Court File and Parties

COURT FILE NO.: CR-19-83 DATE: 2021 02 08

ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

B E T W E E N:

HER MAJESTY THE QUEEN Appellant

Arish Khoorshed, for the Crown

- and -

MYKAL HAMILTON Respondent

Lydia Riva, for the Respondent

HEARD: January 27, 2021

REASONS FOR JUDGMENT

[On appeal from the acquittal entered by Justice A. Cooper of the Ontario Court of Justice on May 30, 2019]

F. Dawson J.

[1] The respondent was found not guilty of sexual assault following a trial before Justice A. Cooper of the Ontario Court of Justice. The Crown appeals, alleging that the trial judge erred by limiting his analysis to whether the complainant lacked the capacity to consent, while failing to address her direct assertion that she did not consent to the sexual activity in question. The appeal is allowed for the reasons that follow. Although the appellant submits that the record is so clear that the error should result in the substitution of a conviction, I am of the view that a new trial should be ordered.

Factual Background

[2] The parties take no issue with the trial judge’s summary of the main events, which was to the following effect.

[3] The complainant, S.L., 17 years old at the time, and the respondent were not dating but had been good friends for a year and a half. S.L. agreed to accompany the respondent to his high school graduation prom and to an after-prom party held on a rented floor of a college dormitory. Although it was not part of the original plan, S.L. and the respondent ended up spending the night in a bedroom in the dormitory. S.L. changed into a tee shirt and shorts before getting into bed. She fell asleep as the respondent and another young man had a conversation in the room.

[4] S.L. was drinking during the evening. She consumed several drinks of vodka and rum and became intoxicated. At one point during the evening, the respondent sat down beside S.L. and placed his hand on her leg and then on her vagina, over her clothing. He did this twice. Each time S.L. removed his hand. She then left the room to get away from him. She was surprised by the respondent’s behaviour and did not want it to happen.

[5] Prior to accepting the respondent’s invitation to the prom, S.L. told the respondent that she was not interested in having an ongoing dating relationship with him. She had originally intended to spend the night after the prom at the home of her friend Jake and his parents. Jake was also going to the prom. S.L.’s plans only changed when Jake decided he would spend the night in the dormitory. She did not want to spend the night with Jake’s parents if Jake was not at home.

[6] When S.L. was asked why she would spend the night with the respondent after the unwanted touching that occurred during the party, she said that she did not see that as a problem “because I made it clear that I didn’t want him touching me and I trusted him more than a random person.” She mentioned that she was also very drunk.

[7] At some point after S.L. fell asleep in the dorm room the respondent shook her shoulders to wake her up. As she knew what he wanted, she pretended to be asleep. The respondent began to fondle her, took her underwear off and moved her onto her back. She crossed her legs, but he uncrossed them and then had oral sex and sexual intercourse with her. She said she couldn’t move and couldn’t talk. Afterwards she was shaking and scared as she had not expected this from her friend.

[8] In the morning S.L. felt ill and noticed blood and cuts in her vaginal area. She did not know what to do and pretended that it never happened. She called her father to pick her up earlier than planned.

[9] The complainant eventually told her mother what had happened after discussions with another young man she had met at the prom. He told her the respondent was boasting of having had sex with her. He convinced her to go to the hospital for an examination and to contact the police. S.L.’s mother accompanied her to the hospital. At a later point the respondent texted S.L. acknowledging that he had sex with her. S.L. never spoke to him again.

[10] The respondent did not testify or call any evidence at trial. No issue of honest belief in consent was raised by the respondent.

The Reasons for Judgment

[11] During his summary of the evidence the trial judge reviewed other circumstances surrounding the already described main events. On occasion he did so by quoting directly from S.L.’s trial testimony and from her video recorded statement to the police, which was admitted into evidence pursuant to s. 715.1 of the Criminal Code. Those circumstances included that S.L. was not going to report the incident until she was told by friends that the respondent was not intoxicated when he had sex with her, that she took photos of the respondent which she posted on social media after the prom together with messages saying, “Had so much fun!” and thanking the respondent for inviting her “to such an amazing night”.

[12] S.L. also sent the respondent text messages to the same effect. She agreed that she had deleted some photos and messages without telling the police or Crown counsel that she did so. The trial judge included an extensive excerpt from the complainant’s cross-examination where defence counsel challenged the complainant about her choice to stay with the respondent in the dormitory, and about sending “streaks” of photos to social media sites. It was also suggested to S.L. that she removed her own clothing, did not tell the respondent to stop and that she was a willing participant in the sexual activity.

[13] The complainant agreed that she did not tell the respondent to stop, although at one point she asked him what he was doing. However, she denied that she engaged with or helped the respondent or did anything to “facilitate the intercourse”. She maintained that she did not want or agree to the sexual activity in question.

[14] The effects of alcohol consumption on S.L. figured prominently in her video recorded statement, admitted as part of her evidence pursuant to s. 715.1 of the Criminal Code. During the evidential portion of the trial Crown counsel called expert evidence and attempted to establish that the complainant likely had a blood alcohol level within a range which would support a conclusion that she did not have the capacity to consent to sexual activity. However, near the beginning of her closing submissions at the trial, Crown counsel conceded that the evidence fell short of establishing the complainant’s blood alcohol level with such precision. While the level of the complainant’s intoxication remained in issue, Crown counsel’s closing submissions included that at no time did the complainant consent or communicate that she was consenting, and that the complainant did some things to communicate her lack of consent. Crown counsel made it clear that consent and not just capacity to consent was in issue.

[15] The trial judge reserved his decision and released written reasons about three and a half months later acquitting the respondent.

[16] The trial judge dealt with the applicable law very briefly under a separate heading in his reasons for judgment. He set out ss. 271 and 273.1 of the Criminal Code in their entirety. Section 271 creates the offence of sexual assault and specifies a penalty. Section 273.1(1) defines consent as “the voluntary agreement of the complainant to engage in the sexual activity in question”. Section 273.1(2) specifies certain circumstances in which no consent is obtained for the purposes of s. 271. The trial judge added bolding to s. 273.1(2)(b), which specifies that no consent is obtained where “the complainant is incapable of consenting to the activity”.

[17] The trial judge then concluded his section on the law as follows: “The onus is at all times on the Crown to prove beyond a reasonable doubt the guilt of the defendant and a lack of consent, and that the complainant did not have the capacity to consent” (emphasis added). I observe that by using the word “and” rather than “or” in relation to proof of a lack of capacity to consent, the trial judge was instructing himself that, in the circumstances of this case, lack of capacity to consent was an essential element of the offence which the Crown had to prove in order to succeed. On this formulation, failure to prove incapacity to consent would necessarily lead to an acquittal.

[18] Under the heading of “Analysis” the trial judge said, at para. 36 of his reasons, that the Crown’s submission was that the complainant “was either asleep or in some state of unconsciousness due to intoxication at the time the sexual acts took place”. He also observed that Crown counsel relied on s. 273.1(2)(b) of the Criminal Code “which states that no consent is obtained where the complainant is incapable of consenting to the activity”. At no point in his reasons does the trial judge acknowledge or deal with the other aspects of the Crown’s submissions.

[19] The trial judge then stated at para. 38 of his reasons: “The problem with the Crown’s submission is that although S.L. may have been intoxicated, she was not unconscious.” He then referred to the complainant’s evidence that she woke up but did not tell the respondent to stop digitally penetrating her or to stop having oral sex with her. He also mentioned that, while she crossed her legs at one point, she never told the respondent to stop.

[20] Then, after referring to it not being clear why the complainant went back to the dorm room with the respondent after he had touched her sexually earlier in the evening, did not attempt to leave and stay at Jake’s parents or find another place to stay and noting that she knew the effects of alcohol on her, the trial judge concluded that the Crown had failed to establish S.L.’s incapacity to consent. He did so in the following words, at para. 41 of his judgment:

I am unable to say that the complainant or any witness in this case was not attempting telling (sic) the truth. S.L. was intoxicated from alcohol consumption and may not have remembered everything accurately. What she did say she remembered is not sufficient to establish her incapacity to consent to the sexual acts in question. [Emphasis added.]

[21] After referring to two cases concerning what must be shown to prove incapacity to consent to sexual activity the trial judge found the respondent not guilty. At no time did the trial judge specifically address the complainant’s testimony or the Crown’s submission that S.L. did not want to have sexual activity with the respondent.

Analysis

[22] Respectfully, I am of the view that the trial judge erred by seeing this case as turning solely on whether Crown counsel had established beyond a reasonable doubt that the complainant lacked the capacity to consent to sexual activity. As held in R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346, at para. 4:

The Criminal Code sets out a two-step process for analyzing consent to sexual activity. The first step is to determine whether the evidence establishes that there was no “voluntary agreement of the complainant to engage in the sexual activity in question” under s. 273.1(1). If the complainant consented, or her conduct raises a reasonable doubt about the lack of consent, the second step is to consider whether there are any circumstances that may vitiate her apparent consent. Section 265(3) defines a series of conditions under which the law deems an absence of consent, notwithstanding the complainant’s ostensible consent or participation: Ewanchuk, at para. 36. Section 273.1(2) also lists conditions under which no consent is obtained.

[23] There is no indication in the trial judge’s reasons that he considered and came to grips with the first step in the consent analysis. He did not reject the complainant’s evidence as not credible and did not say that any reliability concerns he harboured led to a reasonable doubt about proof of lack of consent at the first stage of the analysis. Once the trial judge determined that S.L. had the capacity to consent, on this record, the question remained whether non-consent had been established beyond a reasonable doubt by S.L.’s evidence. While at paras. 34 and 36 of his reasons there is mention of the requirement that the sexual acts take place without the consent of the complainant, the trial judge never addressed proof of a lack of consent on any basis other than alleged incapacity.

[24] As previously mentioned, at para. 34 of his reasons, the trial judge used the word “and” rather than “or” when referring to what the Crown had to prove to obtain a conviction in this case. That had the effect of making capacity an essential element of the offence resulting in an acquittal in the event of a failure of its proof. I have considered whether the use of the word “and” rather than “or” might reflect only an accidental slip of the pen. Several considerations lead me to reject that.

[25] First, I observe that the trial judge focused his section on the law on s. 273.1(2)(b) of the Criminal Code, which provides that no consent is obtained where the complainant is incapable of consent. He made no reference to the subjective nature of consent or to the leading authorities which deal with that.

[26] Second, in describing the Crown’s submissions, the trial judge referred only to a submission that the complainant was either asleep or unconscious. No mention is made of the Crown’s first submission that the evidence of the complainant established a lack of consent, quite apart from any issue about her capacity to consent.

[27] It is for this reason that I am also unable to accept the respondent’s main submission on appeal, that the trial judge’s reasons reflect no error because they are responsive to the way in which the Crown’s case was presented at trial. While Crown counsel’s focus on capacity during the evidential portion of the trial raised the profile of that issue, there was clear evidence from S.L. that she did not want to have any sexual activity with the accused and a transcript of closing submissions demonstrates that lack of consent on that basis was advanced by Crown counsel as a route to conviction.

[28] Given that the sexual acts were acknowledged by the respondent, unless S.L.’s evidence was rejected or a reasonable doubt remained about whether lack of consent had been established by her testimony, the Crown’s case could be made out by proof of lack of consent at the first stage of the Hutchinson analysis. Whether a complainant consented is subjective to the complainant and is determined by reference to the complainant’s internal state of mind in relation to the touching at the time it occurred: R. v. Ewanchuk, [1999] 1 S.C.R. 330, at para. 26; R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at para. 34; R. v. Barton, 2019 SCC 33, [2019] S.C.J. No. 33, at para. 88. The question is whether the complainant wanted the sexual touching to take place: Ewanchuk, at para. 48; Barton, at para. 89. The accused’s perception relates only to the mens rea of the offence and has no place in the analysis regarding consent: Ewanchuk, at para. 30. If the trier accepts the complainant’s evidence beyond a reasonable doubt that she did not consent then lack of consent will be established: Ewanchuk, at para. 31; Barton, at para. 89.

[29] However, the trial judge did not find that S.L. was not credible. As already mentioned, the trial judge concluded that all the witnesses were “attempting” to tell the truth. While the trial judge was not sure the complainant remembered everything correctly, there was significant evidence from the complainant that she did not consent to the sexual activity in question. At no point does the trial judge say that he has a reasonable doubt about whether S.L was consenting. On a reading of the trial judge’s reasons as a whole, it seems to me that he focused on whether non-consent had been proven on the basis of incapacity alone and failed to appreciate that he had to go beyond a consideration of capacity to consent before he could find the respondent not guilty. The trial judge’s reasons, read as a whole, persuade me that he treated this as a one issue case. As it was not, the verdict cannot stand.

[30] The respondent submits on appeal that the trial judge was aware of the need for lack of consent to be proven beyond a reasonable doubt. The submission continues that the trial judge referred to several factors which must have led him to reject proof of lack of consent at the first stage of the analysis and that such a conclusion is implicit in his reasons read as a whole. I am unable to accept this submission.

[31] Under the heading of “Analysis” the trial judge referred to the complainant failing to tell the respondent to stop penetrating her digitally, to stop performing oral sex or to stop intercourse. He also referred to a lack of clarity as to why the complainant slept in the dorm room instead of making other sleeping arrangements. However, these comments were prefaced, at para. 38 of the trial judge’s reasons, by a clear indication that he was making these references in the context of explaining that the complainant was conscious. Therefore, he stated that he was considering these circumstances only in relation to the capacity issue. The trial judge must also be assumed to have been well aware that there is no requirement that a complainant say “no” or offer any degree of resistance: R. v. M.L.M., [1994] 2 S.C.R. 3. As stated by Major J. in Ewanchuk, at para. 51, “a belief that silence, passivity or ambiguous conduct constitutes consent is a mistake of law, and provides no defence.” I am satisfied that this was not part of the trial judge considering and rejecting proof of non-consent on a basis other than alleged incapacity.

[32] While the surrounding circumstances referred to by the trial judge may be considered when assessing the credibility of a complainant’s testimony, here the trial judge made no adverse credibility finding and said that S.L. was “attempting” to be truthful. Therefore, I am unable to accept the respondent’s submission that the trial judge should be taken from these references to have made an adverse finding to the Crown at stage one of the consent analysis and only then to have focused on the capacity issue.

[33] These factors further support my conclusion that the trial judge saw this as a case that turned solely on whether Crown counsel had established a lack of capacity to consent and never turned his mind to the issue of consent itself.

The Appropriate Order

[34] Crown counsel submits that the evidence of a lack of consent on the part of the complainant is so clear that a conviction should be substituted for the acquittal if the appeal is allowed. I am unable to accept this submission. As the trial judge focused his attention on the issue of capacity, he did not make the findings of fact that would be required before an appellate court could substitute a conviction. A new trial is the appropriate remedy.

Conclusion

[35] The appeal is allowed, the acquittal is set aside, and a new trial is ordered, to take place before a different judge of the Ontario Court of Justice.

[36] The respondent is ordered to appear in Courtroom M1-Case Management Court at 491 Steeles Avenue East, Milton, Ontario on February 17, 2021 at 9:00 a.m. for the purpose of setting a date for the new trial.

F. Dawson J.

Released: February 8, 2021