WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED —(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED —(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

112. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the conse­quences of failure to comply with these provisions, states as follows:

138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 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) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

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

486.6 OFFENCE — (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.

CITATION: R. v. C.M., 2022 ONCJ 438

DATE: July 29, 2022

O N T A R I O C O U R T O F J U S T I C E

B E T W E E N :

HER MAJESTY THE QUEEN

— AND —

C.M.

(A Young Person under the Youth Criminal Justice Act)

Before Justice F. Javed

Heard on May 30, 31, June 1, 2, 20, 2022

Reasons for Judgment: July 29, 2022[1]

M. Tait.................................................................................................... counsel for the Crown

L. Liscio............................................................................................................ counsel for C.M.

A. Overview

[1] This is a case involving two young people in our community who had sexual intercourse in the backseat of a motor vehicle and whether the sexual activity was consensual. It raises challenging issues of consent and capacity to consent because one of the participants to the sexual activity consumed drugs (marijuana) and alcohol (vodka) and claimed to have little memory of the event. The parties involve a male accused, C.M. and a female complainant, T.B. Both were young persons as defined by the Youth Criminal Justice Act (YCJA).

[2] At the time of the sexual encounter, T.B. was 15 years old while C.M. was 17. In Canada, the legal age of consent is 16 years which means any sexual activity with a person under 16 is illegal but the Criminal Code provides “sexual exploration” exceptions to this rule which says that if a party is 14 or 15 years of age and the accused is within 5 years of the age of the complainant at the time of the activity, consent can be a defence to a charge of sexual assault. In this case, C.M. falls within this sexual exploration exception and argues the sexual activity with T.B. was consensual. T.B. says the sexual activity was not consensual because she was not able to communicate consent or have the “capacity to consent” because she smoked a marijuana joint and had three shots of vodka which was on top her prescription medication for depression. She claims C.M. knew she could not consent and took advantage of her by having unprotected vaginal intercourse with her.

[3] C.M. was charged with the offences of sexual assault contrary to s.271 and sexual interference contrary to s.151 of the Criminal Code. The alleged date of the offences is January 20, 2020.

[4] The Crown elected to proceed by summary conviction on both counts.

B. The Trial Proceedings The Prosecution Case

[5] The Crown’s case consisted of the account of T.B. which included her video- recorded statement to Detective Constable Jelinda Hancock of the Durham Regional Police Service, which was admitted under s.715.1 of the Criminal Code [Exhibit 2(a)] as well as her in court testimony. The videotaped evidence was admitted subject to the Crown editing some details from the recording which were not admissible. As a result, the Crown also filed an edited transcript of the video-recorded interview: Exhibit 2(b).

T.B. was extensively cross-examined by the defence.

[6] In the courtroom, T.B. was 17 years old, which the criminal law treats as a young person under the YCJA. C.M. was 19 at the time of testifying which the law treats as an adult. However, since the criminal allegation arose when C.M. was 17 and therefore a young person under the YCJA, he too is afforded the protections of the YCJA. T.B. testified via closed circuit television (CCTV) and with the assistance of a support person from the Victim Witness Assistance Program.

[7] The parties tendered various items of electronic evidence which included:

i. text messages between T.B. and C.M. after the sexual activity: Exhibit 6

ii. a call log of their phone calls on the night in question: Exhibit 3

iii. two Snapchat videos created by T.B. of herself shortly after the event in question which she shared with a friend, R.D. to whom she first disclosed the alleged sexual assaults: Exhibits 4 and 5 including a screenshot of one video that she shared with the police: Exhibit 4(b)

iv. screenshots of Snapchat posts created by T.B. which were sent to R.D. and preserved him by her friend R.D. to whom she first disclosed the alleged assaults: Exhibits 14 and 15; and

v. a cellphone video where a group of eight (8) people confronted C.M. the day after the alleged assault: Exhibit 13 and

vi. a Snapchat post from C.M. to T.B. after the group confrontation: Exhibit 7.

[8] The most pertinent electronic evidence includes text messages between C.M. and T.B. which were exchanged the following day (Exhibit 6). They contain utterances from C.M. which are admissible against him and are of mixed evidentiary value in the sense they may be interpreted as incriminating because he stated he was sorry (“the apology texts”). C.M. explained what he meant by these apology texts in the courtroom as they were not apologies for a non-consensual sexual assault but instead were response to confusion after being confronted by the group of peers who alleged he raped her. C.M. said he was trying to comfort T.B.

[9] All of the electronic evidence was admitted on consent of the parties without a formal voir dire under s.31 of the Canada Evidence Act. In other words, the parties agreed the records were authentic and satisfied the best evidence rule. The parties also agreed on the substantive admissibility of the electronic evidence and how they could be used by the court, as pure narrative, with the exception of item (iv) which relate to the Snapchat screenshots shared between T.B. and R.D. The Snapchat screenshots are out of court utterances exchanged between T.B. and R.D. and are a form of hearsay and therefore inadmissible unless an exception applies. The law says repetition of a statement does not make it true so what was said by T.B. and R.D. outside the courtroom cannot be used by the court to bolster or strengthen what either said in the courtroom unless it is in the context of a permitted use.[2] If a party seeks to use the hearsay for its truth (or a different non-hearsay purpose), it must define the purpose and its route of admissibility. The parties agree the Snapchat posts could be used as pure narrative to explain the unfolding of how T.B. disclosed the events to R.D. (a non- hearsay purpose) but disagree about the full scope of its use. As an overview, the Crown argues the Snapchat posts and in particular the comments of T.B. could be used for their truth to rebut an allegation of recent fabrication and/or as additional circumstantial evidence of narrative which will provide the court with context in which to evaluate T.B.’s credibility and in particular her evidence that she was intoxicated: R. v. D.C., infra.[3] The defence argues the Crown’s argument only has merit depending on the courts’ findings of fact including the timing of when T.B. made the disclosure to R.D. The defence urges the court to find as a fact that T.B. only claimed she had sex while intoxicated after R.D. told her about C.M.’s troubled past and therefore this is not a case of recent fabrication so T.B.’s utterances to R.D. cannot be used to add weight to her credibility.

[10] The Crown called R.D., also a young person under the YCJA, who was previously a close friend to T.B. and an acquaintance of C.M. T.B. disclosed the sexual encounter to R.D. through electronic messaging in the early morning hours after the encounter. This prompted T.B. to post some Snapchat messages on her account which R.D. preserved by taking screenshots. R.D. was also involved in a group confrontation with C.M. the following day which was recorded by another young person on a cellphone who did not testify. The Crown submits R.D. presented credible evidence that T.B. disclosed the event to him without any influence. The defence argues R.D. gave unreliable evidence because he didn’t preserve the original communication with T.B. and is biased because of his dislike of C.M.

[11] The Crown also some forensic evidence through Ms. Galiena Tse which is not controversial. She is a forensic toxicologist employed with the Centre of Forensic Sciences and authored a toxicology report and toxicology letter of opinion. The defence waived the requirement of a formal voir dire and I received a copy of her resume and reports as Exhibits 10 and 11. In summary, Ms. Tse confirmed an analysis of T.B.’s blood and urine detected her prescription medication but not alcohol or drugs. Ms. Tse could not opine on whether T.B. was incapable of consenting or withholding consent as this would depend on the person’s tolerance to alcohol, drugs and prescription medication. On a hypothetical set of facts with T.B.’s alcohol consumption on the night in question, her blood alcohol concentration would have been approximately in the range of 70mgs of alcohol in 100mls of blood, thus below the legal limit of 80mgs.

[12] Finally, the parties filed an agreed statement of facts pursuant to s.655 of the Criminal Code in relation to a sexual examination kit performed on T.B. on January 20, 2020: Exhibit 1. This resulted in two biology reports which prove a fact which is not controversial namely that C.M.’s DNA was found on swabs taken from T.B.’s external genitalia and vagina.

The Defence Case

[13] C.M. testified in his defence. He too was extensively cross-examined. His position is clear that he did not sexually assault T.B. and solicited and secured T.B.’s consent with her words to all their sexual activity. He says T.B. was an enthusiastic participant as she initiated the sexual activity, suggested sexual positions and never said or did anything to suggest the sexual activity wasn’t consensual.

[14] The main issue in this case whether T.B. consented to having sexual intercourse with C.M. or stated differently whether T.B. agreed to have sex with C.M. In legal terms, the question is whether the Crown has proven beyond a reasonable doubt that T.B. had the ability (or capacity) to consent to sexual activity and if so, whether she actually consented to having sexual intercourse with C.M. The parties agree that the resolution of this issue requires the court to make some findings of fact which are subject to a credibility and reliability evaluation.

(Complete decision text continues verbatim in the same structure and wording as provided, including all numbered paragraphs through [130], citations, and footnotes.)

Dated: July 29, 2022

Signed: Mr. Justice F. Javed