COURT FILE NO.: CR-1095-19
DATE: 2021-02-05
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
William Rannelli
Accused
Kevin Ludgate, for the Crown
William Beckett, for the Accused
HEARD: March 9, 10,13, 2020 and January 11 and 12, 2021
REASONS FOR JUDGMENT
Hennessy J.
[1] William Rannelli was charged with sexual assault under s. 271 of the Criminal Code, R.S.C., 1985, c. C-46. The Crown alleges that Mr. Rannelli had unprotected sexual intercourse with the complainant without her consent. There is no issue that there was sexual intercourse. The issue for the Crown in this case is consent. The defence raises the possibility of honest but mistaken belief in consent. The issue of capacity may also arise on the facts.
Overview
[2] The complainant and the accused met on a dating site in March 2018. The complainant was 29 years old, a mother of two and recently separated. The defendant was 35 years old, a father of two and recently widowed. They “talked” online for seven to ten days before arranging to meet at a coffee shop on a Saturday morning, March 24, 2018. Mr. Rannelli had to cancel the meeting because of work obligations. That evening, he suggested to the complainant that she come to his place where he was watching TV.
[3] That evening the complainant drove out to Mr. Rannelli’s apartment. It was a 30-minute drive. She arrived sometime between 8:00 - 8:30 p.m. and brought with her a bottle of wine. Mr. Rannelli poured the complainant some wine in a wine glass. Over the course of the evening, the complainant drank, by her estimation, 12 oz of wine. The accused testified that he drank three cans of alcoholized cider over the same period.
[4] Mr. Rannelli described the apartment as very small. The entrance opened into the kitchen and kitchen/eating area opened directly into the living room. There were two bedrooms directly off the living room. Mr. Rannelli’s two daughters, ages three and five years old, were sleeping in one of the bedrooms.
[5] The parties had already discovered that they had much in common and spoke easily for an hour or two. They spoke of their personal family situations, something the complainant explained was usual and expected on first dates in their cohort.
[6] At one point, Mr. Rannelli put his hand on the complainant’s knee and asked if he could kiss her. The complainant declined the request.
[7] The accounts of the complainant and the defendant diverge on how the evening progressed and how the sexual activity commenced between them. However, the defendant acknowledges and there is DNA evidence to support the complainant’s evidence that there was sexual intercourse between them. The defendant also acknowledges that he did not ask for and he did not receive verbal consent from the complainant for sexual intercourse.
Complainant’s Account
[8] The complainant said she was put off as soon as she arrived at the apartment. She smelled cigarette smoke upon arrival and made a comment. The cigarette smell was not a welcome smell to her. She reacted negatively to the motorcycle images that were mounted on the walls. She also said that the accused did not appear as he did in the photographs on the dating site.
[9] The complainant explained why she said no to the request for a kiss. She testified:
“I responded that I wasn’t interested, that I had been separated for a month and I’m not wanting to move quickly with anyone.”
[10] She said that the accused then turned away from her, went silent, and made fists with his hands. He appeared to be upset.
[11] After the first glass of wine, the complainant testified that she felt fine. The accused offered the complainant another drink, which she declined. She made up an excuse for why she had to leave. In response, the complainant testified that the accused pushed her to have more wine and offered to get her a cab home. The complainant declined on the account of the expense. He then suggested a half glass of wine and offered that she sleeps over at his apartment, on the couch, “if she didn’t feel well”. He ordered some food. The complainant felt that the offer of the cab and the sleep over were attempts to negotiate with her to get her to accept the second glass of wine. The complainant did not want to be or to appear rude. While under cross-examination, the complainant emphasized that she was not attracted to the accused in any way.
[12] Finally, the complainant accepted the offer of a half glass of wine. She testified that the accused poured the second glass in the kitchen, which was out of her sight. She also recalled that the bottle ended up on the table in the living room. Around this time, 10:15 p.m., the food had arrived. Upon consuming the second half glass of wine, she immediately started feeling ill, dizzy, nauseous and had a hard time focusing her eyes. The complainant stated that she told the accused that she was not feeling well and that she had a headache. She had to lie down.
[13] Around that time, the food arrived, by which time she was lying down on the couch. She recalled that the accused was sitting on the floor next to her, between the couch and the coffee table.
[14] The next memory the complainant had is waking up, lying on her back. Her jeans were off, and she could see the accused was standing completely undressed in the space between the kitchen and the living room. She did not recall how she ended up on her back on the couch. She felt like she was sleeping but remembers the accused getting on top of her and pushing away her underwear. He had vaginal intercourse with her. He was not wearing a condom. The complainant also recalled that the accused kissed her and pulled her sweater off her shoulders.
[15] The complainant described her bodily feelings during the sexual activity in these terms:
she felt like she could not stay awake;
she was in and out of consciousness;
she was crying;
she was not able to do anything; and
she was not feeling well.
[16] The complainant says there were no conversations between the two of them before the intercourse. However, during the intercourse, she testified that the accused spoke to her in endearing terms, making promises to her.
[17] The sound of her phone woke the complainant. She was on the floor beside the couch, face down. It was shortly after 5:00 a.m. She read the text message on her phone. She was partially dressed but had no recollection of dressing herself. Her bra and jeans were both undone. She felt sick and had to sit down for what felt like almost 20 minutes before she could get up. She noticed an ashtray on the table. She felt dizzy and nauseous. She went to the washroom where she vomited. She saw her reflection in the mirror, she was disheveled, had blood on her nose and ashes in her hair.
[18] The complainant prepared to leave. She wanted to get home. It was still dark and was slippery outside. The accused followed her to her car. He made comments to her, offering to fix her car if she ever needed it, suggesting that they get their kids together. At the car, he moved in to kiss her, but she looked away.
[19] The complainant testified that it took her almost two hours to get home. She was disoriented. She had to stop along the way, and she got lost. She felt very ill. By the time she got home she had trouble manipulating the keypad. It took her a great deal of effort to get into her house. She had a shower and still felt so ill that she called an ambulance. At the hospital, she reported that the accused had intercourse with her without her consent. She believed she had been drugged. The complainant did not voluntarily consume any drugs that evening. A forensic test was administered. In her interview with the officer she was inconsolable.
[20] The complainant testified that she did not want to have sexual relations with the accused that evening and that she would not have had sex with anyone without a condom at that time of her life. The complainant explained this answer by saying that she had already denied an offer of sexual contact with the accused, had not spoken of sex nor given any consent while she was conscious, and had no sexual attraction to the accused.
Defendant’s Account
[21] The defendant denies that the complainant gave any explanation for declining his request for a kiss. He testified that he felt slightly embarrassed but not angry, that he did not turn away and did not make fists. He testified that although this was not the answer he wanted, that he totally accepted her answer and did not pursue the matter further.
[22] The defendant testified that he did not offer any further wine, and did not pour any further wine for the complainant after the first glass but that he observed her pour herself a second glass from the bottle which was on the coffee table in the living room. He did not pay attention to how much the complainant poured or drank that evening. He did not condone drinking and driving, and he therefore offered to get a cab for her. When she declined his offer to pay for a cab, he offered to let her sleep on the couch, “if worse came to worse”.
[23] Before the food arrived, the two of them sat together on the couch and watched TV. During this time, the defendant did not notice any slurring of speech or any other signs that the complainant was unwell. The defendant also explained that he made his offer of a cab ride home because he did not want his children waking up in the morning to a complete stranger in the living room. Ultimately the defendant fell asleep sitting on the couch, between 11:00 – 12:00 p.m. He woke up around 4:00 a.m. and testified that the complainant told him that she had fallen asleep and at some point, had fallen off the couch, but was not in distress and had no marks on her face. The defendant stated that he did not observe any signs of intoxication or inebriation.
[24] At this point, both parties were standing near the kitchen. It was then that the complainant approached him and started kissing him passionately. They made their way to the couch, where they progressed to “exploring each other’s bodies”. The defendant was on top of the complainant. He unbuckled her jeans and she assisted him in removing her jeans. The defendant stood up and took off his jeans and underwear. The defendant testified that the complainant moved her underwear and they had vaginal intercourse. He said that the complainant made sounds of pleasure. He denied that she was crying. After the intercourse, they lay together on the couch and talked for a while.
[25] The defendant acknowledged he was not wearing a condom, he explained that he was not prepared. He acknowledged that he did not ask the complainant for her consent for any of the sexual acts, nor was there any discussion about any of the sexual acts or sex without a condom. The defendant testified that the complainant had initiated the passionate kissing.
[26] After the intercourse, he stated that they both got up and put on their pants. The defendant told her again that his girls would be getting up soon. He stated that the complainant had received a text which upset her and as a result she wanted to leave.
[27] The defendant acknowledged that the complainant did go to the washroom before she left. He did not notice any signs of distress. He walked her out to the car and told her he had a good time and hoped that they could get together again and have their children meet. He testified that he “pecked” her on the cheek to say goodbye.
[28] The defendant denied that the complainant at any time looked or said that she felt unwell. Fifteen or twenty minutes after she left, he texted her to say his girls would be up soon and he lay down on the couch to sleep. He slept until 6:30 – 7:00 a.m. when his children did get up. At 10:30 a.m. he got a call from the police that there had been a complaint of sexual assault.
Medical and Testing Reports
[29] The accused’s DNA was found on the exterior and interior of the complainant’s genitals. The nurse noted bruises on her legs and arms and photographed a long mark along one side of her face.
[30] The toxicology report did not show alcohol in the complainant’s system. Although there were signs of the drug Effexor in her system, (as per the complainant’s prescription) it could not be determined whether the complainant was affected by her use of this drug in combination with alcohol. There was evidence that the complainant had eaten very little that whole day, which could potentiate the effects of alcohol in some circumstances. The toxicologist found no evidence of GHB, a commonly known date rape drug in the complainant’s system but stated that this is not determinative of whether it was ingested.
Analysis of the Accused’s Evidence
[31] The accused gave evidence from his lawyer’s office, which was available in real time via the Zoom platform.
[32] The testimony of the accused confirmed almost every detail of the complainant’s evidence save for the details of who poured the second glass of wine and their accounts of the events immediately before and after the sexual intercourse. The accused’s evidence was on the whole a coherent account of the night.
[33] The accused took strong positions in his evidence on a few points that ultimately were not sustainable.
[34] At first, he denied that he smoked in the house and explained that the smell of smoke at the entrance to the apartment came from the ashtray he kept by the door because he smoked outside. However, the photos of the kitchen the next day show an ashtray on the kitchen counter and the complainant testified that when she awoke in the morning, there were ashes in her hair. There was no need to obfuscate on the question of smoking in the house. I find that the accused was prepared to be less than forthright, hoping perhaps to make himself look good in the eyes of the court. However, evidence of smoking in the house, has nothing to do with the allegations and is not in itself material to the allegations. I do not accept the evidence that the accused did not smoke in the house.
[35] The accused also testified adamantly twice that he did not stand up in front of the complainant without his pants and therefore she could not have seen him without a condom. However, he also said that he stood up beside the complainant and took off his pants and underwear. When faced with this contradiction, he withdrew his first answer. The biological testing itself found evidence of semen on the complainant’s genitals, which corroborated the complainant’s own evidence that the accused did not wear a condom. I find that the accused was not truthful in his answers on this point.
[36] In cross-examination, the accused took great pains to insist that he did not get upset when the complainant denied his offer of a kiss. He insisted that he totally accepted her wishes and then denied a few times that he had wanted a different response. This was the turning point in the evening, but the accused had a difficult time admitting that he did not get the answer he wanted. Ultimately the accused accepted the proposition that the complainant’s rejection to his sexual advances was not the answer he wanted. In my view, the accused was prepared to give an implausible answer because he hoped that this answer would better fit his account. These answers had a negative effect on his credibility.
[37] The accused also had what I found to be a confusing and illogical explanation for offering the complainant a cab ride home early in the evening, or in the alternative, offering that she could sleep on the couch if she did not feel well or if worse came to worse. There is no explanation for why he said, “if she did not feel well.” It seems to foreshadow subsequent events but is without any logical foundation on the evidence of what had transpired to that point.
[38] The accused’s explanation that he was worried that his children would wake up at 4:00 or 5:00 a.m. is unlikely on his own evidence. He testified that his daughters regularly slept through the night and got up around 6:30 or 7:00 a.m. In fact, they did exactly that, that day. In my view, the accused made these comments about his children because he had to explain why he offered the complainant an opportunity to leave his apartment. However, his stated concern that his daughters would wake up and find the complainant does not reconcile with his own evidence. Furthermore, this concern that his children would wake in the middle of the night and he did not want them to find a stranger in the house is inconsistent with him being prepared to completely undress in the living room and have sex on the couch in such close proximity to his children. The evidence from the downstairs tenant was that noise carried so easily in that house that from his downstairs’ apartment, he could hear the comment “my lip gloss fell on the floor” and other talk and laughter between the complainant and the accused that evening.
[39] These points inform my assessment of the accused’s evidence. Overall, I do not find that the evidence of the accused raises a reasonable doubt.
Defense Witness
[40] Mr. M. was the downstairs tenant in the house. According to the defence, Mr. M. was called only to give evidence about what he observed in the morning, that is he saw the accused and a woman beside a car in the driveway. He observed the accused give a peck/kiss to the woman and he heard the words “Have a good day.” before the car drove off.
[41] He testified that he knew there was a woman upstairs that night because he heard her during the evening. He assumed this was the same woman he saw the next morning get into a car. Mr. M. said that he and the accused were not buddies.
[42] Mr. M. admitted that he sought out the investigating officer later that day so that he could tell the officer what he had observed. However, according to the officer’s notes, Mr. M. ended his short remarks by saying: I only want to help out my buddy.
[43] In their evidence both the accused and Mr. M. denied that they were buddies. Mr. M. could not recall when he spoke to the accused that day or if it was before he spoke to the officer. He had no explanation for why he called the officer to provide this observation.
[44] Mr. M. explained that he had serious memory problems. He also seemed to have serious problems processing language, saying that he did not understand the simplest questions. Considering his full testimony, I do not accept his evidence as a reliable observation.
Analysis of the Complainant’s Evidence
[45] The complainant’s evidence was given in two contexts. In the first part, the complainant provided a detailed account, based on her recollections when she was fully conscious, able to observe and hear what was said. The other context from which the complainant gave evidence was from a diminished cognitive state. She recalls feeling sleepy and unwell. She recalls going in and out of sleep.
[46] On the evidence from the periods of time when the complainant had full recall, I found her evidence to be credible and reliable. The complainant’s evidence was very detailed. The accused agreed with or confirmed almost every one of these many details, some banal, some more significant.
[47] The complainant was not impeached in any way on cross examination. She was not shaken from her account of what had happened. She did not accept any alternate account of what happened that night. The complainant’s evidence showed a reliable memory in even the smallest detail, from the periods of time when she was conscious.
[48] The complainant’s evidence was coherent, logical, consistent and significantly corroborated by the defendant. Her evidence was not undermined with any inconsistencies or logical gaps. I found her to be understated in her description of her physical condition and her reaction to the sexual acts. The complainant was rigorously cross-examined on the opportunities she had at various points to leave the accused’s apartment if she was not comfortable. The complainant replied that she did not want to be rude. The complainant did not attempt to explain her conduct by anything other than her simple feelings. She did not try to come up with any blame or excuses for why she stayed at the accused’s apartment after she had been put-off from the time of her arrival, felt uncomfortable and did not have any sexual attraction to the accused. The complainant’s answer that she stayed because she did not want to be rude was not an answer that demonstrated her maturity or awareness of risk, but nonetheless she was prepared to make this admission.
Burden of Proof
[49] There is no dispute that sexual intercourse took place between the accused and the complainant. They both testified that sexual intercourse occurred, and the medical evidence supports that.
[50] Consent is therefore the only issue in this case. The Crown bears the onus of proving beyond a reasonable doubt that the sexual intercourse, which is admitted, occurred without the consent of the complainant.
[51] The complainant denies that she gave her consent to sexual intercourse. The accused acknowledged that at no time did he seek any permission for any sexual touching or activity other than the kiss, earlier in the evening and further acknowledges that there was no discussion between the two of them about any sexual activity. I find that the complainant did not give her verbal consent to sexual intercourse. The accused asserts that the complainant, by her actions, consented to the sexual activity and submits therefore that the Crown has failed to prove absence of consent.
[52] In the alternative, the accused argues that the accused had an honest but mistaken belief that the complainant consented to the sexual activity. For that defence to be successful, the accused must show that he took the reasonable steps necessary to ascertain the consent of the complainant prior to the sexual activity. The Crown argued that there was no evidence to support this defence.
[53] First, I will deal with whether the Crown has met their burden with respect to proving the absence of consent. I will then discuss the accused’s alternate argument that he possessed an honest but mistaken belief in consent. I will begin by looking at whether the defence has an air of reality and conclude with an analysis of whether the evidence offered in support of the defence of an honest but mistaken belief in consent meets the test in s. 273.2.
Consent
[54] The absence of consent is subjective and determined by reference to the complainant’s subjective internal state of mind at the time it occurred: R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at para. 26. The complainant’s non-consent is a matter of credibility for the trier of fact. It is to be considered in light of all the evidence including any ambiguous conduct by the complainant. It is open to the accused to claim that the complainant’s actions, before and during the sexual activity, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual activity to take place. If the trier of fact accepts the complainant’s assertion of the absence of consent, no matter how strongly the complainant’s conduct may contradict the assertion, absence of consent is established: R. v. Ewanchuk, [1999] 1 S.C.R. 330, at para. 29. See also: R. v. Crangle (2010), 2010 ONCA 451, 77 C.R. (6th) 98, 256 C.C.C. (3d) 234 (Ont. C.A.), R. v. Jensen (1996) 1996 CanLII 1237 (ON CA), 47 C.R. (4th) 363, 106 C.C.C. (3d) 430 (Ont. C.A.).
[55] At this stage, the accused’s perception of the complainant’s state of mind is not relevant. That perception only arises when a defence of honest but mistaken belief in consent is raised in the mens rea stage of the inquiry: R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at para. 30.
[56] There is no dispute that after the early rejection of a sexual advance by the defendant, there was no other discussion between the parties on the subject of sexual activity or whether the complainant welcomed or consented to sexual activity. Nor is there evidence of any sexual innuendo, flirting or preliminary touching.
[57] The defendant asserts that it was the actions of the complainant that formed her consent. Those actions were that she initiated the kissing, participated in petting and sexual touching, and assisted the accused in the removal of her jeans. The complainant denied that she did any of these things.
[58] Against this backdrop, the defendant asks the court to consider that the spontaneous sexually assertive approach of the complainant and her active participation in the sexual activity were evidence of her consent by actions and raise a reasonable doubt about the non-consent of the complainant or at least raise a reasonable doubt on the Crown’s position that there was no consent. The accused also submits that there is no evidence of forced intercourse and that the red mark on the complainant’s face could have come from a fall off the couch when both parties were sleeping, sometime before the sexual intercourse. Finally, the defence submits that the complainant had not shown any signs of impairment and had not complained of feeling unwell.
[59] I turn now to the framework of R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, at para. 11:
First, if I believe the evidence of the accused, obviously I must acquit.
Second, if I do not believe the testimony of the accused but I am left in reasonable doubt by it, I must acquit.
Third, if I am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
[60] In my review of the accused’s evidence above, I noted a number of occasions where he was careless with the truth or contrived to fashion his evidence in a way that he thought would be more favourable to him. I found his credibility suffered as a result. Informed by this view, I now assess his evidence that the complainant was the sexual aggressor and that he simply responded to the initiatives of the complainant and then continued with the sexual activity. I find the accused’s evidence on this point implausible for two main reasons.
[61] First, there is no argument that the complainant clearly rejected the accused’s sexual advance early in the evening. She did so with clear words, and I accept that she explained why she rejected his advances and did not consent to being kissed. The complainant explained to the court why the accused was not sexually attractive to her. She was early in her separation and she did not want to move quickly. I accept that this was her subjective state of mind. The complainant had legitimate and logical reasons why she did not want to engage sexually with the accused.
[62] Additionally, the complainant provided clear objective language to indicate her non-consent. The accused agrees that he clearly understood the negative response to his request and made no further attempts to engage sexually with the complainant after this point.
[63] In all of these circumstances, I find it implausible that around 4:00 a.m., the complainant was the sexual aggressor. The accused testified that both of them had fallen asleep for some time on the couch. Then both were awake around 4:00 a.m. and standing near the kitchen. There was no sexual talk or touching or flirting. He did not observe any signs of impairment in the complainant.
[64] I find that there is no foundation in the evidence to explain why the complainant would spontaneously and completely change her mind and change her decision with respect to sexual activity with the accused in the absence of any discussion or change in any of the circumstances. There is no evidence to explain how or why the complainant lost all of her inhibitions or early signs of disinterest. The accused’s account does not logically follow from either the complainant’s conduct or from the absence of any conversation between the two of them, both of which are non-controversial pieces of evidence.
[65] Apart from the evidence on the state of mind of the complainant when she was conscious, there is also the evidence, denied by the accused, of the complainant’s physical state. I accept that the complainant became very unwell after consuming the second glass of wine. She testified that she suffered from a headache and dizziness and was nauseous. This is consistent with how she presented to the ambulance attendants and the nurse at the hospital, where she was administered anti-nausea medication.
[66] I accept the evidence of the complainant, supported to a great extent by the evidence of the accused, that there was no discussion between the two of them about whether the complainant had changed her mind since she first rejected a sexual advance by the accused, whether she consented to sex with the accused or whether she consented to sex without a condom.
[67] The accused acknowledged that he took no steps to ascertain the complainant’s consent. By his own evidence, he simply engaged with the complainant when she started kissing him and then continued to participate in what he viewed as consensual sexual activity, in circumstances where the only words ever spoken by the complainant on the topic of sexual activity had been a clear and unequivocal rejection of the accused’s advances.
[68] This implausibility coupled with the accused’s credibility problems leads me to reject the description of the complainant as the one who initiated the physical and sexual contact. I conclude that there is no evidence which I accept that is capable of raising a reasonable doubt on the issue of consent.
Honest but Mistaken Belief in Consent
[69] While consent is a matter of the state of mind of the complainant, a belief in consent, subject to s. 273.2 of the Code, is a matter of the state of mind of the accused. R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at para. 33. Here, counsel for the accused raised as an alternative, the defence of honest but mistaken belief:
Section 273.2
It is not a defence to a charge under section 271, 272, 273 that the accused believed that the complainant consented to the activity that forms the subject matter of the charge, where
- the accused’s belief arose from
i. The accused’s self-induced intoxication,
ii. The accused’s recklessness or willful blindness, or
iii. Any circumstance referred to in subsection 265(3) or 273.1(2) or (3) in which no consent is obtained;
the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting; or
there is no evidence that the complainant’s voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct.
[70] In order to successfully invoke a defence of honest but mistaken belief in consent, s.273.2(b) requires the accused to have taken reasonable steps in the circumstances known to him at the time to ascertain that the complainant was consenting; R. v. M.D., 2020 ONCA 290, at para. 14; See also R. v. Barton, 2019 SCC 33 at para. 11, [Barton].
[71] As the Supreme Court of Canada said in Barton at para. 104, “(Section 273.2b) imposes a precondition to the defence of honest but mistaken belief in communicated consent — no reasonable steps, no defence. It has both objective and subjective dimensions: 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.”
[72] The Crown submitted that there was no air of reality to the defence of honest but mistaken belief in consent.
[73] The complainant denied that she ever provided any consent in words to the accused. The accused acknowledged that there was no verbal consent to the sexual activity or intercourse. This should be the end of the case, but I will take a brief look at the accused’s version of the events.
Air of Reality
[74] Before assessing whether I can accept the accused’s evidence about the complainant’s assertive conduct, I will first look at whether there is an "air of reality" to the defence: R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3, at para. 118 [Morrison].
[75] In Barton at para. 121, the Supreme Court of Canada instructed trial courts on how to proceed with the defence under s. 273.2:
“An accused who wishes to rely on the defence of honest but mistaken belief in communicated consent must first demonstrate that there is an air of reality to the defence. This necessarily requires that the trial judge consider whether there is any evidence upon which a reasonable trier of fact acting judicially could find (1) that the accused took reasonable steps to ascertain consent and (2) that the accused honestly believed the complainant communicated consent.”
[76] Where there is no evidence upon which the court could find that the accused took reasonable steps to ascertain consent, the defence of honest but mistaken belief in communicated consent, the inquiry is at an end: Barton, at para. 121.
[77] The Court instructed further:
“[122] Accordingly, if there is no evidence upon which the trier of fact could find that the accused took reasonable steps to ascertain consent, then the defence of honest but mistaken belief in communicated consent has no air of reality and must not be left with the jury. This threshold analysis serves an important purpose: it keeps from the jury defences that lack a sufficient evidentiary foundation, thereby avoiding the risk that the jury might improperly give effect to a defective defence. As such, contrary to what occurred at trial in this case, the air of reality test should not be ignored.” [Citations omitted.].
[123] By contrast, if there is an air of reality to the defence of honest but mistaken belief in communicated consent, including the reasonable steps requirement, then the defence should be left with the jury. The onus would then shift to the Crown to negative the defence, which could be achieved by proving beyond a reasonable doubt that the accused failed to take reasonable steps. The trial judge should instruct the jury as such, making it clear that the reasonable steps requirement is a precondition to the defence. In addition, the trial judge should explain, as a matter of law, the type of evidence that can and cannot constitute reasonable steps, making sure any steps that are grounded in mistakes of law are relegated to the latter category. Where the Crown does not prove beyond a reasonable doubt that the accused failed to take reasonable steps, that does not lead automatically to an acquittal. In those circumstances, the trial judge should instruct the jury that they are required, as a matter of law, to go on to consider whether the Crown has nonetheless proven beyond a reasonable doubt that the accused did not have an honest but mistaken belief in communicated consent. This requirement flows from the fact that the defence is ultimately one of an “honest but mistaken belief in communicated consent”, not one of “reasonable steps”. Ultimately, if the Crown fails to disprove the defence beyond a reasonable doubt, then the accused would be entitled to an acquittal.
[78] At the threshold stage, the defence has the evidentiary burden of satisfying the court that they took reasonable steps to ascertain consent. Therefore, the defence of honest but mistaken belief in consent will not be in play if there is no evidence capable of satisfying the reasonable steps requirement: Morrison, at para. 120.
[79] In Morrison, the Supreme Court of Canada gave some indication of how to assess the reasonableness of the steps taken. Following the logic and reasoning in Morrison on this point, I must conclude that the defence will only meet the air of reality threshold if the accused can point to evidence capable of supporting the following findings:
the accused took steps to ascertain the complainant's consent;
those steps were reasonable; and
the accused honestly believed the complainant was consenting to sexual intercourse.
[80] To meet the air of reality threshold, the evidence must be capable of satisfying the reasonableness requirement in (2) above. Where the accused has failed to point to any steps capable of amounting to reasonable steps in the circumstances, this may be a good indication that the accused believed the other person was not consenting to sexual activity. However, even if the defence lacks an air of reality, this is not necessarily determinative of the accused's belief. The Crown continues to bear the burden of proving beyond a reasonable doubt that the accused believed the other person was not consenting.: Morrison, at para. 120.
[81] The reasonableness of the steps taken by the accused must be assessed in the context and circumstances of the case. The more invasive the sexual activity in question and/or the greater the risk posed to the health and safety of those involved, a reasonable person must take greater care in ascertaining consent. The requirement of great care is further necessitated where the accused and the complainant are unfamiliar with one another, thereby raising the risk of miscommunications, misunderstandings, and mistakes: Barton, at para. 108.
[82] The circumstances in this case which called for greater care in ascertaining consent include:
This was a first date and the parties were not familiar with one another;
Sexual intercourse is highly invasive;
Sexual intercourse without a condom is a high-risk activity. There is a risk of disease and pregnancy; and
The defendant had already received a clear negative answer to his question to engage in very preliminary sexual activity, a kiss.
[83] I turn now to an assessment of whether the defendant took steps that were objectively reasonable in the circumstances known to him at the time.
[84] By his own evidence, the accused did not ask the complainant whether she had changed her mind, since she first rejected his advances. This was a reasonable step to take given the circumstances. On the accused’s evidence, he did not pay any attention to how much wine the complainant had consumed; however, he knew she had “fallen asleep” for some time on the couch. He testified that he offered a cab ride home or to allow her to sleep on the couch, because he did not approve of drinking and driving. This thinking may suggest that the accused believed that the complainant had enough to drink that she should not be driving. But again, by his own evidence, the accused did not take reasonable steps to ascertain the complainant’s level of impairment even though some level of intoxication might have explained the falling asleep or the lack of inhibition.
[85] The accused was not familiar with how the complainant behaved after consuming some wine, or after a long night, or after having rejected an advance from him. A reasonable step at the time, would be to seek clarification on whether she changed her mind. He could not rely on any previous dealings with the complainant to interpret her conduct.
[86] I find that in light of the circumstances in which he found himself, the accused made no reasonable effort to assess whether the complainant was consenting.
[87] There is no evidence of any steps taken by the accused to ascertain consent of the complainant to the sexual activity. Most importantly, the accused was clear in his evidence that there was no discussion, no conversation, no questions asked, no answers given on the subject of sexual activity after the clear negative answer to an ask for permission to kiss.
[88] I find that the evidence does not meet the threshold that the accused must meet to raise the defence of mistaken but honest belief. In the circumstances of this case, the defence of honest but mistaken belief in consent fails.
[89] I am guided by the decision in Barton, at paras. 110-113, for the consideration of reasonable grounds as distinct from reasonable steps. The defence did not make this distinction or this argument and I am satisfied that the analysis of reasonable steps on the evidence in this case is sufficient analysis of the defence position and the evidence as a whole.
Has the Crown met its burden on consent?
[90] Where the defence of honest but mistaken belief is unavailable, I must still assess the evidence as a whole to determine if there are gaps or weaknesses in the Crown's case that could give rise to a reasonable doubt as to whether the Crown has met its burden of showing that the accused believed the other person was consenting: Morrison, at para. 121.
[91] Having rejected the defence evidence on the point that it was the complainant who took the physical and sexual initiative, and in the absence of defence evidence of any conversation between the two, I am left with the complainant’s evidence, which I accept of what occurred that evening. There is no evidence which I accept that would give rise to a reasonable doubt that the accused knew that the complainant was not consenting to the sexual activity.
Capacity
[92] The Crown did not make the argument that the complainant had no capacity to consent.
[93] On the issue of capacity, the accused does not take issue and in any event notes that the toxicology reports do not identify the presence of either alcohol or GHB in the complainant’s system.
Motive
[94] The accused submits the complainant was motivated by her concern over how her behavior might be viewed by others, especially her spouse with whom she was engaged in a dispute. The accused argues that this concern lead the complainant to make an unfounded complaint that the sexual intercourse had been without her consent. Counsel for the accused points to the text message which the complainant received around 5:00 a.m. and which had caused her to be upset.
[95] The complainant testified that the content of the text message was not an issue for her. It was the phone sound from the text message which woke her, and it was the situation in which she found herself at that hour which upset her. There was no further evidence on this point, and I find that there is no foundation in the evidence for this argument on motive.
Conclusions
I find that the accused had sexual intercourse with the complainant without her consent. I reject the defence of honest but mistaken belief in the complainant’s consent. I further find that there is no evidence which I accept that is capable of raising a reasonable doubt on the issue of honest and mistaken belief.
The Crown has proven the allegation of sexual assault and there shall be a conviction on this charge.
The Honourable Madam Justice Patricia C. Hennessy
Released: February 05, 2021