Court Information
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Yilma Campbell
Before: Justice P. Harris
Judgment delivered on: February 16, 2012
Counsel:
- E. Stimec, for the Crown
- J. Struthers, for the Defence
HARRIS, J.:
Facts
[1] Yilma Campbell was charged that he did on or about the 22nd day of January, 2011, commit a sexual assault on E.S. contrary to s. 271 of the Criminal Code. The Crown proceeded by summary conviction and the defendant pleaded not guilty.
[2] The trial began on February 9th, 2012 and was completed on February 10th, 2012. At the outset, date, jurisdiction and identity were admitted. There was a further admission of voluntariness in respect to a statement made to police by Mr. Campbell.
[3] The Crown called the complainant, E.S., as the first witness and she testified she was 25 years of age and in mid-December, 2010 she answered an advertisement on Craigslist, for a person to share a residence with three other young women. On December 31, 2010, she moved into the shared accommodation at […] S.Street, Toronto. The residents of this two level townhouse each had their own bedroom and according to the complainant, were "not the best of friends but we got along really well". E.S. was assigned the middle bedroom on the second floor, L. A. had the front bedroom, and J.C. had the back bedroom on that floor. L.O. slept in a fourth bedroom on the main floor of the townhouse.
[4] E.S. gave evidence that the roommates would often eat dinner and watch television together. On weekend before January 22, 2011, all or most of the roommates including Ms. S., went out socially and L. A. was present with a male she was dating, Yilma Campbell. E.S. stated she had met Yilma Campbell a number of times before January 22, 2011, and he had stayed overnight in L.'s room at the residence "a couple of times". Ms. S. said she had no relationship with the defendant, Yilma Campbell, "at all".
[5] On January 22, 2011, three weeks after she moved in, she stated she returned home after 8:00 p.m. and she "hung out" with L.O., L. A., J.C. and Laura's friend from Ottawa (Ashley) and they talked and drank wine. Yilma Campbell then arrived and sometime later (about 11:00 p.m) J.C. came back to the residence. This group continued drinking and socializing in the kitchen for a while and at about 1:30 a.m. (Jan. 22nd) E.S. said goodnight to everyone and went to bed. There was no lock on her door. She said she changed into a T-shirt and ¾ length pyjama pants and went to sleep. Prior to this, she had consumed about two glasses of red wine and 1.5 oz. gin (with tonic). She said she was not drunk but "probably buzzed".
[6] E.S. testified her next memory was waking up to find "Yilma in my bed fingering me and going down on me – the lower half of my body". She stated she was on her back and he was performing oral sex and "had a finger – probably two fingers in my vagina". She gave evidence that this continued for probably three to five seconds. "I was in a deep sleep, confused, shocked. I made him stop and got up and got out of bed". She stated her pants were on the floor next to the bed. She went to the bathroom and "got in the shower". She testified she "felt gross, dirty". After showering, she came back to the bedroom and he was lying "there in bed naked". She testified she told him to "get out of my bed, my room". He got up and left and nothing was said. At 10:57 a.m. that day, Ms. S. was sent a facebook message from Yilma Campbell (which she retrieved Jan. 23rd) as follows:
"I really don't know what to say. I'm a horrible person. Maybe I need help or something. I'm sorry for hurting everyone. I really don't know what happened, but whatever happens to me, I deserve it. I am terribly sorry for my actions and hope one day I am forgiven (Exhibit 2).
[7] Later on January 22nd, L. A. gave E.S. the business card of P.C. Lisa Ferris and told her "you might feel better going to her". Under cross-examination when asked "if L. A. helped you decide what to do?" ─ the complainant replied that L. and others had encouraged her to make a criminal complaint, "but I made up my mind independently". Ms. S. met with police Sunday, January 23 and went back to the station again Monday, January 24th to complete her statement. When asked in cross-examination whether, "when (Yilma Campbell) laid down with you, you started kissing ?" ─ and she replied "not to my knowledge". Ms. S. added that "I woke up and my pants were off". "I can't account for what happened when I was asleep". She agreed that no force or abusive language had been used. When asked, "Why didn't you go and call 911", she replied, "his had never happened before, so I didn't know how to react".
[8] J.C. testified that she had moved into the four bedroom townhouse in October, 2010 and was living in the residence when E.S. moved in on January 1st, 2011. Her room was at the top of the stairs to the second floor. She became acquainted with Yilma Campbell who was dating her roommate, L. A.. She saw him "probably every week (after she moved into […] S.Street) – he stayed over in her room". Ms. C. gave evidence that on January 22, she came home after midnight and had been at a "pub" where she had drank "two or three pints". When asked if she was drunk, she stated she "was tipsy –was aware she had a body buzz". When she arrived, "Laura, Ashley (Laura's friend from Ottawa), L., E. and Yilma were all in the kitchen having a beer". She stated she had a beer – there was "talking, laughing". It was a good mood". Eventually, Laura and Ashley left, E. went up to bed, L. went upstairs and J.C. and Yilma Campbell were the only remaining persons downstairs in the residence. She said Yilma Campbell was behaving silly, goofy, laughing – they were talking and laughing for a while.
[9] Ms. C. testified that at one point Yilma Campbell "just took off all his clothes". He said, "screw it, I'm getting naked". Ms. C. gave evidence that his disrobing "sobered me up. I just thought he was being silly". She stated she went outside "to smoke" for about 8-10 minutes, and when she came back no one was there. So she went to her room and found Yilma Campbell lying on her bed with no clothes on. She said she thought he was "confused and passed out in my room" so she pulled him by the arm out of her room and "covered him up (on a couch downstairs) with a blanket". Ms. C. stated that she went looking for her cell phone and came back to her bedroom about fifteen minutes later and found Mr. Campbell, once again lying naked (this time on his stomach) in her bed. She said she thought it was hilarious that he was so confused and pulled him out of her room again, directed him towards L.'s room and locked the bedroom door. Ms. C. thought she was asleep by about 2:00 a.m. She stated that she was later woken by her roommates and told what happened. She was sent the same facebook message by Mr. Campbell that E.S. received (see Exhibit 3).
[10] Under cross-examination, Ms. C. described Mr. Campell that night as silly, goofy: "he was speaking more than normal, teasing. Before that he was more reserved". Ms. C. denied any kissing between her and Campbell or that he had made any sexual advances towards her. She agreed that she thought he had blacked out on her bed and that he was not rude or threatening to her in any way. Ms. C. agreed that L. A. encouraged her to go to the police and that she (A.) wanted something to happen to him from the police.
[11] Yilma Campbell testified that he was 29 years of age. After receiving a B. A. from the Ontario College of Art and Design, he found employment as an Art Director in Toronto. He stated he began dating L. A. in the summer of 2010. He gave evidence that he would regularly visit her at the residence every week. There was always a party and would stay over with L. A. in her bedroom. On January 21, L. A. was "mad that I'm late from work", when he arrived at the residence. In any event, there was a group at the home that night having a casual good time, drinking. Eventually, "Laura left, L. went upstairs" and he continued "hanging out" with E. and J.. He described J. as "drunk and loud", having come from the pub. He stated that "E. went upstairs". He says he "went in for a kiss with J. and she kissed back". He and J. hung out for a while and then "he took off his clothes". He explained that he did this because "she had kissed him back and he thought she was interested". When asked what condition he was in at that time, he stated he was "drunk". He testified that the next thing he recalled was "waking up under a blanket". When asked if he recalled being in J.'s room twice, he answered "yes". He gave evidence that after waking up under the blanket he went upstairs and found J.'s door was closed. He then went into E.'s room. He stated that "J. was interested in me, I thought maybe E. was too. My confidence was high".
[12] Yilma Campbell stated he was naked, entered E.S.'s bedroom, and laid down beside her. He said he started interacting with her: "We were kissing on the cheeks, lips"; "she was kissing me back on the lips and mouth". He gave evidence that he "couldn't see if her eyes were open". Mr. Campbell said he slowly moved down "below the waist"; he performed oral sex – "not that long, seconds". Asked how she reacted, he replied: "She was moaning". When asked what happened next, he said: "She got up and left; she came back a few minutes later and (in a normal voice) said "please leave" – so he did. He stated that he believed she consented because "she reciprocated". Asked why he went into E.S.'s bedroom – he replied, "I was overly confident". Asked whether there was any "connection between him and E.", he replied "no". He stated that the events of that night caused L. A. to become "very angry" and she subsequently sent him three emails (Exhibits 1, 4, 5) in which she referred to a "vendetta"; she said , "I will dedicate my life to ruining yours" and "if your life isn't destroyed enough..... I will bring yours down".
[13] Under cross-examination, the defendant Yilma Campbell agreed his memory at trial was hazy and was affected by alcohol. He allowed that there were blacked-out periods of time that night he couldn't account for. He agreed he was drunk that night. He was asked: "There was nothing before that night that caused you to think E. was interested in you?" ─ and he replied: "no". He stated that he had argued with L. about him being late and agreed that when she went upstairs "things were not good". He was then asked: "so the target of your attentions turned from L. to getting lucky with J. ? – and he replied, "yes". Mr. Campbell was asked: you were hoping that taking off your clothes would lead to sex? – to which he answered "yes, possibly". He agreed he never told the police he took off his clothes in front of J.. He also was asked: "when E. went up to her bedroom she doesn't invite you in"? – and he replied "no". Mr. Campbell testified that he kissed J. and she kissed him back for a couple of seconds. He was asked what happened after that? – and he said: "I was drunk, my clothes came off. I didn't recall going to her bedroom (J.'s). I recall her pulling me out". He further recalled being naked in her bed; "she then asked me to leave". He testified he thought he went into J.'s bedroom twice.
[14] Mr. Campbell gave evidence that he went back to J.'s bedroom and found the door locked so he left. He said he thought about E. and went into her room. He testified didn't knock at the door or say anything before he laid down beside her. He agreed he was fully naked at the time and drunk. He was asked "she's lying down with her eyes closed – she's sleeping?" ─ and he replied "yes", and agreed the lights were off. He further agreed he had not "taken steps to speak with her or make sure her eyes were open". Mr. Campbell was asked: "If you hadn't been drunk you wouldn't have gone in naked and you would have talked to her first and made sure her eyes were open and she was awake before you went in for a kiss? – and he replied "yes, being drunk clouded my judgment". He was then asked the following question: you kissed her with her eyes closed and she kissed you back? – and he answered "yes". He was then asked: "is it possible you were drunk and mistaken that she kissed you back?" ─ and he replied "that's fair". He agreed he said in his statement to police that he removed E.'s pants and in court he gave evidence that he could recall pulling her pants down to the ankles. He was asked about his recollection of performing oral sex and describing E.S. as "moaning" and whether he knew she was moaning or was just confused about what was going on and he replied: "she was moaning. I have good judgment about that". Mr. Campbell was then asked: "when she left and came back in the room and told you to leave ─ at that point you knew you went too far? ─ and he replied: "I knew she was not comfortable with it". He was asked why he said in his email that he was a horrible person who needed help and he replied "because I cheated on L. and put E. in a bad position". Finally he was asked whether the time that elapsed between kissing E. and performing oral sex took just a few seconds, and he replied: "it could have been a couple of minutes". He then agreed that because he was drunk it could have been substantially less than a couple of minutes.
Analysis
(a) The Issues and Position of Counsel
[15] Mr. Struthers on behalf of the defendant has argued that the defence in this case contemplates alternative routes to a not-guilty finding. His initial position is that the complainant consented ─ as evidenced from Mr. Campbell's testimony that she "was kissing me back on the lips and mouth" while he was lying beside her. Consequently, he contends that the actus reus of the offence ─ the lack of consent ─ has not been proven. Should I find that E.S. did not consent, then the defence takes the position that he had an honest, but mistaken belief that she had consented to the sexual contact that took place ─ in other words, he argues that he mens rea of the offence of sexual assault has not been proven.
[16] Mr. Stimec submits that Ms. S. could not have consented because she was not conscious and awake at the time the defendant commenced to have sexual contact with her ─ in other words, she was incapable of consenting to the sexual activity. He further argues that the defence of mistaken belief in consent was not available where the belief arose from either his (a) self-induced intoxication, or (b) reckless or wilful blindness or where the defendant did not take reasonable steps, in the circumstances known to the defendant at the time, to ascertain that the complainant was consenting to the sexual activity.
(b) The Law
[17] Justice Major in R. v. Ewanchuk, 131 C.C.C. (3d) 481 (S.C.C.) has provided a definitive statement of the law of sexual assault. Writing for the majority, he stated at paragraph 25 (and following):
25 The actus reus of sexual assault is established by the proof of three elements: (i) touching, (ii) the sexual nature of the contact, and (iii) the absence of consent. The first two of these elements are objective. It is sufficient for the Crown to prove that the accused's actions were voluntary. The sexual nature of the assault is determined objectively; the Crown need not prove that the accused had any mens rea with respect to the sexual nature of his or her behaviour: see R. v. Litchfield, [1993] 4 S.C.R. 333, and R. v. Chase, [1987] 2 S.C.R. 293.
26 The absence of consent, however, is subjective and determined by reference to the complainant's subjective internal state of mind towards the touching, at the time it occurred: see R. v. Jensen, (1996), 106 C.C.C. (3d) 430 (Ont. C.A.), at pp. 437-38, aff'd , [1997] 1 S.C.R. 304, R. v. Park, [1995] 2 S.C.R. 836, at p. 850, per L'Heureux-Dubé J., and D. Stuart, Canadian Criminal Law (3rd ed. 1995), at p. 513.
27 Confusion has arisen from time to time on the meaning of consent as an element of the actus reus of sexual assault. Some of this confusion has been caused by the word "consent" itself. A number of commentators have observed that the notion of consent connotes active behaviour: see, for example, N. Brett, "Sexual Offenses and Consent" (1998), 11 Can. J. Law & Jur. 69, at p. 73. While this may be true in the general use of the word, for the purposes of determining the absence of consent as an element of the actus reus, the actual state of mind of the complainant is determinative. At this point, the trier of fact is only concerned with the complainant's perspective. The approach is purely subjective.
28 The rationale underlying the criminalization of assault explains this. Society is committed to protecting the personal integrity, both physical and psychological, of every individual. Having control over who touches one's body, and how, lies at the core of human dignity and autonomy. The inclusion of assault and sexual assault in the Code expresses society's determination to protect the security of the person from any non-consensual contact or threats of force. The common law has recognized for centuries that the individual's right to physical integrity is a fundamental principle, "every man's person being sacred, and no other having a right to meddle with it, in any the slightest manner": see Blackstone's Commentaries on the Laws of England (4th ed. 1770), Book III, at p. 120. It follows that any intentional but unwanted touching is criminal.
29 While the complainant's testimony is the only source of direct evidence as to her state of mind, credibility must still be assessed by the trial judge, or jury, in light of all the evidence. It is open to the accused to claim that the complainant's words and actions, before and during the incident, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place. If, however, as occurred in this case, the trial judge believes the complainant that she subjectively did not consent, the Crown has discharged its obligation to prove the absence of consent.
30 The complainant's statement that she did not consent is a matter of credibility to be weighed in light of all the evidence including any ambiguous conduct. The question at this stage is purely one of credibility, and whether the totality of the complainant's conduct is consistent with her claim of non-consent. The accused's perception of the complainant's state of mind is not relevant. That perception only arises when a defence of honest but mistaken belief in consent is raised in the mens rea stage of the inquiry.
[18] And further at paragraph 33:
33 As previously mentioned, the trial judge accepted the complainant's testimony that she did not want the accused to touch her, but then treated her conduct as raising a reasonable doubt about consent, described by him as "implied consent". This conclusion was an error. See D. Stuart, Annotation on R. v. Ewanchuk (1998), 13 C.R. (5th) 330, where the author points out that consent is a matter of the state of mind of the complainant while belief in consent is, subject to s. 273.2 of the Code, a matter of the state of mind of the accused and may raise the defence of honest but mistaken belief in consent.
[19] And further at paragraph 40:
40 Section 265(3) identifies an additional set of circumstances in which the accused's conduct will be culpable. The trial judge only has to consult s. 265(3) in those cases where the complainant has actually chosen to participate in sexual activity, or her ambiguous conduct or submission has given rise to doubt as to the absence of consent. If, as in this case, the complainant's testimony establishes the absence of consent beyond a reasonable doubt, the actus reus analysis is complete, and the trial judge should have turned his attention to the accused's perception of the encounter and the question of whether the accused possessed the requisite mens rea.
(2) Mens Rea
41 Sexual assault is a crime of general intent. Therefore, the Crown need only prove that the accused intended to touch the complainant in order to satisfy the basic mens rea requirement. See R. v. Daviault, [1994] 3 S.C.R. 63.
42 However, since sexual assault only becomes a crime in the absence of the complainant's consent, the common law recognizes a defence of mistake of fact which removes culpability for those who honestly but mistakenly believed that they had consent to touch the complainant. To do otherwise would result in the injustice of convicting individuals who are morally innocent: see R. v. Creighton, [1993] 3 S.C.R. 3. As such, the mens rea of sexual assault contains two elements: intention to touch and knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched. See Park, supra, at para. 39.
43 The accused may challenge the Crown's evidence of mens rea by asserting an honest but mistaken belief in consent. The nature of this defence was described in Pappajohn v. The Queen, [1980] 2 S.C.R. 120, at p. 148, by Dickson J. (as he then was) (dissenting in the result):
Mistake is a defence...where it prevents an accused from having the mens rea which the law requires for the very crime with which he is charged. Mistake of fact is more accurately seen as a negation of guilty intention than as the affirmation of a positive defence. It avails an accused who acts innocently, pursuant to a flawed perception of the facts, and nonetheless commits the actus reus of an offence. Mistake is a defence though, in the sense that it is raised as an issue by an accused. The Crown is rarely possessed of knowledge of the subjective factors which may have caused an accused to entertain a belief in a fallacious set of facts.
44 The defence of mistake is simply a denial of mens rea. It does not impose any burden of proof upon the accused (see R. v. Robertson, [1987] 1 S.C.R. 918, at p. 936) and it is not necessary for the accused to testify in order to raise the issue. Support for the defence may stem from any of the evidence before the court, including, the Crown's case-in-chief and the testimony of the complainant. However, as a practical matter, this defence will usually arise in the evidence called by the accused.
(a) Meaning of "Consent" in the Context of an Honest but Mistaken Belief in Consent
45 As with the actus reus of the offence, consent is an integral component of the mens rea, only this time it is considered from the perspective of the accused. Speaking of the mens rea of sexual assault in Park, supra, at para. 39, L'Heureux-Dubé J. (in her concurring reasons) stated that:
. . . the mens rea of sexual assault is not only satisfied when it is shown that the accused knew that the complainant was essentially saying "no", but is also satisfied when it is shown that the accused knew that the complainant was essentially not saying "yes".
46 In order to cloak the accused's actions in moral innocence, the evidence must show that he believed that the complainant communicated consent to engage in the sexual activity in question. A belief by the accused that the complainant, in her own mind wanted him to touch her but did not express that desire, is not a defence. The accused's speculation as to what was going on in the complainant's mind provides no defence.
47 For the purposes of the mens rea analysis, the question is whether the accused believed that he had obtained consent. What matters is whether the accused believed that the complainant effectively said "yes" through her words and/or actions. The statutory definition added to the Code by Parliament in 1992 is consistent with the common law:
273.1 (1) Subject to subsection (2) and subsection 265(3), "consent" means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.
48 There is a difference in the concept of "consent" as it relates to the state of mind of the complainant vis-à-vis the actus reus of the offence and the state of mind of the accused in respect of the mens rea. For the purposes of the actus reus, "consent" means that the complainant in her mind wanted the sexual touching to take place.
49 In the context of mens rea – specifically for the purposes of the honest but mistaken belief in consent – "consent" means that the complainant had affirmatively communicated by words or conduct her agreement to engage in sexual activity with the accused. This distinction should always be borne in mind and the two parts of the analysis kept separate.
(b) Limits on Honest but Mistaken Belief in Consent
50 Not all beliefs upon which an accused might rely will exculpate him. Consent in relation to the mens rea of the accused is limited by both the common law and the provisions of ss. 273.1(2) and 273.2 of the Code, which provide that:
273.1 . . .
273.2 (2) No consent is obtained, for the purposes of sections 271, 272 and 273, where
(a) the agreement is expressed by the words or conduct of a person other than the complainant;
(b) the complainant is incapable of consenting to the activity;
(c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;
(d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or
(e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.
273.2 It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where
(a) the accused's belief arose from the accused's
(i) self-induced intoxication, or
(ii) recklessness or wilful blindness; or
(b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.
[20] One of the key issues in this case is credibility and for that reason I have utilized the formula in R. v. W. (D)., [1991] 1 SCR 742 which provides as follows:
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
[21] Finally I have referenced R. v. G.(R.) (1994), 38 C.R. (4th) 123 (B.C.C.A.), a decision while not binding, has thoroughly examined the defence of mistaken consent in the context of an intoxicated defendant who gave evidence that he believed the complainant was consenting because of what he described as some physical responsiveness (at paragraph 23):
23 Turning to the sexual assault charge, the trial judge said this:
- On count two, the sexual assault, the defence amounts to this: The lady never said no, so she must have consented. With the greatest of respect, I disagree that this is the law respecting consent in a sexual assault. The onus is on the accused, the confessed aggressor throughout the evening's events, to determine unequivocally that the woman is consenting. The onus is on him; not on her. He must make certain she is consenting. It is not up to her to make sure that he knows that she is not consenting.
- The accused believed that because her body responded to his touching that, therefore, she was consenting. That is not good enough in these circumstances.
- I accept and find as a fact that the accused was intoxicated, as he himself has stated. I am satisfied that the victim's recall of the events of that evening is the more accurate and objective. ...
- I want to make it perfectly clear to this accused that what I am saying is this: That even though the woman never said no, the responsibility is his to make sure that he has an unequivocal consent, and I am satisfied in these circumstances he did not fulfill that onus in any subjective or objective manner and I find him guilty as charged.
(Emphasis added)
24 Before us it was argued that the emphasized passages demonstrate that the trial judge erred in his interpretation of and approach to s. 273.2 of the Criminal Code:
273.2 It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where
(a) the accused's belief arose from the accused's (i) self-induced intoxication, or (ii) recklessness or wilful blindness; or
(b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting; 1992, c. 38, s. 1. (Emphasis added)
25 In all, three errors by the trial judge are alleged. The first is that he construed the section as placing an onus on the accused to establish that the complainant had unequivocally consented to his sexual advances before he could avail himself of the defence of honest but mistaken belief in consent.
26 Secondly, it is said that the trial judge erred in placing any onus on the accused to establish that he took reasonable steps to ascertain that the complainant was consenting, in the absence of any circumstances "known to the accused" which would have justified such an inquiry. The test in s. 273.2(b) is said to apply only when circumstances known to the accused dictate that it is necessary and prudent for the accused to make further inquiries. No such circumstances are said to have existed in this case. The argument advanced on behalf of the appellant on this count goes so far as to suggest that there was little or no cogent evidence to suggest the need for any inquiry whatsoever, and that all the evidence is consistent with the reasonable perception by the appellant that he and the complainant were just two lovers having normal sex by way of "making up" after a quarrel. It is suggested that there was little, if any, conflict in the evidence relating to the issue of consent, thus making the trial judge's endorsement of the complainant's evidence of small consequence.
27 Finally, it is argued that if s. 273.2 (b) was applicable in the circumstances of this case, the trial judge erred in holding that the accused had failed to take reasonable steps to ascertain that the complainant was consenting.
28 As to the first ground of alleged error, I agree that s. 273.2 (b) of the Criminal Code does not restrict the defence of honest but mistaken belief in consent to those accused who at the time of the alleged offence first "determined unequivocally" that the complainant was consenting. What the section does require is that the accused meet an evidentiary burden of establishing that he took:
...reasonable steps in the circumstances known to...[him] to ascertain that the complainant was consenting.
29 However, that does not conclude the matter, for s. 273.2 (b) clearly creates a proportionate relationship between what will be required in the way of reasonable steps by an accused to ascertain that the complainant was consenting and "the circumstances known to him" at the time. Those circumstances will be as many and as varied as the cases in which the issue can arise, and it seems to me that the section clearly contemplates that there may be cases in which they are such that nothing short of an unequivocal indication of consent from the complainant, at the time of the alleged offence, will suffice to meet the threshold test which it establishes as a prerequisite to a defence of honest but mistaken belief . On reading his reasons for judgment as a whole, I am not persuaded that the trial judge intended to say anything more than that this was one such case. (emphasis added)
(c) Consent
[22] For the purposes of determining whether "absence of consent" exists in this case as an element of the actus reus, the actual state of mind of the complainant is determinative according to Ewanchuk, supra. The complainant's testimony that she did not consent is a matter of credibility to be weighed in light of all the evidence including any ambiguous conduct. The question at this stage is purely one of credibility, and whether the totality of the complainant's conduct is consistent with her claim of non-consent. The defendant's perception of the complainant's state of mind is not relevant. His belief in consent is, subject to s. 273.2 of the Code, a matter of the state of mind 'of the accused' and may raise the defence of honest but mistaken belief in consent. At this stage I do not consider Mr. Campbell's state of mind. I accept the complainant's testimony regarding her own state of mind ─ that she subjectively did not consent ─ as credible in these circumstances and that the Crown has proven the absence of consent beyond a reasonable doubt for the following reasons:
(1) I accept and believe the complainant's evidence that when she awoke she found Mr. Campbell engaged in sexual activity with "the lower half" of her body. On the basis of R. v. Powers, 1999 Can LII 7332 (ONCA), a case in which a complainant woke up and found herself undressed, with the appellant kissing and touching her, a person who is unconscious as a result of being asleep or otherwise incapacitated, is not capable of rendering consent.
(2) The circumstances in this case are entirely consistent with a lack of consent. There was no evidence of any attraction by Ms. S. to Mr. Campbell. Mr. Campbell was in a relationship with her roommate. Ms. S. had closed her bedroom door and turned out the light and gone to sleep. No words were spoken and Ms. S. did not open her eyes by all accounts until the sexual activity was well underway. There is no indication by all accounts that the complainant knew who was lying next to her and that he was naked before the kissing was initiated by the defendant. It would be remarkable that any young woman sharing a residence would become immediately responsive to being kissed (in the early hours of the morning while waking from a sound sleep) by an uninvited stranger in her bedroom and thereby signal her consent to sexual activity.
(3) The complainant's reaction upon returning to her bedroom and telling the defendant to leave is further evidence of her lack of consent. As the defendant said: "I knew she was not comfortable with it". I am prepared to conclude that notwithstanding some pressure to report the incident to the police by L. A., who seemed to be carrying on a "vendetta", I am satisfied Ms. S. made her decision to report the incident, independently.
[23] Consequently, I find as a fact that the complainant did not consent to the sexual activity and that the actus reus of the offence of sexual assault has been proven beyond a reasonable doubt.
(d) Mistaken Belief in Consent
[24] Having found that the complainant did not consent to the sexual activity that took place in her bedroom, the defence argues in the alternative that Mr. Campbell had an honest, but mistaken belief that she had consented to the sexual contact that took place ─ in other words, he argues that he mens rea of the offence of sexual assault has not been proven beyond a reasonable doubt. With respect, I cannot agree. As I have indicated, the evidence of the complainant and Mr. Campbell was materially different in some respects. Applying R. v. W.(D.), supra, I have concluded that that there was no consent to sexual activity and that there was no air of reality to the premise that defendant took reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting. In other words, I do not believe the defendant on the question of consent or mistaken belief in consent and his evidence does not raise a reasonable doubt. On the question of whether the complainant responded to the defendant's contact with her face by "kissing him back", I reject the evidence of the defendant and accept in its entirety the evidence of the complainant that she awoke to find him engaging in sexual activity with her. Her evidence established a number of circumstances, known to the accused at the time, from which the need for further inquiry by him on the issue of consent clearly arose under the mandate of s. 273.2 (b) of the Criminal Code. By the defendant's own admission, there had been no prior expression of interest in him by E.S. whatsoever. She had retired for the evening and gone to her bedroom closing her door. Mr. Campbell entered her darkened bedroom at night without knocking. He approached her while she was sound asleep and laid down in the bed beside her naked. He began to interact with her while she was asleep. This is his evidence:
"We were kissing on the cheeks, lips"; "she was kissing me back on the lips and mouth". He gave evidence that he "couldn't see if her eyes were open". Mr. Campbell said he slowly moved down "below the waist"; he performed oral sex – "not that long, seconds".
[25] Even if there was some air of reality to the belief the complainant "was kissing him back", one is left to ponder the question of who she might have thought she was kissing ─ with not a word being spoken and no indication her eyes were open. What are the chances that rather than being startled, perhaps shocked, by the sudden spectre of a naked man in her bed, she calmly scrolled through the list of persons at the residence that night and guessed it was the only male she had noticed on the premises and consciously concluded that even though she didn't have any personal relationship with Mr. Campbell, this unexpected intimacy was perfectly acceptable? The idea that a young woman in these circumstances would freely consent to have sex with a naked man she hardly knew who had stealthily entered her room and her bed is an affront to common sense. As has been remarked upon on R. v. G.(R.), supra, in such circumstances it would require the most compelling evidence of an unequivocal indication of consent by the complainant to give a defence of honest but mistaken belief in consent any air of reality.
[26] In the circumstances of this case, there was no "air of reality" to that defence. In my view, any apparent indications of "consent" by the complainant were imagined by an intoxicated man who, by his own admission, had not shown good judgment in any number of ways. Let me count a few of the ways: (a) whether or not he kissed J.C., his sudden disrobing in front of her on the main floor of a shared residence, was inappropriate in the extreme; (b) he then without any invitation, compounded his foolishness by entering J.C.'s bedroom and lying on her bed, naked, twice; (c) after being treated like a "goof" and a fool and having been summarily evicted from J.'s bedroom, he reached the conclusion, unbelievably, that: "J. was interested in me. I thought maybe E. was too. My confidence was high". On the grounds that Mr Campbell had displayed such appalling judgment in his behaviour that night, it would be entirely unreasonable to rely on his judgment about his belief in consent.
Conclusion
[27] In conclusion, I find no substance to the position of the defence that the defendant took reasonable steps to ascertain whether the complainant was consenting. Can it reasonably be asserted that by lying down beside her in a darkened bedroom and kissing her gently, the defendant was in fact "making inquiries", or taking reasonable steps to ascertain, whether the complainant was consenting? Such "inquiries", if indeed such acts could ever be construed as inquiries, were completely inadequate in the circumstances of this case. While intoxication mixed with uninhibited "confidence" may have been the catalyst for his intrusion into the complainant's bedroom and bed without making reasonable inquiries ─ neither self-induced intoxication, nor recklessness or wilful blindness can provide the defendant with a defence to sexual assault, according to s. 273.2 of the Code. I have indicated that I do not believe the evidence of the defendant and I am not left with a reasonable doubt by that evidence. Further, on the basis of the evidence that I accept – the complainant's version of events – I am convinced beyond a reasonable doubt by that evidence of the guilt of the defendant. Accordingly, I find in all the circumstances that the Crown has proven the charge of sexual assault beyond a reasonable doubt and the defendant stands convicted as charged.
P. HARRIS J.
February 16, 2012