Reasons for Decision on Summary Conviction Appeal

Court File No.: 21-4583-AP
Date: 2025/01/14
Ontario Superior Court of Justice
Between:
His Majesty the King – and – Erwin Blanco, Appellant

Appearances:
Emma Loignon-Giroux for the Crown
Eric Granger for the Appellant

Heard: July 31, 2024

Judge: Anne London-Weinstein

History at Trial

[1] The Appellant was convicted of one count of sexual assault, contrary to s. 271 of the Criminal Code, RSC 1985, c C-46. The Appellant was a casual personal support worker at the Ottawa Civic Hospital. The complainant was a patient of the psychiatric ward of the hospital.

[2] The trial judge, Crewe J., provided oral reasons at the conclusion of the trial.

[3] The central issue at trial was whether the sexual activity between the parties occurred. The Respondent also argued that s. 273.1(2)(c) of the Criminal Code applied, thereby vitiating any consent if the court found consent had been provided. The Respondent argued that the Appellant abused his position of trust or power to induce the complainant to consent.

[4] The trial judge concluded that the complainant’s evidence lacked reliability to a degree which precluded convicting the Appellant in the absence of corroborating evidence. The trial judge found the STR-1 DNA present on the complainant’s left breast corroborated the fact that sexual activity had taken place. The Appellant could not be excluded as a source of that DNA from a swab of the complainant’s left breast. It was greater than 1 trillion times more likely that the DNA came from the Appellant than from some other unknown person unrelated to the Appellant.

[5] The trial judge also concluded that the Crown had proven beyond a reasonable doubt that the sexual activity occurred in the absence of the complainant’s consent.

Issues on Appeal

[6] On appeal, the Appellant argues that the trial judge’s reasons do not disclose any analysis of the complainant’s state of mind at the time of the sexual activity and whether she consented to the activity. The Respondent maintains that the reasons, when read as a whole, are sufficient, and in the alternative, that s. 273.1(2)(c) applies.

Do the Reasons for Judgment Sufficiently Explain the Basis for Conviction?

[7] Reasons for judgment in criminal trials serve three purposes. They explain the “why” of the decision, they provide public accountability regarding the decision, and they permit meaningful appellate review: R. v. R.E.M., 2008 SCC 51, para 11.

[8] The central question in determining whether the trial judge’s reasons are sufficient is whether the reasons, when read in context, show why the judge decided as he or she did: R. v. R.E.M., 2008 SCC 51, para 17; R. v. Vuradin, 2013 SCC 38, para 15.

[9] Perfection is not the standard. Trial context matters in assessing the adequacy of reasons. A trial judge need not record the entirety of his or her analysis, answer every argument, reconcile every frailty in the evidence, refer to all conflicting evidence, and set out every finding made in reaching a verdict: see R. v. G.F., 2021 SCC 20, paras 68-70.

[10] However, the trial judge is required to demonstrate through reasons that he or she came to grips with the issues as defined by the defence: see R. v. Braich, 2002 SCC 27, para 25.

[11] Further, judges are presumed to know and apply the law correctly. Oral judgments serve a critical function in an overburdened system and the trial judge must be alive to the danger of slowing the justice system immeasurably by taking too long to provide reasons. Oral judgments promote judicial efficiency and certainty: see R. v. Burns, p. 664.

[12] In this case, the complainant was asked by the Crown the following question at trial: “At the time that he was licking your breast and touching your vagina, how were you feeling with respect to the effects of the medication?”

[13] The complainant responded that she felt relaxed and very sleepy.

[14] The Crown also asked the complainant if she talked to anyone about what happened that night. She responded: “I did, but not right away, because I was still confused about what had happened.” Following up, the Crown asked what the complainant was confused about. She responded that she was confused as to whether she should “say anything about it, because I said that it was fine.”

[15] The complainant testified that she eventually told a nurse because the way that the Appellant had arranged everything and done everything made it seem possible that he had done it before and she did not want that to happen to others.

[16] The Crown asked the complainant what was going through her mind about what was happening to her at the time the Appellant was in her room touching her breasts and vagina. She responded: “Not very much. I thought that it felt nice and that I was very tired.”

[17] The trial judge concluded that the complainant did not consent and that no consent was obtained by virtue of s. 273.1(2)(c) of the Criminal Code.

State of Mind at the Time of the Sexual Activity

[18] Section 273.1(1) of the Criminal Code defines consent as the voluntary agreement of the complainant to engage in the sexual activity in question. Consent must be present at the time the sexual activity takes place. Section 273.1(2) sets out the circumstances in which no consent is obtained.

[19] Consent is a critical component of Canada’s sexual assault laws: R. v. G.F., 2021 SCC 20, para 1. The centrality of the issue of consent to sexual assault is expressed in both the actus reus and the mens rea elements of the offence: R. v. Kirkpatrick, 2022 SCC 33, para 28.

[20] Consent is treated differently at each stage of the analysis. For purposes of the actus reus, “consent” means “that the complainant in her mind wanted the sexual touching to take place.” R. v. Ewanchuk, para 48; R. v. Barton, 2019 SCC 33, para 89. Thus, at this stage, the focus is placed squarely on the complainant’s state of mind, and the accused’s perception of that state of mind is irrelevant. Accordingly, if the complainant testifies that she does not consent, and the trier of fact accepts this evidence, then there was no consent—plain and simple. R. v. Ewanchuk, para 31. At this point the actus reus is complete. The complainant need not express her lack of consent, or revocation of her consent for the actus reus to be established. R. v. Barton, 2019 SCC 33, para 89.

[21] For purposes of the mens rea, and specifically for purposes of the defence of honest but mistaken belief in clearly communicated consent, “consent” means “that the complainant had affirmatively communicated by words or conduct her agreement to engage in the sexual activity with the accused.” R. v. Ewanchuk, para 49 and R. v. Barton, 2019 SCC 33, para 90. Hence, the focus at this point shifts to an examination of the mental state of the accused, and the question becomes whether the accused the complainant “effectively said yes, through her words and/or acts.” R. v. Ewanchuk, para 47 and R. v. Barton, 2019 SCC 33, para 90. To establish an honest but mistaken belief in consent, the accused must have an honest, but mistaken belief that the complainant actually communicated consent whether by words or conduct. R. v. Barton, 2019 SCC 33, para 91; R. v. Park.

[22] Setting aside the issue of s. 273.1(2)(c) for the moment, the reasons of the trial judge do not explain how the complainant’s state of mind established a lack of consent.

[23] The complainant testified that she said that the sexual activity was fine, which is why she did not report it initially. When asked directly by the Crown what was going on in her mind at the time of the sexual activity she said, “Not very much. I thought that it felt nice and that I was very tired.”

[24] The trial judge’s reasons do not grapple with this evidence which is relevant to the issue of consent. Evidence of the complainant’s state of mind at the time of the sexual activity is an element of the offence.

[25] This is not a case where there is no conflicting evidence on an element of the offence, such as in R. v. Ali, 2015 BCCA 333 where a failure to consider a central issue of the case was not fatal due to the lack of conflicting evidence and the fact the trial judge was found to have grappled with the issue. In this case there was evidence both of consent and a lack of consent. The trial judge did not come to grips with this conflicting evidence and explain why he preferred the evidence pointing to a lack of consent over evidence which supported a finding that consent was provided, but it was vitiated by s. 273.1(2)(c) of the Criminal Code.

[26] Here, there was evidence which required reconciliation with the trial judge’s conclusion that consent was not provided. This evidence was central to the issue before the trial judge and is critical to explaining why the Appellant was convicted and to permitting review of the reasons.

[27] The trial judge’s reasons do not attempt to reconcile the complainant’s evidence that she did not report the sexual activity initially because she said “it was fine” with the trial judge’s conclusion that consent was not provided. The reasons also do not attempt to reconcile the complainant’s evidence when asked about her state of mind at the time of the sexual activity that “it felt nice” and she was very tired, with the trial judge’s conclusion that consent was not provided.

[28] To be clear, the delay in reporting is not germane to the analysis. A complainant may report a sexual assault at any time and a delay in reporting alone does not give rise to an adverse credibility finding: R. v. D.D., 2000 SCC 43, para 65.

[29] In this case, however, it is the complainant’s stated reason for the delay that is relevant to an assessment of the complainant’s state of mind at the time of the sexual activity and is material to the issue of consent.

[30] Having concluded that the reasons are insufficient regarding the analysis of the complainant’s state of mind at the time of the sexual activity, the remaining issue deals with the trial judge’s reasons for concluding that the complainant did not consent by virtue of s. 273.1(2) of the Criminal Code.

Factors Relevant to the Issue of Whether Consent Was Vitiated

[31] The trial judge made the following findings of fact in relation to the complainant:

• She was diagnosed as bipolar four years earlier. Her symptoms manifest in part in the form of delusions, most commonly of a religious nature. She will sometimes think she is Jesus or is in Hell or is travelling through time.
• She takes daily medications for her condition and at the time of her evidence, November 7, 2022, she testified that she had been stable for the past one-and-a-half years. This coincided roughly with the time of her last period of hospitalization in early April of 2021.
• She had been hospitalized eight or nine times in four-and-a-half years.
• She could not recall who took her to the hospital for her most recent admission, but it may have been her boyfriend who called the ambulance as she was having delusions, she believed, of time travel.
• When she is stable, she knows what is real and what is not.
• She had no recall of entering the Ottawa Civic Hospital on March 28, 2021, but she did have recollections of that period of her stay on the psychiatric ward.
• She was placed on three medications while in the hospital: anxiety medication, antipsychotic medication and something to help her sleep. The medications were provided at 9:00 p.m. and made her feel drowsy and very tired.
• Though drowsy, she had issues getting to sleep and would text people from her room at all hours.
• Many of her messages were gibberish and she felt that the medication contributed to that.
• On April 1, she had difficulty sleeping and was walking the halls. A male staff member kept trying to lead her back to her room, each time telling her to go to sleep.
• The male led her into her room having removed the sheets and arranged the pillows on her bed in the shape of the letter H.
• He told her to get into bed. She felt the arrangement of pillows to be somewhat strange, but got into bed.
• The Appellant then turned off the light and started petting her head and her hair and asked her if it was okay. She said it was and he continued. He then had her turn on her side and began to rub her back and shoulders with his hands. Again, he asked if it was okay and she said yes.
• At some point, she testified that he started to pull down her gown, slide his hands on her belly and then down her pants. He put his hand on her vagina and touched her there and said, “this will help you relax.”
• The touching of her vagina continued and then he pulled down her gown to lick her breast. He licked her left breast as he was standing on her left side.
• When he finished, he wiped off her vagina with a wet cloth to try and clean her or something. The cloth felt wet to her. When she later woke up, the cloth, a towel, was still on the floor and was still wet. She does not believe he penetrated her vagina while touching it.
• Then he left the room after licking her breast. She could not recall if he touched her right breast.
• While he was touching her, she was relaxed and very sleepy.
• She thought the touching occurred between 1:00 a.m. and 5:00 a.m. on April 2 but was not certain of the time.
• When she woke up, she saw a towel on the floor and a glove on the bed and it made her remember that it was real. There was no other reason for a glove to be there on her bed.
• She later reported the incident, but not right away because she was still confused. She did not know if she should say anything because she had said “that it was fine.”
• She completed a sexual assault kit the same day.
• At the time the physical touching was happening, she testified that not much was going through her mind. She said that she “thought it felt nice” and she said she was very tired.
• She received a Facebook message from a person identified as “Slater Mercado” who she believed to be the Appellant.

[32] The Crown argued that on the facts of the case, there was no need to address whether there was an honest but mistaken belief in consent as, in accordance with s. 273.1(2)(c), no consent exists where the accused gains consent through the abuse of trust, power or authority. Crown counsel also relied on s. 265(3)(d) of the Criminal Code.

[33] In finding that there was no air of reality to the defence of honest but mistaken belief in communicated consent, the trial judge found that the Appellant made no inquiry regarding whether consent was being provided to the sexual activity.

[34] However, the trial judge did not find that the complainant was incapable of providing consent. In fact, the trial judge noted that the complainant consented to having her head, shoulders and back massaged after the Appellant asked her if this was permissible.

[35] The trial judge then noted that the Appellant did not ask whether it was okay to touch the complainant on her vagina or to lick her breast. However, the trial judge does not explain how he reached this conclusion given the complainant’s evidence that she said it was fine, which is why she initially delayed reporting.

[36] The trial judge correctly noted that acquiescence is not consent and referenced the Supreme Court of Canada’s decision in R. v. Barton, 2019 SCC 33, paras 99, 104-109.

[37] The trial judge found that the complainant expressly consented to having her head, shoulders and back being massaged but the Appellant did not seek consent for the sexual activity.

[38] The court ultimately concluded that there was no consent to the sexual activity on the facts of this case and none was sought. In reaching that conclusion, the trial judge did not explain how the complainant’s evidence that she said it was fine which is why she did not immediately report the incident, can be reconciled with the court’s finding that the Appellant went ahead in the face of silent acquiescence. Similarly, when asked what was in her mind at the time of the sexual activity, she said she thought it felt nice and she was very sleepy. For the trial judge’s reasons to be reviewable, this critical evidence on the issue of consent required resolution.

Was Consent Vitiated?

[39] Section 273.1(2)(c) of the Criminal Code reads:

No consent to sexual touching is obtained where the accused induces the person to consent by abusing a position of trust or authority.

[40] The Crown urged the trial judge to find that if the court were to find that consent had been provided, it was vitiated by virtue of s. 273.1(2)(c). The Crown argued that consent could not be provided by virtue of the Appellant having induced it by abuse of his position of trust or authority. The trial judge instead found that no consent had been provided. However, he then went on to apply s. 273.1(2)(c) finding that the Appellant used his position to proceed in the face of the complainant’s non-consent, her passivity and acquiescence, which is not consent.

[41] With respect, the issue of whether consent was provided must be resolved for s. 273.1(2) to apply. The Crown must prove beyond a reasonable doubt that consent to the sexual touching was vitiated because it was obtained by inducement by a person in a position of trust or authority.

[42] The trial judge found that the Appellant was in a position of trust and authority. The court wrote that the Appellant was clearly entrusted with the care and wellbeing of the complainant who was an inpatient at a mental health facility. The trial judge observed that the Appellant was professionally trained and had experience tending to the needs of patients in the complainant’s circumstances. He noted there was no therapeutic value to the Appellant’s actions, although the complainant fell asleep afterwards.

[43] In R. v. Lutoslawski, 2010 ONCA 207, para 12, aff’d 2010 SCC 49, the Court of Appeal for Ontario described the purpose and scope of s. 273.1(2)(c):

Section 273.1(2)(c) speaks not only to the abuse of a position of authority but also the misuse of a position of power or trust. The section addresses the kinds of relationships in which an apparent consent to sexual activity is rendered illusory by the dynamics of the relationship between the accused and the complainant, and by the misuse of the influence vested in the accused by virtue of that relationship. … An individual who is in a position of trust or authority over another may use the personal feelings and confidence engendered by that relationship to secure an apparent consent to sexual activity.

[44] Gomery J., as she then was, noted in R. v. Dupuis, 2023 ONSC 7238, para 28, that s. 273.1(2)(c) does not criminalize every sexual act that takes place between two people in a relationship of trust. In R. v. Snelgrove, 2018 NLCA 59, aff’d 2019 SCC 16, the accused was a police officer who had sex with a young woman while he was on duty, after she asked him for a ride home from a bar. The trial judge did not instruct the jury on a possible absence of consent based on s. 273.1(2)(c). The Supreme Court of Newfoundland and Labrador, Court of Appeal held that this was an error but noted that the evidence of a trust relationship by itself is not sufficient to nullify consent, writing at para. 18 that:

[I]t was not sufficient, by itself, that Mr. Snelgrove was an on-duty police officer. The complainant was not prevented from consenting to sexual activity with him on that basis alone. In order to vitiate her consent, the Criminal Code requires evidence from which it could be inferred or concluded that she was induced to consent to the sexual activity based on Mr. Snelgrove’s abuse of his position of trust or authority.

[45] In this case, there was evidence that as a personal service worker, the Appellant was in a position of trust in relation to the complainant. However, the Crown is also required to establish beyond a reasonable doubt that the complainant consented to engage in sexual activity with the Appellant because she was persuaded or enticed by the Appellant’s misuse of his position: see R. v. Dupuis, 2023 ONSC 7238, para 32.

[46] The trial judge’s reasons recognize that the Appellant was in a position of trust vis-a-vis the complainant. However, the trial judge’s reasons do not deal with whether the Appellant induced the complainant to consent to the sexual activity based on an abuse of that position. The trial judge found that no consent was provided, and that the Appellant went ahead and engaged in sexual activity in the absence of any consent. The trial judge found that the Appellant used his position of trust to gain sexual access to a vulnerable person by virtue of his position.

[47] There was a considerable body of evidence which suggested the complainant was vulnerable, which the trial judge noted. She was medicated and had been admitted to a mental health facility. She had been previously hospitalized on a number of occasions and had been diagnosed with bipolar disorder. The very circumstances of her committal to the hospital speak to her vulnerability with respect to decision making. The trial judge concluded that s. 273.1(2)(c) applied because the Appellant took advantage of her silence, her passivity, and her groggy state to touch her in a sexual manner. By finding that the complainant was silent, groggy, and passive, the trial judge concluded that the complainant did not consent.

[48] However, for s. 273.1(2)(c) to apply, the trial judge was required to find that when the complainant said it was fine, she provided her consent to proceed because she was induced to do so by virtue of the Appellant’s abuse of his position of trust and authority. In other words, the Crown was required to prove beyond a reasonable doubt that the complainant consented to the sexual activity because the Appellant induced that consent by virtue of being in a position of power and authority, which vitiated consent. For s. 273.1(2)(c) to apply, the trial judge was required to make a finding regarding whether consent had occurred and if so, whether it was vitiated by the Appellant inducing the complainant to consent by virtue of his abuse of power and authority. The trial judge did not do so and therefore, s. 273.1(2)(c) has no application where the trial judge concludes consent was never provided.

[49] An appeal court is limited in dealing with findings of fact by a trial judge. In this case, the trial judge found as a primary fact that the complainant did not consent. Therefore, despite the complainant saying that the sexual activity was fine, it is not open to this court to find that consent was provided by the complainant but was vitiated by virtue of s. 273.1(2)(c), given the trial judge’s express finding that consent was not provided. There was also evidence to support the trial judge’s conclusion that consent was not provided. Therefore, this court cannot simply make its own finding of fact, given the conflicting evidence below. This is true despite evidence of the vulnerability of the complainant and the fact that the Appellant was in a position of trust and authority with respect to the complainant: see R. v. J.F., 2016 ONCA 900, para 7; R. v. Magagna, paras 10-16; and R. v. Burns, p. 663.

Conclusion

[50] Therefore, the appeal is allowed, and a new trial is ordered.

Anne London-Weinstein

Released: January 14, 2025