Court File and Parties

Court File No.: 22-70000023-0000 Date: 2023-09-26 Ontario Superior Court of Justice

Between: His Majesty the King And: Francisco Aguilar-Lopez, Applicant/Defendant

Counsel: J. Foreman, for the Respondent/Crown O. Wigderson, for the Applicant/Defendant

Heard: August 23, 2023

Reasons on Application to Exclude Evidence of Complainant’s Prior Sexual Disinterest in the Defendant

H. McArthur J.:

Introduction

[1] The defendant, Francisco Aguilar-Lopez, is facing one count of sexual assault in relation to the complainant, D.R-L.

[2] At trial, pursuant to s. 655 of the Criminal Code, the defendant will admit that he had sexual intercourse with the complainant, and that he did not wear a condom. He takes the position that the sexual activity was consensual.

[3] The complainant, who had been drinking, has no memory of the sexual activity that forms the subject-matter of the charge. The Crown will not submit that she lacked the capacity to consent, rather, he will argue that she did not consent to sexual intercourse with the defendant. However, because of the gap in her memory, she cannot say whether she did or did not consent to sexual activity with the defendant at the relevant time.

[4] The Crown wishes to ask the complainant why she believes she did not consent to sex with the defendant. Based on her statement to the police, it is anticipated that she will testify that she was not sexually interested in him.

[5] The Defence takes the position that evidence that the complainant was not sexually interested in the defendant sometime before the sexual activity that forms the subject-matter of the charge cannot be used to support an inference that she was less likely to have consented to that sexual activity. He submits that this evidence has no probative value and should not be admitted.

The Facts

[6] I do not intend to set out the facts in detail. In brief, the allegations arise from events in June 2021. The complainant had known the defendant for approximately six months. He ran an office-cleaning company, and she was a part-time employee. After work on June 27, she, the defendant and another man, went out for drinks. At about 7:00 p.m. the three individuals went to the defendant’s home and continued to drink. The other man told the police he left around midnight.

[7] The complainant has no memory of what took place from about 8:30 p.m. until roughly 5:00 a.m. on June 28. At that time, she woke up in the defendant’s bed. She was naked, as was he. She thought she had sexual intercourse with him because of how her body felt. As noted above, the defendant does not dispute that he had sexual intercourse with her during the time where she has no memory but takes the position that it was consensual.

[8] There is some suggestion that a few months before the incident, the defendant expressed an interest in the complainant, who responded that she was not sexually interested in him. The Crown does not intend to delve into this evidence. Instead, the Crown wishes to adduce evidence from the complainant that on June 27, the night she was socializing with the defendant, up to the point her memory blacked out, she was not sexually interested in him.

Position of the Defence

[9] The Defence points out that there are both statutory and common law rules that prohibit evidence of a complainant’s sexual history when it is used to support an inference that the complainant was more likely to have consented to the alleged assault or that they are less credible as a witness by virtue of their prior sexual experience. Similarly, evidence that a complainant had a sexual interest in the defendant at some point prior to the sexual activity in question is prohibited if it is being used to suggest that the complainant was more likely to have consented at the relevant time.

[10] The Defence argues that as a matter of logic and fairness, the same analysis should hold true for evidence of prior sexual non-interest. He asserts that evidence that a complainant was sexually disinterested in a defendant in the past cannot be used as evidence that the complainant was less likely to have consented to the sexual activity at issue at the relevant time.

[11] He asserts that there is no forensically legitimate reason to distinguish evidence of sexual non-interest from evidence of sexual interest as a predictor of future consent. That is, he submits that evidence that the complainant was sexually disinterested in the defendant prior to the commission of the alleged offence is irrelevant to whether she consented to the sexual activity that forms the subject-matter of the charge. The evidence has no probative value.

Position of the Crown

[12] The Crown argues that where the complainant in a sexual assault case cannot recall an alleged assault, it is open to the prosecution to rely on circumstantial evidence of non-consent. This includes, he argues, the complainant’s evidence that she would not have consented to sexual activity with a particular person, to a particular act, or under particular circumstances.

[13] The Crown highlights several cases that he says support that the complainant’s evidence as to why she believes she would not have consented is probative circumstantial evidence as to whether she was likely to have consented to the sexual activity that forms the subject matter of the charge: see for example, R. v. Capewell, 2020 BCCA 82, at para. 50; R. v. Al-Rawi, 2018 NSCA 10, at para. 70; R. v. McKitty, 2022 ONCA 365, at para. 6; R. v. Niyongabo, 2020 ONSC 308, at paras. 164-165.

[14] The Crown stresses that the proposed questions in this area will be restricted to the complainant’s professed sexual disinterest within a narrow, specified time-frame -- the hours leading up to her memory blackout. This makes clear, he asserts, that the prosecution is not relying on any form of “propensity reasoning” and that the proposed line of questioning does not rely on any discriminatory belief or bias.

Analysis

[15] Consent is assessed subjectively. The absence of consent is determined only by reference to the complainant's subjective internal state of mind towards the touching, at the time it occurred: R. v. Ewanchuk, [1999] 1 S.C.R. 330, at para. 26; R. v. G.F., 2021 SCC 20, at para. 25. The question is solely whether the complainant, in her mind, wanted sexual touching to take place.

[16] As noted in Al-Rawi, at para. 69, difficulties for the prosecution can arise where the complainant, due to the ingestion of drugs or alcohol, has no memory of the event. Absent direct evidence from a complainant that subjectively she did not consent, the trier-of-fact frequently must rely on circumstantial evidence to determine the absence of consent.

[17] The court in Al-Rawi stated that where the complainant has no memory, it is “routine” to ask them, “Would you have consented?”: para. 70. I agree with the Defence that just because something is commonly done, does not necessarily mean that it is appropriate. In my view, there should be no bright-line rule that evidence of sexual disinterest is always admissible or alternatively, always prohibited. Determining whether evidence of prior sexual disinterest is admissible is contextual and fact driven.

[18] For example, in the present case, the complainant apparently told the defendant months before the incident that she was not sexually interested in him. If that was the evidence at issue in this motion, I would have little difficulty in finding it inadmissible. Evidence that months prior to the sexual activity in question the complainant was sexually disinterested in the defendant would have little probative value as to whether she consented at the relevant time.

[19] But I find that a different analysis applies regarding the complainant’s evidence that she was sexually disinterested in the defendant on the night of the incident and in the hours before she lost her memory. Her lack of sexual interest in the defendant at that point is closely connected by time and circumstance to the sexual activity in question. The evidence the Crown seeks to adduce is her subjective view that she was sexually disinterested in the applicant in the hours before she had a memory blackout. In my view this evidence has probative value. Given the temporal limits on the evidence, the probative value is not exceeded by any prejudicial effect.

[20] I find support for this conclusion in R. v. James, 2014 SCC 5. In that case, the complainant had no memory of the alleged sexual assault. However, earlier in the evening, she had rebuffed the defendant’s sexual advances. She testified that the defendant had tried to discuss “rude nastiness” with her, but she told him “No”. She further testified that she was not interested in the defendant as he was old, and she liked her “boys young, not old”: see R. v. James, 2011 BCSC 612, at para. 7. Moldaver J. for the court held that the trial judge erred when assessing whether the complainant consented to the sexual activity in question because he failed to consider the several occasions throughout the night when the complainant told the defendant that she was not interested in having sexual relations with him.

[21] In my view, in the present case, as in James, evidence that the complainant was sexually disinterested in the defendant in the hours leading up to the sexual activity that is the subject matter of the charge could be some circumstantial evidence that speaks to whether she consented at the relevant time.

[22] Thus, I have concluded that the Crown should be permitted to ask the complainant why she believes she would not have consented to the sexual activity that forms the subject-matter of the charge. Her anticipated response, that in the hours before she lost her memory she was not sexually interested in the defendant, is admissible.

Justice Heather McArthur

Released: September 26, 2023