COURT FILE NO.: CR-1097-19
DATE: 2021-12-15
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
S.B.
Accused
J. Mongeau, for the Crown
M. Haraschuk, for the Accused
HEARD: October 4, 5, 6, 7, 8 and 20, 2021
REASONS FOR JUDGMENT
BOUCHER j. (orally)
[1] In the early morning hours of May 18, 2014 SB and CF engaged in kissing, oral sex and sexual intercourse in SB’s car.
[2] In 2018 SB was charged with sexual assault with respect to this sexual activity.
[3] After a five-day trial during which SB testified, I am left with the overarching question of whether the Crown has proven the offence beyond a reasonable doubt. More specifically, the facts of this case raise the following issues for me to determine:
a. Did CF have the capacity to consent to the sexual activity, and if so, did she consent?
b. If the actus reus is established beyond a reasonable doubt, did SB have an honest but mistaken belief that CF communicated her consent?
Overview
[4] In May 2014, CF was a university student and was home for a break. The evening before the morning in question she decided to go with some friends, KL and BS, to The Grand, a local nightclub. They had some pre-drinks and then went to the nightclub where they had at least one more drink each.
[5] While at the bar, CF met up with SB, who was known to her having grown up on the same street. He was a designated driver and offered to give them a ride home.
[6] At closing time, CF, BS, KL and her friend KK took SB up on his offer of a ride. They went through a McDonald’s drive-thru and had something to eat in the car. KL and KK were then dropped off together. BS was next, and then SB drove to CF’s home. After a brief period, he drove to several schoolyards in the neighbourhood. It is at the second schoolyard that the sexual intercourse took place.
[7] At approximately 5 a.m. (or three hours after leaving the nightclub), SB drove CF home. They agreed to meet the next day, which they did, at Porter Park, a park in their neighbourhood.
[8] After that meeting, they engaged in a brief exchange of text messages in which consent to the sexual activity was discussed. Later that day CF contacted the GSPS and met with Cst. Michael Dionne at the station.
[9] Based on this interview, Cst. Dionne went to SB’s home that evening to speak with him about CF’s concerns. Cst. Dionne then contacted CF and asked if she would meet with him and SB at Porter Park. CF attended this meeting and returned to university the next day. Cst. Dionne’s investigation, which he labelled a police assistance case, was closed.
[10] Four years later, after CF contacted GSPS again regarding the sexual activity, and after further investigation, SB was charged.
The Law
[11] Before turning to the specific issues that have been raised by the facts in this case, it is helpful to generally break down the offence of sexual assault and the Crown’s burden.
[12] First, the actus reus, or the act itself, is made up of three parts:
a. application of force, which can be as gentle as a touching,
b. of a sexual nature,
c. in the absence of consent.
[13] The first two factors are objective and are not in dispute in the evidence of this case.
[14] The third factor is subjective and is best described in two parts.
[15] First, the court must make factual findings about whether the complainant consented.
[16] Consent is defined, for the purposes of ss.271, 272 and 273 of the Criminal Code as “the voluntary agreement of the complainant to engage in the sexual activity in question” (s. 273.1(1)). This focuses on the complainant’s state of mind and whether she wanted the sexual activity to take place (R. v. Barton 2019 SCC 33 at para. 89).
[17] Consent must be obtained for each and every sexual act engaged in (R. v. JA 2011 SCC 28 at para. 34; R. v. Hutchison 2014 SCC 19 at para. 54). This means that consent to one activity, such as kissing, does not equate to consent for other subsequent sexual activity.
[18] Recent changes to s. 273(1.1) of the Criminal Code (which codified JA) require that “consent must be present at the time the sexual activity takes place.” This means that ongoing, conscious consent is required throughout the sexual activity – put another way, people cannot consent in advance to sexual activity that may occur at a later time.
[19] Consent cannot be implied. Over 20 years ago the SCC dispelled the notion that consent could be implied from a pre-existing relationship or the passivity of one partner. As the SCC said in R. v. Ewanchuk 1999 CanLII 711 (SCC), [1999] 1 SCR 330 at para. 31: “The trier of fact may only come to one of two conclusions: the complainant either consented or not. There is no third option.”
[20] Capacity to consent was recently discussed in R. v. G.F. 2021 SCC 20. The court held that “the capacity to consent requires that the complainant have an operating mind capable of understanding each element of the sexual activity in question: the physical act, its sexual nature, and the specific identity of their partner” (at para. 55). The fourth factor outlined by the court requires that the complainant understand “that they have the choice to refuse to participate in the sexual activity.” (at para. 57)
[21] The court went on to state at para. 58:
The complainant will only be capable of providing subjective consent if they are capable of understanding all four factors. If the Crown proves the absence of any single factor beyond a reasonable doubt, then the complainant is incapable of subjective consent and the absence of consent is established at the actus reus stage. There would be no need to consider whether any consent was effective in law because there would be no subjective intent to vitiate.
[22] If subjective consent is made out, or if there is a reasonable doubt about lack of consent, the next step is to determine if the subjective consent is valid as a matter of law.
[23] There are many circumstances in which the law says that consent cannot be obtained. They include the application of force, fraud, the exercise of authority and the abuse of trust, power or authority. If any of these apply, then the subjective consent is vitiated or set aside.
[24] If the Crown establishes the absence of consent beyond a reasonable doubt, I must then turn to the mental element of the offence.
[25] For sexual assault, this includes the following which the Crown must prove beyond a reasonable doubt:
a. The intention to touch;
b. knowing of or being reckless or willfully blind as to the lack of communicated consent. Recklessness is defined as the state of mind of a person who, though “aware that there is a danger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk” (see R. v. Sansregret 1985 CanLII 79 (SCC), 1985 1 SCR 570 at p. 582). Willful blindness, on the other hand, “arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant.” (Sansregret at p. 584).
[26] The focus is squarely on the accused’s state of mind. Although not a defence that shifts the burden away from the Crown, the issue of honest but mistaken belief in communicated consent is often raised by the defence to establish the Crown has not proven this element of the offence. The question becomes: did the accused honestly believe the complainant effectively said yes through her words and/or actions (Barton para. 90).
[27] The SCC set out the following guidance in Barton at para. 91:
[91] … However, this Court’s jurisprudence is clear that in order to make out the relevant defence, the accused must have an honest but mistaken belief that the complainant actually communicated consent, whether by words or conduct…As L'Heureux-Dubé J. stated in Park, "[a]s a practical matter, therefore, the principal considerations that are relevant to this defence are (1) the complainant's actual communicative behaviour, and (2) the totality of the admissible and relevant evidence explaining how the accused perceived that behaviour to communicate consent. Everything else is ancillary" (para. 44 (emphasis in original)).
[28] There are as well statutory and common law limits to honest but mistaken belief in communicated consent:
a. There must be an air of reality which is determined by asking the following questions:
i. Is there evidence upon which a properly instructed jury, acting reasonably, could find:
That the accused took reasonable steps to ascertain consent; and
The accused honestly believed the complainant communicated consent.
This is not a high bar and any doubt about the air of reality should be resolved in the accused’s favour. If there is an air of reality, the Crown must negative the defence. This is often done by proving beyond a reasonable doubt that the accused did not take reasonable steps.
b. The mistaken belief must not flow from the accused’s self-induced intoxication, recklessness or wilful blindness; and
c. In addition, the mistaken belief must not flow from a circumstance in which the Criminal Code states that consent is vitiated or not obtained. This was explained by the SCC in Barton para. 96 as follows: “to the extent an accused’s defence of honest but mistaken belief in communicated consent rests on a mistake of law – including ‘what counts as consent’ from a legal perspective – rather than a mistake of fact, the defence is of no avail. This is also confirmed in ss. 19 and 273.1(1.2) of the Criminal Code. Factors that vitiate consent at the actus reus stage, such as those set out in sections 265(3), 273.1(2) and (3) of the Criminal Code, cannot be used by the accused when honest but mistaken belief is raised (s. 273.2(a) iii Criminal Code). Other factors include implied consent, broad advance consent and propensity to consent (see Barton paras. 97-100).
[29] Barton provides courts with the following helpful examples of what can and cannot constitute reasonable steps:
[106] Keeping in mind that “consent” is defined under s.273.1(1) of the Code as “the voluntary agreement of the complainant to engage in the sexual activity in question”, what can constitute reasonable steps to ascertain consent? In my view, the reasonable steps inquiry is highly fact-specific, and it would be unwise and likely unhelpful to attempt to draw up an exhaustive list of reasonable steps or obscure the words of the statute by supplementing or replacing them with different language.
[107] That said, it is possible to identify certain things that clearly are not reasonable steps. For example, steps based on rape myths or stereotypical assumptions about women and consent cannot constitute reasonable steps. As such, an accused cannot point to his reliance on the complainant's silence, passivity, or ambiguous conduct as a reasonable step to ascertain consent, as a belief that any of these factors constitutes consent is a mistake of law (see Ewanchuk, at para. 51, citing M. (M.L.)). Similarly, it would be perverse to think that a sexual assault could constitute a reasonable step (see Sheehy, at p. 518). Accordingly, an accused's attempt to "test the waters" by recklessly or knowingly engaging in non-consensual sexual touching cannot be considered a reasonable step. This is a particularly acute issue in the context of unconscious or semi-conscious complainants (see Sheehy, at p. 537).
[30] One last observation before moving to the specific issues and facts raised in this case. The SCC set out the following test in W. (D.) which I must apply in my analysis of these issues:
a. If the accused is believed, I must acquit;
b. If the accused is not believed, I may still have a reasonable doubt about the evidence as a result of his evidence; and
c. Even if the accused's testimony does not raise a reasonable doubt, there may be a reasonable doubt on the basis of the evidence that is accepted.
[31] At no time does this test result in a shifting of the onus from the Crown to the accused. To obtain a conviction, the Crown must negate all exculpatory evidence, whether it arises in its own case or the defence case. As well, this is not a simple situation of choosing one version of events over the other. It is not a credibility contest.
Issues
Did CF have the capacity to consent to the sexual activity
[32] The consumption of alcohol and its effect on CF is central to this determination. At trial, four witnesses provided evidence in this regard.
[33] KL has known CF for 12 years. She could not remember the exact day or month but recalled going to The Grand with CF and BS and recalled CF hugging SB when they first met at the nightclub. SB was a designated driver that evening and was willing to drive them home.
[34] She could not say how much alcohol CF consumed but said she was not a heavy drinker. She described her friend as being in a happy, drunk mood. She did not observe any stumbling or slurring of words and she did not have to help her walk. She felt CF was more flamboyant than usual and described her as a little more “extra” in her happiness. She thought she had seen her more intoxicated on other occasions. On a scale of 1 to 10, with 10 being “a walking zombie” as she described it, she thought CF would have been a 7 to 7.5 that evening. She believed she was more intoxicated than CF, and rated her own level at an 8 to 8.5
[35] BS was still “pretty close” to CF in 2014, although their friendship ended a year or two later. She recalled having a pre-drink on the night in question but was not sure where they gathered. She was on antibiotics that night and accordingly only had a few drinks. After the pre-drink, she thought CF was feeling good and had a “buzz on”. At The Grand, she thought her friend was “way more outgoing than before” wanting to dance and be on the move. She did not recall CF slurring any words or bumping into things, but she remembered her grabbing her arm when they were going down some stairs – she found her to be a little off balance. In cross she testified that CF would let her know when she needed help with balance. She felt her friend was not acting the way she had in the past and accordingly kept an eye on her.
[36] When they left the nightclub at closing, she found CF to be “pretty intoxicated” and testified that she had never seen her that drunk. She described her as someone that was normally not a “huge drinker”, and said she was usually alert and aware. She rated her a 9 out of 10 on the drunkenness scale.
[37] In chief, BS said that when they were getting into SB’s car at the end of the evening, CF asked her to ask SB to drop her off first because she did not feel comfortable with him in the vehicle. In cross, she clarified that CF said she did not trust herself with him, which is what she had said in her statement to the police. She clarified this evidence before she was shown her statement to the police.
[38] SB testified in chief that when he first met CF at the nightclub, she gave him a hug, which he thought was a bit “extra”. He felt she might have had a “buzz on,” though he could not recall ever having seen her intoxicated before. At the end of the night she had no problem walking to his car which was in a parking lot a block away. She had no difficulties communicating. In cross he denied she was visibly intoxicated, stating that she was probably buzzed.
[39] CF testified that the pre-drink with KL and BS took place downtown at a business owned by a family member of KL. They shared a mickey, or small bottle of vodka. The bottle was possibly missing a quarter when they started. She could not remember how much was left in the bottle when they finished but she remembered she drank the majority as between her and her friends. She felt a bit tipsy after drinking the vodka, though she did not believe it had fully hit her yet in that moment.
[40] She testified that she normally drank less than she did that evening. When she arrived at the nightclub, she put herself at 3 or 4 on the drunkenness scale. In cross she could not recall any difficulties walking to The Grand and when asked if she was intoxicated at this point, she stated “not incoherently, no”.
[41] She recalled her and her friends grabbing tequila shots and a mixed drink when they arrived, then heading to the dance floor.
[42] At some point she met SB at the bar, and he offered to give them a ride home. She thought it was great to have a ride home from a neighbour that was not drinking. They exchanged phone numbers. She put herself at a 5 or 6 on the drunkenness scale when they first met. She could not recall meeting him again at the bar except when he told her it was time to leave.
[43] It was after meeting SB for the first time that evening that CF testified that she started to have blackouts. She could not recall any other details of being at the nightclub until it was time to leave. In cross she was asked if she remembered having any other drinks (besides the ones when they first arrived), and she confirmed she did not recall and in fact did not remember much else of the evening.
[44] She described the blackouts as causing a climbing range of intoxication, 7, 8, 9 and probably reaching 10 by the time they left. She has a memory of them leaving but did not remember the drive home “too well.”
[45] She remembered being in the front passenger seat and that KL, BS and KK were in the backseat, with SB driving. She had a vague memory of maybe going to McDonald’s that she may have mentioned in past statements, but she could not recall it clearly at the time of trial. She recalled being the last person in the car with SB.
[46] CF testified that she was not coherent about where they were during the drive home, and that she could not confirm where they drove or where they were when they were alone. She recalled the car being stopped and she and SB were kissing.
[47] When asked if she understood what was happening at that point, she testified that she was heavily intoxicated, and she was not conscious and that she only has a brief memory of it and does not remember how it happened. When asked if she wanted the kissing, she responded that she could not remember thinking about wanting or not wanting it. In cross she acknowledged that during her interview with the police in June 2019 she did not mention kissing. She could not recall when this memory came back to her.
[48] She recalled saying she did not want to do anything more. Her next memory is having SB’s hands inside her underwear, touching her vagina and what she described as an unpreferred memory of SB saying “you’re so wet” and she remembers thinking “yeah, that’s my vagina” but she recalled telling SB he shouldn’t do that.
[49] Her next memory is of SB saying he should get a condom, and she recalls telling him he didn’t need one because she did not want to have sex. She then recalls being in the backseat, laying down on the seats, SB was performing oral sex on her and then he took off his shirt and inserted his penis into her vagina. She remembers it hurting and SB telling her to take off her shirt and she recalls telling him she did not want to. She next remembers them sitting up in the backseat and she felt distraught and confused as to what had happened. She asked him if they just had sex and if he at least used a condom. She remembers him saying something like “as if you are asking that”.
[50] She recalled telling SB during the ride home that she had told him she did not want to have sex and she asked why it happened. She felt uncomfortable and distraught. He told her several times not to tell anyone, including her ex-boyfriend. She felt he was dismissing what she had to say and that the conversation was going nowhere. He eventually told her they would talk about it the next day and she returned home, around 4 or 5 a.m. She was distraught when she got home and accordingly called her ex-boyfriend SB. She could not remember what they spoke about.
[51] In cross, she denied vomiting or having a headache the next day. When asked if she had a hangover, she stated that she was not sure if she could confirm that, her brain was confirming other things and she felt sick to her stomach in general.
Analysis
[52] The recent court of appeal decision R. v. Kaczmarek 2021 ONCA 771 is instructive with respect to capacity and is factually similar to this case. In Kaczmarek, the complainant was heavily intoxicated after drinking with friends. One of her friends described her as being “hammered.” They did not keep track of how much they drank, but it included shots of liquor. The complainant gave a “fragmented account” of what happened after she left the company of her friend.
[53] She recalled meeting two men in the apartment building, travelling in an elevator, and being in another apartment with them. The men disappeared into another room, returned, and then had sexual intercourse with her. The complainant could not recall how it started, saying she was “blackout.” She recalled coming out of it or sobering up and realizing what was happening. She described the sexual acts they performed on her. She said no several times, to no avail. One of the accused “finished” or “got done” and walked away, and the other eventually did as well.
[54] The accused were convicted at trial. The trial judge found the complainant lacked the capacity to consent. In upholding the trial judge’s decision, the Court of Appeal noted the trial judge did not equate lack of memory with incapacity, which is forbidden; rather, he reviewed several appellate court decisions, including R. v. Al-Rawi, 2018 NSCA 10 which largely informed the test subsequently set out in G.F.
[55] The trial judge grounded his finding of incapacity on the evidence before him, including that her friend described her as “hammered” and he “accepted the complainant’s description of her own sobriety, including that she was ‘blackout drunk…’” The complainant placed herself at 10 on the drunkenness scale, saying it was the only time in her life she had been blackout drunk.
[56] At trial and on appeal, the accused argued that something more than this was required to establish incapacity. They suggested objective evidence of her condition was required, such as vomiting. Trotter J.A. addressed this argument as follows at para. 44:
This submission amounts to an insistence that the complainant’s evidence had to be corroborated. Such a requirement was pruned from the law of sexual assault many years ago…it is not resurrected simply because of the evidentiary challenges that sometimes accompany incapacity cases. Complainants are capable of self-authenticating their own incapacity, as the complainant did in this case.
[57] In the present case, although KL said she had seen CF more drunk before, she thought she was a 7 to 7.5 that evening, with a 10 being a “walking zombie.” She thought she was more flamboyant and extra. According to BS, the complainant was not a huge drinker and was normally alert and aware of her surroundings. She said CF had a buzz on after the pre-drink and was feeling good. She noted CF grabbed onto her arm when they walked down some stairs. She described her friend as being pretty intoxicated whey the left the nightclub, said she had never seen her like that before, and rated her a 9 or 10 out of 10.
[58] This evidence about CF’s increasing intoxication over the evening supported her evidence. She reported eventually experiencing blackouts after speaking with SB and exchanging numbers at the nightclub. These blackouts corresponded with what she described as her escalating feeling of intoxication, though she could not recall drinking any more at the nightclub.
[59] While driving in SB’s car, she lost the sense of where she was. She recalled kissing SB but only had a brief memory of it and did not remember how it started. She felt that she was at that point heavily intoxicated.
[60] I pause at this point to address the defence submission that CF’s evidence was neither credible nor reliable. A lot of time was spent in cross testing her evidence regarding her intoxication and her memories of the evening generally and the sexual activity specifically. Inconsistencies between her trial evidence and her previous statements to police, her evidence at the preliminary inquiry and her statement to her friend, NC, were put to her. I found the inconsistencies to be minor when I consider the evidence as a whole and they did not impact my assessment of her evidence. Recall that the events took place over seven years prior to trial, and her statements and preliminary hearing evidence were spread out over that time. Minor differences are to be expected in these circumstances. With respect to NC’s evidence, although she did not have much of a present memory, she agreed that in her statement to the police she said CF told her that she had said no to sexual intercourse and then asked if he had a condom, and then they had sexual intercourse. CF disagreed in cross that she had made this statement to NC. I will also discuss the details of this sequence of events later in my reasons.
[61] With respect to her credibility, the defence asked me to find it was damaged by several factors, including:
a. Her refusal to make simple admissions such as regarding the failings of memory;
b. Making defence counsel provide her with the definition to the word guilty more than once in response to a question that related to her use of the word in her notes;
c. The many lengthy pauses between questions and her answers;
d. Significantly analyzing questions before giving an answer;
e. Moving from initially only alleging sexual assault with respect to the sexual intercourse, to expanding it to cover all the sexual activity.
[62] I would categorize all these concerns, except for the last, as going to the demeanor of the witness. While academics and some courts have questioned the value of demeanour evidence, it remains relevant to the assessment of a witness’ credibility; provided, however, that it is not given too much weight, and provided further that it is not the only factor considered in the credibility assessment (see R. v. T.D.A., 2017 ONCA 910).
[63] I begin by noting CF often paused before answering and sought clarification of many questions that were asked of her. This happened both in chief and in cross, though more often in cross.
[64] I found most of the clarifications she sought were justified. She asked several times, for example, whether she was being asked about present or past memory, particularly when older statements were put to her. I did not see her requests for clarification as attempts to manipulate her answers to suit her narrative; on the contrary, her inquiries sought to focus the question so that her answer would be responsive to the intended question.
[65] Many times, questions invited her to draw inferences rather than focus on what she saw and/or heard or said, which she would point out, and then decline to do. I saw this as an attempt to keep her answers grounded in the facts of the case.
[66] Admittedly, there were periods during her cross-examination when CF paused for what felt like lengthy periods of time. Some of the pauses were followed by a request that the question be repeated, then followed by another pause, and then her answer was on several occasions that she could not recall. I found these pauses came toward the end of her cross-examination. Recall that she was on the stand much longer than any of the other witnesses in this five-day trial. I find at that point fatigue was setting in. In the end, I do not find this aspect of her testimony significantly impacted her credibility.
[67] I turn now to the submission that CF’s version of what happened changed over time, from suggesting only the intercourse was unwanted, to including all the sexual activity.
[68] This is based on a text message CF sent to SB the next day, as well as what it is suggested she said to Cst. Dionne in her meeting at the station and later in the park together with SB.
[69] After CF and SB first met in the park for the first time the next day, they exchanged some text messages. In one of her responses, CF stated “I know I had no intentions of having sex even at the time. One thing led to another but your dick in me is taking advantage…” This was put to CF as proof that she had consented to the kissing and to mutual touching. There were several pauses and requests for clarification during this part of the cross-examination.
[70] CF responded that she did not know if saying one thing lead to another referred to mutual touching. She clarified it meant she was acknowledging that other things happened that night. She did not recall performing fellatio on SB. She denied having feelings of guilt about her ex-boyfriend. She denied these feelings lead her to allege sexual assault because she was afraid her ex-boyfriend would not take her back if he learned about it.
[71] I turn now to CF’s interactions with Cst. Dionne, who was called as a witness for the defence. His evidence was tendered to challenge CF’s alleged changing version of events as well as to support the accused’s version of events.
[72] I find that Cst. Dionne’s investigation into the allegations and his evidence at trial do not assist me. From start to finish his investigation was improperly conducted. He acknowledged that CF reported not consenting to the sexual intercourse, but he believed she did not wish to proceed with charges at the time. Although he denied this had an impact on his investigation, I find it clearly did, given the way he handled the investigation. For example:
a. He did not make an audiovisual recording of his interview with CF at the police station, which took place within 24 hours of the incident. During that initial meeting, he did not ask CF to give as much detail as possible; rather, he only wanted what he described as her “initial position”;
b. He had no recollection of asking CF if she would complete a sex assault kit. There is no mention of this in his notes, and he testified in cross that be believed he would have made a note of this request. He eventually conceded that he did not ask her this and admitted it was a mistake;
c. He also readily admitted he should have taken better notes.
d. He met very briefly with SB at his residence. Although SB was a suspect at the time, Cst. Dionne did not caution him. At SB’s suggestion, he agreed to mediate a meeting between SB and CF, a decision which he admitted was a mistake that he continues to regret. He contacted CF and asked her if she would be willing to meet at Porter Park around 1 a.m. for this purpose. CF agreed. In attendance at the meeting were CF and SB, Cst. Dionne and an auxiliary officer as well as the accused;
e. Rather than file the report as an alleged sexual assault, which should have been sent to the criminal investigations unit, he filed it as a police assist. He said he did this because at the time CF did not want to proceed criminally and he thought he could handle it. He also testified that he knew filing it the proper way would impact SB’s career prospects;
[73] Insofar as his notes were used to cross-examine CF on the alleged evolution of her version of events, Cst. Dionne admitted in cross that despite what was contained in his notes, his interpretation of her statement was that she physically engaged in these sexual activities with SB, not necessarily that it was consensual.
It is clear to me that Cst. Dionne framed this as a police assist because he did not want the proper report to have a negative impact on SB and his career aspirations. In cross he maintained it was because CF did not want to proceed criminally, that she simply wanted SB to get a warning and
be told not to communicate with her. Why respect her supposed request that he not be charged, but immediately disrespect her request for non-communication? He brought CF into a mediation meeting knowing fully well her position on what had happened and knowing she did not want any communication. Indeed, this highly unusual and inappropriate meeting was held at SB’s request.
[74] His notes cannot therefore be relied upon to impeach CF’s credibility insofar as they suggest words spoken by her that are different than those at the PH or trial.
[75] In any event, it is noteworthy that when statements in his notes attributed to CF were put to her, her evidence did not materially change. Many of her answers were that she did not know or did not recall, which are understandable given she met with Cst. Dionne twice on the same day, over seven years ago.
[76] I conclude CF’s evidence was both credible and reliable. She had snippets of memories, including saying no several times. She denied any memory of consenting to any of the sexual activity, and her memories of what occurred are in many ways different from SB’s, which will be described later.
[77] As discussed, CF was careful to be responsive to the questions. She acknowledged the limits of her memory but was careful to base her answers on her memory as much as she could. She declined to speculate or to draw inferences.
[78] I find on this evidence that CF’s level of intoxication deprived her of the operating mind required to understand each element of the sexual activity in question. I find what she described as blackouts were essentially periods of alcohol-induced unconsciousness. She awoke from many of these blackouts to find herself in various types of sexual activity with SB, much like the complainant in Kaczmarek. It is clear to me in these circumstances that CF’s intoxication made her incapable of understanding the four factors set out in G.F. (except for knowing SB’s identity) and accordingly she was unable to provide subjective consent. Simply put, her unconsciousness made it impossible to provide contemporaneous consent.
[79] With respect to CFs physical condition the following day, including her ability to go out to the park to meet SB and the absence of vomiting, thus suggesting an absence of evidence of profound intoxication, I adopt the reasoning of Trotter J.A. in Kaczmarek. This submission suggests corroboration is required, which is a relic of the past. It has no place in the current law of sexual assault.
[80] I respectfully reject the argument that CF could not lack capacity to consent and at the same time have memories of verbalizing her refusal to engage in or to continue in the sexual activities; in other words, an argument that suggests she has a convenient memory. This is a fact-driven exercise, and I accept that at several points she recalled saying “no.” There is nothing inconsistent with also finding that she awoke during sexual activities to which she could not have provided contemporaneous consent.
[81] I also reject the argument that her physical abilities that evening betray a finding of incapacity. The suggestion is that someone that can dance, walk, talk, get into a car, eat, kiss, get into the back seat of a small car and have sex cannot lack capacity. Karakatsanis J. dealt with this as well as the convenient memory argument as follows at para. 65 of G.F.:
As a final note, I reject the respondents’ argument that the complainant’s claim of incapacity was belied by her thorough recollection of the sexual activity. Whether the complainant has a memory of events or not does not answer the incapacity question one way or another. The ultimate question of capacity must remain rooted in the subjective nature of consent. The question is not whether the complainant remembered the assault, retained her motor skills, or was able to walk or talk. The question is whether the complainant understood the sexual activity in question and that she could refuse to participate.
[82] In conclusion, I find CF lacked the capacity to subjectively consent and accordingly the Crown has proven the actus reus of the alleged offence beyond a reasonable doubt. Having found she could not subjectively consent I need not address the question of whether she consented at this stage.
Did SB have an honest but mistaken belief in communicated consent?
[83] I find on the facts of this case that the air of reality test is met. This is not a situation where the only evidence regarding honest but mistaken belief is the bare assertion of the accused; rather, the evidence of both CF and SB as well as the surrounding circumstances support this conclusion (see for example, R. v. Esau 1997 CanLII 312 (SCC), [1997] 2 SCR 777). The evidence of both SB and CF confirms this is not an allegation of a completely unconscious complainant, for example, someone that is not awake. They spoke in the car, including discussions about her ex-boyfriend and engaged in kissing. After CF expressed concerns about continuing, SB stopped, they spoke some more and eventually made their way to the backseat of the car. They spoke after the sexual activity and agreed to meet the next day. Based on these interactions, which will be discussed in further detail, SB believed CF communicated her consent to the sexual activity.
[84] I am mindful that this is a low threshold. The Supreme Court of Canada has reminded trial courts that any doubt about the air of reality should be left to the trier of fact (see R. v. Cairney 2013 SCC 55; R. v. Pappas, 2013 SCC 56 at paras 22-26).
[85] Having determined the threshold has been met, the onus shifts to the Crown to negative the defence and prove beyond a reasonable doubt that SB did not have an honest but mistaken belief in communicated consent. The Crown argued in this case that SB, given his knowledge CF has been drinking, should have been more careful in taking the reasonable steps necessary to confirm her communicated consent. The Crown also argued SB knew or ought to have known CF did not consent, or that he was wilfully blind to this fact.
[86] I will now review in detail the evidence regarding the sexual activity that took place.
[87] SB testified that when he first met CF that evening, he thought she may have been acting a bit “extra” and she gave him a hug. He believed she may have had a “buzz on”. They exchanged numbers, and at the end of the night they all walked to the parking lot about a block away. He did not believe CF had any difficulty walking.
[88] He also testified CF had no difficulties communicating. Everyone went to the drive-thru at McDonald’s and they ordered and ate food, including CF. After dropping off the last friend and driving to their street, CF hugged him and kissed him on the neck, telling him about her ex, SB, and they continued kissing. She touched his upper torso and leg.
[89] After about 10 or 15 minutes, they drove to the parking lot of Churchill school, where they engaged in more kissing and touching over clothes and their groins. At this point CF straddled him in the front seat, spilling some McDonald’s pop.
[90] They cleaned up the mess and he asked CF what she wanted to do. She replied that they should go somewhere more private. They accordingly drove to St. Charles school where they engaged in more touching, including her vagina and his penis, with some being under their clothing. At this point he asked SB if she wanted to have sex. In response, she asked if he had a condom.
[91] SB retrieved a condom from the trunk of his car. When he returned to the front seat, and after some more kissing, CF told him she was not sure if they should continue. She was concerned about her ex-boyfriend, SB. The accused reassured her that he did not have a relationship with SB at work and it was not an issue. He testified they spoke for about another 30-40 minutes.
[92] SB was asked in-chief whether during this talking they made any physical contact. He answered that yes, CF had her hand on his upper leg, and they were holding hands. He was asked to describe the mood in the car, which he described as relaxing and intimate. He was asked if CF did anything that suggested she was interested in continuing. SB responded that she was rubbing his leg and making eye contact with him, which felt to him like intimacy. He further testified they started kissing and he was then asked who started the kissing, and he responded that it was mutual, they met in the middle.
[93] After they started kissing, SB testified “things kinda re-escalated again” and they touched each other over and under their clothing. He was then asked if there was anything else discussed. SB responded that he asked CF if she wanted to go in the back seat, and she said that she did.
[94] Once in the back seat, SB asked CF if she would perform oral sex upon him, which she did. She then asked him to perform oral sex on her, which he did. His evidence was that she guided him in this activity and was moaning which he believed was an expression of pleasure.
[95] While he performed oral sex, CF asked him if he had the condom. He retrieved it from his pants on the floor and put it on, while she watched. Once it was on, CF straddled him, and they began sexual intercourse. His evidence continued in which he described various positions they assumed during the intercourse, including with CF laying on her back.
[96] There are several key points where SB’s evidence and CF’s evidence intersect. They include that while seated in the front seat, CF recalls SB saying he was going to get a condom and she told him he didn’t need one because she did not want to have sex. CF also testified that she recalled being in the back seat, on her back, with SB performing oral sex on her. He then had sexual intercourse with her, and she recalls that it hurt, and she asked him if they had just had sex and if he had at least worn a condom.
[97] The most important of these intersections is when SB and CF were in the front seat of the car and there was discussion about a condom. Although they disagree on whether SB said he was getting one or CF asked him to get one, they agree that she expressed a reluctance to continue at that point. CF’s evidence was that she recalled saying she did not want to have sex; SB’s, that she did not know if she should continue. In his evidence in chief, SB testified that he was fine with her position, and when asked if he thought things would continue, his evidence was that he was unsure.
[98] As I have already set out, the onus is on the Crown at this stage to prove beyond a reasonable doubt that SB was either reckless or willfully blind or did not take reasonable steps to ascertain communicated consent. SB testified about these issues and I must and will consider this evidence; however, by doing so, I am not reversing the onus.
[99] In Ewanchuk the SCC addressed this situation as follows at para. 52:
Common sense should dictate that, once the complainant has expressed her unwillingness to engage in sexual contact, the accused should make certain that she has truly changed her mind before proceeding with further intimacies. The accused cannot rely on the mere lapse of time or the complainant’s silence or equivocal conduct to indicate that there has been a change of heart and that consent now exists, nor can he engage in further sexual touching to “test the waters”. Continuing sexual contact after someone has said “No” is, at a minimum, reckless conduct which is not excusable. In R. v. Esau, 1997 CanLII 312 (SCC), [1997] 2 S.C.R. 777, at para. 79, the Court stated:
An accused who, due to wilful blindness or recklessness, believes that a complainant . . . in fact consented to the sexual activity at issue is precluded from relying on a defence of honest but mistaken belief in consent, a fact that Parliament has codified: Criminal Code, s. 273.2(a)(ii).
[100] When SB was pressed in cross-examination on whether or not he had asked CF a follow up question regarding consent he testified that he did not do so verbally but rather they had signs of intimacy that suggested her consent. He pointed as well to his request that they go in the backseat. He testified she could have said no at this point.
[101] Recall that based on his evidence in chief, SB had no issue asking CF for her consent several times. First, he asked if she wanted to have sex. He testified that about 30 or 40 minutes passed after she initially declined to continue, during which time they spoke. He described this period as relaxed and intimate. After what he described as things “re-escalating” he chose not to verbally seek her consent to continue but rather asked her to go in the back seat.
[102] Once there, he asked her to perform oral sex on him. This led to her asking him to do the same, which he did and during which he states she asked him if he had the condom.
[103] Consent is required at each stage of the sexual activity. Consenting to oral sex does not equate to consent to sexual intercourse. What did CF mean when she asked SB if he had the condom? Was this her way of communicating consent to sexual intercourse or was it her way of ensuring safe sex took place, without necessarily consenting. Why did SB, having specifically sought her consent twice, and with the passage of over 40 minutes, not seek her further verbal consent?
[104] His evidence suggests it was based on the intimacy of the moment, the continued sexual touching, the fact she did not refuse to get in the back seat and by asking if he had the condom. But the intimacy of the moment and sexual touching had occurred earlier and at that time he decided the proper course of action was to ask her if she wanted to have sex.
[105] In the face of her objection, he did not ask her again, but rather relied on the non-verbal cues such as kissing and sexual touching, which he had not relied on earlier. Why were they more reliable and representative of her communicated consent later?
[106] Ewanchuk cautions that the passage of time or equivocal conduct cannot be relied upon as evidence of a change of heart. The SCC directs that individuals in these circumstances should ensure the complainant “has changed her mind before proceeding with further intimacies.” (Ewanchuk at para. 52)
[107] As I have already indicated, CF’s question about the condom is equivocal. In the face of this question SB chose to proceed with sexual intercourse, rather than take a moment to seek clarification and ensure he was not misinterpreting communicated consent. He did it twice earlier.
[108] There are both objective and subjective dimensions to the reasonable steps analysis. The SCC set out in Barton at para. 104 that “the accused must take steps that are objectively reasonable, and the reasonableness of those steps must be assessed in light of the circumstances known to the accused at the time.” A leading approach to this analysis is set out in R. v. Malcolm 2000 MBCA 77 (leave to appeal refused: [2000] SCCA No 473) at para. 24:
First, the circumstances known to the accused must be ascertained. Then, the issue which arises is, if a reasonable man was aware of the same circumstances, would he take further steps before proceeding with the sexual activity? If the answer is yes, and the accused has not taken further steps, then the accused is not entitled to the defence of honest belief in consent. If the answer is no, or even maybe, then the accused would not be required to take further steps and the defence would apply.
[109] The SCC commented further on this inquiry in Barton at paras. 108 and 109:
[108] It is also possible to identify circumstances in which the threshold for satisfying the reasonable steps requirement will be elevated. For example, 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.
[109] Overall, in approaching the reasonable steps analysis, trial judges and juries should take a purposive approach, keeping in mind that the reasonable steps requirement reaffirms that the accused cannot equate silence, passivity, or ambiguity with the communication of consent. Moreover, trial judges and juries should be guided by the need to protect and preserve every person’s bodily integrity, sexual autonomy, and human dignity. Finally, if the reasonable steps requirement is to have any meaningful impact, it must be applied with care — mere lip service will not do.
[110] Although SB and CF knew each other, having grown up on the same street, they did not know each other well. SB acknowledged she had a buzz on that night, though he denied it impacted her motor skills. Sexual intercourse is one of the more invasive forms of sexual activity. SB acknowledged as much when he verbally and specifically sought her consent. When she expressed uncertainty about proceeding, why did he not drive her home? It was not as though they were longstanding friends and he needed to listen to her explain her feelings about her ex-boyfriend. He was on these facts nothing more than a ride home that night, a ride that was quickly arranged after a brief unexpected encounter at the night club.
[111] Instead of driving her home, he stayed with her in his car in a secluded area for another 30-40 minutes during which time he engaged in the type of conduct prohibited by the SCC from Ewanchuk to Barton: further sexual touching. Although he asked her for oral sex, he took her equivocal comment about the condom as her way of communicating her consent, more than 40 minutes after telling him she was unsure if she should proceed.
[112] I need not address in depth the evidence of what transpired during their two meetings in the park the next day, their exchange of text messages and CF’s ex-boyfriend’s evidence. It does not add anything to SB’s evidence about what happened in the moment. It confirms that he ultimately based her communicated consent on her physical engagement with him. Indeed, in a text message to CF he said, “instead of getting excited when you did anything I should of stop.” Defence counsel asks me to interpret this text in the context; namely, that he was responding to the revelation that CF had not consented to the sexual intercourse. He also asks me to consider this could simply mean he regretted the encounter in its entirety.
[113] I find this comment is squarely in line with his evidence at trial: that he did not ask her again if she wanted to have sex and instead relied on her physical engagement to continue to sexual intercourse. In the circumstances I have described, which were known to SB, the reasonable person would conclude CF’s physical engagement was not sufficient. SB should have taken greater care to determine if CF consented to sexual intercourse, such as by asking her again. He did not.
[114] I accordingly find the Crown has proven beyond a reasonable doubt that SB did not take reasonable steps to ascertain CF’s consent to sexual intercourse, and the defence of honest but mistaken belief in communicated consent is not available. The Crown having established the physical and mental elements of the offence beyond a reasonable doubt, I find SB guilty of sexual assault.
The Honourable Mr. Justice P.J. Boucher
Released (orally): December 15, 2021
COURT FILE NO.: CR-1097-19
DATE: 2021-12-15
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
S.B.
Accused
REASONS FOR JUDGMENT
Boucher J.
Released (orally): December 15, 2021