R. v. Larabie, 2015 ONSC 3515
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
– and –
STEVEN LARABIE
Respondent
Moiz Karimjee, for the Appellant
R. Carew, for the Respondent
HEARD: May 19, 2015 (Ottawa)
SUMMARY CONVICTION APPEAL DECISION
RATUSHNY J.
1The Crown appeals the respondent’s acquittal of sexual assault on the basis of alleged errors of law made by the trial judge with respect to his understanding and application of the law pertaining to:
(1) the issue of consent; and
(2) the admissibility of hearsay evidence of the complainant’s prior statements relevant to the issue of consent.
1. Background
Consent
2Consent was the central issue at trial both with respect to whether the complainant was consenting to anal intercourse and whether the accused knew or was reckless or willfully blind to the absence of consent.
3The trial judge found it clear from the evidence at trial that the complainant had initially consented to engaging in sexual activities with the accused including having anal intercourse. The consent issue became focused, firstly, on whether the complainant had revoked her consent and did not want to continue to have anal intercourse (the “actus reus element of consent”) and, secondly, on whether the accused knew the complainant was not consenting to the anal intercourse or was reckless or willfully blind to the absence of consent (the mens rea element of the offence).
Hearsay
4The importance of the hearsay evidence of the complainant’s statements arose out of the complainant being unable at trial to recall anything material about her sexual activities with the accused or about her alleged statements to police at the scene and later at the hospital. She testified she had blacked out because she had had too much to drink that evening.
2. The Trial Judge’s Findings
5The trial judge admitted one of four hearsay statements the Crown sought to have admitted, providing a detailed review of the relevant evidence and an analysis of the applicable law in a Ruling released April 2, 2014 (the “Ruling”). In his subsequent Reasons for Decision released July 3, 2014 after trial (the “Decision”), the trial judge commented,
Of course, the Crown is handicapped in this case because there is no direct evidence of [the complainant’s] state of mind. She testified that she does not remember the material events because of the alcohol she consumed. This is not a case such as R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] S.C.J. No. 10 where the complainant gave credible, direct evidence about what she was thinking at the time. The Crown, therefore, has to establish the state of [the complainant’s] mind through circumstantial evidence,…. It follows necessarily that in a circumstantial evidence case such as this, a claim of non-consent must be assessed by looking at the complainant’s relevant words and actions in light of all the evidence. (Decision, at para. 85)
6On the issue of the contested mens rea issue of belief in consent, the trial judge found that the accused “did not at all material times have a belief in consent” (Decision, at para. 81), and neither did he take reasonable steps to confirm the complainant’s consent (Decision, at para. 82).
7On the issue of the actus reus element of consent, being the complainant’s state of mind during anal intercourse and whether the Crown had proved beyond a reasonable doubt that she withdrew her consent, the trial judge found that all of the evidence was indecisive as to whether she was consenting and as a consequence, he acquitted the accused on that basis (Decision, at para. 107).
3. The Alleged Errors of Law
8The Crown identifies 11 errors of law, the first five of which relate to the trial judge’s consideration of the element of consent both with respect to the actus reus and the mens rea elements. The remaining six errors of law relate to the trial judge’s consideration of the admissibility of the hearsay statements.
9As I understand the alleged errors of law on the issue of consent, the Crown submits the following:
(1) The trial judge wrongly interpreted and applied s. 273.1(2)(e) of the Criminal Code regarding the meaning of consent and when there is no consent (Crown Factum, Errors 1 and 2).
(2) The trial judge made incompatible factual findings in finding, firstly, that the accused had the requisite mens rea for sexual assault because he did not at all material times have a “belief in consent” and secondly, that he was not satisfied beyond a reasonable doubt the complainant had withdrawn her consent (Crown Factum, Errors 3, 4 and 5).
10The Crown goes on to identify six alleged errors of law in the trial judge’s Ruling on the admissibility of the hearsay statements (Crown Factum, Errors 6-11).
11I deal with the issues in reverse, beginning with hearsay and then with consent.
4. The Trial Judge’s Ruling on the Admissibility of Hearsay Statements
12The Crown submits (Crown Factum, Error 6) the trial judge failed to apply the distinction between threshold and ultimate reliability by considering contradictory or inconsistent statements from the complainant in relation to the admissibility of her hospital statements. The Crown refers to R v TR, 2007 ONCA 374 (OCA), at paras. 17 and 24, where the Ontario Court of Appeal reaffirmed that essential distinction in accordance with R v Khelawan, 2006 SCC 57, 2006 SCJ 57 (SCC) and determined that the trial judge in TR had not erred in failing to consider contradictory evidence at the threshold stage.
13It is not a rigid rule, however, that threshold reliability with respect to a hearsay statement can never involve a consideration of contradictory evidence. As stated in TR at para.19, it is a question of where to draw the line so that the voir dire on admissibility does not end up overtaking the trial. At para. 21 in TR, the Court of Appeal referred to Khelawan at para. 92, that “when the reliability requirement is met on the basis that the trier of fact has a sufficient basis to assess the statement’s truth and accuracy, there is no need to inquire further into the likely truth of the statement”. I regard this as a guideline to drawing the line in considering the threshold reliability of a hearsay statement.
14Applying this to the Ruling, it is primarily paragraph 17 and footnote 1 of the Ruling that the Crown alleges reveal a blurring of the distinction between threshold and ultimate reliability by the trial judge.
15The trial judge began by considering and rejecting all the indicia of reliability put forward by the Crown (Ruling, at paras. 11-16). He refused to admit the hospital statements because he found the indicia of reliability put forward by the Crown were “far from adequate to overcome the presumption of inadmissibility” (Ruling, at para. 16). He did this before considering the contradictory or inconsistent statements. He then added (Ruling, at paras. 17, 18 and footnote 1) by way of further comment on the unreliability of the statements for threshold admissibility purposes that there were additional factors affecting the assessment of their reliability that could be considered even if the indicia of reliability offered by the Crown “would have had integrity” (Ruling, at para. 18). It is on this basis that he went on to comment on the complainant’s contradictory or inconsistent statements.
16The Crown submits that in considering these contradictory or inconsistent statements the trial judge was engaging in an inquiry into the likely truth of the hospital statements and, therefore, into their ultimate reliability. I cannot agree.
17In making these further comments on the contradictory evidence, the trial judge was not inquiring into the likely truth of the statements, but simply commenting on the pervasive lack of evidence of indicia of reliability for the hospital statements to be able to be characterized as achieving threshold reliability. He assessed all the evidence for indicia of reliability for the hearsay statements and, pursuant to Khelawan, concluded there was no sufficient basis to assess the statements’ truth and accuracy.
18I conclude there was no error of law in this respect.
19For related reasons, I cannot accept the Crown’s submissions (Crown Factum, Errors 7, 8, 9) that the trial judge erred by regarding the complainant’s present lack of recollection of her prior statements as an inconsistent statement and by assessing the reliability of the statements with respect to her present lack of recollection rather than her recollection at the time of making the statement.
20I understand the Crown to be submitting that because the complainant’s hearsay statements both at the roadside and at the hospital were made closer to the time of the alleged sexual assault, the trial judge ought to have considered this factor as contributing indicia of threshold reliability to the statements that ought not to have been weakened by consideration of the complainant’s later complete lack of recollection of the events.
21While this certainly can be a correct submission in some factual circumstances, and as the Crown points out was the situation in R v Richardson, [2013] O.J. No. 3215 (OCA), at paras. 27-28, it does not apply to the evidence before the trial judge.
22The trial judge carefully reviewed all the evidence in his Ruling. In considering the complainant’s present lack of recollection of her alleged hearsay statements he was, as stated before, commenting on the complete absence of indicia of reliability for the hospital statements to be able to be characterized as sufficiently reliable with respect to their truth and admitted into evidence for a consideration of their ultimate reliability. While he made these comments in considering the admissibility of the hospital statements, the evidence of the complainant’s lack of recollection applied to all the alleged hearsay statements. In respect of the complainant’s roadside statements he referred to one as having been made “albeit shortly after the event” (Ruling, at para. 24). This timing issue was also part of his consideration of the “excited utterance” exception and the issue of spontaneity as it applied to the roadside statements (Ruling, at para. 19-24).
23All of this indicates the trial judge was well aware of the issue of the time of the making of the hearsay statements as being relevant to the consideration of their threshold reliability. He committed no error of law in this regard.
24The Crown also submits (Crown Factum, Error 10) that in finding all but one of the complainant’s statements to be inadmissible hearsay, the trial judge completely failed to consider an important indicium of their reliability, namely corroborating evidence of her lack of consent evidenced by her demeanor of crying at the time of her statements both at the roadside and at the hospital.
25However there is nothing in the Ruling to indicate the trial judge failed to consider the complainant’s demeanour of crying in his assessment of threshold reliability. He reviewed the evidence of her crying both at the car or roadside and at the hospital (Ruling, at paras. 1, 3, 5, 6). He referred to her demeanour at the car as “clearly emotional” but that her “Nooo” answer to police when asked if she had wanted sex was not “spontaneous in a meaningful sense” (Ruling, at para. 24). He concluded that this hearsay statement of “Nooo” was “a statement made by an intoxicated person, during police questioning albeit shortly after the event, by a person who may have had a motive to mislead” (Ruling, at para. 24). I conclude no error of law was committed on this issue.
26The Crown further submits (Crown Factum, Error 11) the trial judge erred in considering that the complainant may have had a motive to mislead the police and at the hospital in respect of her alleged hearsay statements that she was not consenting to the anal intercourse. The Crown argues that in considering this possible explanation for the hearsay statements, the trial judge wrongly failed to consider “at least [an] equally consistent contradictory interpretation”, namely that together with the crying and the pained expression on the complainant’s face there was evidence of a motive to tell the truth and, therefore, indicia of reliability sufficient to attain threshold admissibility.
27The Crown relies on R v DR, 1996 CanLII 207 (SCC), [1996] SCJ No 8 (SCC), at para. 34, as authority for the proposition that “a circumstantial guarantee of trustworthiness must be established in order for the [hearsay] statements to be admitted” and that the hearsay statements pertaining to a sexual assault in that case “would be admissible where the hearsay evidence is equally consistent with other hypotheses”. At para. 35 of DR, the Court determined that the hearsay statements from a child of having been sexually assaulted by the accused, her father, “were not sufficiently reliable” to be admitted. In coming to this conclusion, the Court referred to other evidence pointing to her brother having sexually assaulted her or of the child lying, and concluded that the child’s hearsay statements were “as consistent with the hypothesis that she was protecting [her brother] as they are with her having been sexually assaulted by [her father]”.
28In the present case, trial judge found that in the circumstances of the complainant having engaged in consensual sex and then being observed having been the object of anal intercourse in a car in the presence of another couple, that when the police opened the car door it was “entirely possible that someone in such a situation could wish to deny responsibility when being questioned” (Ruling, at para. 81).
29This is not a situation that can be parsed into an isolated consideration of the trial judge’s reasons pertaining to the issue of motive in considering reliability and threshold admissibility. The trial judge was assessing all of the evidence for sufficient reliability of the hearsay statements. As I understand his references to the possibility of the complainant having had a motive to mislead (Ruling, at para. 13), this was simply another consideration pertinent to threshold reliability in respect of the hospital statements and he repeated it in respect of his consideration of the threshold reliability of the statements at the roadside (Ruling, at para. 24). He committed no error in not specifically stating that it was possible in light of the complainant’s crying and demeanour at the time of the statements that it was possible she was telling the truth. That inquiry was the entire point of his assessment, resulting in his ultimate disassembling of most of the Crown’s arguments on indicia of reliability, and the basis for his conclusion there was not sufficient reliability attached to all of the circumstances of the hearsay statements including on the issue of motive.
30As the Court did in DR, the trial judge referred to other evidence and concluded that most of the hearsay evidence was inadmissible as not being sufficiently reliable. He committed no error of law in his consideration of motive.
5. The Trial Judge’s Decision on the Issue of Consent
31These grounds of the Crown’s appeal involve the actus reus element of consent and the mens rea element of the offence.
32In respect of the actus reus element of consent, on the facts of this case the issue was whether the complainant had revoked her consent to further anal intercourse. The trial judge found the evidence was “uncertain” in this respect so that this element had not been proved beyond a reasonable doubt and it was on this basis he acquitted the accused.
33In respect of the mens rea element of the offence, the trial judge found this element had been proved as he was satisfied the accused “did not at all material times have a belief in consent” and neither did he take “reasonable steps to confirm [the complainant’s] consent” (Decision, at paras. 81 and 82).
34The Crown alleges (Crown Factum, Errors 1-5) that in arriving at these findings with respect to consent, the trial judge wrongly interpreted and applied s. 273.1(2)(e) of the Criminal Code regarding the meaning of consent and when there is no consent.
35The applicable portions of s. 273.1 are,
(1) Subject to subsection (2) …, “consent” means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.
(2) No consent is obtained, for the purposes of sections 271, 272 and 273, where…
(e) the complainant having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.
(3) Nothing in subsection (2) shall be construed as limiting the circumstance in which no consent is obtained.
36The Crown first alleges (Crown Factum, Error 1) that the trial judge appears to suggest in his Decision at para. 11 that this subsection 273.1(2)(e) regarding the issue of revocation of consent is only directly applicable to the issue of the accused’s mens rea and not also to the actus reus element of whether the complainant had revoked her consent. The subsection speaks expressly of the actus reus element of revocation of consent.
37I do not understand the trial judge to have narrowed the effect of subsection 273.1(2)(e) as only being directly applicable to the issue of the accused’s mens rea with respect to consent. He was discussing the section’s effect on both the mens rea and the actus reus elements relevant to consent.
38The Crown’s further point, as I understand its argument and this incorporates its alleged Errors 2-5 as set out in its Factum, is that the trial judge’s finding that the accused did not at all material times have a belief in consent has to be considered as being incompatible with his finding that the evidence was uncertain as to whether the complainant had revoked her consent. In other words, the Crown submits, if there is a finding that the mens rea element of the offence has been proved, namely that the accused knew the complainant was no longer consenting to the sexual act then, by operation of subsection 273.1(2)(e), the accused is precluded from arguing that the complainant’s consent was continuing. Or, to put the Crown’s argument another way, where the accused is found to have known the complainant was not consenting or was reckless or willfully blind to the absence of consent, the accused is precluded from arguing there was consent.
39The Crown relies on R v JA, 2011 SCC 28, [2011] SCJ No 28 (SCC), at paras 23 and 40. In JA, the Court was dealing with the issue of consent as it applied to an unconscious complainant. After considering s. 273.1(2)(d) which refers to there being no consent if the complainant expresses by words or conduct a lack of agreement to engage in the activity, the Court went on, at para. 40, to discuss how s. 273.1(2)(e) deals with the issue of revocation. It said,
Section 273.1(2)(e) establishes that it is an error of law for the accused to believe that the complainant is still consenting after she “expresses…a lack of agreement [to continue] to engage in the activity”. Since this provision refers to the expression of consent, it is clear that it can only apply to the accused’s mens rea. Nonetheless, it indicates that Parliament wanted people to be capable of revoking their consent at any time during the sexual activity. This in turn supports the view that Parliament viewed consent as the product of a conscious mind, since a person who has been rendered unconscious cannot revoke her consent. As a result, the protection afforded by s. 273.1(2)(e) would not be available to her.
40The Crown argues (Crown Factum, para. 29) that what JA indicates is that if the complainant does not express, by her words or conduct, a lack of consent this can only go to the mens rea of the accused and not the actus reus as the actus reus of lack of consent has to do with the subjective state of the complainant which cannot be known by mere silence of an unconscious person.
41The distinguishing difference between the present case and JA is a factual one. At para. 40 of JA the Court considered the inability of an unconscious complainant to revoke her consent, a protection afforded by s. 273.1(2)(e). The trial judge in the present case found there was no issue of incapacity of the complainant to consent. He found the complainant had had the capacity to revoke her consent but it was unclear on the evidence whether revocation had occurred. Throughout the Decision the trial judge recognized, as does the Crown at para. 37 of its Factum, both the distinctness and the inter-relatedness of the mens rea and the actus reus elements pertaining to the issue of consent, as affected by s. 273.1(2), and concluded the Crown had proved the first element, but not the second.
42It is on this basis that I am unable to accept the Crown’s argument, flowing from these passages in JA, that the trial judge’s findings on consent are inconsistent or incompatible and amount to an error of law. The trial judge came to his conclusion on the second element saying, “Although I do have real concern that [the complainant] may have wanted the anal intercourse to stop, I cannot make that finding beyond a reasonable doubt” (Decision, para. 110). According to the facts of the case, I find he committed no error of law in considering the two elements as each having to be proved beyond a reasonable doubt. According to the facts of the case, the accused’s guilty mind by not having at all times a belief that the complainant was consenting did not amount to proof of the related element of the revocation of consent by the complainant.
43Neither can I agree, as the Crown has argued (Crown Factum, at p. 26), that similar to impaired driving cases where any degree of impairment from slight to great is sufficient to prove beyond a reasonable doubt the element of impairment, any suggestion even by mixed signals that the complainant has revoked consent is sufficient to prove both the actus reus element of consent and the mens rea of the absence of consent.
44The two situations are not analogous. The element of impairment is an essential element of the offence of impaired driving that is capable of proof beyond a reasonable doubt regardless of the degree of impairment. The elements of sexual assault pertaining to the complainant’s consent and the accused’s belief in consent, however, cannot be matters of degree. They comprise part of the essential elements of that offence and each must be proved beyond a reasonable doubt before a conviction can occur. While the trial judge had a “real concern” that revocation may have occurred, he applied the standard of proof and concluded he could not make that finding beyond a reasonable doubt.
45It would be an error of law for this court, in effect, to violate fundamental principles and stretch the criminal law to say it would serve a good social purpose or amount to sound policy as the Crown argues (Crown Factum, para. 42), to find that the trial judge erred in his two findings on consent and the correct result in law should have been to convict the accused of sexual assault because of his guilty mind even though it had not been proved beyond a reasonable doubt that the complainant had revoked her consent. On the facts before the trial judge, to do as the Crown suggests would have amounted to an error of law.
46I deal with one final submission from the Crown (Crown Factum, Error 5), that the trial judge erred in failing to find that consent is vitiated in law if the Crown has proved beyond a reasonable doubt that the accused has a guilty mind in relation to the absence of consent and “the victim is not able to testify due to lack of recollection”. The distinguishing difference in the present case to a “victim not able to testify case” is that this was not a case of there being no evidence as to the complainant’s subjective internal state of mind, as was the situation in JA. In JA, as referred to previously, the complainant was unconscious. The Court found that the complainant in JA was, therefore, incapable of either granting or revoking her consent so that there was an absence of consent and the accused had a guilty mind in relation to the absence of consent. This evidence was sufficient to prove both elements relating to consent. It was not the same as the evidence relevant to the complainant’s consent that was before the trial judge in the present case.
6. Conclusion
47In summary, I agree with the Defence that the legal issues before the trial judge turned on the facts of the case. The Crown has not challenged any of the trial judge’s findings of fact. Based on those facts, I find no errors of law committed by the trial judge in either his Ruling or Decision.
48For these reasons the appeal is dismissed.
Justice L. Ratushny
Released: June 2, 2015
CITATION: R. v. Larabie, 2015 ONSC 3515
COURT FILE NO.: 12-5110
DATE: 2015/06/02
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Appellant
– and –
STEVEN LARABIE
summary conviction appeal decision
Ratushny J.
Released: June 2, 2015