COURT FILE NO.: 18-SA5096
DATE: 20210318
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
CAMERON KRAFT
Defendant
Robert Thomson for the appellant Her Majesty the Queen
Howard Krongold for the respondent Cameron Kraft
HEARD: July 29, 2020
By order under s. 486.4 of the Criminal Code, information that could identify the person described as the complainant in this decision may not be published, broadcast or transmitted in any manner.
SUMMARY CONVICTION APPEAL
REASONS FOR DECISION
H.J. Williams, J.
[1] This is a Crown appeal of an acquittal on a charge of sexual assault under s. 271 of the Criminal Code. The Crown argues the appropriate remedy is a new trial.
Overview
[2] The complainant and the respondent met for the first time at a friend’s Hallowe’en party. They left the party and went to the respondent’s apartment. The complainant testified that she was open to the idea of having sex with the respondent and expected that it would likely happen.
[3] When they arrived at the apartment, the complainant and the respondent kissed and touched each other. They took off all or most of their clothes. While the complainant was lying on her back with the respondent on top of her, facing her, the respondent penetrated the complainant’s vagina with his penis, without telling her that he was about to do so. Upon penetration, the complainant told him to stop, and the respondent withdrew his penis. The complainant and the respondent agree that the complainant told the respondent he needed to wear a condom. The complainant said she also told him she needed more foreplay.
[4] The complainant said the respondent removed his penis when she told him to stop, but then penetrated her again, multiple times, without putting on a condom.
[5] The trial judge acquitted the respondent of sexual assault under s. 271 of the Criminal Code. The trial judge found the Crown had failed to prove the respondent had penetrated the complainant more than once. The trial judge then found the Crown had failed to prove that the complainant had not consented to the first penetration and that the absence of a condom did not negate the complainant’s consent.
The Grounds for Appeal
[6] The Crown raised the following grounds for appeal:
That the trial judge considered irrelevant evidence in determining whether the complainant consented;
That the trial judge made multiple errors about the law of consent; and
That the trial judge misstated the defence of honest but mistaken belief in communicated consent.
[7] In its factum, the Crown had also argued that the trial judge had misapprehended the complainant’s evidence when analyzing whether she had been penetrated multiple times. The Crown counsel said at the outset of the appeal hearing that the Crown would not be relying on this ground of appeal.
The Trial Judge’s Reasons
[8] The trial judge described how the complainant and the respondent met at a party. He said that both had been drinking, but neither was significantly drunk.
[9] The trial judge said it was “of no little importance to note that the reason [the respondent] and [the complainant] left the party and walked for roughly 10 minutes to get to his apartment was to engage in some form of consensual sexual activity.”
[10] The trial judge found the evidence of the complainant and the respondent to be similar up to the point the respondent penetrated the complainant with his penis. He noted that both testified that, before the respondent penetrated the complainant, they had not talked about condoms, birth control or sexually transmitted diseases. Both had described how they were completely or mostly naked and were kissing and touching while lying on the respondent’s bed. Both said the complainant was on her back, underneath the respondent when, after a minute or two in this position, the respondent put his penis into the complainant’s vagina.
[11] The trial judge said he was mindful that the onus was on the Crown to prove that the complainant did not consent and that, when examining consent in the context of an alleged sexual assault, it was the state of mind of the complainant that was dispositive of the issue.
[12] The trial judge referred to the complainant’s testimony that “immediately upon feeling [the respondent]’s penis enter her vagina she was shocked and advised [the respondent] that he had to put a condom on, and also that she required more foreplay. Otherwise the penetration would be painful to her. It was her evidence that [the respondent] said ‘Okay’ and withdrew his penis whereupon they continued with foreplay.”
[13] The trial judge reviewed in detail the complainant’s evidence about what happened next. He did not accept the complainant’s testimony that the respondent went on to penetrate her several more times. The trial judge found some of the complainant’s evidence in this area to be contradictory and evasive. He concluded that he could not rely on it. The trial judge said that although he did not believe the respondent’s evidence about how many times he had penetrated the complainant and although the respondent’s evidence did not leave him with a reasonable doubt, the Crown had not established that the respondent had penetrated the complainant more than once.
[14] The trial judge then turned to whether the first act of penetration, to which the respondent had admitted, was consensual.
[15] The trial judge said the evidence was clear that the complainant and the respondent had gone to the respondent’s apartment in anticipation of a consensual sexual encounter. He said the position the complainant and the respondent found themselves in, with him lying on top of her and both of them naked or partially naked, was consistent with them acting on that mutual anticipation. He noted that the complainant had said that perhaps their hips were getting close just prior to penetration. He said it is hard to imagine their hips were not close. He then said:
Put bluntly: his naked penis was at that point very close to her uncovered vagina. His action in penetrating her at that point was the natural and reasonable outcome of what [the complainant] had clearly, albeit non-verbally, communicated to [the respondent]: that she wished to engage in sexual intercourse with him.
[16] The trial judge noted that consent can be communicated by way of conduct as opposed to speech. He referred to an excerpt from a decision of Hill J.[^1], which said that, as a general rule, non-verbal behaviours when relied on as expressions of consent must be unequivocal, and that a person is not entitled to take ambiguity as the equivalent of consent.
[17] The trial judge then said:
[The respondent] and [the complainant] had never engaged in sexual intercourse before. Thus, if we refer to [the complainant’s] version of this part of the story, [the respondent] could not have known of her need of further foreplay. That she was physiologically not quite ready for penetration would have been unknown to him. He clearly acted on the mutual positioning of their bodies after a period of foreplay. Her evidence is that she subjectively wished to engage in sexual intercourse with him. There was no evidence before me that would lead me to find that [the complainant] was of a different mind at any point prior to penetration. Upon penetration and finding herself not ready and requiring more foreplay she told him to stop. He did so. [The respondent’s] actions until that point were consensual. In other words, the Crown has not proven the absence of consent.
[18] The trial judge then considered that the respondent was not wearing a condom when he penetrated the complainant. Relying on R. v. Hutchinson, 2014 SCC 19, the trial judge said the law is clear that use of a condom is not an element of the sexual act to which consent is being given. He said this was not a situation, as in Hutchinson, in which consent was vitiated. He then said:
The absence of the condom in the present case does not negate [the complainant’s] consent to engage in the act of sexual intercourse. The fact that [the complainant] did withdraw her consent upon penetration does not change the fact that there was consent initially. It is to be remembered that there had been no mention of the use of condoms at any point prior to penetration. It is also to be remembered that the occasion of penetration was achieved after a period of foreplay and only after the mutual positioning of their bodies as a prelude to that penetration.
The Scope of the Appeal
[19] The Crown brought its appeal under s. 830 of the Criminal Code.
[20] Section 830 provides that the Crown may appeal against a verdict of acquittal of a summary conviction court on the ground that: (a) it is erroneous in point of law; (b) it is in excess of jurisdiction; or (c) it constitutes a refusal or failure to exercise jurisdiction.
[21] Under s. 834 of the Criminal Code, the appeal court may affirm, reverse of modify the verdict or remit the matter to the summary conviction court with the opinion of the appeal court and may make any other order in relation to the matter.
[22] The standard of review on a question of law is correctness. On a pure question of law, the basic rule with respect to the review of a trial judge’s findings is that an appellate court is free to replace the opinion of the trial judge with its own. (Housen v. Nikolaisen, 2002 SCC 33, at para. 8.)
[23] A Crown appeal cannot succeed on an abstract or purely hypothetical possibility that the accused would have been convicted but for the error of law. Something more must be shown. It is the duty of the Crown in order to obtain a new trial to satisfy the appellate court that the error (or errors) of the trial judge might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal. The Crown is not required, however, to persuade the appellate court that the verdict would necessarily have been different. (R. v. Graveline, 2006 SCC 16, at para. 14.)
[24] Acquittals are not lightly overturned. The onus on the Crown to show that the verdict would not necessarily have been the same had the errors not occurred is a “heavy one” and the Crown must satisfy the court with a reasonable degree of certainty. (Graveline, at para. 16, citing R. v. Sutton, 2000 SCC 50, at para. 2.)
Analysis
[25] I will consider each of the grounds of appeal raised by the Crown.
ISSUE #1: The trial judge considered irrelevant evidence in determining whether the complainant consented
[26] The Crown argued that when considering the issue of consent, the trial judge erroneously considered what was known to the respondent and the reasonableness of the respondent’s conduct, instead of focusing exclusively on the complainant’s state of mind.
[27] The Crown identified several of the trial judge’s comments, including the following:
“[The respondent’s” action in penetrating [the complainant] at that point was the natural and reasonable outcome of what [the complainant] had clearly, albeit non-verbally communicated to [the respondent]: that she wished to engage in sexual intercourse with him.”
“Consent can be communicated by way of conduct as opposed to speech.”
“[The respondent] would not known of [the complainant’s] need of further foreplay.”
“[The respondent]’s actions up to that point were consensual.”
The Respondent’s Position
[28] The respondent argued that it was not that the trial judge considered evidence relevant to the respondent’s state of mind when he was analyzing the complainant’s state of mind; he considered the two issues successively.
[29] The respondent argued that, in the portion of the trial judge’s reasons challenged by the Crown, the trial judge referred to the complainant’s communication of consent, then to the respondent’s reliance on the complainant’s communicated consent. The respondent argued that it was only subsequently, when the trial judge said the following, that he considered the complainant’s subjective consent:
Her evidence is that she subjectively wished to engage in sexual intercourse with him. There was no evidence before me that would lead me to find that [the complainant] was of a different mind at any point prior to penetration. Upon penetration and finding herself not ready and requiring more foreplay she told him to stop. He did so. [The respondent]’s actions up until that point were consensual. In other words, the Crown has not proven the absence of consent.
[30] The respondent argued that it is also evident from the trial judge’s reasons that before he turned his mind to the complainant’s subjective consent, he had already made a finding that the complainant had clearly communicated consent to sexual intercourse. The respondent argued that this finding provides context for the trial judge’s conclusion that the Crown had failed to prove non-consent, because, to quote from the respondent’s factum: “People don’t usually communicate ‘yes’ when they mean ‘no’.”
Analysis of Issue #1
[31] This issue, which challenges the trial judge’s analysis of whether there was consent to sexual intercourse, relates to the actus reus of the offence of sexual assault.
[32] The actus reus is established by the proof of three elements: (i) touching, (ii) the sexual nature of the contact, and (iii) the absence of consent. The first two of these elements are objective. (R. v. Ewanchuk, [1999] 1 S.C.R. 300 at paras. 25.) The absence of consent, however, is subjective and determined by reference to the complainant’s subjective internal state of mind towards the touching, at the time it occurred. (Ewanchuk, para. 26, with emphasis added.)
[33] The mens rea of sexual assault also engages a consideration of consent. The mens rea of sexual assault contains two elements: intention to touch and knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched. (Ewanchuk, at para. 42.)
[34] Consent is treated differently at each stage of the analysis. For purposes of the actus reus, “consent” means “that the complainant in her mind wanted the sexual touching to take place”. Thus, at this stage, the focus is placed squarely on the complainant’s state of mind, and the accused’s perception of that state of mind is irrelevant. Accordingly, if the complainant testifies that she did not consent, and the trier of fact accepts this evidence, then there was no consent—plain and simple. At this point, the actus reus is complete. The complainant need not express her lack of consent, or revocation of consent, for the actus reus to be established. (R. v. Barton, 2019 SCC 33, at para. 89, with internal citations deleted.)
[35] A trial judge’s reasons must be read both as a whole and in context. They are not to be dissected, parsed or microscopically examined. Reasons explain why the trial judge arrived at a particular conclusion. Unlike jury instructions, reasons are not the road map to reach a verdict nor are they a verbalization of the entire process the trial judge engaged in to reach a verdict. If a passage in a decision is open to two interpretations, the interpretation consistent with the trial judge’s presumed knowledge of the law must be preferred over one which suggests an erroneous application of the law. (R. v. C.L.Y., 2008 SCC 2, at para. 11; R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 at para. 204 (Ont. C.A.))
[36] In this case, a contextual analysis of the trial judge’s reasons in respect of the consent issue begins halfway through page 12 of the transcript of his reasons. At this point, the trial judge had already summarized the complainant’s evidence and had already concluded that the Crown had failed to prove multiple penetrations.
[37] At page 12, the trial judge turned to the Crown’s alternative argument: that the single penetration to which the respondent had admitted was not consensual. Under the title “Single Penetration: [The Respondent’s] Version of Events”, the trial judge focused primarily on the respondent’s evidence. The trial judge noted that up to the point that the respondent inserted his penis into the complainant, the evidence of the complainant and the respondent had been quite similar. The trial judge recounted the respondent’s evidence that, after lying on top of the complainant for about a minute and engaging in foreplay, the respondent inserted his penis into the complainant’s vagina, without telling her that he was about to do so. The respondent testified that the complainant said, “Hang on. Do you have a condom?” The respondent said he withdrew his penis from her. The respondent testified that he told the complainant that he did have condoms, but she did not have to worry because he had regular check-ups and knew that he did not have a sexually transmitted disease. The trial judge then considered the respondent’s evidence that the complainant became angry when she realized that he had forgotten her name and about some Facebook messages the two exchanged the following day.
[38] At the top of page 18 of the transcript of his reasons, the trial judge turned to his analysis of whether the single act of penetration was consensual. He framed the issue as “the lack of consent due to the absence of a condom.” The trial judge noted that the complainant had testified that, upon penetration, she had told the respondent he had to wear a condom and that she required more foreplay. He noted that the respondent had asked if he had a condom, but there had been no mention of a need for further foreplay. The trial judge concluded, at page 20, that the Crown had failed to prove the absence of consent. A summary of the trial judge’s explanation for his conclusion follows:
The complainant had gone to the respondent’s apartment expecting to have “a consensual sexual encounter”.
Upon arrival, they acted in a manner that was consistent with that expectation; they took off all or most of their clothes and engaged in sexual foreplay.
The respondent lay on top of the complainant; their hips were close together; the respondent’s penis was very close to the complainant’s uncovered vagina.
The respondent penetrated the complainant’s vagina with his penis.
The complainant had communicated to the respondent “clearly, albeit non-verbally” that she wanted to have intercourse with him; his action in penetrating her was “the natural and reasonable outcome” of what she had communicated to him.
Consent can be communicated by conduct, as well as through words, although to be relied upon as an expression of consent, non-verbal behaviours must be unequivocal.
Because the respondent and the complainant had never had sexual intercourse before, if the complainant needed more foreplay and was not physiologically ready for penetration, the respondent could not have known this.
In penetrating the complainant, the respondent was clearly acting on the mutual positioning of their bodies after a period of foreplay.
There was no evidence to the trial judge to find that the complainant’s state of mind had changed from the time she walked to the respondent’s apartment with him, anticipating a consensual sexual encounter, and the time the respondent penetrated her.
Upon penetration, finding herself not ready and requiring more foreplay, the complainant asked the respondent to stop, which he did.
The respondent’s actions up until that point were consensual.
[39] The issue the trial judge had introduced on page 18 of the transcript had been whether, in the single penetration scenario, there had been a lack of consent due to the absence of a condom. The trial judge’s focus was to have been squarely on the complainant’s state of mind. The question to be answered was whether the complainant, in her mind, wanted the sexual touching to take place. The respondent’s state of mind and the respondent’s perception of the complainant’s state of mind were not relevant at this stage of his analysis. For the following reasons, I respectfully conclude that the trial judge erred in his analysis of this issue:
To the extent that the trial judge considered the complainant’s evidence that, upon penetration, she told the respondent that she required more foreplay, the trial judge considered the evidence from the perspective of the respondent. At page 20 of the transcript, the trial judge said that, because the complainant and the respondent had never had intercourse together before, the respondent could not have known that the complainant needed further foreplay and was “not quite ready” for penetration. He said the respondent acted based on the mutual positioning of their bodies after a period of foreplay. However, what the respondent knew and why the respondent did what he did had no bearing on whether the complainant was ready for penetration and no relevance to the consent issue at this stage of the analysis. The trial judge went on to say that “[u]pon penetration and finding herself not ready and requiring more foreplay she told him to stop” but that, up until that point, the respondent’s actions were consensual. The trial judge did not consider whether the complainant’s evidence that she was not ready to be penetrated, or the respondent’s evidence that he penetrated her without telling her that he was about to do so, shed any light on whether the complainant, in her mind, wanted penetration to take place when it did.
The trial judge included, in his analysis of the consent issue, consideration of whether the complainant had communicated consent to the respondent. Expressions of consent have no relevance to the consent analysis in the actus reus stage of the offence; they can only apply to the accused’s mens rea. (R. v. J.A., 2011 SCC 28, at paras. 39 and 40.) “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.” (J.A., at para. 37.) The actus reus has been committed if the complainant was not consenting in her mind while the touching took place, even if she expressed her consent before or after the fact. (J.A., at para. 46.)
[40] These errors are in respect of the analysis of consent in sexual assault and, as such, are errors of law. (Ewanchuk, at paras. 21 and 22.)
ISSUE #2: The trial judge made multiple errors about the law of consent
[41] The Crown argued that the trial judge made three further errors in his analysis of the consent issue:
a. The trial judge did not analyze whether the complainant consented to the specific sexual activity;
b. The trial judge relied on the complainant’s anticipation of sexual activity; and
c. The trial judge, in error, found that no evidence before him would lead to the conclusion that the complainant did not consent prior to the penetration.
a. The trial judge did not analyze whether the complainant consented to the specific sexual activity
[42] The Crown argued that the trial judge failed to analyze whether the complainant consented to the specific sexual activity that took place, which was intercourse without a condom.
The Respondent’s Position
[43] The respondent argued that if the complainant expected the respondent to wear a condom during intercourse, her expectation was not grounds for a finding that she did not consent to sex without a condom. The respondent submits that the trial judge correctly applied the Supreme Court of Canada’s decision in Hutchinson.
Analysis of Issue #2(a)
[44] When the trial judge began his consideration of the single act of penetration scenario at page 18 of the transcript, he framed the issue to be decided as whether there was a lack of consent due to the absence of a condom. However, he arrived at his conclusion (at page 20) that the Crown had failed to prove the absence of consent, without considering whether the absence of a condom had any relevance to the issue.
[45] The trial judge considered the condom issue only after he had already concluded that the Crown had failed to prove the absence of consent. The trial judge referred to Hutchinson and said the law is clear that use of a condom is not an element of the sexual activity to which consent must be given, although, in some circumstances, the absence of a condom can vitiate consent.
[46] The trial judge went on to conclude (at page 22) that the absence of a condom in this case did not negate the complainant’s consent. He also found that the fact that the complainant withdrew consent upon penetration did not change the fact that there was consent initially. The trial judge suggested it was significant that there had been no mention of the use of condoms prior to penetration and that the respondent had only penetrated the complainant after a period of foreplay and after the mutual positioning of their bodies as a prelude to the penetration.
[47] For the following reasons, I respectfully conclude that the trial judge’s reasoning in respect of the condom issue was in error.
[48] At page 21 of the transcript, the trial judge said that the law is clear that use of a condom is not an element of the sexual act to which consent is given. The trial judge appears to have interpreted Hutchinson, which indeed concluded, at para. 64, that condom use is not a sex act, to mean that condom use has no relevance to a consent analysis. Respectfully, this is not the case.
[49] Despite Hutchinson, it is not the law in Canada that a person who would consent to having intercourse with a man if the man is wearing a condom must be found also to have consented if the man refuses to wear a condom but proceeds with the intercourse anyway. As Bennett J.A. noted in her concurring opinion in R. v. Kirkpatrick, 2020 BCCA 136, at para. 45, “it is abundantly clear that Canadian law permits a person to limit their consent to intercourse by insisting a condom be used.” A person who, subjectively, only wants to have sexual intercourse with a man if the man is wearing a condom, subjectively, does not want to have sexual intercourse with that same man if they know he is not wearing a condom. In this scenario, condom use is highly relevant to the consent analysis: no condom, no consent. There is no consent until the person knows, or at least believes, the man is wearing a condom.
[50] In Hutchinson and in Kirkpatrick the issue was different: It was whether ostensible consent to sexual intercourse was vitiated by fraud. In Hutchinson, a woman willingly had sex with a man who was wearing a condom, unaware that the man had poked holes in the condom. In Kirkpatrick, a woman willingly had sex with a man who was not wearing a condom, while believing that he was wearing one, as she had made it clear to him that condom use was a precondition to having sex with her.
[51] In the case on appeal, the trial judge followed the formula in Hutchinson by considering whether the absence of a condom negated consent. However, unlike Hutchinson and Kirkpatrick, the case before the trial judge in the case on appeal was not one in which there was any mistake about whether the man was wearing either a functioning condom or a condom. The complainant knew the respondent was not wearing a condom. There was evidence that condom use was important to the complainant, that the complainant and the respondent had not discussed condom use before the respondent penetrated the complainant and that the respondent penetrated the complainant without first telling her that he was about to do so.
[52] The trial judge erred by concluding that the respondent’s penetration of the complainant was consensual, without first considering whether the complainant, subjectively, wanted to have intercourse with the respondent if the respondent was not wearing a condom.
b. The trial judge relied on the complainant’s anticipation of sexual activity
[53] The Crown argued that the trial judge relied heavily on the fact that the complainant went to the respondent’s apartment expecting to have sex with him in concluding that the complainant consented to sexual intercourse. The Crown argued that the complainant’s expectation that she and the respondent would have sex is irrelevant to whether she actually consented to intercourse at the time it happened. The Crown argued that a person cannot give broad advance consent.
The Respondent’s Position
[54] The respondent argued that referring to the complainant’s expectation that she and the respondent would have a sexual encounter was not an error. The respondent also argued that the trial judge did not find that the complainant gave advance consent to the sexual activity. The respondent argued that, while not determinative of whether the complainant consented to the sexual intercourse with the respondent, the complainant’s expectation that she and the respondent would have sex was relevant to understanding her state of mind.
Analysis of Issue #2(b)
[55] The trial judge was required to consider whether the complainant consented to having the specific act of sexual intercourse with the respondent at the time he penetrated her.
[56] For the reasons below, I respectfully find that he failed to do so.
[57] “Consent” is the “conscious agreement of the complainant to engage in every sexual act in a particular encounter” (J.A., at para. 31). This consent must exist at the time the sexual activity in question occurs (J.A., at para. 34, citing Ewanchuk, at para. 26).
[58] The trial judge found that the complainant had said she wanted to have intercourse with the respondent and that nothing had changed up to the point that the respondent penetrated her:
Her evidence is that she subjectively wished to engage in sexual intercourse with him. There was no evidence before me that would lead me to find that [the complainant] was of a different mind at any point prior to penetration. Upon penetration and finding herself not ready and requiring more foreplay she told him to stop. He did so. [The respondent]’s actions up until that point were consensual. In other words, the Crown has not proven the absence of consent.
[59] The complainant had testified that she was comfortable “going back to [the respondent’s] place, maybe making out or having sex.” She also said she was okay with going to the apartment to have a beer and to see how it went from there. She said she thought that they might talk for a bit and then make out, but she was most likely expecting that they would have sex.
[60] That the complainant was willing to “have sex” with the respondent as they walked to his apartment and that she remained willing to have sex with him after they got there, does not mean that the complainant wanted to engage in the specific act of sexual intercourse with the respondent at the time he penetrated her.
[61] Before concluding that the penetration was consensual, the trial judge failed to consider the complainant’s evidence that it was not. The trial judge also failed to consider that the complainant and the respondent had not discussed condoms, birth control or sexually transmitted diseases prior to the penetration. He did not consider the respondent’s evidence that he penetrated the complainant without first telling her that he was about to do so. He did not consider the complainant’s evidence that it was very important to her that the respondent wear a condom. He considered the complainant’s evidence that she needed more foreplay, but, as I have already discussed, he considered it from the perspective of the respondent, concluding that the respondent could not have known that this was the case; he did not consider whether the complainant knew that this was the case prior to penetration.
[62] In a sexual assault case, once the complainant has asserted that she did not consent, the question is one of credibility and the trier of fact must take into account the totality of the evidence, including any ambiguous or contradictory conduct by the complainant. (Ewanchuk, at para. 61.) It was not an error for the trial judge to have considered the complainant’s evidence about her state of mind and her willingness to have sex with the respondent as they walked to his apartment. Respectfully, it was, however, an error for the trial judge not to have considered whether the complainant wanted to engage in the act of sexual intercourse with the respondent at the time he penetrated her.
c. The trial judge found that no evidence before him would lead to the conclusion that the complainant did not consent prior to the penetration
[63] The Crown argued that the trial judge erred in concluding that there was no evidence before him that would lead him to find that the complainant’s state of mind with respect to having sexual intercourse with the respondent had changed from the time she walked to his apartment with him and the time he penetrated her. The Crown argued that this finding required the trial judge to ignore certain evidence, including some evidence he had mentioned in his reasons, such as the complainant’s testimony that she was shocked when she felt the respondent’s penis enter her vagina. The Crown argued that the trial judge failed to consider the uncontested evidence that, upon penetration, the complainant told the respondent he needed to put on a condom as well as direct evidence from the complainant that she did not consent to the penetration and was not ready for it.
The Respondent’s Position
[64] The respondent argued that it was implicit in the trial judge’s findings that the complainant had communicated consent and that the Crown had failed to prove the absence of consent, that the trial had rejected the complainant’s evidence that she was shocked when the respondent penetrated her.
[65] The respondent stressed that the credibility of the complainant’s evidence was already in doubt when the trial judge considered the consent issue, in that the trial judge had rejected the complainant’s evidence that the respondent had penetrated her repeatedly after she told him to stop. The respondent argued that when the trial judge said that there was no evidence before him that would lead him to find that the complainant’s state of mind had changed prior to penetration, he meant that there was no evidence along those lines that he accepted.
[66] The respondent argued that the trial judge was not obliged to refer specifically to each detail of the complainant’s evidence that he did not accept.
Analysis of Issue #2(c)
[67] The trial judge was entitled to reject the complainant’s evidence that she did not consent to the penetration, however, before doing so, he was required to consider the totality of the evidence. (Ewanchuk, at para. 61.)
[68] The respondent argued that it is implicit in the trial judge’s findings that he rejected some of the complainant’s evidence and also that the trial judge is not required to identify all the evidence he did not accept.
[69] However, the trial judge accepted the evidence of both the complainant and the respondent that there had been no discussion of condom use before penetration and also their evidence that upon penetration, the complainant told the respondent to stop and asked about a condom. It is evident from the structure of the trial judge’s reasons that he did not consider this evidence before he concluded that the penetration was consensual. It was only after he concluded that the Crown had not proven the absence of consent that he said: “I turn now to the issue of the condom, or rather the absence of that prophylactic device.”
[70] Respectfully, the trial judge erred when he found that there was “no evidence” that the complainant’s subjective willingness to have sex had changed prior to penetration. The trial judge had not turned his mind to the evidence that the complainant did not want to have sexual intercourse with the respondent if he was not wearing a condom.
ISSUE # 3: The trial judge misstated the defence of honest but mistaken belief in communicated consent
[71] The Crown argued that the trial judge was in error when he found that the complainant had communicated consent to intercourse through the position of her body, without considering whether the respondent had taken reasonable or any steps to determine whether the complainant was indeed communicating consent.
[72] The Crown also argued that, during the closing submissions, the trial judge had misstated the law relating to honest but mistaken belief in communicated consent in putting to the trial Crown what he characterized as a rhetorical question. I do not see that anything turns on the comments made by the trial judge. I will not refer to them.
The Respondent’s Position
[73] The respondent argued that the trial judge accepted that the complainant communicated consent and that the respondent’s action in penetrating her was a natural and reasonable response. The respondent argued that the respondent was not required to take all reasonable steps and that the trial judge clearly found that it was reasonable for the respondent to have relied on the complainant’s non-verbal communication of consent.
Analysis of Issue #3
Honest but mistaken belief in communicated consent
[74] Section 273.2(b) of the Criminal Code provides that it is not a defence to a charge of sexual assault under s. 271, that the complainant consented to the activity that forms the subject-matter of the charge, where the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.
[75] As Moldaver J. put it in Barton, s. 273.2(b) imposes a precondition to the defence of honest but mistaken belief in communicated consent—“no reasonable steps, no defence.” The accused person is not required to take all reasonable steps, but is required to take steps that are objectively reasonable. The reasonableness of the steps must be assessed in light of the circumstances known to the accused at the time. (Barton, at para. 104.)
[76] The reasonable steps inquiry is highly fact-specific. (Barton, at para. 106.) The more invasive the sexual activity in question and/or the greater the risk posed to the health and safety of those involved, common sense suggests a reasonable person would take greater care in ascertaining consent. The same holds true where the accused and the complainant are unfamiliar with one another, thereby raising the risk of miscommunications, misunderstandings, and mistakes. At the end of the day, the reasonable steps inquiry is highly contextual, and what is required will vary from case to case. (Barton, at para. 108.)
[77] As I have already discussed, the trial judge’s conclusion that the complainant communicated consent has no relevance to the issue of whether the complainant consented to the sexual activity; it can only have relevance to the mens rea of the offence and the issue of whether the respondent had an honest belief that the complainant effectively said “yes” through her words and/or actions.
[78] The respondent argued that the trial judge accepted as a fact that the complainant communicated consent to the respondent through her actions and that he found the respondent’s interpretation of the complainant’s non-verbal communication to have been “reasonable”.
[79] However, the trial judge’s use of the word “reasonable” when he described the respondent’s penetration of the complainant as “the natural and reasonable outcome” of the complainant’s communication to him of consent, was not in reference to any steps the respondent had taken to ensure that he was interpreting the complainant’s non-verbal behaviour accurately. There were no references to any such steps in the trial judge’s reasons. The trial judge was required to consider the steps the respondent had taken to ascertain that the complainant was consenting. As Moldaver J. had put it in Barton, “no reasonable steps—no defence.” Further, the encounter between the complainant and the respondent was in the category of cases in which, according to Barton, greater care should be taken to ascertain consent: the sexual act in question, intercourse, was invasive and complainant and the respondent, having met only hours earlier, did not know each other.
[80] I conclude that the trial judge erred in finding that the respondent was entitled to rely on the complainant’s communication to him of consent, without considering whether the respondent had taken steps to ascertain whether the complainant was indeed consenting.
ISSUE #4: Did the trial judge’s errors have a material bearing on the acquittal?
[81] It is not enough for the Crown to show that the trial judge made an error of law. The Crown must also satisfy the court that the trial judge’s error had a material bearing on his acquittal and that, absent the error, the verdict would not necessarily have been the same. The Crown is not required, however, to show that the verdict necessarily would have been different. The onus on the Crown is a heavy one and it must satisfy the court with a reasonable degree of certainty. (R. v. Graveline, 2006 SCC 16, at paras. 14-16.)
[82] I am satisfied that, on this appeal, the Crown has discharged its heavy burden in this respect.
[83] I am satisfied that if the trial judge had considered the consent issue at the actus reus stage of his analysis strictly from the perspective of the complainant, as he was required to do, and if he had considered the totality of the evidence, the verdict would not necessarily have been the same.
[84] In this event, the trial judge would have considered whether the complainant wanted the respondent to penetrate her at the time he penetrated her. In addition to the evidence he considered, the trial judge would have considered the complainant’s evidence that she was shocked when the respondent penetrated her. He would have considered whether the complainant knew the respondent was about to penetrate her and whether the complainant expected the respondent to penetrate her before they had discussed condoms, birth control and sexually transmitted diseases. The trial judge would have considered whether the complainant wanted to have intercourse with the respondent if he was not wearing a condom and her evidence that condoms were important to her.
[85] I am satisfied that if he had focused exclusively on the complainant’s subjective state of mind, and considered all of the available evidence, the trial judge would not necessarily have come to the same conclusion about whether the Crown had proven the absence of consent.
[86] If the trial judge had found that the complainant had not consented, he then would have been required to consider whether the respondent nonetheless honestly believed that the complainant had communicated consent. This analysis would have required the trial judge to consider whether the respondent had taken reasonable steps, in the circumstances known to him at the time, to ascertain that the complainant was consenting. This was a situation in which the parties did not know each other and had never had intercourse together before. The trial judge accepted that the complainant and the respondent had not discussed condoms, birth control or sexually transmitted diseases before the respondent penetrated the complainant. The respondent had testified that he did not tell the complainant that he was about to penetrate her before he did so. When the respondent was asked during his examination in chief at trial why he penetrated the complainant when he did, his answer was: “It was very mutual, very reciprocated and I was naked and she’d taken off her pants, so it seemed like as though there was no issues there.” When he was cross-examined, the respondent agreed that it was reasonable for the complainant to have wanted him to wear a condom. When asked whether it was reasonable for him to believe that simply telling her that he had no sexually transmitted diseases would be sufficient for her, he replied that he did not know and that he could not read her mind.
[87] If the trial judge had turned his mind to the steps the respondent took to ascertain whether the complainant was communicating consent to sexual intercourse at the time he penetrated her, and had the trial judge then considered whether the steps that were taken, if any, were reasonable in the circumstances known to the respondent at the time, the trial judge would not necessarily have come to the same conclusion about whether it was reasonable for the respondent to have penetrated the complainant when he did. Consequently, I am satisfied that the verdict would not necessarily have been the same.
Conclusion
[88] For the above reasons, the appeal is allowed, the acquittal is set aside, and a new trial is ordered on the charge of sexual assault under s. 271 of the Criminal Code.
Date: March 18, 2021
COURT FILE NO.: 18-SA5096
DATE: 20210318
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: HER MAJESTY THE QUEEN
AND
CAMERON KRAFT
Defendant
BEFORE: Madam Justice H.J. Williams
COUNSEL: Robert Thompson for the Crown
Howard Krongold for the Defendant
DECISION on summary conviction appeal
Madam Justice H. J. Williams
Released: March 18, 2021
[^1]: R. v. S. (T.), [1999] O.J. 268 (Gen. Div.), at para. 160.