COURT FILE NO.: CR 19-186 (Owen Sound)
DATE: 20220517
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
-and-
Albert Irwin
J. Wright, for the Crown
B. Greenshields and E. Radomski, for Mr. Irwin
Heard: May 16, 2021, by video conference
Justice R. Chown
PUBLICATION RESTRICTION NOTICE
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcast, or transmitted in any manner.
Ruling
[1] This is my ruling on whether the defence of honest but mistaken belief in communicated consent should be left with the jury in this sexual assault trial.
Facts
[2] An abbreviated and rough outline of the essential evidence is as follows. The alleged assault took place in a darkened bedroom where five people were sleeping, including the complainant and the accused, after a night that involved partying and consumption of significant amounts of alcohol.
[3] The bedroom contained a double bed and a couch which had a fold-out foam mattress. The foam mattress was on the floor. R and B were in the bed. The complainant and her boyfriend, Z, were on the foam mattress. The accused was in lying in the space between the bed and the foam mattress.
[4] All five occupants of the bedroom knew each other with varying degrees of friendship. The accused and the complainant were only acquaintances. They had had no significant prior interaction during the evening before the alleged assault.
[5] The accused had entered the room in the dark after the complainant, at least, was asleep. He testified that when he entered the room, he only knew his friend R was in the room. Once he was in the room, he heard R and B engage in sexual activity.
[6] The complainant, Z, R and B all testified. None of them were aware that the accused had entered the bedroom in the dark.
[7] B testified that she became aware that another male (undoubtedly the accused) was in the bedroom. R had gone to the bathroom, and she looked at her phone. A male voice on the floor beside the bed asked who was there. B answered but did not discern who the male voice was. It wasn’t Z’s.
[8] The complainant’s evidence was that she was on her side and awoke with the sensation of a penis in her vagina from the rear. She reached out and found that her boyfriend was in front of her, not behind her. She got up and left the room quickly but without turning on the light, alerting her boyfriend, or identifying who it was who had done this. She sought help from others in the house.
[9] The accused testified that it was the complainant who initiated sexual contact, not him. He asserts that she perhaps mistook him for her boyfriend, Z. However, he was not aware that it was the complainant, or that her boyfriend was in the room. He did not know who it was and did not take any steps to identify who it was or to identify himself, but he went along with it. He acknowledged touching her vagina but denies touching her with his penis and denies that he even had his pants off. He didn’t take any steps to identify who it was.
[10] DNA evidence supports the conclusion that the accused had contact with the complainant’s external genitalia.
Analysis
[11] The defence theory is encapsulated in the final questions that were put to the complainant in her cross examination, which were as follows (this may not be completely verbatim):
Q. Isn’t it possible that what happened that morning was that after a night of partying you were snuggling with the person behind you (just like you told the police) who at the time you thought was your boyfriend (just like you told your friend __) and you touched one another sexually, maybe there was a kiss, and at the time you consented to all of this, until the moment that you realized you were mistaken about who it was?
A. That is not correct.
Q. You were not penetrated by a penis, there was no intercourse, and your recollection of what really happened was unreliable?
A. I do not agree.
Q. You were awake at the time, you had had a lot to drink, and you consented to everything that took place when it was occurring, isn’t that right?
A. I did not consent.
Q. It was only after you realized that it was not [Z], that you suddenly panicked and this embarrassing accident turned into accusing Mr. Irwin of sexually assaulting you?
A. I did not consent.
[12] As is apparent, on this theory, the complainant misapprehended, meaning she did not know, the identity of the person she was engaging in sexual activity with.
[13] The definition of consent in s. 273.1 of the Criminal Code, “Voluntary agreement … to … the sexual activity in question,” encompasses the identity of the partner: R. v. Hutchinson, 2014 SCC 19, at para. 57.
[14] During argument, Mr. Greenshields acknowledged the strength of the Crown’s position on consent. He argued that there are three possibilities:
The complainant was asleep so there was no consent;
The complainant was not asleep but thought she was engaging in sexual activity with Z, not the accused, so there was no operative consent; and
The complainant was not asleep, but she was indifferent with respect to whom she was engaging in sexual activity with, so there was consent.
[15] Given this third possibility, he argued that the jury should be instructed that it could find that a lack of consent has not been proven beyond a reasonable doubt. Mr. Greenshields acknowledged that the third possibility was not a theory he would be pressing the jury to accept. The third possibility is, in my view, fantastical and unsupported by any evidence. As such, I will not be suggesting this possibility to the jury. I will be instructing the jury that it should have little difficulty with the “no consent” element of the offence.
[16] Mr. Greenshields argued that if the jury is instructed that it should not have difficulty determining that there was no consent, it is essential that the defence of honest but mistaken belief in communicated consent is given to the jury to decide.
[17] Ms. Wright argued that there is no air of reality to the defence of mistaken belief in communicated consent. She argued that there are two diametrically opposed versions of the events here, which cannot be spliced together to form a narrative to support the conclusion that the accused had an honest but mistaken belief in communicated consent. She referred me to R. v. Park, 1995 104 (SCC), [1995] 2 S.C.R. 836, at para. 26:
To summarize, when the complainant and the accused give similar versions of the facts, and the only material contradiction is in their interpretation of what happened, then the defence of honest but mistaken belief in consent should generally be put to the jury, except in cases where the accused’s conduct demonstrates recklessness or wilful blindness to the absence of consent. On the other hand, courts have generally refused to put the defence of honest but mistaken belief in consent to the jury when the accused clearly bases his defence on voluntary consent, and he also testifies that the complainant was an active, eager or willing partner, whereas the complainant testifies that she vigorously resisted. In such cases, the question is generally simply one of credibility, of consent or no consent.
[18] She argued that the case falls squarely within the latter class of cases described in this passage, and it is a matter of consent or no consent.
[19] Ms. Wright also referred me to R. v. Barton, 2019 SCC 33, at para. 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.
[20] She argued that the circumstances that are admitted here include the fact that accused did not know who he was engaging in sexual activity with, and thus a very high degree of care in ascertaining consent was required.
[21] In reply, Mr. Greenshields acknowledged that the reasonable steps requirement is elevated in the circumstances, but noted that the reasonable steps requirement is rooted “in the circumstances known to the accused at the time”: s. 273.2(b). In any event, he argues, it is for the jury, not the trial judge, to assess whether the steps taken by the accused were reasonable.
[22] The Court of Appeal has described the air of reality test in these terms, in R. v. Land, 2019 ONCA 39, at para. 46:
In her reasons, the trial judge described the air of reality test accurately, and admirably. I can do no better in describing the law than to quote what she said [at para. 3]:
Only defences possessing an air of reality should be left with the jury (R. v. Cinous (2002), 2002 SCC 29, 162 C.C.C. (3d) 129 (S.C.C.), at para. 51). A defence possesses an air of reality if a properly instructed jury, acting reasonably, could acquit the accused on the basis of the defence (Cinous, at para. 2.) …. The air of reality test imposes on the accused the evidential burden to put a defence in play (Cinous, at para. 52). In applying the air of reality test, the trial judge considers the totality of the evidence and assumes the evidence relied upon by the accused is true (Cinous, at para. 53). The evidence must be reasonably capable of supporting the inferences necessary to make out the defence before there is an air of reality to the defence (Cinous, at para. 83). The trial judge does not make determinations about the credibility of witnesses. She does not weigh the evidence, make findings of fact, or draw determinate factual inferences (Cinous, at para. 54). The trial judge does not consider whether the defence is likely to succeed at the end of the day (Cinous, at para. 54).
[23] The evidence which supports the conclusion that there is an air of reality to the defence of honest but mistaken belief in communicated consent in this case includes:
The accused’s evidence that he was asleep and it was the complainant snuggling into him in the spoon position that woke him up.
The accused’s evidence that the room was dark and he did not know who was in it (other than R and B). This is consistent with other evidence, including the complainant’s, that the room was pitch black. It is also consistent with the fact that prior to the alleged assault, none of the other occupants of the room knew he was there (except B, as described).
The accused’s evidence to the effect that the complainant initiated sexual touching, and he responded in kind, without exceeding or preceding the actions he says were taken by the complainant. That is, he says he did not elevate the activity beyond reciprocation. This is the evidence of “reasonable steps, in the circumstances known to the accused at the time,” cited by the defence.
[24] It was acknowledged by the accused that he did not identify his sexual partner, and he did not identify himself. It will be open to the jury to conclude he did not take reasonable steps. However, I agree with the defence that in this case that is a matter for the jury to decide, and not for me to take away from the jury and decide myself. Limited as it is, there is evidence that the accused took steps. Bearing in mind that I am not to make credibility determinations, weigh the evidence, make findings of fact, or draw determinate factual inferences, it would be inappropriate for me to remove this issue from the jury’s consideration. In my opinion, the accused’s evidence “puts the defence in play,” and there is thus an air of reality to the defence. The fact that consent is not going to be issue reduces the risk that the discrepant evidence of the accused and the complainant surrounding the complainant’s actions will be misapplied.
[25] The jury will be charged on the issue of mistaken belief in communicated consent.
[26] The charge will need to be mindful of the comments of Zarnett J.A. in R. v. H.W., 2022 ONCA 15, at para. 89:
The trial judge must, among other things, instruct the jury in a manner that would “inoculate the jury against mistakes of law masquerading as mistakes of fact”, such as a mistaken belief in “implied consent” arising from a lack of objection or ambiguous conduct, or a belief formed from speculation about what was going on in the complainant’s mind, as opposed to expressly communicative behaviour. The trial judge must instruct the jury on the reasonable steps precondition, and the type of evidence that can and cannot constitute such steps. [Citation omitted.]
[27] I will receive further submissions on the draft charge relating to the “knowledge” requirement.
Chown J.
Released: May 17, 2022