Court File and Parties

COURT FILE NO.: CR-21-106 DATE: 20221124

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. E.B.

BEFORE: Justice C. Boswell

COUNSEL: Mary Anne Alexander for the Crown Mel Malick for E.B.

HEARD: November 23, 2022

ENDORSEMENT

[1] E.B. is charged, on count one of a two count indictment, with committing the offence of sexual interference against his former step-daughter, H.F. He is further charged, on count two, with administering a stupefying substance to her with the intent to enable or assist him in committing a sexual assault against her, contrary to s. 246(b) of the Criminal Code.

[2] The facts are fairly straightforward.

[3] H.F. was, at all relevant times, 11 years old. She lived with her mother and E.B. in a home at Rama First Nation. E.B. stood in the position of a step-parent to H.F.

[4] H.F. had a number of health challenges, including an eating disorder. She was accepted into a four-month treatment program at McMaster Hospital in Hamilton. It was a day program, running Monday to Friday each week. H.F. stayed at Ronald McDonald House (“RMH”) in Hamilton when attending the treatment program. Her mom and E.B. stayed with her. Sometimes they were both with her and at other times it was just one or the other of them.

[5] H.F. testified that E.B. touched her sexually on numerous occasions over a seven month period. The touching began at RMH, but it occurred at the family home in Rama as well, according to H.F.

[6] H.F. further testified that E.B. gave her alcohol (vodka specifically) and marijuana sometimes before he touched her sexually. She also said that he gave her a blue pill on a number of occasions. She did not know what the pill was but she says E.B. told her it would help her relax and go to sleep. The pill did make her sleep. She says E.B. would take off her underwear and touch her sexually while she slept.

[7] Section 246(b) of the Criminal Code provides as follows:

246 Every one who, with intent to enable or assist himself or another person to commit an indictable offence,

(b) administers or causes to be administered to any person, or attempts to administer to any person, or causes or attempts to cause any person to take a stupefying or overpowering drug, matter or thing,

is guilty of an indictable offence and liable to imprisonment for life.

[8] The conduct element of the offence – the actus reus – involves the administration of a stupefying or overpowering drug, matter or thing. See R. v. Vant, 2015 ONCA 481 at para. 61.

[9] A stupefying substance is one capable of making those ingesting the substance groggy, insensible or unable to think clearly. In this case there were three potential stupefying substances for the jury to consider: alcohol, marijuana and the unidentified “blue pill”.

[10] A question arose during the pre-charge conference as to whether E.B. could be found to have “administered” a substance if H.F. was aware of what the substance was and consumed it voluntarily.

[11] There is jurisprudential authority for the principle that an accused person cannot be said to have "administered" a substance where the victim voluntarily consented to consume it. See for instance, R. v. P.N.W., 2017 ONSC 5698, where Hackland, J. held as follows, at paras. 54-55:

54 I accept that the accused cannot be said to have "administered" the drug where the victim voluntarily consented to consume the drug. I respectfully agree with the court's observation R. v. Saadatmandi, 2008 BCSC 250 as to the meaning of "consent" in the context of s. 246(b).

15 In my opinion, the principles of consent that apply under this section are similar to those that I have described above in the context of sexual assault. The consent must be freely given and fully informed, and it must be given to the particular drug at the time it is offered. The absence of consent in this context also involves a subjective determination of the complainant's state of mind.

55 Thus, the accused cannot be said to have "administered" the drug where the victim voluntarily consented to consume the drug and the consent was "freely given and fully informed"…

[12] I am not entirely persuaded that consent is a factor that should be imported into s. 246(b), but this is not the case to address that broader question. The consent issue arose organically during a pre-charge conference discussion with counsel and has not been fully researched or litigated.

[13] For the purposes of this narrow ruling, I will assume that the law is as Hackland J. described it.

[14] Counsel appeared to agree that H.F. could not and did not consent to ingest the blue pills because she did not know what they were. Her consent could not be said to be fully informed. They did not agree on the question of whether H.F. can be said to have consented to consuming alcohol and marijuana.

[15] There is no doubt that H.F. knew what she was consuming in terms of alcohol and marijuana. She was familiar with both substances and, according to her evidence, may have obtained them on other occasions from sources other than E.B. She further testified that she enjoys drinking and smoking weed.

[16] While it may superficially appear that H.F. consumed alcohol and marijuana voluntarily when they were provided by E.D., I am of the view that she could not have voluntarily consented to consume either of those, or the blue pills for that matter. Her “consent” could not be said to be fully informed, for at least two reasons.

[17] First, H.F. was 11 years old. She would not have been capable of understanding the short and long-term effects of consuming alcohol and drugs at that young age. Moreover, the alcohol and drugs (marijuana and blue pills) were allegedly provided by E.D., someone who stood in a parental role and position of trust with respect to her. She undoubtedly would have formed the mistaken impression that it was acceptable for her to consume alcohol and drugs, in circumstances where they were provided by a parent.

[18] Second, in the context of this case, indeed of any s. 246(b) case, the Crown’s assertion is that the drugs and alcohol were provided (administered) for a specific reason, namely to stupefy the complainant and thereby make it easier to commit a sexual assault against her. If the jury concludes that E.D. in fact had the intent required by s. 246(b), then H.F. could not be said to have voluntarily consumed the substances in issue. A fully informed consent, in the circumstances, would be one where H.F. appreciated that the alcohol and/or drugs were being given to her for the purpose of rendering her more vulnerable to a sexual assault.

[19] In the result, I elected not to instruct the jury that they should consider the issue of consensual consumption by H.F. when deliberating on count two.

C. Boswell J.

Date: November 24, 2022