant] knew [the complainant] did not consent to a particular sexual touching at the time that touching took place. [Emphasis added.]

[38] The recklessness and wilful blindness instructions the trial judge gave are different from the National Judicial Institute Model Jury and Watt’s Model Jury instructions. In this respect, it is helpful to set them out together.

[39] For recklessness:

National Judicial Institute Model Jury instruction: “To prove that [the appellant] was aware of [the complainant’s] lack of consent, the Crown must prove … that [the appellant] knew there was a risk that [the complainant] did not consent to the sexual activity in question and [the appellant] proceeded in the face of that risk”. [2]

Watt’s instruction: “To prove this essential element, that [the appellant] knew that [the complainant] did not consent to the sexual touching by [the appellant], Crown counsel must prove beyond a reasonable doubt … that [the appellant] knew (was aware) that there was a risk that [the complainant] did not consent (was not consenting) to the sexual touching by [the appellant], but [the appellant] went ahead anyway despite knowing (being aware) of the risk”. [3]

Trial judge’s instruction: “[The appellant’s] knowledge that she did not consent is also proven if you are satisfied beyond a reasonable doubt that there was a risk she was not consenting, but he went ahead anyway, not caring whether she consented or not. [Emphasis added.]

[40] The National Judicial Institute Model Jury instruction and Watt’s instruction make clear that recklessness includes a requirement that the appellant knew there was a risk that the complainant was not consenting. However, the trial judge’s instruction in this case fails to include this knowledge component and simply stated that it would be sufficient if there was a risk the complainant was not consenting; thereby suggesting that the risk could be objective or even from the complainant’s subjective point of view. This is an obvious error.

[41] The wilful blindness instruction contains a similar error:

National Judicial Institute Model Jury instruction: “To prove that [the appellant] was aware of [the complainant’s] lack of consent, the Crown must prove … that [the appellant] was aware of indications that [the complainant] did not consent to the sexual activity in question, but deliberately chose to ignore them because [the appellant] did not want to know the truth. [Emphasis added.] [4]

Watt’s instruction: “To prove this essential element, that [the appellant] knew that [the complainant] did not consent to the sexual touching by [the appellant], Crown counsel must prove beyond a reasonable doubt … that [the appellant] knew (was aware) of indications that [the complainant] did not consent (was not consenting) to the sexual touching by [the appellant], but deliberately chose (decided) to ignore those indications because [the appellant] did not want to know the truth.” [5]

Trial judge’s instruction: “[The appellant’s] knowledge that she did not consent is proven if you are satisfied beyond a reasonable doubt that given the circumstances he should have inquired about her willingness to engage in sexual activity but did not ask, what is sometimes referred to as, ‘willful blindness’”. [Emphasis added.]

[42] Again, the National Judicial Institute Model Jury instruction and Watt’s instruction make clear that, for wilful blindness, the appellant must have been aware that there were indications the complainant was not consenting, but that he deliberately chose to ignore those indications. Instead, the trial judge’s instruction stated that it would be sufficient if, in the circumstances, the appellant “should” have made inquiries, thereby again suggesting that the jury was to assess what the appellant ought to have known from an objective point of view.

[43] Accordingly, the trial judge made legal errors in his instructions to the jury regarding recklessness and wilful blindness.

Issue 4: The curative proviso is not appropriate in this case

[44] The Crown submits that, at most, this was an innocuous error and that the curative proviso should apply.

[45] The curative proviso set out in s. 686(1)(b)(iii) of the Criminal Code allows the court to dismiss an appeal from conviction where “no substantial wrong or miscarriage of justice has occurred”. The Crown may rely on the curative proviso where the error is harmless or trivial or where the evidence is so overwhelming that a conviction was inevitable: R. v. Samaniego, 2022 SCC 9, at para. 65; R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272, at para. 53. The Crown does not suggest that the evidence in this case was overwhelming. Therefore, in deciding whether to apply the curative proviso, the issue is whether “the error was harmless or trivial, such that there is no reasonable possibility that the verdict would have been different had it not been made”: Samaniego, at para. 65.

[46] The Crown argues that, if the trial judge made an error in the jury charge regarding the instruction on the mens rea element, it was harmless because the case was not argued on the basis of recklessness or wilful blindness, but rather on the basis that the appellant had actual knowledge that the complainant was not consenting. In making this argument, the Crown points out that the appellant was aware of the complainant’s surgery and condition following the surgery, and points to the complainant’s evidence that she told the appellant she could not have sexual intercourse in the six weeks following her surgery.

[47] There may be circumstances in which it would be appropriate to accept that the trial judge’s faulty instruction on wilful blindness and recklessness could not have had an impact on the verdict, but not in this case. I say this for two reasons.

[48] First, the circumstances surrounding the first count easily lend themselves to reasoning based on what a reasonable person would know or should have known in the circumstances, rather than on what the appellant knew. The jury could have reasoned that, because the appellant was aware that the complainant had recently had surgery and that she was in bed recovering, he should have known that the complainant was not consenting or would not consent to sexual intercourse or that further inquiries were required to ensure that she was consenting. However, this reasoning impermissibly focuses on what a reasonable person ought to have known rather than what the appellant knew. In the circumstances, in the absence of a proper instruction on wilful blindness or recklessness, there is a real risk that the jury made a reasoning error.

[49] Second, this potential reasoning error is especially evident from the jury verdict in this case. As mentioned above, the jury found the appellant not guilty on all counts, except for the first one. The first count involved sexual intercourse that occurred only three or four days after the complainant’s surgery, whereas the other incidents occurred later. The fact that the jury acquitted the appellant on the other counts suggests that the jury may have found that the complainant was not credible. If that is the case, the jury may not have accepted her evidence regarding the first count, but may nevertheless have followed the trial judge’s faulty instruction and reasoned that the appellant ought to have known – rather than knew or understood – that the complainant was not consenting because he should have known or understood she could not safely and comfortably engage in sexual intercourse so soon after her surgery.

[50] Accordingly, in my view, the appeal should be allowed based on this ground of appeal. The trial judge’s instructions with respect to recklessness and wilful blindness were both erroneous, and they could have led the jury to err in their reasoning regarding the knowledge element of sexual assault for count one. If the jury had been properly instructed on recklessness and wilful blindness, it is not inevitable that they would have reached the same verdict. This is not an appropriate case for the curative proviso.

D. disposition

[51] For these reasons, I would allow the appeal and order a new trial.

Released: June 5, 2024 “K.M.v.R.”

“L. Favreau J.A.”

“I agree. K. van Rensburg J.A.”

“I agree. L.B. Roberts J.A.”

Corrections made on February 4, 2025: In paragraphs 28, 39, and 41, footnotes were added providing the citations for the National Judicial Institute Model Jury Instructions and Watt’s Manual of Criminal Jury Instructions.

[1] Canadian Judicial Council, Model Jury Instructions, 9.4 Assessment of Evidence, online: National Judicial Institute https://www.nji-inm.ca/index.cfm/publications/model-jury-instructions/, last revised June 2018 (“National Judicial Institute Model Jury Instructions”).

[2] National Judicial Institute Model Jury Instructions, Offence 271: Sexual Assault, last revised May 2019.

[3] David Watt, Watt’s Manual of Criminal Jury Instructions (Toronto: Thomson Reuters, 2023), at pp. 632-33 (Final 271-B) (“Watt’s Instructions”).

[4] National Judicial Institute Model Jury Instructions, Offence 271: Sexual Assault, last revised May 2019.

[5] Watt’s Instructions, at pp. 632-33 (Final 271-B).