R. v. D., 2015 ONSC 491
COURT FILE NO.: 12-5011
DATE: 2015/01/22
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
D.D.
Walter Devenz, for the Crown
Celine Dostaler, for the Defence
HEARD: January 19, 20, 21 and 22, 2015
REASONS FOR decision
LALONDE J.
The Charge
[1] D.D. stands charged:
that he on or about the 30th day of June in the year 2010 at the City of Ottawa in the East Region did commit a sexual assault on E.C., contrary to Section 271, subsection (1) of the Criminal Code.
Overview
[2] E.C. (the complainant) invited D.D. (Mr. D.) to a party on June 29 and 30, 2010 in a house where she had just moved that day in a part of the City of Ottawa known as the Glebe. The other occupants present that evening were R.K. and M.R.H. A girl named J.H., the sister of M.R.H. was, at the relevant time sleeping upstairs.
[3] Mr. D. arrived at approximately 10:30 p.m. and joined R.K., M.R.H. and the complainant who were drinking alcohol and smoking marihuana on the porch attached to the apartment. After some time around midnight, the complainant, M.R.H. and Mr. D. went out for a short walk/run. Later they left the apartment to get something to eat and found bagels at Kettleman’s Bagel on Bank Street. This occurred around 2:00 a.m. to 2:30 a.m.
[4] Upon returning to the apartment the complainant immediately fell asleep on a futon in the living room while the others continued to socialize. At some point, Mr. D. went to sleep on a mattress next to where the complainant slept on the couch and at close proximity to where R.K. also slept.
[5] When the complainant woke up she felt Mr. D. penetrating her with his penis. Mr. D. was positioned behind her and as will be seen from the complainant’s evidence, this was done without her consent. Mr. D.’s evidence will be that there were sufficient physical signs made by the complainant for him to believe that the complainant was consenting to intercourse. The next morning the complainant called the police.
Admissions
[6] Mr. D. admitted being at the party and having intercourse with the complainant, but he maintains that the intercourse with the complainant took place with her consent.
Issues
(a) As there is an admission that the sexual activity between the complainant and Mr. D. took place, the issue is whether the complainant consented to the sexual activity?
(b) If the Crown proves that the complainant did not consent, beyond a reasonable doubt, then I have to consider whether Mr. D. had an honest but mistaken belief in consent. There are sub-issues involved:
(i) Is there an air of reality to the defence?
(ii) Did the accused honestly believe the complainant communicated consent?
(iii) whether the mistaken belief is not a defence because the belief is statutorily prohibited?
The Law
Did the complainant consent to the sexual activity?
[7] The following principles are taken from the Supreme Court of Canada’s decision in R. v. A.(J.), 2011 SCC 28, [2011] 2 S.C.R. 440:
Mens Rea and Actus Rea
A person commits the actus rea of sexual assault if they touch another person in a sexual way, without the other person’s consent (A.(J). at para 23). This entails: (1) touching; (2) of a sexual nature; and, (3) in the absence of consent.
A person commits the mens rea of the offence if they: (1) knew that the complainant was not consenting; or, (2) were wilfully blind to the absence of consent (A.(J.) at para 24).
Parliament has defined consent for the purpose of sexual assault. Section 273.1 of the Code states:
S.273.1(1)
Subject to subsection (2) and subsection 265(3), “consent” means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.
Voluntary Agreement
[8] As outlined by the Supreme Court of Canada in R. v. Ewanchuk, [1991] 1 S.C.R. 330:
Consent will be found where the complainant affirmatively communicated, by words or conduct, their agreement to engage in the sexual activity in question with the accused.
There is no implied consent to sexual activity; implied consent amounts to sexual assault. There will also be no consent where the complainant consents because they honestly believe they will otherwise suffer physical violence. While the plausibility of the complainant’s alleged fear and act overt expressions of it are relevant the assessment is subjective.
The absence of consent is a subjective assessment that must be determined by reference to the complainant’s internal state of mind towards the touching at the time it occurred. The accused’s perception of the complainant’s state of mind is not relevant.
If the complainant is alleging that she did not consent, it is a matter of credibility that is to be weighed in light of all of the evidence, including any ambiguous conduct. Therefore, the question of whether there was consent is assessed from the perspective of the complainant, subject to her credibility.
If the trier of fact accepts the complainant’s testimony that she did not consent, no matter how strongly conduct may contradict her claim, the absence of consent is established…
No Consent
[9] To clarify when consent is obtained, Parliament has set out a list of circumstances in which no consent is obtained. Section 273.1(2) states:
S.273(2) No consent is obtained, for the purposes of sections 271, 272 and 273, where
(a) the agreement is expressed by the words or conduct of a person other than the complainant;
(b) the complainant is incapable of consenting to the activity;
(c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;
(d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or
(e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.
(3) Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained.
This section provides that no consent is obtained if “the complainant is incapable of consenting to the activity.” In interpreting this provision, Justice McLaughlin, in A.(J.) at para 36, stated:
Parliament was concerned that sexual acts might be perpetrated on persons who do not have the mental capacity to give meaningful consent. This might be because of mental impairment. It also might arise from unconsciousness: see R. v. Esau, 1997 CanLII 312 (SCC), [1997] 2 S.C.R. 777 (S.C.C.; R. v. Humphrey, 2001 CanLII 4806 (ON CA), 143 O.A.C. 151 (Ont. C.A.) at para 56, per Charron J.A. (as she then was). It follows that Parliament intended consent to mean the conscious consent of an operating mind.
A complainant may be incapable of consenting due to intoxication (See: R. v. Patriquin, 2004 NSCA 27, and R. v. Colbourne, 2013 ONCA 308). Moreover, it is not a defence for an accused to fail to appreciate that a complainant is not consenting because of self-induced intoxication (Ewanchuk at para 39, and R. v. Bisram, 2014 ONCJ 644, at para 77).
A complainant may also be incapable of consenting as a result of being asleep when the sexual activity was initiated: see R. v. Despins 2007 SKCA 119, R. v. Cornejo, (2003) 2003 CanLII 26893 (ON CA), 68 O.R. (3d) 117 (Ont. C.A.).
If there is a reasonable doubt that the complainant consented, with regards to their subjective internal state, there is no sexual assault. If the Crown proves that the complainant did not consent beyond a reasonable doubt, the trier is then to consider whether the accused had an honest but mistaken belief in consent.
The Evidence of E.C.
[10] The complainant testified that she had not slept the night before the incident as he was moving to the apartment where the alleged sexual assault took place. She stated that the previous night she had packed her belongings and cleaned the apartment she was vacating. She then worked until 7:30 p.m. before moving. She also stated that she was under stress as she had argued with her landlord.
[11] After arriving at her new premises, R.K. invited M.R.H. and the complainant to have a drink. During the complainant’s examination-in-chief her evidence was that she had two or three shots of vodka and one toke of marihuana as a pipe was being circulated. She said that the marihuana was not hers. During cross-examination, the complainant stated that she was drinking out of a 1½ to 2 oz. shot glass but that the glasses were not full. She agreed with counsel that it was possible that the two shots contained 4 oz. of alcohol and that possibly she could have gulped down a third shot. She also stated that it was possible that she had two tokes of marihuana.
[12] By the time Mr. D. arrived at her apartment after midnight, the complainant stated that she was slightly impaired but not to a degree that she could not remember what had happened. The complainant also recalled that when Mr. D. arrived at the apartment with Malibu rum and beer she had a tumbler in her hand filled with orange juice and a very little amount of alcohol. Around midnight, the complainant testified that she, M.R.H. and Mr. D. left the apartment for a walk around walk/run. Mr. D. testified that on the way back to the apartment, the complainant jumped on his back for a piggy back ride.
[13] At approximately 1:30 a.m. the three girls and Mr. D. went searching for food as the complainant testified that she was hungry. She recalled getting $20.00 from an ATM machine to buy bagels at Kettleman’s Bagel and that they all returned to the apartment at around 2:30 a.m. The complainant stated that she laid down on a futon in the living room while everyone was still up and fell asleep.
[14] Next the complainant testified that she was awakened with the duvet covering her pulled back and her pants and underwear pulled down. Mr. D. was penetrating her vagina with his penis. He was lying down behind her on the futon. She stated that she was “very, very afraid.” She then stated that she pretended to be asleep, wiggled (mimicking waking up) enough to cause Mr. D.’s penis to leave her body.
[15] The complainant was positive that she did not say anything to Mr. D. Mr. D. testified to the same. Mr. D.’s head was behind hers, there were no sounds and Mr. D. was “thrusting against her until he fell out”. She recalled that Mr. D. stood at the end of the futon and stroked his penis. She also recalled that the mattress that was behind the futon as she had gone to bed was now on the floor, but could not recall how it got there. M.R.H. and R.K. were up and about when she had fallen asleep. R.K. ended up sleeping on a couch 5 or so feet away.
[16] It was not until morning that the complainant told Mr. D. “to get the fuck out” when she heard him handling his beer in the refrigerator. She testified that in the morning, she told R.K. what had happened to her and that R.K. did not believe her. She told M.R.H. what had happened and she obtained a plan B pill from her. By noon that day she attended at the police station and the hospital for a vaginal examination.
[17] During cross-examination the complainant admitted that she had invited Mr. D. by texting him. She denied having been flirty with Mr. D. during the evening and stated that the piggyback ride on Mr. D.’s back did not happen. She also denied a suggestion that she had kissed Mr. D. while in the apartment. The subject of kissing was not explored during Mr. D.’s evidence. Nor did Mr. D. testify that any kissing took place. The complainant stated that she was taking a high dosage of medication for her bipolar condition but had not taken her medications the day she moved into the apartment. The complainant stated that she broke up with her boyfriend M.M. two months after the incident because he moved to Ireland. M., Mr. D. and the complainant all knew each other through school clubs.
[18] R.D. testified. He was a friend of both the complainant and Mr. D. as they all belonged to the same political clubs and Carleton University where they were studying at the time. He was told of the incident that involved Mr. D. and the complainant by another club member as both Mr. D. and the complainant were volunteer executives at the University club. He, as a leader of the group informed Mr. D. that he could no longer work with the complainant. That online conversation was destroyed by R.D. through inadvertence.
[19] R.D. then met face to face with Mr. D. at the Food Court at the University. He testified that Mr. D. told him that he had been heavily intoxicated that night when the incident happened, that he had lost control of his impulses and had sexually violated the complainant. He also said that he was ashamed and disgusted with himself.
[20] During cross-examination, R.D. recalled that Mr. D. had not used the words “rape” or “sexual assault” to describe the incident but that he, R.D. had used those words and that Mr. D. had agreed with his description of the incident by nodding. R.D. recalled that Mr. D. had told him he had made a mistake but agreed that Mr. D. had not said what the mistake was.
[21] On re-examination, Mr. Deketele stated that the mistake had to refer to the complainant as he was not aware of any other mistake made by Mr. D. and his meeting with Mr. D. was arranged specifically to discuss the incident.
The Evidence of D.D.
[22] Mr. D. testified. He confirmed what the complainant said about how he had arrived at the party until they left the apartment for a walk. In his evidence the walk outside the apartment, and the trip to Kettleman’s Bagel, was one single episode.
[23] Mr. D.’s evidence differed completely from the evidence of the complainant as to what happened in the apartment when he returned with the other women after buying bagels. He said that:
• R.K. went to sleep right away;
• M.R.H. went upstairs;
• that the complainant had remained awake with him for a while chatting;
• that they had settled down to sleep but he could not fall asleep; she was on a futon and he was on a mattress on the floor;
• that he got up because he was restless. He knew the complainant was asleep so he gave the complainant a shake on the shoulder to wake her up;
• he testified that she opened her eyes:
• that he joined her on the futon, they had held hands and that she led his hand on her vagina in an “inviting manner”;
• as she seemed appreciative of his caresses on her genitals, he removed her pants and then his own pants, put on a condom and began having intercourse with the complainant until she climaxed.
• he testified that he knew she climaxed because he has had many sexual partners and can feel when a woman is climaxing or faking climaxing.
• after she climaxed, the complainant grabbed her pants and he left the futon to return to the mattress and proceeded to “finish himself there”.
[24] Mr. D. explained that when he told R.D. that he had made a mistake, the mistake he was referring to was having had intercourse with the complainant as he knew she had a boyfriend, M.M. Although he knew that both the complainant and M.M. had a troubled relationship, he said he felt he had messed up a good relationship as he was also a good friend of M.M.
[25] Mr. D. also testified that he thought the complainant may be interested in sex because maybe she wanted a “rebound.” During cross-examination, Mr. D. would not admit that he was sexually aroused when he touched the complainant’s shoulder to wake her up. Then he said “I guess I was interested in having sex.” He recalled that as she woke up she had looked at him but no conversation took place. He said that he knew that the complainant had reached a climax and had not faked it as he had a lot of previous sexual experiences with women.
Credibility
[26] R.D.’s credibility is difficult to assess as he could not stop pontificating about his sincerity and honesty. He no doubt met with the complainant and Mr. D. separately and one can understand that he felt awkward dealing with his two friends who were volunteer executives in a club he lead. There is no doubt that he met with Mr. D. to discuss the incident and that he had also discussed the incident with the complainant. Despite the fact that he kept pontificating about his sincerity and honesty, I believe that Mr. D. had expressed chagrin at having sexually assaulted the complainant. His evidence could have been clearer had he not tried to cushion the blow for his friend Mr. D. when he met with the investigating officer, Steven Sauvé.
[27] Mr. D. was very comfortable when he testified. He had attended a trial in Provincial Court, then a preliminary hearing and finally sat in court during the complainant’s evidence. Yet he would not answer the question when asked about the restlessness that he said kept him awake while on the mattress next to the futon where the complainant lay. After several questions he admitted that he was sexually interested in the complainant.
[28] Mr. D.’s memory was selective. He could not remember that both the complainant, R.K. and himself had returned to the apartment following the walk/run event. It is at that point that the marihuana pipe had come out and was passed around and the interaction with the two boys next door had happened. It was only after smoking the marihuana that the complainant said that she was hungry and the outing to find something to eat, occurred.
[29] The complainant was credible. When asked questions either by the Crown or the defence she paused before giving an answer. When asked questions that tended to show her under an unfavourable light, she answered them and when she had to agree that her answers were incorrect she made the corrections. An example would be that in-chief she had testified that she had consumed a total of 2 to 3 ounces of alcohol and during cross-examination she agreed that it could have been up to 6 ounces and not one toke but possibly two tokes off the marihuana pipe that was passed around. She was also forthcoming about her mental health issues, which are largely irrelevant.
The Complainant’s Circumstances
[30] Mr. D. testified that the complainant was not drunk as he had seen her very drunk before at a social function and that she was not close to that situation the night of the alleged assault. The complainant herself said that while she had drunk alcohol and had a toke or two of the marihuana she was tipsy but not drunk. If one considers that the alcohol shots and the marihuana tokes were taken between 9:30 p.m. in the evening until 2:30 a.m. the next day, it is unlikely that the complainant was drunk. Moreover, during that time she had gone for a fifteen minute walk and run, then gone on another outing to get food where she would have walked for approximately forty minutes. It is unlikely that the complainant was drunk. No evidence was received in Court showing the complainant to be drunk.
[31] I accept the evidence of the complainant who testified that she woke up when Mr. D.’s penis was in her vagina. The complainant prior to arriving at her new apartment had worked that day and that had followed a night when after packing her belongings and cleaning the apartment she was vacating, she had not slept much. She testified that she was taking 300 mg/day of Lamictol for a Bipolar II condition. However, she had not taken her medication the night of the incident.
[32] I find that she was fast asleep when the incident took place because of a combination of all the factors mentioned in the previous paragraph. As a result she could not give her consent to the sexual intercourse led by Mr. D. I find that she was sleeping when Mr. D. penetrated her vagina with his penis. When she woke up, pretending to be asleep, she moved until Mr. D.’s penis fell out of her body. Mr. D. testified and was clear that he did not ask her consent to continue his love making. The complainant was clear when asked at trial that she did not give her consent to Mr. D. to continue the intercourse.
Jurisprudence
[33] The Court acknowledges that the facts in R. v. Paquette, 70 W.C.B. (2d) 631, 2006 CarswellOnt 5008 (Ont. S.C.J.), [Paquette], are substantially similar to the case at bar. In that case, the complainant was tired, and had gone to bed after ingesting alcohol and marijuana. She awoke to the accused touching her vagina (R. v. Paquette, 2005 CarswellOnt 508 (OCJ) at para 1). At first, she pretended to be asleep, and then she mimicked awaking in the hopes that this would stop the touching. She then rolled over and covered herself with a blanket, at which point the touching ceased. The trial judge found the complainant was “likely” unconscious “due to a combination of fatigue and intoxication,” and therefore incapable of consenting to sexual activity in question (Paquette at para 19.) He then went on to find that the accused did not take reasonable steps to ascertain the complainant’s consent, ultimately finding the accused guilty of sexual assault.
[34] The accused appealed the decision on the basis that the trial judge misapprehended the evidence. In particular, the Accused took issue with the fact the trial judge found the complainant unconscious due to her level of intoxication and fatigue, and yet he also found that she was “only sufficiently intoxicated that her judgment could be called into question” (Paquette at para 18).
[35] On review of the evidence, the reviewing judge found that the complainant was “behaving in such a way as to indicate that she was in possession of her faculties” before, at the time of, and after the alleged sexual assault (Paquette at paras 22 and 24). Without addressing the fact that the trial judge found, that the complainant went to sleep alone in a bedroom prior to the assault, the reviewing judge found that the complainant had faculties sufficient to be capable of consent, if she were of such a mind, immediately prior to the incident. The Superior Court of Justice held, at para 24, that:
[T]he trial judge’s conclusion that the Complainant was helpless and unconscious is, without the benefit of reasons why he takes this view, simply not supportable. Without the conclusion, and its necessary implication, namely, that the Complainant was incapable of consenting to sexual activity, there is no basis for concluding that she did not in fact consent to the appellant’s actions.
[36] In the case at hand, while the Complainant’s intoxication and fatigue played a role in how deep she was sleeping; the Court finds that she was initially unconscious, and therefore incapable of consenting, because she was asleep. Section 273.1 provides that no consent is obtained if the complainant is incapable of consenting to the activity. As R. v. A(J.) confirmed, “the definition of consent for sexual assault requires the complainant to provide actual active consent throughout every phase of sexual activity. It is not possible for an unconscious person to satisfy this requirement” (R. v. A.(J.) at para 66) [emphasis added]. Those who are asleep at the time sexual touching commences lack the requisite consciousness to consent. Touching of a sexual nature that occurs in the absence of consent is sexual assault.
[37] Because I accept the complainant’s testimony that she was asleep immediately prior to and when penetration began, she was incapable of consenting to the sexual activity in question. Moreover, once the complainant was awake she did not communicate, by words or conduct, her consent. As there was no consent by the complainant to the accused’s sexual touching; the actus reus of the offence is made out.
[38] The Crown has proven no consent beyond a reasonable doubt.
Did the Accused have an Honest Mistaken Belief in Consent?
[39] In R. v. Livermore, 1995 43 (S.C.C.), 1995 CanLII 43 (SCC), [1995] 4 S.C.R. 123 at 135, McLachlin J. explained that the defence of honest but mistaken belief in consent “involves two elements: (1) that the accused honestly believed the complainant consented; and (2) that the accused have been mistaken in this belief.”
[40] Honest and mistaken belief can be raised if it is established that the accused believed that the complainant affirmatively communicated consent through their words or actions: (R. v. Ewanchuk). The defence will be made out where the trier of fact finds that there is a reasonable doubt that the accused had an honest but mistaken belief that the complainant was consenting. This means the Crown has to prove beyond a reasonable doubt that the accused’s belief that the complainant was consenting is not honestly held (R. v. S.(J.), 2012 ONCA 684).
[41] Section 273.2(b) of the Code introduces a partly objective standard for determining whether the accused’s belief was honestly held.
273.2 It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where
(a) The accused’s belief arose from the accused’s
(i) self-induced intoxication, or
(ii) recklessness or wilful blindness; or
(b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.
[42] If I were to conclude that there was consent in any of the aforementioned circumstances (see: s. 273.2(a) and 273.2(b)) it would amount to an error of law. An error of law can result from erroneous assumptions or conclusions about the legal significance of a fact. Mistake of law is not a defence to sexual assault, whereas mistake of fact is.
[43] Mistake of fact goes to mens rea. As the Supreme Court stated in R. v. A.(J.), at para 37:
[I]t is important to keep in mind the differences between the meaning of consent under the actus reus and under the mens rea: Ewanchuk, at paras. 48-49. Under the mens rea defence the issue is whether the accused believed that the complainant communicated consent. Conversely, the only question for the actus reus is whether the complainant was subjectively consenting in her mind. The complainant is not required to express her lack of consent or her revocation of consent for the actus reus to be established.
[44] As reiterated by Ewanchuk, the following will not be sufficient to establish a mistaken belief in consent:
• A belief that silence, passivity or ambiguous conduct constitutes consent is a mistake of law, not fact, and is no defence to sexual assault.
• An accused cannot rely on their belief that the complainant’s expressed lack of agreement to sexual touching constitutes an invitation for more persistent or aggressive contact.
• Once a complainant has expressed an unwillingness to engage in sexual contact, the accused should make certain that the complainant has changed her mind before engaging in intimacy.
• The accused cannot rely on lapse of time, silence, or equivocal conduct to indicate there has been a change of heart and that consent now exists. Nor can an accused engage in sexual contact to encourage further sexual activity.
(a) Is there an air of reality to the defence?
[45] Before evaluating whether the accused held an honest but mistaken belief, the judge must determine whether there is an air of reality to the defence. Whether there is an air of reality to the accused’s honest mistaken belief is a question of law that must be met by the trial judge for the defence to be put to the trier of fact (Ewanchuck at para 56).
[46] As previously stated, the defence of honest but mistaken belief can be raised if it is established that the accused believed that the complainant affirmatively communicated consent through their words or actions (Ewanchuck at para 64). Again, consent cannot be implied.
[47] The air or reality test imposes an evidential burden, rather than a persuasive burden, on the accused. As per R. v. Cinous, [2002] 2 S.C.R. 330, while the trial judge has the duty to put to the jury any defence for which there is an air of reality, the judge also has a duty not to put defences for which there is no air of reality. A defence possesses an air of reality if there is: (1) evidence; (2) upon which a properly instructed jury acting reasonably could acquit the accused on the basis of the defence.
[48] In applying the air of reality test the judge is to consider the totality of the evidence, without weighing evidence, assessing credibility, making findings of fact, or drawing factual inferences (Ewanchuk at para 57, and Cinous).
[49] All that is required is for the accused to adduce some evidence, or refer to evidence already adduced, upon which a properly instructed trier of fact could form a reasonable doubt as to his mens rea: R.v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595 at pp. 653-54, and p. 687 (Ewanchuck at para 56). Whether or not the defence is specifically raised by the accused, if there is an evidentiary basis from evidence, the defence must be put to the trier of fact (R. v. Esau).
(b) Did the accused honestly believe the complainant communicated consent?
[50] If I find that he did, and his belief is not statutorily prohibited, I must acquit.
[51] If the air of reality test is met, “then the question which must be answered by the trier of fact is whether the accused honestly believed that the complainant had communicated consent. Any other belief, however honestly held, is not a defence” (Ewanchuk at para 64).
[52] To be honest the accused’s belief cannot be reckless, willfully blind or tainted by an awareness of any of the factors enumerated in ss. 273.1(2) and 273.2. If this evidence raises a reasonable doubt as to the accused’s mens rea, the charge is not proven.
(i) Did the accused take reasonable steps?
[53] As previously stated, s. 273.2(b) also precludes the defence of honest but mistaken belief where the accused did not take reasonable steps to ascertain consent.
[54] Whether the accused took reasonable steps is a question of fact to be determined by the trier of fact only after the air of reality test has been met.
[55] An accused does not have to take all reasonable steps (Ewanchuk). Moreover, the assessment of what constitutes a reasonable step is to be evaluated on a subjective/objective basis, with regard to what the accused knew at the time, and what a reasonable person in the same circumstances would do.
[56] According to R. v. Malcolm, (2000) 2000 MBCA 77, 35 C.R. (5th) 365, 147 C.C.C. (3d) 34 (Man C.A.), leave to appeal refused, to determine the reasonableness of the accused’s conduct, a trial judge should first decide what circumstances the accused knew, and ask whether a reasonable person, aware of the same circumstances, would take further steps before proceeding with the sexual activity. Where a reasonable person would, but the accused has not taken further steps, the accused may not rely on mistaken belief in consent.
[57] As explained by Professor Kent Roach in Criminal Law, 2d ed. (Toronto: Irwin Law, 2000) at pp. 157-158:
The denial in section 273.2(b) of the mistake of fact unless the accused takes reasonable steps in the circumstances known to him at the time to ascertain whether the complainant was consenting to the activity in question combines subjective and objective fault elements in a novel and creative manner…The accused’s obligation to take reasonable steps is only based on what he subjectively knows at the time. On the other hand, section 273.2(b) requires the accused to act as a reasonable person would in the circumstances by taking reasonable steps to ascertain whether the complainant was consenting. Much will depend on the Court’s view of what reasonable steps are necessary to ascertain consent. Some judges may find that positive steps are required in most, if not all, situations regardless of the accused’s subjective perception of the circumstances. Others may only require such steps if the complainant has indicated resistance or lack of consent in some way that is subjectively known to the accused.
[58] Indeed, much of the jurisprudence about what constitutes a reasonable step has been inconsistent and fact specific (see: Elizabeth Sheehy, Judges and the Reasonable Steps Requirement: The Judicial Stance on Perpetration Against Unconscious Women, in Sexual Assault in Canada (2012: University of Ottawa Press, Ottawa), at pages 483-540.)
[59] Without assessing credibility or making findings of fact as per R. v. Ewanchuk and R. v. Cinous, in this case there is an air of reality in Mr. D.’s defence of mistaken belief in consent. The complainant had invited Mr. D. to a party in a location that was quite a distance from his apartment. The complainant probably knew that the local buses did not run after 1:30 a.m. The complainant had introduced him to the other occupants of her new apartment and allowed Mr. D. to consume alcohol and join her party. Mr. D. acknowledges that the encounter between him and the complainant unfolded more or less as she describes it but disputes that a crime took place.
[60] Mr. D. testified that the complainant was potentially on the rebound as she was having problems in her relationship. She was lying on a futon parallel to his mattress on the floor. There has been no force nor physical violence involved in the incident and both the complainant and Mr. D. had consumed alcohol.
[61] This gives Mr. D.’s defence an air of reality.
[62] Having met the air of reality threshold, I have to consider (1) whether the accused honestly believed the complainant consented; and (2) that the accused had been mistaken in this belief.
[63] Having found that there was no consent, the accused is mistaken in any belief that the complainant consented.
[64] Again,
It is not a defence to sexual assault that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where
(a) the accused’s belief arose from the accused’s
(i) self-induced intoxication, or
(ii) recklessness or wilful blindness; or
(b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.
[65] With regard to whether the accused had an honest mistaken belief, I find that he did not.
The Reasonable Steps
[66] The defence of honest but mistaken belief is not available to Mr. D. as I do not believe that he took reasonable steps to ascertain the complainant’s consent. Mr. D knew that the complainant had just moved in a new apartment that day following a day’s work. He also knew that she had consumed enough alcohol and smoked some marihuana during the course of the evening until the early hours of the next day.
[67] Any reasonable person in Mr. D.’s circumstances would have taken steps to ascertain the complainant’s consent. Mr. D. states that he woke her up. I find that he did wake her up but not by shaking her shoulders but by proceeding to have intercourse when the complainant could not consent because she was asleep. Mr. D. who had not been romantically involved with the complainant previously, assumed that she was on the rebound and was sexually available to him.
[68] Mr. D.’s alleged reasonable step was shaking the complainant and looking the complainant in the eyes. This was not reasonable. I believe that once the complainant was aware that her body had been penetrated, she pretended to sleep while moving enough so that Mr. D.’s penis would leave her body.
[69] Mr. D.’s statement that he believed that she was on the rebound because of a difficult relationship with her boyfriend, who was also his friend, destructs from the real fact that he followed his sexual impulses. In the morning he was not surprised when he was told in no uncertain terms to get out. I believe that the complainant waking up from her sleep, drowsy, feeling Mr. D.’s body thrusting into hers did not have a chance to consent and Mr. D. was wilfully blind as to whether or not he had consent. Wilful blindness arises in situations where it is obvious in the circumstances that there is no true consent (not just a risk that there may not be a consent) but the accused does not confirm the lack of consent because he wants to be able to say that he did not “know” that there was no consent. Because the accused did not take reasonable steps to ascertain consent, and because he was wilfully blind to her lack of consent, Mr. D. does not have an honest mistake belief in consent.
[70] I will not guide you through some further definitions of terms and concepts I used in deciding this case.
[71] I have instructed myself with the definition of reasonable doubt given by Mr. Justice Peter Cory, as he then was in the Supreme Court of Canada, in the decision of R. v. Lifchus (1997), 118 C.C.C. (3d) at 1. He states the following:
39 Instructions pertaining to the requisite standard of proof in a criminal trial of proof beyond a reasonable doubt might be given along these lines:
The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the Crown has on the evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty.
What does the expression “beyond a reasonable doubt” mean?
The term “beyond a reasonable doubt” has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning.
A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.
Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.
On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.
In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt.
[72] The appreciation of credibility as said by the Ontario Court of Appeal in R. v. Agil (1996), 1996 CanLII 500 (ON CA), 91 O.A.C. 1, is, as always the case, of crucial importance, and of course, I have instructed myself from the case of R. v. W.(D.), [1971] 1 S.C.R. 742 [R. v. W.(D.)], and in that decision they quote the case of R. v. Challlice (1979), 1979 CanLII 2969 (ON CA), 45 C.C.C. (2d) 546 (Ont. C.A.) as to what should be considered on credibility.
[73] First, if you believe the evidence of the accused, obviously, you must acquit. Secondly, if you do not believe the testimony of the accused but you are left in a reasonable doubt by it, you must acquit. Thirdly, even if you are not left in a reasonable doubt by the evidence called for the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
[74] Mr. D. I do not believe your evidence and I am not left with a reasonable doubt by it. On the whole of the evidence, on the basis of the evidence that I do accept, I am not left with a reasonable doubt about your guilt.
Stand up Mr. D.
[75] I find you guilty as charged.
Lalonde J.
Released: January 22, 2015
CITATION: R. v. D., 2015 ONSC 491
COURT FILE NO.: 12-5011
DATE: 2015/01/22
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
D.D.
reasons for decision
Lalonde J.
Released: January 22, 2015