COURT FILE NO.: CR-1085/19AP
DATE: 2021-05-13
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
A.M.
Applicant
Jennie Rose Mongeau, for the Crown
Wayne Cunningham, for the Defence
HEARD: February 16, 2021
DECISION ON APPEAL
CULLIN, J.
Overview
[1] This is an appeal of the appellant’s conviction on one count of sexual assault. The conviction arises as a result of a single incident which is alleged to have occurred on December 19, 2017. The sole issue at trial was consent.
Proceedings at Trial
[2] The trial was heard on May 13, 2019. The Crown called three witnesses: the complainant, the complainant’s best friend, and a toxicologist. The defence did not call evidence. The trial judge rendered her decision orally the same day.
Evidence at Trial
[3] At the outset of trial, the appellant admitted the date and time of the alleged offence, jurisdiction, his identity, the voluntariness of his statement to the police and the continuity of DNA samples. The appellant also consented to the filing of the Crown’s expert reports and to the expertise of the Crown’s expert.
[4] In closing submissions, the defence conceded that the Crown had established that a sexual act had taken place. The triable issue identified was whether the Crown had proven, beyond a reasonable doubt, that there was a lack of consent.
[5] The principle witness for the Crown was the complainant, B.N-T., who gave the following evidence:
a. On December 19, 2017, she attended the appellant’s residence to decorate his Christmas tree and to prepare for a Christmas party. The appellant picked her up at home at approximately 1:30 p.m. and, after buying alcohol and food, they arrived at the appellant’s residence at approximately 2:30 p.m.
b. At approximately 4:00 p.m., they were visited by the appellant’s friend Colin, and at approximately 8:00 p.m., they were visited by the appellant’s friend Kyle. Each stayed for approximately an hour and drank beer. Otherwise, only the appellant and the complainant were present.
c. She took one Percocet in the early afternoon for a sore back. Between 3:00 p.m. and 10:00 p.m., she drank two eggnog with rum and six orange juice with vodka. The drinks were prepared by the appellant, and she did not know how much alcohol was used.
d. It was not the first time that she had drank or drank alone with the appellant. She testified that she had known the appellant since she was 15 or 16 years old. He was a close family friend, akin to an uncle.
e. She was “buzzed but…nothing out of the ordinary”. It was not unusual for her to have eight to ten drinks. She did not consider herself to be a heavy drinker but felt that she drank heavily that night.
f. At some point during the evening she, “blacked out”. Her last memory was decorating the Christmas tree with Kyle and listening to music. Based upon her statement to the police and her last texts with her sister, she believed that to be between 9:30 p.m. and 10:00 p.m.
g. She had “blacked out” on prior occasions while drinking. Her blackouts would occur suddenly. By “blacked out”, she meant that she had no memory of what happened after a certain point in the evening.
h. Her next memory was at approximately 1:00 a.m. She “woke up”. The residence was in darkness and she was lying on her stomach on the appellant’s bed in his bedroom. She had her shirt and bra on, but her pants and underwear were removed. She had no memory of how she had gotten to the appellant’s bed, how long she had been there, or how her clothes had been removed.
i. The appellant was on his stomach behind the complainant. He was touching her vagina with his mouth and fingers. He was fully dressed.
j. She “assumed” that the sexual activity began while she was unconscious because she “woke up” while it was happening.
k. When she “woke up” on the bed she felt shocked and afraid. She tried to think of a “safe” way to remove herself. On cross-examination, she confirmed that she told the police that she was not afraid.
l. When she became aware of what was going on, she moved the appellant’s hand and told him to stop touching her. He complied with her request.
m. She did not know and could not say whether she consented to sexual activity with the appellant. She assumed that she did not consent. She did not believe that she would have consented.
n. After the sexual activity, the complainant went to the washroom, where she dressed. The appellant went to the kitchen. When the complainant joined him, he asked her if she was “mad” and she responded, “yes”. He offered to call her a cab home. She declined and walked to her friend T.Y.’s residence.
o. About 2 hours after attending at T.Y.’s house, she called her mother who instructed her to come home and to make a report to the police, which she did.
p. She attended at the Police Service at approximately 4:00 a.m., and then Health Sciences North. A sexual assault kit was completed, which included a blood and urine test.
[6] The complainant’s friend, T.Y. also testified for the Crown. T.Y. provided the following evidence:
a. She received a text message from the complainant at approximately 1:25 a.m. after which they spoke on the phone. The complainant had left the appellant’s house at this point and was walking.
b. The complainant appeared to be in a state of shock and became upset upon arriving at T.Y.’s house. She recounted the evening’s events to T.Y. She testified that she appeared to be sober and that she, “didn’t seem intoxicated whatsoever”.
[7] The final witness to testify for the Crown was Nathalie Desrosiers, a forensic toxicologist who was qualified to give forensic evidence. She testified as follows:
a. She analyzed the complainant’s blood and urine samples taken at Health Sciences North at 7:30 a.m. Her blood tests revealed 59 milligrams of alcohol per 100 millilitres of blood, and her urine tests revealed 92 milligrams of alcohol per 100 millilitres of blood.
b. That, in her opinion, between 10:00 p.m. and 1:30 a.m., the complainant had between 119 and 249 milligrams of alcohol per 100 millilitres of blood.
c. That the impact of alcohol on the complainant would depend on factors such as the complainant’s alcohol tolerance, her alcohol experience, and her frequency of alcohol consumption.
d. That the impact of this level of alcohol would have ranged from a red face, minor slurred speech, some gross motor incoordination, increased sociability, and talkativeness at the low end of the range, to fine motor incoordination, gait instability, vomiting and nausea, and unconsciousness at the high end of the range. A frequent consumer of alcohol may have demonstrated no visible signs of impairment at these blood alcohol levels.
e. That codeine metabolites were also present in the complainant’s urine, which could be a by-product of Tylenol 1, 2, 3 or 4 taken between 12 and 48 hours prior depending upon the dose taken.
f. That if the alcohol and codeine were taken together, they could result in increased sedation, drowsiness and memory impairment. She could not say whether the codeine found in the complainant’s urine was in her blood and interacting with the alcohol at the time of the incident.
[8] The Crown also filed 7 exhibits which included the following:
a. Exhibit 3 – Biology Report: the DNA profile from the external vaginal swab of B.N-T., which was attributable to two individuals, the complainant and a male person.
b. Exhibit 4 – Biology Report: a biology report indicating that the appellant could not be excluded as a contributor to the DNA mixture taken from the complainant’s external vaginal swab and demonstrating a significant likelihood that the DNA was that of the appellant.
Essential Elements of Sexual Assault
[9] The essential elements of the offence of sexual assault were reiterated by the Supreme Court of Canada in R. v. J.A., 2011 SCC 28. In proving the actus reus, the Crown must establish the application of force and the absence of consent. In proving the mens rea, the Crown must establish the intention to apply force and the knowledge of the absence of consent. Knowledge can be established with proof of actual knowledge or proof that the accused was reckless or wilfully blind to the absence of consent.
[10] In R v. J.A., the focal point of the court’s analysis was the issue of consent. Referring to its earlier decision in R v. Ewanchuk, 1999 CanLII 711 (SCC) (paras.48-49), the court noted that the actus reus of the offence considered whether the complainant was subjectively consenting in their mind, whereas the mens rea of the offence considered whether the accused believed that the complainant communicated consent.
[11] In particular, the court noted s.273.1(2)(b) of the Criminal Code R.S.C., 1985, c.C-46, which provides that the accused is deemed not to have obtained consent where, "the complainant is incapable of consenting to the activity." From the court’s perspective, this required the complainant to have a conscious, operating mind, capable of granting, revoking or withholding consent to each and every sexual act.
Establishing Consent in Challenging Circumstances
[12] The Crown’s burden of proving the element consent can be challenging in cases where, as here, the complainant has lapses in her memory of the events at issue.
[13] In a sexual assault case, the testimony of the parties is ordinarily the most important evidence before the court (R. v. Esau, 1997 CanLII 312 (SCC), para. 16). When the complainant presents to the court with memory lapses, the court is often required to rely on the evidence of other witnesses, circumstantial evidence, and expert evidence to determine the issue of consent (R. v. J.R., 2006 CanLII 22658 (ON SC)).
[14] Of these, circumstantial evidence is often the most challenging. As noted by Rouleau, J.A. in R. v. Garciacruz, 2015 ONCA 27(para. 68):
In order to infer guilt based on circumstantial evidence, the trier of fact must be "satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty" (R. v. Griffin, 2009 SCC 28 (S.C.C.) at para. 33). This is a high standard that requires that alternative explanations be excluded because "the mere existence of any rational, non-guilty inference is sufficient to raise a reasonable doubt" (ibid. at para. 34; see also R. v. Mars (2006), 2006 CanLII 3460 (ON CA), 205 C.C.C. (3d) 376 (Ont. C.A.), at para. 4).
[15] The fact that the complainant experienced blackout or memory loss is not, in and of itself, proof of lack of consent or lack of capacity (R. v. J.R., para. 19). As noted by Major, J. in R. v. Esau (para. 19): “Any number of things may have happened during the period in which [the complainant] had no memory.”
[16] Although the complainant’s intoxication may trigger inquiries regarding capacity, it cannot be equated with incapacity or the absence of consent. As noted by Trotter, J. in R. v. Meikle, 2011 ONSC 650 (para. 57):
Based on all of the evidence, the most that I can conclude is that, on the night she was with Mr. Meikle, N.T. was intoxicated and perhaps drunk. But as Duncan J. held in Regina v. Cedeno (2005), 2005 ONCJ 91, 195 C.C.C. (3d) 468 (Ont. C.J.) at p. 475:
Cases where the complainant is said to be incapable due to consumption of alcohol or drugs are less clear-cut. Mere drunkenness is not the equivalent of incapacity. Nor is alcohol-induced imprudent decision making, memory loss, loss or inhibition or self-control. A drunken consent is still a valid consent. Where the line is crossed into incapacity may be difficult to determine at times. [footnotes omitted]
[17] The complainant’s assertion that she would not have consented to sexual activity with the accused is also not, in and of itself, evidence of the absence of consent. In R. v. Esau, where the complainant asserted that she would not have consented because she was related to the accused, Major J. noted (para. 23), “My colleague concludes that the complainant would not for personal reasons have consented. This, in view of the complainant’s failure to remember, is no evidence of her denying consent.”
[18] While the burden of proving the element of consent can be challenging in the absence of the complainant’s unhindered memory of the event, it is not insurmountable. In R v. J.R., Ducharme J. noted that lack of capacity, and a corresponding lack of consent, have been found in cases where there is direct evidence that: (1) the complainant was extremely intoxicated; (2) the complainant was asleep or unconscious when the sexual activity commenced; or, (3) the complainant was asleep or unconscious during all of the sexual activity (para. 45).
Grounds of Appeal
[19] The appellant has raised three grounds of appeal:
a. Did the trial judge fail to provide sufficient reasons to permit meaningful appellate review?
b. Did the trial judge fail to consider all the evidence and to follow her own guidance regarding expert evidence?
c. Did the trial judge err in her reliance on post-offence conduct, and specifically did she fail to consider alternative exculpatory explanations for the behaviour and fail to provide sufficient reasons to permit appellate court review?
Analysis
Trial Judge’s Reasons
[20] The trial judge noted at the outset that, although she would touch upon only some of the evidence in rendering her decision, she had considered the totality of the evidence in reaching her decision. She distinguished between the credibility and the reliability of witness testimony. She also noted that the burden of proof beyond a reasonable doubt rested with the Crown.
[21] The trial judge identified the elements that the Crown was required to prove as follows:
a. That A.M. (the appellant) intentionally applied force to B.N-T. (the complainant);
b. That B.N-T. did not consent to the force that A.M. applied;
c. That A.M. knew that B.N-T. did not consent to the force that he intentionally applied; and,
d. That the force that A.M. intentionally applied was sexual in nature.
[22] After identifying the elements, the trial judge noted that there was no question that sexual activity had occurred and that, as such, the Crown had satisfied its burden of proving the first and last elements of the offence. She relied on the evidence of the complainant as well as the DNA evidence.
[23] With respect to the issue of consent, the trial judge noted the decision in R. v. J.A. She referred to Justice McLachlin’s comments that consent required the complainant’s conscious agreement to engage in every sexual act, and that consciousness required an operating mind.
[24] The trial judge distinguished between “blacking out” and “passing out”. She noted that while “passing out” involved a state of unconsciousness, “blacking out” could involve a state of consciousness in which a person is speaking and functioning but has no memory afterwards of their words or actions.
[25] In discussing the impact of an alcohol blackout and the resulting absence of evidence of consent or the lack thereof, the trial judge referred to the reasons of Ducharme, J. in R. v. J.R., where he stated the following (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.
[26] After considering the authorities, the trial judge identified the task of determining whether the complainant actively consented without remembering or whether she was unable to consent due to intoxication and passing out. In choosing the latter, she relied upon the following:
a. That the complainant described A.M. as a close family friend and an uncle. She described that her plans were to go to his place, decorate the tree, listen to music and prepare for a Christmas party the next day.
b. That when it was suggested to her in cross-examination that she did not know whether she consented or not, she said that she would not have consented to that.
c. That the complainant was an extremely credible witness. She was not contradicted in her testimony and there were no material inconsistencies put to her.
d. That the manner in which the complainant described the incident, and specifically her use of the words, “waking up”, led the court to the conclusion that she was unconscious.
e. That when she “woke up” she was not consenting to the sexual activity that was still occurring when she became aware of it.
[27] The trial judge made no reference to the evidence of the forensic toxicologist in her reasons.
[28] In addressing A.M.’s conduct during and after the sexual encounter, the trial judge noted the following:
a. The fact that A.M. stopped when asked did not demonstrate that he cared about the complainant’s consent; it was equally consistent with the conclusion that the complainant was becoming conscious and he thought it best to stop.
b. The fact that A.M. asked the complainant if she was “mad” demonstrated that he knew that she was not consenting.
[29] Based upon these findings, the trial judge convicted A.M.
Did the trial judge fail to provide sufficient reasons to permit meaningful appellate review?
[30] In R. v. Braich, 2002 SCC 27 and its companion case R. v. Sheppard, 2002 SCC 26, the Supreme Court of Canada set out the following propositions in relation to appellate intervention in a criminal case based on insufficient reasons:
a. The delivery of reasoned decisions is inherent in the judge's role. It is part of his or her accountability for the discharge of the responsibilities of the office.
b. An accused person should not be left in doubt about why a conviction has been entered. The question is whether, in all the circumstances, the functional need to know has been met.
c. The lawyers for the parties may require reasons to assist them in considering and advising with respect to a potential appeal.
d. Not every failure or deficiency in reasons provides a ground of appeal.
e. Where the functional needs of reasons are not satisfied, the appellate court may conclude that it is a case of unreasonable verdict, an error of law, or a miscarriage of justice within the scope of s. 686(1)(a) of the Criminal Code.
f. Reasons acquire particular importance when a trial judge is called upon to address troublesome principles of unsettled law, or to resolve confused and contradictory evidence on a key issue, unless the basis of the trial judge's conclusion is apparent from the record, even without being articulated.
g. Regard will be had to the time constraints and general press of business in the criminal courts. The trial judge is not held to some abstract standard of perfection.
h. The trial judge's duty is satisfied by reasons which are sufficient to serve the purpose for which the duty is imposed that is, a decision which, having regard to the particular circumstances of the case, is reasonably intelligible to the parties and provides the basis for meaningful appellate review of the correctness of the trial judge's decision.
i. While it is presumed that judges know the law with which they work, it is the correctness of the decision in the particular case that the parties are entitled to have reviewed by the appellate court.
j. Where the trial decision is deficient in explaining the result to the parties, but the appeal court considers itself able to do so, the appeal court's explanation in its own reasons is sufficient. There is no need in such a case for a new trial.
[31] The sufficiency of reasons must be assessed contextually, having regard to the reasons as a whole in conjunction with the evidentiary record (R. v. Sheppard, paras. 28-33, 50). The trial judge’s reasons are entitled to deference from the perspective of the facts. The trial judge is also presumed to know the fundamental legal principles applicable to the case. Appellate courts must be cautious not to substitute their own analysis of the evidence for that of the trial judge (R. v. REM, 2008 SCC 51, paras. 54, 56).
[32] It is clear from the trial judge’s reasons that she found the complainant to be a credible and compelling witness. It is also clear that she accepted the complainant’s evidence that she viewed the appellant as a friend and an uncle, and that she did not believe that she would have consented to sexual activity with the appellant.
[33] The trial judge concluded from the complainant’s evidence that she, “woke up” to the appellant touching her vagina with his fingers and mouth that she had been unconscious throughout the interaction and had been incapable of providing consent. What she failed to address in her reasons was the following:
a. When the complainant became unconscious; and,
b. Whether the complainant consented to the sexual activity (or any sexual activity) before she became unconscious.
[34] It is impossible to know with certainty what happened on the night in question. It is possible that the appellant took liberties with the complainant while she was incapable of consenting due to intoxication or unconsciousness. It is also possible, however, that the complainant consented to escalating sexual activity with the appellant while she was “blacked out” and conscious, that the escalation to vaginal contact made her uncomfortable, that she physically and mentally reacted to that discomfort, and that she asked the appellant to stop, which he did. On cross-examination, the complainant admitted that she did not know whether she had consented or not. The trial judge was required to grapple with both possibilities. She did not.
[35] The trial judge also failed to establish the path that she followed to the conclusion that the complainant was unconscious. In my view, this was an essential analysis given contradictions and deficiencies in the evidence regarding the complainant’s alcohol consumption and level of intoxication, including the following:
a. The complainant’s evidence that the appellant was preparing her drinks and that she had no idea how much alcohol she or the appellant had consumed, leaving open the equal possibilities that the servings of alcohol were average, less than average or more than average.
b. The complainant’s evidence that she felt “buzzed but…nothing out of the ordinary” prior to “blacking out”, as well as T.Y.’s evidence that the complainant appeared to be sober when she attended at T.Y.’s residence between 1:30 and 2:00 a.m.
c. The expert’s qualified opinion regarding expected impairment levels and signs of impairment, the differences between “naïve” drinkers and “seasoned” drinkers and the complainant’s evidence that she consumed approximately 8 drinks and that it was not unusual for her to consume eight to ten drinks.
d. The expert’s evidence that between 10:00 p.m. and 1:30 a.m., the complainant had between 119 and 249 milligrams of alcohol per 100 millilitres of blood, and that the impact of this level of alcohol would have ranged from no visible signs of impairment and escalating from there to a red face, minor slurred speech, some gross motor incoordination, increased sociability, and talkativeness and then further to fine motor incoordination, gait instability, vomiting and nausea, and unconsciousness.
e. The expert’s evidence that she was unable to say when the complainant consumed codeine, whether the codeine was in her blood at the time of the incident and whether a drug interaction occurred at the time of the incident that would have aggravated the effects of alcohol and the complainant’s outward presentation.
[36] In short, the record disclosed no reliable lay witness evidence and no expert evidence establishing the complainant’s level of alcohol consumption or level of intoxication at any point during the evening. There was no foundation upon which to establish when or whether the complainant was rendered unconscious. There was no foundation upon which to establish the absence of consent or the appellant’s knowledge of the absence of consent. If the trial judge observed a pathway in the evidence to reach these conclusions, she did not disclose it in her reasons.
[37] The Court of Appeal in R. v. Garciacruz, 2015 ONCA 27 was faced with a similar dilemma. In granting the accused’s appeal, Rouleau, J.A. noted (para. 76):
In my view, the trial judge's failure to advert to and deal with inconsistencies in the complainant's testimony precludes meaningful appellate review, and was an error of law. As explained in R. c. Dinardo, 2008 SCC 24 (S.C.C.) at paras.2, 23-31, even if it is open to a trial judge to reach a particular conclusion based on a complainant's testimony, it is not open to the trial judge to do so without explaining how she reconciled serious problems with that testimony.
[38] The reasons provided by the trial judge in this case do not meet the functional needs of reasons for decision. In this matter, the complainant’s absence of consent and the accused’s knowledge of that absence of consent were the central issues to be determined by the court. It was not enough for the trial judge to unconditionally accept the complainant’s assurances that she could not imagine herself consenting to sexual activity with the appellant, regardless of how credible or sympathetic she may have been. There were factual and evidentiary issues that required explicit consideration and judicial resolution. That analysis was not present in the reasons before this court, and its absence was an error of law.
Did the trial judge fail to consider all the evidence and to follow her own guidance regarding expert evidence?
[39] As previously noted, the trial judge identified the importance of expert evidence in establishing the complainant’s state of mind given the gaps in her memory. Notwithstanding this acknowledgement, she did not refer to the toxicologist’s evidence in her reasons and, more importantly, she did not address any of the shortcomings in the toxicologist’s evidence.
[40] At minimum, some degree of analysis was required by the trial judge to explain why she accepted the toxicologist’s most dire estimation of the complainant’s state of mind at the time of the incident. The trial judge did not identify any circumstantial evidence connecting the expert’s opinion to the evidence. She did not reconcile the evidence before the complainant’s blackout and after the incident that contradicted a conclusion of debilitating intoxication. She also did not analyze the complainant’s anecdotal evidence about her alcohol consumption in the context of the expert’s opinion - this omission was particularly significant given the expert’s evidence that an experienced drinker may have demonstrated no visible effects of intoxication.
[41] Upon reviewing the record, it is clear that the only conclusive opinion that could be drawn from the toxicologist’s evidence concerned the complainant’s level of alcohol intoxication when her blood and urine samples were taken at approximately 7:30 a.m., 6 hours after the alleged sexual assault.
[42] By her own evidence, in order to provide a conclusive opinion regarding the complainant’s level of intoxication and her outward appearance during the time in question, the toxicologist would have required the following information:
a. When or whether the complainant consumed any substances containing codeine or morphine in the 12 to 48 hours prior to her urine sample – this evidence was not elicited from the complainant.
b. Whether the complainant consumed any substances containing codeine or morphine with a frequency that would have caused her to develop a tolerance to them – this evidence was not elicited from the complainant.
c. How often the complainant consumed alcohol and how much she typically consumed – the complainant’s evidence regarding the quantity of alcohol that she was accustomed to drinking was not put to the expert, and no evidence was elicited from the complainant regarding how often she consumed alcohol.
[43] The forensic toxicologist was the Crown’s expert witness. It is difficult to image that the Crown would not have known in advance of trial that evidence regarding the complainant’s consumption patterns was going to be required by the expert to provide a conclusive opinion or by the court to make factual determinations based upon the expert’s evidence. Their failure to elicit this evidence ought to have been considered by the trial judge in assessing the reliability and credibility of the complainant, and the overall strength of the Crown’s case.
[44] Although adverse inferences ought to be used sparingly in criminal law this was an instance, in my view, where it would have been appropriate for the trial judge to consider such a finding (R. v. Ellis, 2013 ONCA 9, paras. 43-49). The toxicologist’s evidence was essential to fill the gaps in the complainant’s evidence regarding the issue of consent. The Crown’s failure to fully arm their expert and the court with the facts suggests that those facts may not have supported the Crown’s theory regarding the complainant’s capacity to consent or the appellant’s knowledge of any lack of capacity.
[45] Given the complainant’s memory lapse and the absence of other witnesses, evidence of the complainant’s level and appearance of intoxication between 10:00 p.m. and 1:30 a.m. was critical to understanding her capacity to consent, the appellant’s knowledge regarding her capacity to consent, and the likelihood of her loss of consciousness due to alcohol consumption. In the absence of discussion in the trial judge’s reasons it is impossible to discern whether or how the toxicologist’s evidence informed her decision or whether she relied solely on circumstantial evidence in convicting the appellant. This represented a gaping hole in her reasons and was an error of law.
Did the trial judge err in her reliance on post-offence conduct?
[46] The final ground of appeal argued by counsel addressed the trial judge’s reliance upon post-offence conduct, specifically her finding that, “Mr. [M.] asking Ms. [N-T.] if she was mad demonstrates to this Court that he knew she was not consenting.”
[47] Evidence of post-offence conduct is admissible provided it is relevant to a material issue at trial and its admission does not offend any exclusionary rule of evidence. This evidence may also be excluded as an exercise of recognized judicial discretion (for example, if its probative value is outweighed by its prejudicial effect). Post-offence conduct is a form of circumstantial evidence. (R v. White, 2011 SCC 13, para. 31)
[48] In R. v. Hall, 2010 ONCA 724, Feldman and Simmons, JJ.A. noted the following about post-offence conduct (para. 131):
…the problem with post-offence conduct evidence is that it is often at best equivocal, and as the court stated in White at para.22, “susceptible to jury error”. Evidence of post-offence conduct is not evidence of the commission of a crime or its planning...Rather, it is evidence of what someone did after an event, which proves nothing directly, but from which the jury is asked to conduct a psychological analysis of what a person logically would or might do in given circumstances.
[49] In assessing post-offence conduct, a trial judge must be alive to what has been described as, “the temptation to ‘jump too quickly from evidence of post-offence conduct to an inference of guilt’ without proper consideration of alternate explanations” (R. v. Calnen, 2019 SCC 6, para. 25).
[50] The trial judge’s perfunctory conclusion that the appellant’s inquiry about whether the complainant was “mad” demonstrated his knowledge of her lack of consent flies in the face of all appellate court guidance about the treatment of post-effect conduct evidence.
[51] I concur with the appellant’s submission that this evidence was equivocal and did not demonstrate actions inconsistent with that of an innocent person. I concur with his submission that this evidence was equally consistent with the inference that he was confused about why the complainant had terminated sexual activity which had been, up to that point, consensual.
[52] There was little to no evidence before the trial judge regarding the appellant’s knowledge of the complainant’s consent or absence of consent to sexual activity. Her use of an equivocal statement to infer knowledge about the absence of consent without providing a reasoned explanation for drawing such an inference was, in my view, an error of law.
Disposition
[53] In my view, the trial judge’s errors of law were fatal to her decision to convict the accused and are not saved by a review of the decision in conjunction with the evidentiary record.
[54] I therefore allow the appeal and set aside the appellant’s conviction. After considering whether substituting an acquittal would be appropriate on the evidentiary record, I am not wholly persuaded that the record cannot support a conviction. A new trial is the normal result of a successful appeal based on insufficient reasons (R. v. MacDonald, 2008 NSCA 53 (N.S. C.A.), para. 25). Accordingly, I order a new trial.
The Honourable Madam Justice K.E. Cullin
Date: May 13, 2021
COURT FILE NO.: CR-1085/19AP
DATE: 2021-05-13
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
A.M.
Applicant
DECISION ON APPEAL
Cullin, J.
Released: May 13, 2021