Court File and Parties

COURT FILE NO.: CR-16-50000743-0000 DATE: 20170503 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Anthony Magiri

BEFORE: S. F. Dunphy, J.

COUNSEL: Valerie Culp, for the Crown/Respondent Franklin Lyons, for the Defence/Applicant

HEARD: May 2, 2017

Endorsement

[1] This is an application brought by the accused Anthony Magiri seeking a declaration that s. 273.1(2)(b) of the Criminal Code is void for vagueness and violates s. 7 and s. 12 of the Canadian Charter of Rights and Freedoms. Mr. Magiri is charged with sexual assault contrary to s. 271 of the Criminal Code.

[2] Section 273.1(2)(b) of the Criminal Code provides that “no consent is obtained, for the purposes of s. 271 …where…(b) the complainant is incapable of consenting to the activity”. The issue before me is whether the term “incapable” used in relation to consent is so lacking in precision as to be incapable of consistent application and thereby failing to afford fair notice to an accused as to the limits of proscribed activity, thereby violating the rights of the accused to liberty under s. 7 of the Charter and the right not to be subjected to cruel and unusual punishment under s. 12 thereof.

[3] I dismissed the application at the hearing for written reasons to follow. These are those reasons.

Factual Background

[4] The accused Anthony Magiri is charged with the indictable offence of sexual assault. The matter is currently scheduled for trial before a judge and jury on May 15, 2017. This application was brought before me as a preliminary application by the accused.

[5] There was some discussion at the outset of the hearing as to whether the matter should be heard before me today. The defence objected to the Crown having included in its factum evidence from a statement made by the accused the admissibility of which will be an issue at trial. The Crown suggested that I would need to consider such evidence in order to understand its position on this application in its full context.

[6] I did not agree with the Crown position. The evidence in question all relates to the possible defence of honest but mistaken belief. Of course that defence is only an issue if the Crown has proved its case beyond a reasonable doubt. The evidence of the statements made by the accused is not at all material to the question to be decided by me and was accordingly disregarded.

[7] The application before me relates solely to the essential elements of the offence of sexual assault itself and does not directly involve the parameters of the defence of honest but mistaken belief. I say “not directly” since the defence of honest but mistaken belief must necessarily be belief in the existence of the type consent contemplated by the Criminal Code and not in any personal or subjective definition of the phrase that a particular accused may have adopted.

[8] While I concur with the Crown that an appreciation of the factual matrix is necessary in order to place the argument being advanced in context, the factual matrix stipulated by the Crown and acknowledged by the accused application is adequate for the purpose. Please note, the accused has not admitted any of these facts for the purposes of the trial. They are taken as admitted solely for the limited purpose of this application.

[9] That agreed factual matrix is as follows:

a. The accused is charged with the indictable offence of sexual assault; b. The complainant and the accused were drinking together on the night in question; c. The complainant has no memory of having sex with the accused nor any memory of events after 1:30 a.m. until she woke up in bed beside the accused; d. DNA evidence confirmed that the accused had engaged in sexual relations with the complainant.

[10] It is not known at this point whether the accused will present any evidence. The defence of honest but mistaken belief may or may not be an issue at trial.

Discussion and Analysis

[11] Both parties agree that the proper framework in which to consider the vagueness doctrine is laid out by the Supreme Court of Canada in Ontario v. Canadian Pacific Ltd., [1995] 2 SCR 1031. Pursuant to Canadian Pacific, the court must analyse (at para. 47):

a. The purpose, subject-matter and nature of the impugned provisions; b. Societal values; c. Related legislative provisions; and d. Prior judicial interpretations of the provision.

[12] There is broad agreement between the parties on the first three criteria. They differ on the application of the fourth (prior judicial interpretation).

[13] The applicant’s position is that the statute provides insufficient guidance as to the standard to be applied to assess capacity to grant consent to sexual activity. The concept casts a wide net that may apply to a broad spectrum of circumstances ranging from actually unconscious to “not completely rational”. The result, submits the applicant, is that the law is of no use to a citizen in seeking to understand at what point a person is unable to consent. If the accused is not able adequately to understand the parameters of consent prescribed by the law, the accused may not be able to form the requisite mens rea to commit the offence but may nevertheless be found guilty of it if a judge or jury subsequently determines that capacity was in fact absent.

[14] In support of this contention, the applicant directed me to a number of cases dealing with the question of consent in relation to intoxication. These cases, the applicant contends, establish that the question of when a conscious complainant is so intoxicated as to lose the capacity to give consent has resulted in inconsistent decisions and an ultimately subjective approach to the question.

[15] I cannot agree.

[16] The applicant cited the decision of Trotter J. (as he then was) in R. v. Meikle, 2011 ONSC 650. In Meikle the agreed facts bore numerous similarities to assumed facts in the present case. The complainant awoke in bed with the accused with no memory of having had sexual intercourse with the accused. She had blacked out due to alcohol consumption. The complainant was unable to assert that she had not in fact consented, having no memory. The issue was whether she had the requisite capacity to have consented at the time.

[17] There was no independent or objective evidence as to the level of intoxication of the complainant. The accused’s evidence of the complainant’s apparent lack of intoxication was rejected as self-serving. However, a friend had seen her earlier and noted a level of intoxication that did not appear extreme. In the result, Trotter J. found there was reasonable doubt as to whether the complainant’s level of intoxication crossed the line to the point of incapacitation and acquitted.

[18] The decision of the Supreme Court in R. v. Daviault, [1994] 3 S.C.R. 63 appears to me to be of quite limited relevance. Daviault was a decision dealing with the application of the defence of drunkenness (of the accused) and not the capacity of the complainant to consent to sexual relations.

[19] The case of R. v. J.W.M., [2004] O.J. No. 1295 (S.C.J.), was a conviction appeal by an accused who had sexual relations with an intoxicated complainant who had vomited and been put to bed by him in his apartment. The accused alleged that the complainant had recovered from this condition when he joined her in the bed a couple of hours later and found her awake. Hill J. found, as did Trotter J. in Meikle, that consent is a factual issue to be determined by the trier of fact. He concluded that “in light of the detailed evidence of witnesses as to the complainant’s extreme degree of intoxication to 1:00 a.m.” it was “reasonable to conclude that the appellant’s testimony of a remarkable recovery by T.W. by 2:30 a.m. was manifestly false” (at para. 59).

[20] In R. v. J.R., 2006 ONSC 22658 aff’d 2008 ONCA 200, Ducharme J. convicted the accused of sexual assault where the complainant had been extremely intoxicated from both alcohol and drugs and had no memory of the actual incident of the accused having sex with her. He found (at para. 20):

“This does not mean that evidence of memory loss or a blackout is unimportant, irrelevant or necessarily lacking in probative value. It may well be circumstantial evidence which, when considered with other evidence in a case, may permit inferences to be drawn about whether or not a complainant did or did not consent or whether she was or was not capable of consenting at the relevant time. But even here, while not required as a matter of law, for such evidence to be probative, some expert evidence will almost always be essential”.

[21] The applicant would seek to contrast this approach to R. v. Saadatmandi, 2008 BCSC 250. I am at a loss to discern the conflict alleged to exist between J.R. and Saadatmandi, the latter involving consumption of a particular drug (not alcohol) about which there was specific expert evidence as to its impact on memory.

[22] While I do not accept as a premise that the mere existence of conflicting lines of jurisprudence necessarily renders a criminal statute so vague as to be unenforceable (the reconciliation or correction of such conflict being a primary function of appellate courts, including the Supreme Court of Canada), I simply cannot find any such fundamental conflict has been demonstrated here.

[23] The approach to s. 273.1(2)(b) of the Criminal Code demonstrated by the jurisprudence to which I have been directed shows consistency and uniformity.

[24] Parliament has wrestled with the proper balance in reconciling the rights of an accused with the rights of all persons to the protection of their personal autonomy and physical integrity for many years. Section 273.1 was introduced into the Criminal Code as part of Bill C-49 (which received Royal Assent on June 23, 1992).

[25] Bill C-49 added provisions detailing the meaning of consent in relation to sexual assault (Criminal Code, s. 273.1), with the parameters of the defence of honest but mistaken belief (Criminal Code, s. 273.2) and with the rights of the accused to seek to introduce into evidence matters relating to the sexual history of the complainant (Criminal Code, s. 276) among other reforms. The Bill was enacted in part in response to the decision of the Supreme Court of Canada in R. v. Seaboyer; R. v. Gayme, [1991] 2 S.C.R. 577.

[26] Today, many of these reforms may seem to have been somewhat obvious. However, at the time they were thought necessary precisely because some of the concepts enshrined in them were insufficiently obvious to some.

[27] At the core of these reforms was an updating of the understanding of the fundamental role of consent in protecting the personal integrity and autonomy of the individual in matters of sexual relations. Section 273.1(1) of the Criminal Code introduced a specific definition of “consent” for the purposes of sexual assault to be “the voluntary agreement of the complainant to engage in the sexual activity in question”.

[28] In this context, the provision of s. 273.1(2)(b) of the Criminal Code that “no consent is obtained…where….the complainant is incapable of consenting to the activity” is no more than a simple corollary of the positive requirement that actual consent to the activity exist in the first place. A voluntary agreement necessarily requires sufficient capacity to make an agreement. One cannot exist without the other.

[29] The actus reus of the offence of sexual assault requires the Crown to prove, beyond a reasonable doubt, that the complainant did not in fact voluntarily agree to the sexual activity in question. The inquiry is necessarily a subjective one – it will depend on the actual state of mind of the complainant in each case. If a complainant actually lacked in fact the capacity to consent, whether by reason of lack of consciousness, young age or a (temporary or permanent) cognitive impairment from whatever source, it cannot be said that such a person actually, subjectively consented to the activity in the sense of having given actual voluntary agreement to engage in the sexual activity in question.

[30] The Crown must of course prove both the actus reus and the mens rea elements of the offence. The applicant suggests that the evidence in this case may well show that the complainant was at least apparently granting her positive agreement to undertake the sexual activities in question even if other evidence establishes that such apparent agreement was given without actual capacity, depending upon how “high” a threshold of capacity is applied [1].

[31] In my view, the problem suggested by the applicant is more theoretical than real. The applicant was able to point to no case where the evidence of an accused that there was “apparent consent” was accepted by the court notwithstanding the complainant’s state of extreme intoxication. In neither Meikle nor J.W.M., did the court accept the evidence of the accused regarding the alleged capacity of the complainant. It will be a question of fact in each case whether “apparent” consent was actually given and, if so, whether the complainant giving such apparent consent nevertheless lacked actual capacity. That is not the sort of question that can be addressed in the abstract – suffice it to say that no such instance has been shown to me in precedent and whether the evidence will bear that out in the present case, I cannot say. I can however state that the mere possibility that this may be so in a given case does not render the requirement for capacity to grant consent vague or unenforceable.

[32] There is nothing inherent in the concept of capacity that deprives an accused of the ability to challenge the sufficiency of evidence of mens rea or to demonstrate the existence of an honest but mistaken belief in the existence of actual agreement to engage in the sexual activity in question.

[33] There is neither conceptual ambiguity nor any fundamental lack of consistency in the case law regarding the concept of capacity. As I have noted, capacity is itself implicit in the very concept of consent itself fundamentally embedded in the Charter-protected value of liberty.

[34] For the foregoing reasons, I have dismissed the application.

S.F. Dunphy, J. Date: May 3, 2017

[1] I am not to be taken as accepting the premise of the applicant that the “threshold” question of capacity is subjective and variable as alleged.