Court of Appeal for Ontario

Date: 2025-10-21 Docket: COA-24-CR-1364

Justices: Gillese, Zarnett and Thorburn JJ.A.

Between

His Majesty the King Respondent

and

Evan MacKay Appellant

Counsel

Evan MacKay, acting in person Erin Dann, appearing as duty counsel Kevin Pitt, for the respondent

Heard: October 9, 2025

On Appeal

On appeal from the conviction entered by Justice Nathalie Champagne of the Superior Court of Justice, on September 19, 2024, and from the sentence imposed on October 25, 2024.

Reasons for Decision

The Conviction Appeal

[1] The appellant, Evan MacKay, was convicted after trial by judge alone, of sexual assault contrary to s. 271 of the Criminal Code, R.S.C., 1985, c. C-46. The trial judge sentenced Mr. MacKay to a custodial term of 38 months and made certain ancillary orders.

[2] Mr. MacKay appeals the conviction and seeks leave to appeal his sentence.

The Crown's Theory and the Trial Judge's Reasoning

[3] On behalf of Mr. MacKay, duty counsel submits that the trial judge followed a route to liability that was not meaningfully advanced by the Crown. She argues that the Crown's theory was that the complainant told Mr. MacKay that she did not want to engage in intercourse prior to that sexual act occurring. According to duty counsel, the trial judge's reasons show that she was not satisfied beyond a reasonable doubt by the complainant's evidence on that point – instead she found that Mr. MacKay was guilty because on his own evidence there was no communicated consent.

[4] Duty counsel relies on R. v. R.H., 2022 ONCA 69. In that case Nordheimer J.A. stated, at para. 23 that:

… it is fundamentally unfair to convict an accused person on a basis of which they are unaware and which they have not had an opportunity to respond. It denies the accused person their constitutional right to make full answer and defence: R. v. Mills, [1999] 3 S.C.R. 668, at para. 69. At the very least, when the trial judge became aware that he might convict on that basis, he ought to have alerted counsel to that possibility and asked for their submissions.

[5] We do not accept the submission that Mr. MacKay was convicted on a different theory than that advanced by the Crown of which he was unaware and to which he had no adequate opportunity to respond. To the contrary, the trial judge's reasons address the case that was put to her.

[6] In R.H., the Crown's theory was that the appellant had engaged in sexual touching without the complainant's consent. The case was argued at trial by both sides on the basis that the issue was whether the complainant had subjectively consented. The trial judge was left with a reasonable doubt relating to whether the complainant subjectively consented. But without notice to the parties, he went on to hold that due to the history of violence in the parties' relationship, the complainant was incapable of giving legally effective consent and any consent she gave was vitiated. This premise of liability was not canvassed either in the questioning of the complainant or in submissions at the conclusion of the trial: R.H., at paras. 13, 14, 22.

[7] This case is quite different than R.H. Here the Crown's theory of sexual assault based on an absence of subjective consent was the exact theory on which Mr. MacKay was convicted. This was a short trial and the trial judge's oral reasons must be read in that light as well as in light of the assumption that the trial judge knows the law. Nothing displaces that assumption here.

The Elements of Sexual Assault

[8] It is well settled law that the Crown was required to prove the actus reus of the offence and that Mr. MacKay had the necessary mens rea: R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 87. The actus reus of sexual assault consists of touching, of an objectively sexual nature, to which the complainant did not consent. At the actus reus stage, the absence of consent is determined solely by reference to the complainant's subjective internal state of mind. The mens rea consists of the accused having touched the complainant intentionally knowing that the complainant was not consenting or being reckless or willfully blind as to the absence of consent: R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 25.

[9] There was no issue in this case that intentional sexual touching occurred. The only live issues were about consent, namely whether the complainant, in her own mind, consented to each aspect of the sexual encounter (relevant to the actus reus of the offence) and whether Mr. MacKay knew of, or was wilfully blind or reckless as to the absence of consent (relevant to the mens rea aspect of the offence).

The Trial Judge's Findings

[10] The trial judge clearly disposed of the actus reus point in the Crown's favour. She found "I believe [the complainant] when she says that she did not want to have intercourse and she did not consent."

[11] The subsequent discussion in the trial judge's reasons in which she referred to the absence of communicated consent even on the appellant's own evidence was not an exploration of an alternative theory of liability. It addressed the necessary mens rea aspect of the offence in light of the arguments made at trial, and led to the trial judge's conclusion that Mr. MacKay knew that the complainant did not consent or was wilfully blind or reckless as to that fact.

[12] Defence counsel at trial made an argument about whether Mr. MacKay had the required state of mind for the offence. Specifically, he argued that the "issue is whether he had a legitimate belief in his mind that she was consenting, and he certainly testified to that."

[13] The trial judge analysed and rejected this argument. She stated that she believed the complainant when she testified to having told Mr. MacKay that she did not want to have intercourse, but in any event she found that on the appellant's own evidence there was no affirmative communication of consent to intercourse by the complainant either by words or conduct, nor did Mr. MacKay take any steps to establish consent.

[14] These findings were directly responsive to the defence argument that Mr. MacKay held a "legitimate" belief that there was consent. A defence of a mistaken belief in a complainant's consent is tightly limited both by the common law and by provisions of the Code that restrict the range of mistaken beliefs an accused may lawfully hold: G.F., at para. 1; R. v. H.W., 2022 ONCA 15, 160 O.R. (3d) 81, at paras. 49-51. A belief in consent that does not arise from a communication by the complainant, either by words or conduct, and that exists without the accused having taken reasonable steps to establish that the complainant is consenting, is not exculpatory. The trial judge essentially found that whatever belief Mr. MacKay had was not "legitimate" in the sense of being exculpatory.

[15] We therefore reject this ground of appeal.

The Sentence Appeal

[16] Duty counsel argues that the trial judge made two errors in principle in arriving at the sentence. First, the trial judge referred to Mr. MacKay's failure to do much in terms of taking positive steps to address his mental health issues as an aggravating factor. Second, although at the time of sentencing Mr. MacKay was serving an eight year sentence for other offences, she appears to have held that the principle of totality could not apply as the matter before her was unrelated to those other offences.

[17] The Crown concedes that both references were erroneous, but argues that they had no impact on the sentence. The 38 month sentence was well within the range for this type of offence (three to five years: see e.g., R. v. A.J.K., 2022 ONCA 487, 162 O.R. (3d) 721, at para. 68) and was only two months longer than the top of the range suggested by defence counsel as fit for Mr. MacKay (24 to 36 months).

[18] We accept the Crown's submission. The trial judge's reference to Mr. MacKay's failure to address his mental health issues should have been referred to as non-mitigating, not as aggravating, but that reference was not repeated when the trial judge summarized the key factors that led to the sentence that she arrived at. And although the principle of totality could apply, the weight to be given to it in a particular case is a matter of discretion; in some cases it will have a substantially reduced effect: R. v. Johnson, 2012 ONCA 339, 285 C.C.C. (3d) 120, at paras. 19 and 24. The factors that the trial judge considered in this case, namely the fact that the other offences were committed at other times, and were unrelated to this offence, distinguish this case from the authority put to her in support of the application of the totality principle and militate toward giving the principle substantially reduced effect. Finally, it is difficult to accept that the 38 month sentence imposed is crushing when defence counsel at trial argued for a sentence of up to 36 months, that is, only two months short of the sentence imposed.

[19] Accordingly we reject these arguments and leave in place the sentence the trial judge imposed.

Conclusion

[20] For these reasons the appeal against conviction is dismissed, leave to appeal sentence is granted, but the sentence appeal is dismissed.

E.E. Gillese J.A.

B. Zarnett J.A.

Thorburn J.A.

Publication Ban

[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.