CITATION: R. v. Masewich, 2015 ONSC 2394

COURT FILE NO.: 13/242

DATE: 20150416

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

STEPHANIE TURNER, for the Respondent/Crown

Respondent

• and -

TYLER MASEWICH

MATTHEW GOURLAY, for the Appellant

Appellant

REASONS FOR JUDGMENT

[On appeal from the conviction before the Honourable S. Nicklas,

dated July 10, 2013]

DURNO J.

[1] The appellant was convicted of sexual assault for having sexual intercourse with a woman whom the trial judge found was sleeping at a house party. The complainant testified she went to sleep alone on a futon and woke up to find the appellant “doing something” to her vagina. She was upset, pushed him away and went to the washroom. The appellant testified the complainant was awake and invited him to share the couch she was on, that she engaged in consensual sexual activity and facilitated intercourse. At his suggestion, they moved to the futon. Shortly thereafter she became upset and went to the washroom.

[2] At trial the issue was whether the Crown had established beyond a reasonable doubt that the complainant did not consent to the sexual conduct. The Crown argued that the complainant was too intoxicated to consent, that she was asleep and perhaps passed out at the time intercourse took place. The appellant took no reasonable steps to ascertain whether she was consenting. Defence counsel argued that the complainant’s recollection of the events was not as clear or complete as was necessary to find beyond a reasonable doubt that the appellant acted without consent. Neither counsel nor the judge mentioned the honest but mistaken belief in consent defence.

[3] The appellant was convicted and sentenced to one year in jail. He appeals submitting there was an air of reality to the mistaken belief in consent defence and the trial judge was required to address it regardless of whether either counsel raised the issue. Relying on the Supreme Court of Canada’s judgments in R. v. Park, 1995 104 (SCC), [1995] 2 S.C.R. 836 and R. v. Esau, 1997 312 (SCC), [1997] 2 S.C.R. 777, the appellant submits that between the complainant’s and appellant’s accounts, there was evidence from which it was possible to “cobble together” an account that gave an air of reality to an honest but mistaken belief in consent. He also argues the trial judge failed to conduct a reliability assessment of the complainant’s evidence and applied different standards of scrutiny to the Crown and defence evidence.

[4] The Crown submits that if there was an air of reality to the mistaken belief defence after considering the trial judge’s findings of fact, a new trial is required. However, the Crown submits there was no air of reality. The Crown also submits Her Honour conducted a reliability assessment of all of the witnesses and did not apply different standards of scrutiny to the evidence presented by the Crown and defence.

[5] For the following reasons, the appeal is allowed and a new trial ordered.

The Evidence

The Crown’s Evidence

[6] The complainant, A.K., a student at the University of Guelph, and four housemates lived in a large home in Guelph. On February 12, 2012, they held a party to mark the birthday of one of A.K.’s housemates, S.M. The appellant bought a ticket and went to the party. By the early morning hours of February 13, 2012, roughly 50 to 60 people were at the party.

[7] A.K. did not like the appellant. She did not have a good opinion of him because whenever she saw him he was very intoxicated, had difficulty making sentences, was always very touchy and made other people feel “really uncomfortable.” At one party she saw him touch a woman’s leg and put his hand up her skirt. None of A.K.’s friends liked the appellant either. Even if she were completely drunk and could not even stand up, she would never consent to anything with him.

[8] The appellant was good friends with C.G. who was dating J.M., another one of the housemates. A.K. did not know him well, having seen him two or three times before the party. She did not know his last name.

[9] A.K. said she had six to eight drinks starting at 9:00 p.m. until she went to bed around 3:00 a.m. and may have had a “hit of marijuana.” As the party was continuing in the basement where her bedroom was located, she went to sleep on a couch in the living room on the main floor. At that time she was “a little buzzed” but not “blacked out.” She was not very drunk but “just wasn’t feeling very well.” She knew exactly what was going on around her. A.K. agreed that she would not have driven given her condition but disagreed that her memory or perception had been in any way affected by the alcohol and drugs she consumed.

[10] When she was sleeping, the appellant shook her shoulder, woke her up and said that she should move to the sitting room.[^1] That was all she recalled of her moving, admitting that her memory of that incident was “somewhat compromised.” She did not remember his exact words because she was half awake. She probably should not have moved but did so because it was darker and quieter in the sitting room. The futon was like a bed so it would have been more comfortable. At that time, there was no sexual misconduct by the appellant.

[11] A.K. was asked in cross-examination if she thought her memory was affected by the alcohol consumed. She said that “maybe there was a little” when the appellant woke her up and said she should get off the couch because she did not remember exactly what his words were, other than that he wanted her to move. That was the only time during the evening that her memory was not completely there. She remembered everything else as if she was completely sober and it was in the middle of the day. On further examination for details as to why she would immediately move from the living room to the sitting room given her dislike of the appellant, she could not explain why she moved.

[12] After she moved, A.K. went to sleep in the sitting room on the futon. The next time she awoke, her underwear was around her ankles, her dress was lifted up, and the appellant was on top of her “doing something” to her vaginal area. She pushed him off and ran to the bathroom. When pushed, the appellant did not resist. A.K. thought he was “like shocked” and did not think he expected her to move. When asked if there was any kissing, the complainant said there was no kissing, but maybe there was when she was asleep. Throughout the incident, another male slept a metre or two away from the futon.

[13] In cross-examination, A.K. said that she was not alert “throughout the entire process.’ When defence counsel asked if that was because she was asleep, A.K. said that she was unconscious.

[14] A.K. stayed in the bathroom for about fifteen minutes with the appellant outside asking her again and again if she was okay. She called her boyfriend on her cell phone and he told her to go to his place. Leaving the bathroom, she pushed past the appellant and left to walk to her boyfriend’s home, 30 to 40 minutes away.

[15] The next day, the complainant told one of her housemates and C.G. that the appellant did something to her. She went to the police one or two days later. While she did not speak to the appellant after the incident, she made inquiries through her friends whether or not she should be tested for anything. C.G. told her the appellant was worried whether he could have contracted a sexually transmitted disease from her. While that made no sense to A.K., she decided to get tested anyway.

[16] In cross-examination, the complainant was asked:

Q: Do you think it’s possible while you were asleep that you may have engaged in conduct or behavior that would be suggestive that ‘a.’ you were not asleep, for example, do you sleep-walk, do you talk in your sleep, do you interact with people when you sleep?

A: Ah, I do have a history of sleep talking and I’m sure if someone was touching my body I would react. Someone has tickled me while I’ve been asleep and my body reacts but I don’t think would have even given this – any signs that I was awake.

Q: Okay, but you concede you have a history of sleep talking?

A: Sleep talking, yes, but it’s usually gibberish, it’s not – it doesn’t make any sense.

Q: … And do you have a history of sleep-walking?

A: Not – not really. When I was like younger once or twice, but sleepwalking’s not that common for me.

Q: Does it occur at all?

A: Ah …

Q; As far as you know?

A: Maybe once a year. Like not very often, and I usually wake up right away.

[17] Finally, A.K. admitted to having black-outs from over-drinking but insisted that she did not black-out on this occasion. When she blacked out she could remember things to a point but after that she had no memory. It was pretty rare for it to happen as she was not a big drinker. On the night of the incident, she was “very aware” and “so in tune” when she woke up so there was no way she had a black-out.

[18] J.M., C.G.’s girlfriend, testified that A.K. came home and told her and Gaynor that she had been sexually assaulted by the appellant. Over the following days, J.M. texted with her boyfriend. In those messages that were introduced at trial, C.G. said the appellant did not remember exactly what happened but thought he might have got something from A.K. and wanted to be tested. He remembered “making out” with her, but that was about it.

[19] J.M. testified A.K. had been drinking at the party but was not at the level of not remembering. She was not slurring her words or doing things she would not do if she was sober. She was feeling the effects of alcohol, but was not intoxicated.

[20] S.M., another housemate, testified that A.K. was drunk, showing obvious effects of alcohol consumption although she was able to walk normally. S.M. put A.K. to bed around 2:30 a.m. She walked upstairs to make sure A.K. was lying on the couch and because S.M. had the key. A.K. testified that each housemate had a key to the upstairs so that anyone attending the party could not go upstairs unless they were with one of the people who lived in the house. S.M. helped A.K. get comfortable so that she would rest properly. A.K. fell asleep while S.M. was still in the room. In S.M.’s opinion A.K. was sufficiently intoxicated that she was “to the line” and maybe all the way to a black-out or to suffering alcohol-induced amnesia.

[21] S.M. testified that when the appellant asked to stay over she had told him that he should go home. When she came out of the bathroom, he followed S.M. to her bedroom door. She closed it in his face while he was standing there. He was intoxicated like everyone at the party. In terms of their level of intoxication, A.K. was an eight out of ten while the appellant was a seven.

[22] C.G. testified the appellant was intoxicated at the party but not to the extent that he was. C.G. said that on the night of the party, the appellant asked him if he could stay the night because he did not want to get a cab home. C.G. asked J.M. and she said that he could stay and sleep on the extra couch in the front room.

[23] The day after the party the appellant told him he did not remember what happened with A.K. but they probably had intercourse. C.G. had a vague recollection that the appellant had been concerned about contracting a sexually transmitted disease.

[24] The complainant’s boyfriend, M.W., testified that A.K. was not sober and was under the influence of alcohol “a bit” when she arrived at his home around 5:00 a.m.

The Appellant’s Evidence

[25] The appellant testified that he had five or six beers before going to the party and one or two while there. While he would not have driven, he did not consider himself very intoxicated. He sobered up over the course of the party.

[26] He arrived at the party around 10:30 to 10:45 p.m. The people in attendance were dancing and drinking. Some of the women took off their shirts but left their bras on while dancing. Prior to that night he regarded A.K. as at most a casual acquaintance, having met her and her housemates twice at C.G.’s home. Every time he saw them they looked like they were on drugs, quite intoxicated. In examination-in-chief, he was asked if he had described all of his encounters with the complainant at the party and said they had a couple of very brief conversations in the basement, nothing lengthy. His interaction with her that night involved dancing. When she was in the basement with her shirt off dancing with the rest of the women.

[27] In cross-examination, the appellant testified that he and A.K. were dancing while A.K. was not wearing a shirt. Her butt was contacting his crotch as they were dancing. Everybody was grinding with someone. He admitted that he had never previously hugged or made out with A.K. but that night she had been flirting with him, dancing up on him with her top off. Those were usually cues that a woman was interested in you.

[28] He denied he tried to follow S.M. into her bedroom although he admitted making a pass at her. He had previously kissed her and asked if she wanted to cuddle. She said she had someone over in her room and that was the end of it.

[29] Around 2:30 or 3:00 a.m. the appellant asked C.G. if he could stay over because he had not brought a winter coat and he did not want to take a cab home. C.G.’s girlfriend said he could. He decided to go to sleep on the futon in the sitting room. Another male was sleeping on the couch in that room.

[30] A.K. was sleeping in the living room and got up to use the washroom. As the futon had no linen or pillows, the appellant asked her if she knew where there was a blanket as she was going back to the living room. She said she did not know. He asked if he could join her on the couch in the living room, she said he could, lifted the blanket and let him under the blanket.

[31] While they lay on the couch, they made small talk, kissed and began to fondle each other’s genitals. She started the fondling by stroking his penis. Both were moaning. Because of how they were positioned on the couch, he told her that if she wanted to have intercourse, she would have to assist his penis into her vagina. She “grabbed” his penis and directed it into her vagina. They had intercourse for several minutes and “finished.” At no point did she ever say no. She seemed to be enjoying the encounter. In his view, he had 100 per cent consent. There was absolutely no doubt in his mind.

[32] A.K. was awake, alert and conscious. The appellant described her as “fine,” “her speech was fine.” He was first asked about A.K.’s state of sobriety in cross-examination and said she seemed drunk. He added that everybody at the party was quite drunk. When asked how drunk she was, he said he did not think that was for him to say but did say that she was intoxicated and seemed like she was partying.

[33] Later in cross-examination, the appellant was asked how intoxicated A.K. seemed when they were on the couch. He said that at that point he did not know how intoxicated she was. She had gone to the washroom “coherently,” like a normal person would, he saw her come out of the washroom, she went back to the couch, he asked her if he could join her, she looked up and said yeah, as she raised the blanket. She seemed fine.

[34] Before they started kissing, there were a few words but he did not remember what was said. Later in cross-examination, he said he had told A.K. that it was a great party. He concluded she was not “too intoxicated” because she answered his questions. Had she been too drunk, he would have returned to the futon.

[35] In cross-examination he was asked if he thought A.K. was intoxicated when he told her that if she wanted to have intercourse she would have to assist him. He said he thought everybody at the party was intoxicated. Her actions provided him with the knowledge that she was not too intoxicated. People hooking up at parties when they are slightly intoxicated was not an unusual thing.

[36] The appellant testified he was slightly intoxicated. The intercourse was not very good because while engaged in the sexual act he came to the realization that he was cheating on his girlfriend and was making a big mistake.

[37] After the intercourse, he asked A.K. if she wanted to move to the sitting room where he had planned to sleep because there was more room for them to lie down together on the futon. She agreed. She grabbed the blanket, he grabbed the pillow and they went to lay down on the futon. There was no sexual activity in the sitting room on the futon.

[38] After four or five minutes, A.K. got up. He asked her what was wrong but she did not answer and went to the washroom. He went to the washroom door and could hear her crying inside. He found this alarming because throughout the sexual encounter there was no indication that anything was wrong. He tried to talk to her and asked if she was okay when she left the washroom. She said she was not and left. He went back to the futon and slept the rest of the night.

[39] The appellant described A.K.’s upset reaction as “buyer’s regret,” you take part in something and then you regret it. He had a girlfriend at the time and immediately regretted having cheated on her. He suspected A.K. was upset because she was in a similar situation although he did not know if she had a boyfriend at the time.

[40] The appellant said there was absolutely no interaction in the sitting room where the futon was located. He did not take off A.K.’s underwear. She had a “small dress skirt” on. Assisted by A.K., he moved her underwear to the side when they had intercourse. She had all of her clothes on when they were on the futon. A.K. was awake, she was fine and her speech was fine. She seemed a little drunk.

[41] When asked how he got the wherewithal to ask A.K. if he could share the couch with her in cross-examination, he said he felt that she was flirting with him during the party. The women were dancing suggestively and shirtless. They were being provocative towards quite a few people. People were grinding on each other and in the appellant’s words, “dancing sexually.” The appellant said that as a male, when a woman starts taking her clothes off and dancing provocatively “nature’s cues happen in your brain,” “natural cures, natural hormones or natural chemicals that are like you know. I am a man and ah – I’ve never been at a party where women have – in large groups taken all their – well taken their tops off. I know – you know it was provocative.” The appellant denied he viewed that as a “green light” until A.K. allowed him onto the couch. He never assumed anything until he had consent. It was not unusual for males to make attempts at women at parties where there’s dancing; to him, “these things happen.”

[42] Later in cross-examination, the Crown returned to why the appellant asked A.K. if he could join her on the couch. He said she had been flirting with him and was “dancing up on me at the party with her top off. Those are usually cues that a woman is interested in you.” When the Crown said that was the first she had heard of the complainant dancing on him, the appellant said everybody was taking part in that behaviour. When asked to provide further information about what A.K. had done, he said she had her butt at his crotch. It seemed that she was interested in him as that was not something a person would do with someone she hated or did not like.

[43] The appellant admitted that he had lied to C.G. the next day when he told him he did not remember what happened. He was trying to protect himself. He was cross-examined on how he knew A.K. was not too intoxicated to have intercourse and said she was responsive to his questions and had no difficulty going back and forth to the washroom. The appellant denied that he perceived the women at the party as flirtatious and giving him the green light to “get lucky.” The intercourse “just happened.” He speculated during cross-examination that A.K. blacked-out and did not remember what happened although she was coherent at the time. He had researched that issue after being charged.

The Trial Arguments

[44] When the evidence was completed Her Honour asked if counsel were ready to make their submissions. Defence counsel said that he thought there might be “something of a break in that process” but said that he was prepared to proceed. The total submissions for both counsel are found in ten and one half pages of transcript, four for the Crown (not Ms. Turner) and six for defence counsel (not Mr. Gourlay).

[45] The Crown argued that A.K. was a good witness, quite forthright. The appellant sought to take advantage of the women who lived in the house having a “slutty reputation,” first by making advances towards S.M., which were rejected, and then taking advantage of A.K. who was “virtually passed out on [the] sofa.” She was not capable of consenting to the sexual behavior and the appellant took no reasonable steps to ascertain that she was consenting. She had too much to drink and was sleeping or perhaps passed out. The Crown also argued the appellant underplayed his level of intoxication.

[46] Defence counsel submitted that the question was credibility and conceivably an even more important issue was the reliability of the witnesses. It was not just who was trying to tell the truth but “whose evidence can be relied upon at a level of who in fact appreciated what took place or can fairly describe what’s transpired.” The Crown’s case was problematic because all of the relevant witnesses had been consuming alcohol and were intoxicated to some degree.

[47] Trial counsel argued the complainant’s and appellant’s accounts would not be expected to overlap and be identical. The appellant said there was consent, given that A.K. was an active participant in the physical activities that occurred in facilitating intercourse. There was no resistance; there was only cooperation. He was “absolutely certain that she was consenting, and she was a willing party.”

[48] Counsel also referred to A.K. having black-outs in the past. Her alcohol consumption lent itself to the very strong suggestion that her recollection was not as clear or complete as is necessary to make a finding of guilt. There were issues about what happened when, who was awake and who was not awake. Both accounts were consistent with persons whose ability to recollect was affected by alcohol consumption. While what happened after the intercourse was clear, what was not clear was what occurred before the intercourse. There was no meaningful evidence suggesting A.K. lacked the capacity to consent. Counsel agreed that if A.K. was sound asleep under most circumstances she would “be seen to be not consenting.” However, the appellant said she was “awake and alert” and a consenting party to the sexual activity.

The Reasons for Judgment

[49] The trial evidence was introduced over two days. On the second day, Her Honour heard the appellant’s evidence, counsels’ submissions, recessed over the lunch break and gave oral reasons for judgment.

[50] At the outset, she noted that, as both counsel indicated, the central issues were credibility and reliability. After examining the burden of proof, R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, reasonable doubt and reviewing the evidence, Her Honour turned to the appellant’s evidence and found he was inconsistent and careless with the truth in a number of areas. First, he said that A.K. was at the party the whole time but never explained what “the whole time” meant. Later, he said that A.K. was there, along with others, without her shirt on. When pressed in cross-examination, he said she was grinding her butt into his crotch, a point he had never previously mentioned although there were ample questions put to him where that information could have been offered. Her Honour found his account changed from examination-in-chief to cross-examination.

[51] The second area was that he said he had no plans to have sex as he was in a long-term relationship. However, he talked of how provocative the girls were, that they were known to be “notoriously slutty,” and that they were dancing in their bras which made his male cues go off in his brain. The appellant’s initial indication that he had no plan to have sexual intercourse was inconsistent with his approaching S.M. After being rejected by her, he approached A.K. about a blanket and she invited him to share her couch. His behaviour did not match his commentary.

[52] Third, the appellant portrayed A.K. as the sexual aggressor, how she stroked his penis and inserted his penis in her vagina at his request. However, he admitted that he had only seen her two or three times and had never had a meaningful conversation with her.

[53] In relation to the appellant’s status at the party, it was telling that instead of asking one of the persons who lived in the house if he could stay the night, he went to his friend, C.G. This was consistent with the house-mates’ evidence that they really did not like the appellant. His actions showed he felt that vibe.

[54] Fourth, the appellant admitted A.K. was crying in the bathroom, told him that she was not okay and then left her own residence. That made no sense if she was the sexual aggressor.

[55] Fifth, the trial judge noted another inconsistency in the cross-examination of the appellant. He did not recall if he told a friend that he thought he had caught something from A.K. He was then asked if he wanted to talk to A.K. when he got home. He said he wanted to make sure she did not have some sexually transmitted disease; he wanted to know if she was clean and that he was clean.

[56] Sixth, the appellant went out of his way to try to tarnish the women who lived in the residence. He questioned their charging a fee to attend the birthday was so they could go to Cuba when the disk jockey at the party was free. Earlier he said he commended the women for hiring the disk jockey. While not a major inconsistency it showed his carelessness with the truth.

[57] Finally, the appellant admitted lying to C.G. when he told him he did not remember what happened after he was told that A.K. did not remember what happened. When asked about this lie, he hesitated and then said he lied because he did not believe she had no memory of what happened. When asked again later in cross-examination about C.G. telling him that A.K. did not remember, he said he did not recall any of that. In the end, he said he lied because he does not “kiss and tell.” The various responses showed his carelessness with the truth.

[58] He went so far as to suggest the complainant was suffering from black-outs, a topic he had researched, while vacillating between saying she was drunk like everyone else at the party, to saying she showed no real signs of intoxication when she went to the washroom before the sexual intercourse.

[59] Her Honour found it was concerning that he admitted lying to his friend to protect himself. He was comfortable lying to his friend, initially saying he had no reason for doing so and then providing an explanation that made no sense.

[60] Returning to W.(D.), Her Honour did not believe the appellant’s evidence, nor did his evidence leave her in reasonable doubt of his guilt.

[61] The trial judge then addressed the third element of W.(D.) finding beyond a reasonable doubt that the appellant had intercourse with the complainant without her consent. Her Honour looked for consistency in the evidence, noting the complainant and her boyfriend were inconsistent as to whether she had called him, concluding she had and that he may have been asleep. Accordingly, the difference was not troubling.

[62] A.K.’s evidence had a ring of truth to it, without the inconsistencies and carelessness in the appellant’s. She was not shaken in cross-examination. She was very straightforward, fair and articulate. She admitted she could not tell if it was the appellant’s penis or hand touching her vagina. She was fair in talking about the lighting in the main floor rooms, in saying that the appellant did not try to hold her down and that she did not want to put words in his mouth. There were no inconsistencies between her friends’ evidence and her testimony.

[63] Her Honour found C.G. was evasive about the texts and his conversation with the appellant about the sexually transmitted disease. Both were very troubling. That there was someone else in the room where the intercourse occurred was of no concern as the appellant was aroused and had attempted to interact with S.M. before the complainant.

[64] Her Honour addressed the complainant’s capacity as follows:

… on the complainant’s evidence, she did have lots to drink and was not feeling well, but I find that she made a conscious decision to sleep. This is not a case where the complainant was awake and severely intoxicated and events took place, but a case where I find that she was not conscious at all when the act took place. I find that what happened was that there was intercourse with the complainant when she was asleep.

As acknowledged by [by defence counsel at trial], quite candidly, if I so find, that the case law supports that there is no issue then with regard to consent, and based on my findings in this case then, I find the Crown has proven its case beyond a reasonable doubt and a conviction will be registered.

The Grounds of Appeal

Did the trial judge err in not addressing whether the Crown had established beyond a reasonable doubt that the appellant did not have an honest but mistaken belief A.K. was consenting to intercourse?

Sexual Assault and the Honest but Mistaken Belief in Consent Defence - The Law

[65] The actus reus of sexual assault is the touching of another person in a sexual way without that person’s consent. Consent is actual subjective consent in the mind of the complainant at the time of the sexual activity in question. R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440 at para. 23. The only question for the actus reus is whether the complainant was subjectively consenting in her mind. She is not required to express her lack of consent or revocation of consent for the actus reus to be established: J.A. at para. 37. There is no substitute for the complainant’s actual consent to the sexual activity at the time it occurred. An accused cannot argue that the complainant’s consent was implied by the circumstances or by his or her relationship with the complainant. There is no defence of implied consent to sexual assault: J.A. at par. 47.

[66] Further, Parliament has stipulated that in certain circumstances no consent is obtained including where the complainant is incapable of consenting to the activity or where the complainant expresses by words or conduct a lack of agreement to engage in the activity: Criminal Code, s. 273.1(1)(b) and (d).

[67] The mens rea is established when the accused knew that the complainant was not consenting to the sexual act in question or was reckless or wilfully blind to the absence of consent: J.A. at para. 24. An accused may raise the defence of honest but mistaken belief in consent if he or she believed the complainant communicated consent to engage in sexual activity: J.A. at par. 24. However, Parliament has limited when an accused may rely upon that defence, including where the accused’s belief arose from his or her self-induced intoxication, recklessness or wilful blindness, or where the accused did not take reasonable steps in the circumstances known to him to ascertain that the complainant was consenting:. Criminal Code, s. 273.2(a) and (b).

[68] In contrast to the meaning of consent in regards to the actus reus, under the mens rea defence, the issue is whether the complainant communicated consent: J.A. at para. 37 An accused wishing to avail himself of the mens rea defence must not only believe the complainant communicated her consent but must also have taken reasonable steps to ascertain whether the complainant was consenting: J.A. at para. 42. The appellant argues the defence of honest but mistaken belief in consent is a denial of the mens rea, the appellant’s knowledge the complainant was not consenting.

[69] The principle noted above in relation to there being no substitute for the complainant’s actual consent to the sexual activity at the time it occurred applied as well to the mens rea defence. It was insufficient for the accused to believe the complainant was subjectively consenting in her mind. In order to “cloak the accused’s actions in moral innocence, the evidence must be that he believed that the complainant communicated consent to engage in the sexual activity in question.” R. v. Ewanchuk, 1999 711 (SCC), [1999] 1 S.C.R. 330, at para. 46.

[70] The appellant contends that both the actus reus and mens rea were at issue in this case. It was for the Crown to establish beyond a reasonable doubt that A.K. was not consenting.

The Air of Reality Test in Relation to Honest but Mistaken Belief in Consent

[71] There is an air of reality to a defence where a properly instructed jury acting reasonably could acquit on that basis, whether the accused advances the defence or not. If the defence arises on the facts, it must be left with the jury or considered by the trial judge.

[72] When determining whether to leave a defence with a jury, the trial judge does not make determinations regarding the credibility of witnesses, weigh the evidence, make findings of fact, or draw determinate factual inferences. Whether the defence is likely, unlikely, somewhat likely or very likely to succeed is irrelevant to the determination of whether the defence must be “put in play” and addressed, whether the trial is before a jury or a judge sitting alone. If there is direct evidence as to every element of the defence, whether it is advanced on behalf of the accused, the jury must be instructed on that defence and a judge sitting alone must also consider the defence. R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3 at para. 51, 54, 82, and 90.

[73] Where there is circumstantial evidence on the issue, the judge must engage in a limited weighing to determine whether it would be reasonable to bridge the inferential gap between the evidence and the issue to be established. The judge determines whether the field of factual inferences that could be drawn includes the one that would support the defence: Cinous, at para. 91

[74] The Supreme Court of Canada addressed whether there is an air of reality to the honest but mistaken belief in consent in Park as follows:

25. … Rather, we must bear in mind that neither the version of the facts given by the complainant nor that given by the accused is necessarily a full and complete account of what actually took place and, as such, a jury may decide not to believe certain parts of each person's testimony. Thus, the question is whether, in the absence of other evidence lending an air of reality to the defence of honest mistake, a reasonable jury could cobble together some of the complainant's evidence and some of the accused's evidence to produce a sufficient basis for such a defence. Would the acceptance of one version necessarily involve the rejection of the other? Put another way, is it realistically possible for a properly instructed jury, acting judiciously, to splice some of each person's evidence with respect to the encounter, and settle upon a reasonably coherent set of facts, supported by the evidence, that is capable of sustaining the defence of mistaken belief in consent? If the stories cannot realistically be spliced in such a manner, then the issue really is purely one of credibility -- of consent or no consent -- and the defence of mistaken belief in consent should not be put to the jury.

26 To summarize, when the complainant and the accused give similar versions of the facts, and the only material contradiction is in their interpretation of what happened, then the defence of honest but mistaken belief in consent should generally be put to the jury, except in cases where the accused's conduct demonstrates recklessness or wilful blindness to the absence of consent. On the other hand, courts have generally refused to put the defence of honest but mistaken belief in consent to the jury when the accused clearly bases his defence on voluntary consent, and he also testifies that the complainant was an active, eager or willing partner, whereas the complainant testifies that she vigorously resisted. In such cases, the question is generally simply one of credibility, of consent or no consent.

[75] The Supreme Court addressed the issue again in Esau where the complainant hosted a party where there was a lot of drinking. She was pretty drunk but appeared to know what she was doing. Esau, who was a guest at the party, testified that he and the complainant kissed each other before she invited him to come to her bedroom where they had consensual sexual intercourse. She testified that she did not kiss Esau, had not invited him to her bedroom and that she had no memory of anything from the time she went to her bedroom until the next morning when she realized she had engaged in sexual intercourse. While she had no memory of what occurred, she testified that she would not have consented to intercourse with Esau because they were related.

[76] Neither counsel asked the judge to charge the jury on honest but mistaken belief in consent nor did the trial judge do so. The jury convicted. On appeal, the majority of the Supreme Court found that the trial judge erred in not charging on honest but mistaken belief in consent. Justice Major wrote at para. 15:

… Here, the plausible evidence comes from the testimony of the complainant and the respondent and the surrounding circumstances of the alleged sexual assault. The respondent's evidence amounted to more than a bare assertion of belief in consent. He described specific words and actions on the part of the complainant that led him to believe that she was consenting. This alone may be enough to raise the defence. However, there was more. The complainant's evidence did not contradict that of the respondent, as she cannot remember what occurred after she went to her bedroom. In addition, there was no evidence of violence, no evidence of a struggle and no evidence of force.

[77] The complainant’s and accused’s evidence was not diametrically opposed. It could be “cobbled together” in a plausible and coherent manner because of the complainant’s lack of memory about what occurred.

[78] Once it is determined that the complainant in a sexual assault prosecution did not consent, it will be a rare case where the accused will be seen as harbouring an honest by mistaken belief in consent: Pappajohn v. The Queen (1980), 1980 13 (SCC), 14 C.R. (3d) 243 (S.C.C.). It is the rare exception rather than the general rule that a sexual assault will have been “committed by accident.” Park, per L’Heureux-Dubee J. at p. 15. What is required is more than a mere assertion that the accused held an honest but mistaken belief in consent: Pappajohn, at p. 507.

[79] However, that the complainant and accused give diametrically opposed versions of the events does not preclude the defence of an honestly but mistakenly held belief in consent defence having an air of reality. In R. v. Osolin 1993 54 (SCC), [1993] 4 S.C.R. 595, five justices held that while the defence would rarely arise in that situation, it was not logically impossible for a jury to accept parts of the two witnesses’ testimony.

[80] The Court of Appeal has dealt with this issue in several cases. For example, in R. v. P.S. 2007 ONCA 299, the Court found there was no air of reality where the accused testified that the complainant not only consented but was an active and willing participant. The complainant said she forcefully resisted the accused’s advances throughout. According to the complainant, that offender confronted his former partner in a hallway, forced her into his car, drove to a field and sexually assaulted her. The offender said she consented and was an active and willing participant throughout. A version of the events that reflected no consent and an honest mistake by the accused had no air or reality. The issue was one of credibility, whether there was consent or not.

[81] In R. v. Somers 2009 ONCA 567, the complainant and accused had consumed a substantial amount of alcohol at a house party. After they left the house party separately, the accused went to the complainant’s house where they had intercourse. The complainant testified that she did not consent and told the accused, “No.” During the pre-charge conference the trial judge raised the issue of whether the complainant had the capacity to consent because of sleep, intoxication or a combination of both. As a result of the trial judge’s decision to leave a second potential basis for criminal culpability, defence counsel said His Honour had to charge on honest but mistaken belief in consent. The trial judge instructed the jury on capacity but not mistaken belief in consent.

[82] On appeal, the Crown argued there was no air of reality to the mistaken belief defence. The Court disagreed, noting the Crown’s submission missed the fundamental trial fairness point. Once the trial judge decided to introduce a second potential basis of liability that was directly contrary to the complainant’s evidence that she understood what was happening, formed an opinion and told the appellant, “no,” in fairness the trial judge should have put a similar alternative scenario to the jury. This was particularly so when it was recalled “that on the night in question both the appellant and complainant had consumed a substantial amount of alcohol, thus raising a serious concern about the reliability of both of their purported clear - but opposite - memories of the events of that evening.”

[83] In R. v. Williams (2009), 2009 15150 (ON SC), 67 C.R. (6th) 363, Molloy J. applied Osolin, concluding she was able to find an air of reality to the defence where there was diametrically opposed evidence but the accused did not “go so far as to portray [the complainant as] an eager or fully active participant.”

The Positions of Counsel

[84] The appellant frames his argument as follows. A.K. had no memory of the appellant getting on top of her because she was sleeping at the time. The sexual activity had started when she woke up. While she may have been sincere in that testimony, she may also have been mistaken because of the amount of alcohol she had consumed. She admitted that at the request of the appellant, a person she professed to dislike, she had moved to another room in her own home.

[85] The appellant testified A.K. appeared to be awake, alert and actively participated in the sexual intercourse. As occurred in Esau, this evidence was more than the “bare assertion” of consent. And there was more evidence from A.K. that could lend an air of reality to the defence. She acknowledged a history of sleep-talking and sleep-walking, yet the trial judge never adverted to that evidence in her analysis. If A.K. talked and moved in her sleep this could give rise to the appellant’s mistaken belief that she was a consenting and active participant in the sexual activity.

[86] With regards to A.K.’s sleep-walking evidence, the appellant relies upon the Court of Appeal judgment in R. v. Luedecke (2008), 2008 ONCA 716, 93 O.R. (3d) 89 at para. 25 where Doherty J.A. summarized that trial’s evidence regarding sleep disorders as follows:

Dr. Shapiro opined that the respondent was in a parasomniac state while engaging in sexual activity with L.O. Parasomnia involves a sudden unexplained arousal from sleep. Persons may carry out various physical activities while in a parasomniac state. Usually, those activities are not complex, and may include hand gestures, talking or walking. More rarely, an individual in a parasomniac state engages in complex physical activity that can include eating, sexual acts, or driving a vehicle. Physical activities performed by a person in a parasomniac state are often bizarre but can appear purposive. Parasomniacs are seldom violent. Dr. Shapiro has coined the word “sexsomnia” to describe parasomnias during which an individual engages in some form of sexual activity.

[87] Dr. Shapiro explained that people in a deep sleep do not have judgment. A person cannot control his or her activities during a parasomniac episode because they are arising out of a deep sleep. If a person is suddenly catapulted into wakefulness, they are still in part of the deep sleep and do not know what they are doing. About fifteen percent of children and three percent of adults experience parasomnia: Leudecke, at para. 30 and 31.

[88] If A.K. was actually immobile because she was asleep or passed out as a result of alcohol consumption, there was no air of reality to the honest but mistaken belief in consent defence. However, if she had been an active participant until she came to or awoke and pushed the appellant off of her, there was an air of reality upon which the defence could succeed. The appellant’s evidence was that A.K. actively participated in the sexual activity, not that she passively acquiesced. None of the s. 273.2 exclusions applied. The mistaken belief was based on A.K.’s words and actions, not the appellant’s self-induced intoxication. Contrary to the trial judge’s view, the complainant’s absence of memory had to be considered with the appellant’s evidence that she seemed to be a willing participant because of her actions.

[89] The appellant submits that the mistaken belief must be both honest and reasonable in the particular circumstances of the case. By requiring objective elements, the accused cannot rely upon an unreasonable interpretation of the complainant’s actions or inaction in inferring consent. However, active and unambiguous sexual conduct such as occurred here with the complainant assisting in inserting the appellant’s penis into her vagina as he testified would clearly give rise to a reasonable belief. He was not required to take any further reasonable steps to determine whether she was consenting.

[90] With respect to the complainant’s alcohol consumption, the appellant contends that drunkenness does not equate with incapacity: R. v. Jenson (1960), 1996 1237 (ON CA), 106 C.C.C. (3d) 430 (Ont C.A) at para. 13. Accordingly, a drunken consent is consent even if the alcohol consumed leads to imprudent decision-making, memory loss, or the loss of inhibitions. Even if the complainant does not remember giving consent, it remains a valid consent. Further, the absence of memory does not establish the absence of consent.

[91] The trial judge finding A.K. was asleep did not vitiate the importance of the legal error because Her Honour never considered whether A.K.’s admitted history of sleep-walking and sleep-talking could have been operative at the time. Approaching the trial on the basis of Her Honour’s finding that A.K. was asleep was determinative, was tainted by the trial judge’s either/or approach to credibility – an approach that presupposed that either A.K. or the appellant was being “wholly and deliberately untruthful about the key events.” The trial judge’s approach eliminated what the Supreme Court of Canada found in Park - that “… neither the version of the facts given by the complainant nor that given by the accused is necessarily a full and complete account of what actually took place.”

[92] The appellant argues the Crown’s case on lack of consent was circumstantial based on incapacity. However, the trial judge approached the case as one of direct Crown evidence against direct defence evidence, a scenario for which W.(D.) is a perfect fit. Where there is an air of reality to the honest but mistaken belief in consent defence, W.(D.) is not a perfect fit because it is possible to accept the complainant’s evidence and still acquit.

[93] Further, Mr. Gourlay submits the accounts of the complainant and the appellant were not diametrically opposed. They both agreed that, A.K. moved off the couch at the appellant’s suggestion, that they wound up on the futon at some point and at no time did A.K. say she was not consenting.

[94] Finally, the appellant argues that the Crown is wrong in submitting the case is over with the trial judge’s finding A.K. was asleep. It is possible to cobble together a version of the events that could result in an acquittal.

[95] The Crown submits there was no air of reality to the honest but mistaken belief in consent defence. It is pure speculation that it was possible to “cobble together” an account that would result in a finding the appellant had an honest but mistaken belief in consent. Accordingly, there was no obligation on the trial judge to address the defence. However, if it were determined that the defence had an air or reality given the trial judge’s findings of fact, a new trial must be ordered.

[96] Ms. Turner contends this was a case where the complainant’s and the appellant’s accounts were diametrically opposed. Once the trial judge determined A.K. consciously went to sleep and was asleep when the appellant engaged in sexual activity, it was the “end of the story,” the case was over and there was no air of reality to the honest but mistaken belief argument.

Analysis

[97] In order to succeed on this ground of appeal, the appellant must establish the trial judge failed to consider a defence for which there was an air of reality, regardless of whether either counsel adverted to the defence at trial. The failure to do so whether sitting alone or with a jury is an error in law, meriting a new trial. Where, as here, the trial judge does not advert to the defence and neither trial counsel raised it; it cannot be determined whether the defence was considered. To resolve this issue requires the appellate Court to determine whether in these circumstances the failure to give reasons may be deemed a failure to consider a defence and therefore an error of law: R. v. Davis, 1999 638 (SCC), [1999] 3 S.C.R. 759 at para. 77 and 78.

[98] The Supreme Court of Canada’s judgments in Esau and Park, as well as the other appellate and trial decision noted earlier provide the foundation for the analysis. Some of the factors considered in those cases are whether the versions of the events are similar or diametrically opposed, whether the only material contradiction is in the interpretation of what happened, whether the accused testified that the complainant consented and was a willing and active participant while the complainant said that she vigorously resisted the sexual advances, whether there was more than a bare assertion of consent on the part of the accused and whether the complainant had a pre-existing attitude towards the accused. As L’Heureux-Dube J. held in Park, was it realistically possible for the trier of fact to cobble together or splice together parts of each account so that there was an air of reality to the defence?

Esau

[99] First, examining the facts in comparison to Esau, the appellant described specific words and actions on the part of A.K. that led him to believe she was consenting: talking with him, engaging in foreplay and putting his penis into her vagina. In Esau, Major J. wrote, “This alone may be enough to raise the defence.”

[100] The appellant submits that there was more than a bare assertion in consent. With respect to A.K.’s evidence, it did not directly contradict the appellant’s account of how the intercourse occurred although there were differences in their accounts of the entire evening. She did not recall what occurred before she realized the appellant was “doing something” to her vagina. She testified that she was asleep and did not recall anything occurring until she woke up. She said that if there was kissing it was when she was asleep. As was the case in Esau, there was no evidence of violence, no evidence of a struggle and no evidence of force.

Similar or Diametrically Opposed Versions of the Facts?

[101] As referenced in Park, one of the factors to be considered is whether the parties provided similar versions of the facts and the only contradiction was in their interpretation of what happened, or whether their versions were diametrically opposed.

[102] The appellant submits that A.K. and the appellant gave “similar versions” and the conflict was in their interpretation of what happened (Park, at para. 26). The Crown argues their versions are not similar. Indeed they are diametrically opposed.

[103] I am not persuaded the versions are diametrically opposed as the appellate cases have described that phrase, the accused saying consent and the complainant saying she vigorously resisted. In Park, the Supreme Court found that courts have generally refused to put the defence of honest but mistaken belief in consent, when the accused clearly bases his defence on voluntary consent: he testifies the complainant was an eager or willing partner, while the complainant testified that she vigorously resisted. This was not a case where A.K. testified that she vigorously resisted the appellant’s advances when he started to engage in sexual activity. As noted above, even if the versions are diametrically opposed that does not, in itself, preclude the defence being left with the jury or considered by the trial judge.

[104] There are some similarities between the two versions. First, neither testified that A.K. told the appellant she did not want to have sexual intercourse or any form of sexual activity with him. It was not a case where the appellant said the complainant consented and she said she told him she did not want to have intercourse. There was evidence from which the trial judge could have and did find that A.K. was asleep when the sexual activity started. However, in itself, I agree with the appellant, that is not determinative.

[105] Second, both agreed the appellant asked or suggested that A.K. move to the futon in the sitting room and that they were on the futon at some point. When and how that occurred was not agreed upon. A.K. said it was before there was any sexual activity and the appellant said it was after intercourse. A.K. said the sexual contact was on the futon. The appellant said it was on the couch.

[106] Finally, both agreed that A.K. got up abruptly, was upset, went to the washroom, stayed there for some time and then left the party alone. I agree with the appellant that in itself this conduct was not determinative. It was equally consistent with A.K. never consenting, waking to find the appellant having sexual contact with her and with her having “second thoughts” after consenting.

[107] No doubt there were significant dissimilarities between their accounts of the party and some dissimilarities in relation to the sexual contact. First, A.K. said she may have acknowledged the appellant’s presence at the party but that she had no contact with him before she went to sleep. She made it clear that she had no interest in the appellant. The appellant testified that A.K. was dancing in her bra and grinding her butt against his groin area indicating an interested in him.

[108] Second, A.K. said that as she was sleeping on the couch in the living room, the appellant shook her shoulder, partially woke her up and suggested she should move to the futon in the sitting room. Because she was half awake, she could not recall the words he used nor could she explain why she would move in her own home at the suggestion of someone she disliked. The appellant said his first discussion with A.K. was when she was walking back to the living room from the bathroom, not that he had shaken her to wake her up.

[109] Third, the appellant said that when he got on the living room couch with A.K. she was awake and they had a conversation about how she had enjoyed the party. He started to kiss her, she kissed him and she began to stroke his penis. When he explained that if she wanted to have intercourse she would have to help insert his penis into her vagina because of how they were angled on the couch, she reacted by helping to move her underwear to the side and inserting his penis into her vagina. A.K. said that she was asleep and the first she knew that the appellant was with her was when she woke with her underwear around her ankles and the appellant on top of her doing something with her vagina. She pushed the appellant off and went to the washroom. The appellant’s account did not include being pushed off although he said A.K. suddenly got up from the futon after the intercourse was completed, was upset and went to the washroom.

[110] The appellant submits that in addition to the appellant’s assertion in his belief in consent, there was further evidence in support of the defence, being A.K.’s evidence that she walked and talked in her sleep and had had alcohol black-outs in the past. I turn next to those areas of evidence.

The Sleep-walking, Sleep-talking, Alcohol Black-out and R. v. Luedecke

[111] The appellant submits that part of the “more” than his testimony that the complainant consented by her words and actions, was her evidence that she previously experienced alcohol-induced black-outs, and engaged in sleep-walking and talking in her sleep. While A.K. may very well have been asleep when the sexual activity started, she could have talked with the appellant while sleeping and actively participated in the foreplay and intercourse, giving an enhanced evidentiary basis to an honest but mistaken belief in consent. Because Her Honour viewed the case as an “either/or” or a “he said - she said” with no middle ground, the trial judge’s determination that A.K. was asleep was not dispositive of the case. There remained a viable “splicing together” of the accounts that would give an air of reality to the defence.

[112] Mr. Gourlay notes the trial judge never mentioned the sleep-walking and sleep-talking testimony in her review of the evidence or in her analysis of the witnesses. The only reference to S.M.’s evidence was in the summary of the evidence. It was not mentioned in the analysis of the witnesses.

[113] It also has to be kept in mind that A.K. said that she talked in her sleep occasionally and that when she did it was usually gibberish. She also said that she infrequently walked in her sleep. A.K. initially said that she walked in her sleep once or twice when she was younger. It appears she may have been referring to more recent events when she said it was maybe once or twice a year and that she usually woke up right away.

[114] A.K. also admitted that she had previously consumed alcohol to the extent that she had black-outs but stated she was not that intoxicated on the night of the incident. However, S.M.’s testified that A.K. was an eight out of ten on a scale referring to her level of intoxication.

[115] In assessing this evidence, however, it must be kept in mind that a trier of fact could conclude that neither the account given by the complainant nor that given by the appellant was necessarily a full and complete account of what actually took place and that a trier of fact could decide not to believe certain parts of either witness’ evidence. This would include that a trier of fact did not have to accept A.K.’s evidence regarding her memory.

[116] With respect to the appellant’s reliance on the evidence in Luedecke, I appreciate the challenges noted by Mr. Gourlay in defending a case without being able to require the complainant to undergo Dr. Shapiro’s testing with regards to parasomnia. However, I am not persuaded that I can import Dr. Shapiro’s evidence into this trial record. Assessing an air of reality ground of appeal requires an examination of the trial record, not an enhanced trial record that includes evidence the trial judge never heard.

[117] This is not evidence upon which I could take judicial notice. It is not so notorious or generally accepted as to not be the subject of debate among reasonable persons, nor is it capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy: R. v. Spence 2005 SCC 71, [2005] 3 S.C.R. 458. It is also not evidence that is so commonly called in cases that warrants it being the subject of judicial notice. R. v. Potts (1982), 1982 1751 (ON CA), 66 C.C.C. (2d) 219 (Ont. C.A.); R. v. Miller (1971), 1971 1212 (NS SC), 4 C.C.C. (2d) 70 (Ont. Cty. Ct.); R. v. Mastromartino (2004), 2004 28770 (ON SC), 70 O.R. (3d) 540 (S.C.J.) at para. 33 Otherwise, why was it called in Luedecke?

[118] In addition, Luedecke was a Crown appeal from an acquittal based on the respondent being asleep when he had intercourse with the complainant. He had a history of waking to find himself having intercourse with his girlfriend. He had been examined by Dr. Shapiro when awake and also been observed while he was sleeping. From the evidence and his examination of Luedecke, Dr. Shapiro concluded he was in a parasomniac state when he engaged in intercourse with the complainant. That state occurs when there is a sudden unexplained arousal from sleep. The usual activities engaged in were not complex such as hand gestures, talking and walking. More rarely, a person in a parasomniac state can engage in complex physical activities including eating, sexual acts or driving a vehicle. Sexsomnia most usually, but not always, occurs with an individual with whom the accused usually slept: at para. 32. However, in Luedecke, the allegation arose out of intercourse with a woman who was not his girlfriend.

[119] The doctor formed his opinion regarding Luedecke’s state from many sources including two office visits and the respondent’s answers on a detailed questionnaire. The doctor had interviewed the respondent’s parents and had them observed in his sleep clinic because parasomnia is known to be hereditary. Both parents had experienced parasomniac episodes. Luedecke spent two nights in Dr. Shapiro’s sleep clinic where his brain waves and other vital signs were monitored for two nights. Leudecke’s brain wave patterns were a “hallmark of parasomnia.”

[120] There was a sound evidentiary basis for the finding Luedecke was in a parasomniac episode. There is no evidence A.K. was in a parasomniac episode at the relevant time.

[121] I agree with the appellant that the sleep-walking and sleep-talking evidence as well as the black-out evidence was some evidence that was available for the trial judge to consider in assessing whether there was an air of reality to the defence. It may not have been overwhelming. However, there is no requirement that the “something more” than a mere assertion of consent be overwhelming.

The Complainant’s Pre-existing Attitude towards the Appellant

[122] A.K. testified that she disliked the appellant and regardless of how intoxicated she was she would never have consented to any sexual activity with him. That evidence was similar to the complainant’s evidence in Esau where she said that she would never have had intercourse with the Esau because they were related. However, it was not determinative on the air of reality assessment.

[123] A.K.’s pre-existing attitude towards the appellant would be a relevant consideration in assessing whether the Crown had established beyond a reasonable doubt that the honest but mistaken belief defence did not apply and that the complainant did not consent. As the Court of Appeal held in R. v. Garciacruz 2015 ONCA 27 at para 69:

In the absence of direct evidence on the issue of consent, a court can draw inferences from a complainant’s pre-existing attitudes and assumptions regarding the period during which she has no recollection. In appropriate cases, the court can conclude that the complainant must have been incapable of consenting at the time of the sexual interaction because, had she been capable of consenting, she clearly would have refused consent.

Was there an air of reality to the honest but mistaken belief in consent defence?

[124] I am persuaded that there was an air of reality to the honest but mistaken belief in consent defence and that the trial judge was required to consider whether the Crown had established beyond a reasonable doubt that the defence did not apply. While it is most regrettable that neither trial counsel provided the assistance to which the trial judge was entitled on this issue, as Esau makes clear, regardless of counsels’ positions, if there is an air of reality the defence must be assessed by the trier of fact. I reach that conclusion for the following reasons.

[125] First, in assessing whether there is an air of reality, the trial judge does not determine credibility, weigh the evidence, make findings of fact or draw determinative factual inferences. Whether the defence was likely, unlikely, somewhat likely or very likely to succeed is irrelevant. The issue is whether there was an evidentiary basis upon which the trial judge was required to address the defence.

[126] Second, the Supreme Court of Canada judgment in Esau remains a formidable, and I find an insurmountable obstacle for the Crown. Esau has never been overruled in the over seventeen years since its release. While the Supreme Court has addressed sleeping or unconscious complainants in J.A., I am unable to find that Esau has been overruled or modified. J.A. was a consent case, not an honest but mistaken belief in consent case.

[127] As noted earlier, there are similarities in this case to Esau. Here, the appellant’s evidence was such that based on Esau his testimony alone could have put the defence in play. There was no clear contradiction from the complainant that she vigorously resisted his initial sexual advances. Because she said that she was sleeping, A.K. did not directly contest how the sexual contact started. That was the same situation as in Esau.

[128] Third, the evidence of sleep-walking and sleep-talking was some evidence to consider along with A.K.’s evidence about black-outs. One of her housemates described A.K. as highly intoxicated, close to or at the level of intoxication that could lead to black-outs, that she helped her up the stairs, took her up to bed, and that A.K. was asleep before she left the room. While this evidence could have supported the Crown’s trial theory that A.K. was too intoxicated to consent, it was also evidence that impacted on her reliability.

[129] Fourth, the trial evidence included A.K.’s agreement, on her own evidence, to move to another sleeping place in her own home at the suggestion of a person she disliked. The complainant admitted that when this occurred her memory was not completely there as she had just awakened. For at least one portion of her interaction with the appellant, A.K. admitted that her memory was lacking and that she engaged in unexplained conduct.

[130] Fifth, I agree with the appellant that simply because a complainant has no memory does not mean there was no consent and that if the person has the capacity to consent and does, the fact it occurred while heavily under the influence of alcohol or a drug does not in itself negate the consent.

[131] Finally, I agree with the appellant that the Crown’s case on lack of consent was circumstantial. What inferences were open to be drawn? While the judgment was released after this trial, the Court of Appeal’s judgment in Garciacruz reiterates the appropriate test in para. 68 as follows:

In order to infer guilt based on circumstantial evidence, the trier of fact must be “satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty.” R. v. Griffin, 2009 (S.C.C.) 28 at para. 33) This is a high standard that requires that alternative explanations be excluded because “the mere existence of any rational, non-guilty inference is sufficient to raise a reasonable doubt” (ibid. at para. 34; see also R. v. Mars (2006), 2006 3460 (ON CA), 205 C.C.C. (3d) 376 (Ont. C.A.) at para. 4)

[132] I agree with the appellant that there is an important distinction between inferences and speculation and that there are problems approaching a case on the basis of proven facts. As Simmons J.A. held in R. v. Bui 2014 ONCA 614 at para. 28:

… this submission ignores the fact that the question of whether a reasonable doubt exists must be assessed based on the totality of the evidence adduced at trial and not simply based on the “proven facts.” While the evidence at trial may not have been in dispute, the inferences capable of being drawn from that evidence were very much in dispute.

[133] I find that there was an air of reality to the honest but mistaken belief in consent defence. Accordingly, regardless of the arguments of counsel, Her Honour was required to address the issue.

[134] However, the trial judge gave detailed reasons why she rejected the appellant’s evidence. That evidence included what he testified A.K did and said during the encounter. If that evidence was properly excluded, the issue becomes whether there remained an air of reality, or put differently, did the failure to consider the defence result in a substantial wrong or miscarriage of justice.

[135] After I reserved on the appeal, counsel were contacted and asked for further submissions on whether the trial judge’s findings of fact, in effect, foreclosed the viability of the honest but mistaken belief in consent defence. In response, both counsel provided helpful written submissions. The question becomes whether Her Honour’s failure to consider the defence occasioned no substantial wrong or miscarriage of justice given her findings of fact. Since those findings are subject to the other grounds of appeal, it is appropriate to deal with them before determining whether the Crown has met its onus of showing the error was harmless.

Did the trial judge err in failing to conduct a reliability analysis of A.K.’s evidence?

The Law

[136] In assessing the weight to be given to a witnesses’ evidence, a trier of fact must assess both credibility and reliability. Where a witness testifies to events that occurred when he or she was under the influence of alcohol, no expert evidence is required before the trier of fact must considers the impact, if any, of alcohol consumption on the witness’ evidence: R. v. J.R. 2006 22658 (ON SC), [2006] O.J. No. 2698, aff’d 2008 ONCA 200; R. v. T.S., [1999] O.J. No. 268 (S.C.J.)

[137] As noted earlier, the Court of Appeal has found that where “on the night in question both the appellant and complainant had consumed a substantial amount of alcohol,” serious concerns are raised about the reliability of both of their purported clear - but opposite memories - of the events of that evening. Somers. at para. 9.

[138] As Hill J. put it in T.S., where the complainant was in a deep sleep and feeling the effects of alcohol, “these circumstances dictate some caution regarding the reliability of [the complainant’s] perception and interpretation of events.”

The Positions of Counsel

[139] The appellant submits that Her Honour never addressed the issue of A.K.’s level of intoxication in relation to her reliability. There was no dispute that she had consumed a considerable amount of alcohol and some marijuana. Even without expert evidence regarding the effects of alcohol consumption, it was incumbent on the trial judge to consider her evidence in that context. Unlike the first ground of appeal, this was an issue raised in trial counsel’s closing arguments, yet the issue was never addressed by the trial judge.

[140] The appellant submits that Her Honour was required to consider A.K.’s evidence through the lens of both credibility and reliability. Simply stating at the outset of the Reasons that credibility and reliability had to be assessed was not sufficient. An analysis was required. As Finlayson J.A. held in R. v. Gostick (1999), 1999 3125 (ON CA), 137 C.C.C. (3d) 53 (Ont. C.A.),

Where, as here, the case for the Crown is wholly dependent upon the testimony of the complainant, it is essential that the credibility and reliability of the complainant’s evidence be tested in light of all of the other evidence presented. (emphasis added)

[141] The appellant submits that Her Honour’s analysis fell “fatally short in this respect.” The error, he submits, apparently flowed from the either/or paradigm adopted by the trial judge in her reasons. This shortcoming foreclosed any meaningful analysis of whether A.K. actually consented but later believed she did not because of the effects of alcohol on her memory. Her Honour’s analysis prevented consideration of whether A.K. may not remember consenting and therefore honestly believe that she did not consent or she may have lacked the capacity to consent due to intoxication but nonetheless she acted in such a way that the appellant reasonably believed that she could and did consent. With respect to the second alternative, A.K. may honestly believe that she would never have consented to sexual contact with the appellant when, under the influence of alcohol, she gave a drunken but valid consent.

[142] The appellant contends Her Honour conflated the complainant’s absence of memory and her statement that she wouldn’t have consented to sex with the appellant as direct evidence that she did not in fact consent. Loss of memory is not the same thing as the absence of consent. In this area, the appellant relies upon Ducharme J.’s judgment in J.R.

[143] When Her Honour said that the appellant had gone so far as to suggest A.K. was suffering from black-outs and had researched them, yet vacillated between saying the complainant was drunk like everyone else to saying she showed no real signs of intoxication when she went to the washroom, the trial judge missed the point in the manner Ducharme J. described it in J.R. There is nothing inconsistent with a person seeming to be alert and nonetheless suffering a black-out because blacking out is not the same as passing out. Her Honour’s approach inappropriately denigrated as “impudence and insensitivity” what was actually a viable avenue of defence on these facts.

[144] The trial judge was required to consider whether the complainant, while sincere, could have been mistaken because of the consumption of alcohol. A.K. had no explanation why after being awakened in her own home by a person she disliked, she would move to another sleeping location. On this record, there was a plausible version of the facts in which A.K. was not consenting but appeared to be agreeing to participate in sexual activity. It was for the Crown to negative two live possibilities that emerged on this record: mistaken belief in consent, or actual consent that is subsequently forgotten.

[145] The Crown submits that Her Honour was well aware of A.K.’s alcohol and marijuana consumption and made clear findings of fact in relation to her evidence with respect to that. While not explicitly addressed, it was implicit that the trial judge factored in the alcohol and marijuana consumed.

Analysis

[146] There was a significant amount of evidence regarding the amount of alcohol consumed by A.K. from her own testimony as well as that of her friends’ and the appellant’s. The case was prosecuted on the basis that she was too drunk to consent to sexual activity and that the appellant took no reasonable steps to ascertain that she was consenting. That is a significant level of intoxication.

[147] Her Honour decided that while A.K. had consumed a significant amount of alcohol she made a conscious decision to go to sleep, and that the sexual assault occurred when she was not conscious and was asleep, not that she was too drunk to consent and the appellant failed to take reasonable steps to determine that she was consenting. However, there remained evidence that A.K. was drunk, was helped to bed and for one part of the interaction with the appellant did not have a complete memory.

[148] At the outset of her reasons (p. 204), the trial judge identified credibility and reliability as the central issues in the case. Shortly thereafter, Her Honour noted, “In a case such as this I have pointed out that credibility is the central issue,” citing R. v. White (1947), 1947 1 (SCC), 89 C.C.C. 148 as authority that she was to consider the “general integrity and intelligence of the witness, their opportunity to observe, their capacity to remember and their accuracy in statement.” It was important to determine if they were honestly endeavoring to tell the truth, whether they were sincere and frank or whether they were biased, reticent or evasive. It was essential that credibility and reliability be assessed considering all of the evidence and not to assess individual items of evidence in isolation.

[149] After completing her review of the evidence, the trial judge examined the Crown and defence evidence looking for consistencies within the witnesses’ evidence and with that of other witnesses. Indeed, Her Honour addressed defence counsel’s submission that there were concerns because everyone had been drinking and that the timelines were not specific and memories not precise, saying there were no inconsistencies between A.K.’s evidence and that of her friends. The analysis was done on the basis of consistency.

[150] The question is whether it can be inferred that the trial judge considered all of the evidence regarding A.K.’s level of intoxication when assessing the reliability of her evidence. I am not persuaded that it can from reading the Reasons for Judgment as a whole.

[151] When Her Honour reviewed the evidence, she outlined some of the evidence from A.K. and her friends in relation to A.K.’s sobriety. She did not mention A.K.’s evidence about sleep-walking or sleep-talking. In her assessment of A.K.’s evidence, the trial judge never mentioned anything about her blackouts, sleep-walking or sleep-talking. Nor did Her Honour refer to S.M.’s evidence about A.K.’s advanced stage of intoxication in her analysis of A.K.’s evidence. S.M. said the complainant’s level of intoxication was an eight on a scale of one to ten. After rejecting the appellant’s evidence, the trial judge moved to the third branch of W.(D.), saying, “[w]ith regard to the Crown’s case, I have considered the same issues as I have with the accused, I look at consistency.”

[152] Her Honour noted one inconsistency between A.K. and her boyfriend about whether she had called him, found her boyfriend had been sleeping when the call came so that was not troubling to Her Honour.

[153] The trial judge then found the complainant’s evidence had a “ring of truth,” without the same concerns for consistency and carelessness with the truth in the appellant’s evidence.

[154] Her Honour found there were no inconsistencies between A.K.’s evidence and her friends, J.M. and S.M. The trial judge found “there really is no concern about the evidence of the women who testified as the persons who were at this party.”

[155] That analysis has two problematic aspects. First, it was totally based on consistencies between the witnesses. There were no other witnesses to the sexual intercourse, only A.K. and the appellant. Assuming A.K. was consistent with the other women who lived in the house in relation to other aspects of the evening, it does not advance the analysis regarding what happened when the appellant had sexual intercourse with the complainant.

[156] Second, with respect, there were inconsistencies in the evidence of the women from the party in relation to A.K.’s state of intoxication. A.K. said that she was a “little buzzed” but not blacked out. She was not very drunk and was just not feeling very well when she went to sleep. She knew exactly what was going on around her. Her memory and perception were not affected by the consumption of alcohol or marijuana. However, she admitted that her memory of being asked to move to the futon by the appellant was “somewhat compromised.” That was the only time her memory was not completely there. She recalled everything else as if she was completely sober in the middle of the day.

[157] J.M., one of A.K.’s housemates testified the complainant had been drinking but was not at the level of not remembering, was not slurring her words or doing things she would not do if she was sober.

[158] However, S.M. testified A.K. was drunk, eight on a scale of on to ten, she was showing obvious signs of alcohol consumption although she could walk normally. She had put A.K. to bed and helped her get comfortable so that she could rest comfortably. A.K. fell asleep while S.M. was still standing there. In her opinion, A.K. was sufficiently intoxicated that she was to the line or maybe all the way to a black-out or suffering from alcohol induced amnesia.

[159] A.K. testified that she went to bed but said nothing about S.M. putting her to bed or going with her to the main floor. A.K. said there was no one on the first floor when she went to bed although she later learned that some people had come up and saw her sleeping. A.K. said that all of the housemates had their keys on them to get from the basement into the house yet S.M. said one of the reasons she took A.K. to the main floor was that she had her key and she did not believe A.K had her key.

[160] Her Honour referred to portions of this evidence when reviewing the testimony but with the exception of the consistency issue noted above, the evidence was never addressed in the analysis of the complainant’s evidence. This was clearly evidence relevant to a material fact that had to be addressed. The substance of this evidence could have been determinative and was at least indirectly raised by defence counsel. S.M.’s evidence with respect to A.K.’s alcohol consumption had to be considered in the assessment of A.K.’s reliability.

[161] S.M. was not a supporter of the appellant. She provided evidence that was relevant to A.K.’s reliability because of alcohol intoxication yet it was not considered in the context of a reliability assessment that was essential on these facts. While it was a lay opinion, S.M. felt A.K. was drunk enough to have had black outs or alcohol induced amnesia. The opinion itself was of no evidentiary value in establishing A.K. had a black out or alcohol induced amnesia. The opinion was important evidence given by a friend of A.K. who was familiar with her as they lived together for two years. Lay-persons are permitted to give their opinions in relation to states of sobriety: R. v. Graat, 1982 33 (SCC), [1982] 2 S.C.R. 819.

[162] Aside from looking at consistencies between witnesses, the only reference in the reasons to alcohol consumption by A.K. is at the end of the Reasons for Judgment where Her Honour addressed capacity as follows:

With regards to the issue of capacity, on the complainant’s evidence, she did have lots to drink and was not feeling well, but I find that she made a conscious decision to sleep. This is not a case where the complainant was awake and severely intoxicated and events took place, but a case where I find that she was not conscious at all when the act took place. I find that what happened was that there was intercourse with the complainant when she was asleep. (emphasis added)

[163] First, the analysis deals with capacity and not reliability. Second, the analysis is restricted to the complainant’s evidence, without reference to the other evidence. The analysis contains no mention of A.K.’s state of sobriety and its impact on her reliability.

[164] While Her Honour outlined some of the evidence relevant to the complainant’s sobriety, she never directly related A.K.’s evidence regarding her own sobriety as well as that of J.M.’s and S.M.’s regarding A.K.’s sobriety. The appellant, the appellate court and the public cannot know what impact, if any, A.K.s alcohol and marijuana consumption had on her reliability. This is particularly so in light of the complainant’s evidence that her memory was not completely “there” when a person she disliked asked her to switch sleeping locations in her own home and she complied with his request.

[165] I agree with the appellant that likely because trial counsel argued the case as an either/or fact situation - either the appellant or A.K. was lying about what happened, Her Honour may have conflated A.K.’s lack of memory and her statement that she would never have consented to sex with the appellant as direct evidence that she did not consent. Loss of memory is not the same thing as absence of consent.

[166] As Ducharme, J. held in J.R., “Absent expert evidence, a loss of memory or a “black-out” is direct evidence of nothing except the fact that the witness cannot testify as to what happened during a particular period.”

[167] While a trial judge is not required to recite each and every piece of trial evidence, I am persuaded that on this record, Her Honour was required to conduct a reliability analysis of A.K.’s evidence because of the alcohol consumed and the evidence about her state of intoxication. The trial judge was required to explain why that analysis resulted in the decision she made: R. v. R.E.M. 2008 SCC 51, [2008] 3 S.C.R. 3.

[168] It has to be kept in mind that the focus of the prosecution was that A.K. was too drunk to consent. As Hill J. put it, where the complainant was asleep and feeling the effects of alcohol those circumstances dictate some caution regarding her reliability of perception and interpretation of events. I am unable to find any indication that caution was applied. It was not that Her Honour had to have found A.K.’s reliability was compromised. What was required is an assessment of how the alcohol and marijuana consumption factored into her reliability.

Did the trial judge err in applying a more strenuous level of scrutiny to the appellant’s evidence than she did to the complainant’s?

The Law

[169] This is a difficult ground for an appellant to succeed on. As the Court of Appeal held in R. v. Howe (2005), 2005 253 (ON CA), 192 C.C.C. (3d) 480 at para. 59:

This argument or some variation on it is common on appeals from conviction in judge alone trials where the evidence pits the word of the complainant against the denial of the accused and the result turns on the trial judge’s credibility assessments. This is a difficult argument to make successfully. It is not enough to show that a different judge could have reached a different credibility assessment, or that the trial judge failed to say something that he could have said in assessing the respective credibility of the complainant and the accused, or that he failed to expressly set out relevant legal principles relevant to that credibility assessment. To succeed in this kind of argument, the appellant must point to something in the reasons of the trial judge or perhaps somewhere in the record that make it clear that the trial judge applied different standards in assessing the evidence of the appellant and the complainant.

In this case, counsel relies on the very different way in which the trial judge treated the part of Ms. A.K.’s evidence which he found to be untrue and the appellant’s evidence which he found to be untrue.

The Positions of Counsel

[170] The appellant contends the trial judge applied uneven levels of scrutiny when considering the appellant’s and A.K.’s evidence. Her Honour was overly critical of the appellant’s evidence, subjecting it to a microscopic analysis while placing no weight on the problems with A.K.’s evidence. The trial judge found the appellant accused A.K. of being the sexual aggressor when he admitted that he started the kissing. She misapprehended the evidence finding the appellant vacillated regarding the complainant’s level of sobriety. The trial judge’s finding A.K.’s upset state after the intercourse supported the finding that she did not consent, ignores that in an honest but mistaken belief in consent situation, the complainant does not consent. Accordingly, being upset after the intercourse does not advance the analysis. For that reason, applying the W.(D.) analysis in this situation was not a perfect fit.

[171] The Crown submits Her Honour’s analysis of the two key witnesses was fair and even-handed.

Analysis

[172] I am not persuaded the trial judge applied an uneven level of scrutiny to the evidence of the appellant and the complainant as described in Howe. That the trial judge did not conduct a reliability assessment factoring in A.K.’s level of intoxication and failed to deal with S.M’.s evidence of the complainant’s intoxication are separate issues that have already been dealt with.

[173] Her Honour provided several reasons why she rejected the appellant’s evidence relying heavily on whether or not there was consistency within the appellant’s evidence and between his evidence and that of the other witnesses, including the complainant’s. That was something the trial judge was entitled to do. The appellant does not suggest otherwise. There were areas where he was inconsistent within his own evidence and where he could be characterized as careless with the truth.

[174] While some of the areas are problematic such as him not providing details of what he meant by saying A.K. was at the party the whole time, his status at the party and feeling the vibes that he was disliked, I am not persuaded they show uneven scrutiny.

[175] There was an evidentiary basis for the trial judge to find fault with the appellant’s evidence including his adding elements to his account in cross-examination and lying to his friend the next day regarding his recollection.

Has the Crown established that the errors occasioned no substantial wrong or miscarriage of justice?

The Law

[176] Section 686(1)(b)(iii) of the Criminal Code, the proviso, states that an appellate court may dismiss an appeal where notwithstanding that the court is of the opinion that on any ground ….. the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred.

[177] The proviso can only save a conviction in two circumstances: first, where the error was harmless and second, where the evidence was overwhelming and a conviction was inevitable. R. v. Sekhon [2014] 1S. C.R. 272 at para. 53. The standard for the second branch has been described by the Supreme Court of Canada as “a substantially higher one than the requirement that the Crown prove its case beyond a reasonable doubt at trial.” R. v. Trochym, [2007] 1 S.C.R. 293 at para. 82.

[178] Having found the trial judge erred in not considering the honest but mistaken belief defence and in failing to conduct a reliability assessment in relation to A.K., the question is whether those errors occasioned no substantial wrong or miscarriage of justice. The onus of showing the proviso applies is on the Crown.

[179] Doherty J.A. put it this way in R. v. Sarrazin, 2010 ONCA 577, aff’d 2011 SCC 54, [2011] 3 S.C.R. 505 at para. 65: “[t]he Crown bears the onus of satisfying the appellate court that there is no reasonable possibility that the verdict would have been different had the legal error not been committed.” The Crown carries a heavy burden to demonstrate the applicability of the curative proviso. at para. 67.

[180] As it may often be difficult to analyze a record in terms of what would have happened had the error not occurred, any reasonable doubt in that regard must be resolved in favour of an accused: R. v. Brooks, 2000 SCC 11, [2000] 1 S.C.R. 237, at para. 36.

The Positions of Counsel

[181] Counsels’ positions in relation to the proviso were canvassed in relation to the honest but mistaken belief in consent defence. I am proceeding on the basis that the same positions will be taken with the additional issue of the failure to conduct a reliability analysis.

[182] The Crown submits that Her Honour’s findings of fact preclude any air of reality to the mistaken belief defence. The defence was implicitly, although not explicitly rejected by the trial judge’s findings and no error occurred. Even if it were determined that prior to the trial judge’s findings of fact there was an air of reality and Her Honour erred in not explicitly rejecting the defence, the error was so minor that it would not have had any effect on the outcome of the trial and the proviso should be applied.

[183] Ms. Turner submits that Esau, J.R. and Garciacruz are all cases where the complainant was unable to explain what happened and there was a chance she was conscious. This factor led to the air of reality. They were all cases of unexplained memory loss. This case is different because the trial judge found A.K. was conscious until she fell asleep. Her Honour noted that this was not a case where the complainant was awake and severely intoxicated and events took place but a case where she found the complainant was not conscious at all when the acts took place.

[184] The appellant argues that the trial judge’s failure to consider the defence is not cured by Her Honour’s rejection of the appellant’s evidence because first, her credibility and factual findings were made through the lens of the issues raised and defences thought to be available. It cannot be said that the findings would have been the same had the live issues been correctly identified. Second, even without disturbing the trial judge’s findings, a reasonable doubt was still available on the balance of the evidence. This is seen most clearly in the final passage from the Reasons where Her Honour concludes that absence of consent alone requires a conviction, without considering whether mistaken belief could arise on the facts already found.

[185] The appellant argues that while there will be cases where it can safely be said that the total rejection of the accused’s evidence means there is effectively no evidence on which an acquittal could be based, for example, in an “over 80” trial where evidence to the contrary is raised. That is not this case. As Ewanchuk makes clear, an accused does not even have to testify to raise the honest but mistaken belief in consent defence: at para. 44. The air of reality can arise on the complainant’s own evidence, elsewhere in the Crown’s case or from defence evidence other than that of the accused’s. Here, the intoxication and sleep scenarios arose in A.K.’s evidence and in S.M.’s.

[186] More fundamentally, Her Honour’s credibility findings were made on an erroneous premise, that this was an either/or case in which either A.K. or the appellant was lying about what happened. Viewed in that way, the trial judge preferred A.K.’s evidence. It is unknown whether the findings would have been the same had Her Honour considered the case in light of Esau and Parks.

[187] Mr. Gourlay wrote in his additional written submissions, “It is therefore dangerous to take a particular finding and assume it would have been made identically in the context of other issues that did not form part of the judge’s analysis.” Put simply, Her Honour’s analysis did not include the possibility that A.K.’s evidence was entirely truthful, she did not consent to sex but her conduct, of which she was not conscious, gave rise to a mistaken belief by the appellant. At the very least, the introduction of the third possibility may have given rise to a reasonable doubt.

[188] Mr. Gourlay notes that an accused will never give direct evidence of mistaken belief. The evidence invariably is that of actual consent. Similarly, a complainant’s evidence will always be of actual non-consent. Mistaken belief can only arise by inference based on a “kind of grey area” to which Her Honour never turned her mind. It is inextricably linked to the Crown’s burden to prove non-consent and exclude mistaken belief beyond a reasonable doubt.

[189] From the W.(D.) perspective, the failure to address the defence amounts to a failure to properly address the third branch. What cannot be determined in relation to the third branch of W.(D.) is whether Her Honour had considered all of the defences that actually arose on the evidence, the trial judge would have been left with a reasonable doubt.

[190] In the recent Court of Appeal judgment in Garciacruz, the trial judge rejected that appellant’s evidence. Here, the appellant submits that, while Garciacruz was decided on the basis of insufficient reasons as opposed to the failure to consider a defence, the practical effect is the same – that appellant did not receive the benefit of a full consideration of all of the defences that had an air of reality. Mr. Gourlay submits that the rejection of the appellant’s evidence did not obviate the need for the trial judge to address the “other candidates for reasonable doubt.” In Garciacruz, the reason did not provide a sufficient basis for the Court of Appeal to “effectively review the reasoning process by which the trial judge rejected rational exculpatory inferences and arrived at a conviction.” Here, counsels’ oversight appears to be the reason the appellant is in the same situation.

[191] Accepting that A.K.’s evidence lacked the dramatic inconsistencies present in Garciacruz, this case also resembles Garciacruz because the complainant could give no direct evidence about how the sexual contact commenced because she testified that she was asleep. The Crown therefore had to prove circumstantially that she did not in fact consent and did not appear to consent. Here, the appellant submits that “reasonable alternative explanations – potentially sufficient to raise a reasonable doubt – nonetheless arose on the complainant’s own evidence about alcohol consumption, sleep-walking and sleep-talking.”

[192] Mr. Gourlay submitted that the Crown had to exclude beyond a reasonable doubt two possibilities: first, that the complainant did not consent but appeared to be consenting (consistent with her admitted history of sleep-walking and sleep-talking), and second, that the complainant actually did consent but, due to alcohol blackout, forgot.

[193] The clearest indication of the trial judge’s error appears in the final passage of the Reasons:

I find what happened was that there was intercourse with the complainant while she was asleep.

As acknowledged by [trial counsel], quite candidly, if I so find, that the case law supports that there is no issue then with regard to consent, and based on my findings in this case then, I find that the Crown has proven its case beyond a reasonable doubt and a conviction will be registered.

[194] The appellant submits that it is clear the trial judge approached the case on the following reasoning: if sleep, then no consent; if no consent, then conviction. The appellant submits “this reasoning entirely neglects the possibility that the complainant lacked the ability to consent, yet because she appeared to be conscious the appellant reasonably believed otherwise.” No belief in the appellant’s evidence was required because the evidence of sleep-walking and sleep-talking arose in A.K.’s evidence, not the appellant’s. The failure to consider the defence had real consequences. It cannot be said that the verdict would inevitably have been the same.

Analysis

[171] I agree with the appellant and am not persuaded the Crown has met the heavy onus of showing beyond a reasonable doubt that the errors were harmless for the following reasons. The errors were neither harmless nor trivial. In addition, I do not regard the evidence as overwhelming.

[172] First, since Her Honour was neither given nor referred to Esau or J.R. and could not have been given Garciacruz as it was released long after the trial, it is difficult to see how the trial judge’s reasons implicitly address the issues raised in those cases. While Garciacruz was a pure “unexplained periods of memory loss” case, the others were not unexplained. While the complainant in Esau had consumed a considerable amount of alcohol, she had no memory of what happened after she went to the bedroom. She might have been awake, she might have been asleep or she might have been passed out from alcohol consumption. The complainant in J.R. was unconscious.

[172] I am persuaded that Her Honour viewed the case as an either/or when there was a third option being an air of reality to the mistaken belief in consent defence that had to be addressed. No doubt this was as a result of counsels’ submissions. Her Honour made findings in that context, not in the context that there was an air of reality to the honest but mistaken belief in consent defence. In addition, the reliability issue persuades me the proviso cannot be applied.

Conclusion

[173] The appeal is allowed, the conviction quashed and a new trial ordered. The appellant is to appear in the Guelph Ontario Court of Justice on May 1, 2015 at 9:30 a.m. in courtroom #2, 36 Wyndham St., Guelph to set a new trial date.

[174] The appellant’s release order pending appeal is worded that he was only required to surrender into custody if his appeal was dismissed. In these circumstances, until such time as a new release order is entered, the terms of the current recognizance continue to apply.

DURNO J.

Released: April 16, 2015

CITATION: R. v. Masewich, 2015 ONSC 2394

COURT FILE NO.: 13/242

DATE: 20150416

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

STEPHANIE TURNER, for the Respondent/Crown

• and –

TYLER MASEWICH

MATTHEW GOURLAY, for the Appellant

[On appeal from the conviction before the Honourable S. Nichols,

dated July 10, 2013]

Durno, J

Released: April 16, 2015

[^1]: There are references in the transcript to the living room, the television room, the front room and the hamster room. For ease of reference I will refer to the living room where the couch was located and the sitting room where the futon was located.