COURT OF APPEAL FOR ONTARIO

CITATION: R. v. K.J., 2025 ONCA 58[^1]

DATE: 20250124

DOCKET: COA-23-CR-0320

Hourigan, Favreau and Dawe JJ.A.

BETWEEN

His Majesty the King

Respondent

and

K.J.

Appellant

Brian Snell, for the appellant

Andreea Baiasu, for the respondent

Heard: January 20, 2025

On appeal from the conviction entered on June 27, 2022, and the sentence imposed on March 30, 2023 by Justice Robert Gattrell of the Ontario Court of Justice.

REASONS FOR DECISION

[1] The appellant was convicted of sexual assault following a five-day trial. He was sentenced to three years’ imprisonment. The appellant appeals his conviction and sentence.

[2] At the end of oral submissions, we advised the parties that the appeal was dismissed with reasons to follow. These are our reasons.

A. Background

[3] The appellant was to be the best man in his friend’s wedding. The complainant was the bride-to-be. A week prior to the wedding, in the evening of August 10, 2019, the appellant attended a social gathering at the complainant’s parents’ house. After several rounds of drinks, the complainant’s fiancé went to bed in the basement at around 2:00 a.m. The appellant and the complainant stayed up and continued drinking in the basement.

[4] The complainant’s fiancé awoke around 6:15 to 6:30 a.m. on August 11 to find the complainant asleep on the floor, naked from the waist down, with a blanket covering her lower body. He removed the blanket and examined her genitalia where he saw semen in and on her vagina. He wiped it off with a tissue and attempted to wake her. The complainant had difficulty waking up and displayed signs of extreme intoxication. The complainant’s fiancé also noticed that a computer screen that normally illuminated the room had been unplugged (which he later determined was around 5:15 a.m.) and the complainant’s pants were on the floor, not inside out.

[5] Neither the complainant nor the appellant had any recollection of what occurred. DNA analysis conducted on vaginal swabs from the complainant confirmed the presence of the appellant’s DNA. At trial, it was accepted that a sexual act occurred, and the sole issue was whether it was consensual.

[6] An expert toxicologist testified that based on the complainant’s blood alcohol concentration (“BAC”) of 198 mg of alcohol in 100 ml of blood at 3:05 p.m. on August 11, her BAC at 5:00 a.m. would have been between 264 and 400 mg of alcohol in 100 ml of blood. This was barring bolus drinking just before 5:00 a.m. or alcohol consumption after the incident. The expert testified that someone like the complainant who was a light to moderate drinker would experience heavy to severe intoxication at this BAC level, potentially including impaired consciousness.

[7] The trial judge found that based on all the evidence, the circumstantial evidence was so powerful that there was no rational inference other than guilt. He found that the complainant was either barely conscious or on the verge of passing out when the sexual act occurred. As such, she was incapable of providing consent and the appellant knew this or was reckless of or wilfully blind to that fact.

B. Grounds of Appeal

[8] On the conviction appeal, the appellant submits that the trial judge reached an unreasonable verdict. The appellant raised numerous other grounds of appeal in his factum but did not pursue many of them during oral argument. Instead, he focused on three submissions.

[9] First, the appellant takes issue with the expert toxicologist’s evidence about the complainant’s BAC. The expert estimated the complainant’s BAC at 5:00 a.m. This was based on the Crown’s theory at trial that the incident occurred around the time the computer screen was unplugged. The appellant submits that this was an error because there was nothing linking the two events. Further, the appellant submits that the estimated BAC was based on the assumption that the complainant did not consume more alcohol after the incident which cannot be ruled out as a possibility.

[10] We do not agree. There is no requirement for expert evidence to support a finding of incapacity to consent due to extreme intoxication: R. v. G.F., 2021 SCC 20, at paras. 5, 65, 86. In any event, there was other evidence about the complainant’s level of intoxication, such as her state when awoken, that supported the trial judge’s finding that she lacked capacity to consent.

[11] Second, the appellant submits that the trial judge erred by relying on the evidence about the computer screen and the fact that the complainant’s pants were not inside out - which suggests that she had help removing them - in making a finding of guilt. He submits that neither are relevant to the issue of consent.

[12] We agree that this evidence is not probative of guilt. However, even if the trial judge did consider them as pieces of circumstantial evidence, which is not clear from his reasons, this was not an overriding error that renders the verdict unreasonable. There was other circumstantial evidence that was sufficient to establish guilt.

[13] Third, the appellant submits that the trial judge erred by relying on stereotypes and myths when he said that had the complainant consented, she would not have fallen asleep without cleaning up the semen and putting her pants back on. We do not agree. This was a common sense inference that supported a finding of guilt. Triers of facts are allowed to rely on common sense inferences and the generalized expectations they generate about human behaviour to assess whether a narrative is plausible: R. v. Kruk, 2024 SCC 7, at paras. 73-75, 88. The trial judge did not rely on stereotypes in reaching this conclusion. Rather, he made a reasonable inference based on common sense that had the complainant had the capacity to consent, she would have also tried to hide the evidence given the presence of her fiancé in the same room.

[14] Overall, we are not satisfied that the verdict was unreasonable. The trial judge instructed himself to consider all of the circumstantial evidence in accordance with R. v. Villaroman, 2016 SCC 33 and found that it excluded all reasonable inferences other than guilt. We see no error in the application of this standard.

[15] On the sentence appeal, the appellant submits that the trial judge erred in imposing a sentence of three years and asks this court to substitute a sentence of two years. We decline to interfere with the sentence.

[16] This court’s jurisprudence is clear that in sexual assault cases where there is forced penetration, the sentencing range is three to five years: R. v. A.J.K., 2022 ONCA 487, at para. 77. The circumstances of this case are not highly mitigating such that a departure from this range would be justified. The appellant’s assertion that a sentencing range of 18 months to three years is appropriate where the complainant is sleeping has recently been rejected by this court: see R. v. S.W., 2024 ONCA 173, at paras. 42-43. It is settled that there is no principled reason for distinguishing between complainants who are awake and those who are sleeping for the purpose of establishing a sentencing range.

C. Disposition

[17] For the foregoing reasons, the conviction appeal is dismissed. Leave to appeal sentence is granted, but the sentence appeal is dismissed.

“C.W. Hourigan J.A.”

“L. Favreau J.A.”

“J. Dawe J.A.”

[^1]: This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.