R v Shrivastava, 2018 ABQB 998

Court of Queen’s Bench of Alberta Citation: R v Shrivastava, 2018 ABQB 998 Date:20181207 Docket: 151398500Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Prachur Shrivastava Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4. By Court Order, information that may identify the victim or the witness must not be published, broadcast, or transmitted in any way. NOTE: This judgment is intended to comply with the identification ban. _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.A. Antonio _______________________________________________________

[ 1 ] Prachur Shrivastava is charged under

section 271 of the Criminal Code , RSC 1985, c C-46, with sexually assaulting AB on or about the 1 st day of June, 2014. The Crown alleges that Ms. B passed out at a friend’s house after a night of drinking and awoke to feel Mr. Shrivastava’s penis thrusting in and out of her vagina. She was too intoxicated to understand fully what was happening, and she fell unconscious again moments later. Mr. Shrivastava testified that it was he who awoke to being sexually touched by a woman. He was turned on and joined in the sexual activity, though the unknown woman led the way.

The evidence The complainant [ 2 ] In 2014, the complainant’s name was AB. She has a different surname now, but for continuity with the evidence of other witnesses, I will refer to her as AB or Ms. B throughout these reasons. [ 3 ] On May 31, 2014, Ms. B met up with friends and had a substantial amount to drink. She described her state of sobriety as “blackout wasted”. [ 4 ] Ms. B was candid about the state of her memory. She could remember moments of the night. She could not provide a continuous narrative and what she did provide was thin on detail.

For instance, she could not remember leaving the bar or getting in a cab, but she had a wobbly memory of seeing the back of a cab as she stumbled toward it. [ 5 ] Her next memory was of waking up at her friend Dr. Robert Schultz’s house. She felt extremely drunk, foggy and headachy. She described hearing her name, lifting her head, and seeing her friend Gregg Takaki on a couch in a dark room that felt like it was spinning. She saw his lips move but could not hear what he was saying. She put her head back down on a mattress on the floor. She assumed she fell asleep because she did not remember anything after that.

Under cross-examination, she described herself as passed out. [ 6 ] The next thing she remembered was feeling someone behind her. There was a penis thrusting in and out of her vagina. She tried to push the person away by swinging her hand back. She still felt drunk and head-spinny, with a foggy brain. She did not fully understand what was going on. She estimated that she was able to remember about 30 seconds of this before everything went black again. [ 7 ] As her memory was refreshed, she came to remember a few other details.

For instance, she remembered that when she awoke to being penetrated, her dress and bra had been pulled down to her midriff, and her shorts were around her ankles. She remembered that in the morning her vaginal area was wet, presumably from ejaculate, and there was a person to her left whom she identified as Mr. Shrivastava. [ 8 ] Ms. B had never met Mr. Shrivastava before that morning. She said that she went to the police because she had been sexually assaulted.

She had an assumption about who did it, but she wanted help from the police to be certain. [ 9 ] When asked whether she wanted any of the sexual activity that occurred that night, Ms. B responded, “I don’t think anyone who’s sleeping wants sexual activity from a stranger, so no.” [ 10 ] There remained stretches of time, and many more details, that Ms. B did not remember. For instance, she said she remembered nothing from Dr. Schultz’s house before the time she woke up and saw Mr. Takaki saying something to her.

She said that she had no memory of waking up the next morning, but she did recall some details from the morning, such as seeing Mr. Shrivastava, hearing him ask “what’s your name anyway” and feeling that she wanted to choke him. She had little memory of her visit to a medical centre where a sexual assault examination was done. [ 11 ] She explained that the memories she had were not in chronological order, but were a jumbled mess in her head. Her whole world was spinning and she was trying to figure out what was going on. She did not think at the time to note all the little details.

She could remember certain things like trying and failing to push the person off, and her feelings of disgust and violation. She commented several times that she could not remember details because of the passage of four and a half years since these events. [ 12 ] After a voir dire was held, some passages from an interview Ms. B gave to Detective Archer of the Calgary Police Service on June 5, 2014 were admitted on the trial as past recollection recorded. Ms. B stated that she shared a cab back to Robert Schultz’s house with him, Gregg Takaki, and a friend named Adam.

When they got there, she found she was more drunk than she had realized when she left the bar. She remembered that there were two mattresses on the floor. She thought she sat down on one, “did the timber thing”, and fell asleep. (She explained in her testimony that “the timber thing” meant that her body fell like a tree.) She also told Detective Archer that her vagina had been sore, the way it feels after sex. Ms. B testified in the voir dire that she was being truthful and accurate when she gave her statement to Detective Archer. [ 13 ] Ms.

B was extensively cross-examined on statements she made in the interview with Detective Archer, as well as at the preliminary inquiry. On a few occasions, her memory was refreshed from the transcripts. Much more often, she said that she had no current independent memory of their substance. She agreed that the transcripts were accurate and that when she made the statements she was trying to give true and accurate answers. Defence counsel submits that the prior statements can be used for truth of their contents.

Though the passages referred to in cross-examination were not raised in the voir dire on past recollection recorded, there is no substantive reason to distinguish among the prior statements; the criteria for past recollection recorded have been met for all the statements that were put to Ms. B regarding content of which she has no current memory. Therefore, they can all be admitted in the trial and weighed for the truth of their contents.

[ 14 ] The other details thus adduced from the prior statements largely pertained to the earlier part of the evening and the following day or days. For instance, she mentioned eating pizza, and she said that the next morning she was hung over. At the preliminary inquiry, Ms. B said that when she woke up that morning she was not sure whether her memory of pushing off someone who had penetrated her was a dream or reality. She said in her police statement, in reference to a conversation with her roommate, “I was still kind of making up, like, stuff in my head.

No, I must have rolled, like nothing could have happened.” [ 15 ] It was put to Ms. B, or led through other witnesses, that she made various statements that were not reduced to writing and of which she has no memory. I am not satisfied that such statements may be used for the truth of their contents. Lauren Lam [ 16 ] Dr. Lauren Lam testified that in 2014 she was a medical student and a friend of Robert Schultz’s. He was hosting a barbeque on May 31. She asked if she could invite Prach Shrivastava and a friend of his, both of whom were visiting from out of town. Dr. Schultz agreed. Dr.

Lam thought she arrived around 6:00 and left between 10:00 and 11:00. She saw Mr. Shrivastava at Dr. Schultz’s house. He and Dr. Lam were among a group who went to a bar called Wurst and stayed there until close to closing. [ 17 ] Dr. Lam believed she had mentioned to Dr. Schultz that Mr. Shrivastava had no place to stay that night. Her understanding was that they agreed that Mr. Shrivastava would spend the night at Dr. Schultz’s house. After leaving Wurst, Dr. Lam went to her own home and did not see Mr. Shrivastava again that night.

Gregg Takaki [ 18 ] On May 31, 2014, Gregg Takaki had plans to meet his friends Robert Schultz, Adam and Pat at a bar called Molly Malone’s. When he arrived around midnight, they were already there. Ms. B arrived after Mr. Takaki did; she slurred her words and stumbled, so Mr. Takaki concluded that she had already been drinking. He recalled that she continued to drink at Molly Malone’s, though he could not say what or how much. [ 19 ] Mr. Takaki left the bar with Ms. B, Dr. Schultz and Adam. From the way she was walking, he felt that Ms. B was pretty drunk. They shared a cab to Dr. Schultz’s place.

When they arrived, Adam passed out on a couch in the living room. Less than ten minutes later, Ms. B passed out. [ 20 ] Mr. Takaki and Dr. Schultz ordered a pizza. An “East Indian” male arrived; Mr. Takaki didn’t know his name but he identified him as the accused, whom he understood to be a university friend of Dr. Schultz’s. When Mr. Shrivastava arrived, Ms. B was passed out in the living room. [ 21 ] Mr. Shrivastava pointed to Ms. B and asked “who’s that?” Mr. Takaki answered “A.” Mr. Shrivastava said “I guess I’ll stay here tonight”. Mr. Takaki took that as an expression of an intention to sleep next to Ms. B.

At the time he thought Mr. Shrivastava was joking. [ 22 ] When it was time to retire, Mr. Takaki laid down on the smaller of the two couches in the living room. Dr. Schultz went to his room. Ms. B was on one of the mattresses on the floor. Mr. Shrivastava laid down next to her. Mr. Takaki did not say anything to him, but he thought it was weird since there was an unclaimed couch in the room. [ 23 ] The sequence of the following events in Mr. Takaki’s memory is not entirely clear to me, but it appears that Mr. Takaki got up and went to the washroom. He woke up Ms.

B to make sure she knew someone was on the mattress with her. Ms. B got up and went to the washroom without saying anything. Mr. Takaki concluded she was still intoxicated. He fell asleep before she returned from the washroom. [ 24 ] Mr. Takaki did not remember a great deal about the following morning, though he did remember that Ms. B was still on the mattress when he awoke. They spoke about getting her car. Mr. Takaki was pretty sure Mr. Shrivastava was still in the room then. Mr. Takaki left the house before Mr. Shrivastava did. [ 25 ] Defence counsel pointed to some inconsistencies between Mr.

Takaki’s testimony and a statement he gave to Detective Archer on March 12, 2015. For example, in the interview, Mr. Takaki said their friend Pat went to Dr. Schultz’s with them; in his testimony, he said that was a mistake. As another example, Mr. Takaki said in the interview that AB had “no issue” going to the washroom, but he testified that he remembered her stumbling. Robert Schultz [ 26 ] Dr. Robert Schultz met Mr. Shrivastava for the first time at his barbeque on May 31, 2014, when Dr. Lam introduced him as “Prach”. Around dusk, Dr. Schultz went to Molly Malone’s with Pat and possibly some other people.

He met up with Adam, Sam and Ms. B, who seemed inebriated. Her speech was excited, she stumbled when walking and she had to lean on Dr. Schultz sometimes. He saw her drink alcohol but could not say how much. Ms. B became more inebriated as the night progressed. [ 27 ] Dr. Schultz left the bar after last call with Mr. Takaki, Adam and Ms. B. They shared a cab to his place. [ 28 ] When they arrived, they decided that Adam was very inebriated and needed to go to bed. Dr. Schultz and Mr. Takaki got futons from the garage, moved the furniture aside in the living room, and made room for people to sleep. Mr.

Takaki and Dr. Schultz ordered pizza. Adam went to sleep.

[ 29 ] Dr. Schultz felt Ms. B was very inebriated at this time. Her speech was slurred and her gait was worse than it had been at the bar. Ms. B went to sleep on a mattress on the floor. She did not rouse despite the amount of noise in the room. [ 30 ] Dr. Lam had arranged for Mr. Shrivastava and some friends to sleep at Dr. Schultz’s house. Around 2:40 a.m., Dr. Schultz exchanged a few texts with Mr. Shrivastava to determine whether he was coming. Mr. Shrivastava arrived sometime later. Dr. Schultz estimated Adam and Ms. B had been asleep for about an hour by then. [ 31 ] Dr. Schultz, Mr. Takaki and Mr.

Shrivastava sat in the kitchen and ate pizza. When they were done they moved into the living room. Mr. Takaki sat on the small couch; Mr. Shrivastava and Dr. Schultz sat on the big couch. Ms. B was sleeping on the mattress between the couches. Mr. Shrivastava motioned to Ms. B and asked a question. Dr. Schultz did not remember the exact words he used, but it was something like “whose is that?” He remembered the word “that” and thought perhaps Mr. Shrivastava was trying to make a bad joke by referring to a human being as an object. Dr. Schultz felt Mr.

Shrivastava was asking if he could sleep on the mattress with Ms. B. It struck Dr. Schultz as odd that he would want to sleep beside someone he did not know and had never met. He did not think Mr. Shrivastava intended anything more than sleeping beside Ms. B, or perhaps talking with her in the morning. [ 32 ] Dr. Schultz told Mr. Shrivastava to sleep on the big couch and Mr. Takaki to sleep on the small couch because Ms. B had no capacity to consent to sharing a bed at that time, let alone anything else. He saw Mr. Shrivastava settle onto the big couch. Ms. B was asleep or passed out throughout this time, and Dr.

Schultz never saw her move or respond to sound at all. [ 33 ] Dr. Schultz went to his room and fell asleep. When he awoke in the morning, only Mr. Shrivastava was still in the house. After 10 to 15 minutes Mr. Shrivastava got in his car and left. [ 34 ] Dr. Schultz acknowledged that in subsequent months, he and Mr. Takaki had some superficial conversation about something that happened to Ms. B and about the investigation process, but they did not discuss details and avoided the topic, perhaps because it was painful. Dr. Schultz also limited his comments to Ms. B because he did not want to sway her

interpretation of the night. [ 35 ] Dr. Schultz was interviewed by Detective Archer on March 10, 2015. In cross-examination, defence counsel read some passages in which he related things that Ms. B told him about her perception of her consent. Dr. Schultz did not adopt those passages. He explained that he was trying to express that Ms. B was taking a cautious approach. [ 36 ] Dr. Schultz commented more than once that there were details he could not recall due to the passage of four years. DNA evidence [ 37 ] DNA profiles were obtained from three sources: • semen found on underwear that Ms.

B was wearing on the night in question, provided to Detective Archer a few days later; • semen found on a vaginal swab obtained as part of a sexual assault kit; and • a sample taken from Mr. Shrivastava under a DNA warrant. All profiles matched. [ 38 ] The probability that a randomly selected individual from the Caucasian population unrelated to Mr. Shrivastava would coincidentally share the observed DNA profile was estimated at 1 in 190 billion. Available databases drawn from non-Caucasian populations produced even lower likelihoods of a random match.

In the opinion of a forensic scientist qualified to give relevant expert evidence, absent an identical twin, Mr. Shrivastava is the source of the DNA found on the underwear and the vaginal swab. [ 39 ] Defence counsel suggested that the sample from the vaginal swab is unreliable, either because the procedures used in obtaining the swab were unreliable or because the semen could have been transferred into the vaginal canal by contact with the underwear, or perhaps both. [ 40 ] The doctor who took the swab was careful in performing and describing her own responsibilities. So were the nurses who handled the samples.

I am satisfied that the vaginal swab sample is reliable. [ 41 ] It appears that biological material could transfer from wet underwear to the external portion of the vaginal area. The swab, however, was taken from the end of the vaginal canal near the cervix. Any discolouration of the swab can be explained by natural processes and in any event would not affect the integrity of the samples. [ 42 ] I reject as speculative the suggestion that the DNA results may be unreliable. Mr. Shrivastava [ 43 ] Mr. Shrivastava’s narrative of the early part of the evening aligned with Dr. Lam’s.

He said their group left Wurst around 2:30 a.m. Dr. Lam had arranged for him to spend the night at Dr. Schultz’s place. [ 44 ] When he arrived, he followed Dr. Schultz to the kitchen, passing the living room where, he said, “there was a boy and a girl pa – lying on the mattress on the floor”. Later in his testimony, he said he did not know whether they were awake or asleep. [ 45 ] He sat in the kitchen with Dr. Schultz and Mr. Takaki, accepting some pizza but declining a beer. They did not discuss the

people in the living room. Mr. Shrivastava neither said anything about nor gestured toward Ms. B. [46] Dr. Schultz had previously said they would sleep in the living room where there were mattresses and comforters. Mr.Shrivastava never suggested that he would sleep next to Ms. B. No one told him that he should not sleep there. He understood he wassupposed to sleep on a futon or mattress on the floor. [47] Mr. Shrivastava went to the bathroom. When he came out, the others had already gone to bed and the living room lights wereoff.

He walked past a mattress to an empty futon, where he laid down and went to sleep. [48] He woke up, partially because he felt someone next to him, which he was not expecting. He moved toward the edge of themattress and fell asleep again. [49] He awoke again when he felt a hand on his genital area, rubbing his penis through his jeans. A woman was curled up intohim. He was turned on. He undid his jeans and she continued to touch his penis. He started touching her breasts with his left hand. Theywere both participating in the sexual activity. [50] Next she pulled him toward her and pulled down her trousers or pants.

He felt the sensation of somebody’s bum on his penis.He put a hand on her waist as she rubbed her bum or vaginal area over his penis. He joined in the motion. At some point during theirshared motion, she held his hand and he touched her breast, though he never pulled her top down. He did not have a sensation ofunderwear against his penis, but it could have been pulled to the side. After a short time, he ejaculated, and they continued in their sharedmotion until, he thought, he fell asleep, and he imagined she did too. [51] He remembered the sensation of her vagina rubbing against his penis.

He did not remember a sensation of his penispenetrating her vagina. On cross-examination, he said it was possible that his penis could have entered her vagina, though he deniedplacing it there, and confirmed that he had no sensation of penetration. [52] Mr. Shrivastava and the woman never spoke and never made eye contact. At the time of the sexual activity, he did not knowwho she was. He did not know whether she was intoxicated, or to what degree. He could not know, since they had not spent any timetogether earlier.

He did know that during their sexual contact she was not asleep, because she was grinding against him, acting andreacting. [53] He woke up the next morning when his alarm went off. He noticed his jeans were undone, so he did them up and went back tosleep. He woke up again when he felt someone sit next to him on the futon. A girl was there. She said something he could notunderstand. He said “Hi, I’m Prachur”, and asked her name. She answered. After several seconds she got up and went toward the kitchen.Mr. Shrivastava went back to sleep. He awoke another hour or so later. It was light out and the room was empty.

Mr. Shrivastava saidgoodbye to Dr. Schultz and left. The legal framework [54] The actus reus of sexual assault is established by proof of three elements: (

i) touching that is (ii) of a sexual nature and (iii)done without the consent of the complainant. The mens rea is established by proof of (

i) an intention to touch and (ii) knowing of, orbeing reckless of or wilfully blind to, a lack of consent: R v Ewanchuk, (SCC), [1999] 1 SCR 330 at paras 25 and 42.The burden is on the Crown to prove all these elements beyond a reasonable doubt. [55] In light of all the testimony, including the DNA evidence, sexual contact between Ms. B and Mr. Shrivastava is not inquestion. The live issues before me are consent, capacity to consent and mistaken belief in consent.

Consent [56] For purposes of sexual assault offences, “consent” means “the voluntary agreement of the complainant to engage in the sexualactivity in question”: Criminal Code, supra, s 273.1(1). [57] The first essential point in this definition, arising from the words “voluntary agreement”, is that “[t]o be legally effective,consent must be freely given”: Ewanchuk at para 36.

It is “stripped of its defining characteristics when it is applied to the submission,non-resistance, non-objection, or even the apparent agreement, of a deceived, unconscious or compelled will”: Ewanchuk at para 37,quoting St-Laurent v Hétu (1993), (QC CA), [1994] RJQ 69 at 82 (CA) Fish JA. Consent is assessed subjectivelyfrom the complainant’s perspective: Ewanchuk at paras 26-27. [58] The second essential point, arising from the words “the sexual activity in question”, is that consent must be ongoing.

Consentrequires an ability to evaluate and to decide on each and every sexual act in a particular encounter: R v JA, 2011 SCC 28 at para 31,[2011] 2 SCR 440. Lack of consent is established where “the complainant was not consenting in her mind while the touching took place,even if she expressed her consent before or after the fact”: ibid at para 46.

Any sexual activity “with an individual who is incapable ofconsciously evaluating whether she is consenting” is not consensual: ibid at para 66; see also R v Dippel, 2011 ABCA 129 at para 27and generally R v JA at paras 36, 42-44. [59] There are contextual and informational components to consent. It “is not given or refused in a vacuum — it is given or refusedto a particular activity with a particular individual”: Dippel at para 24, quoting R v Osvath (1996), 46 CR (4th) 124, at para 29, (Ont CA) Abella JA, dissenting.

As the Supreme Court wrote in R v Hutchinson, 2014 SCC 19 at para 57, [2014] 1 SCR346, voluntary agreement to the sexual activity in question encompasses both the sexual nature of the activity (i.e., that the act was sexual in nature as opposed to being for a different purpose, such

as a medical examination) and the identity of the partner (defined in the narrow sense of the specific identity of a partner who ispersonally known to the complainant). Knowledge of the identity of a sexual partner is “an inseparable component” of subjective consent: R v Crangle, 2010 ONCA 451 atpara 20, leave to appeal to SCC refused, 33768 (23 December 2010). [60] Thus, “consent” may be understood as the knowing and voluntary agreement of the complainant to engage in each and everyact of a sexual nature with a particular partner.

Incapacity to consent [61] The Criminal Code sets out an open list of circumstances in which consent is not obtained. One such circumstance is where“the complainant is incapable of consenting to the activity”: s 273.1(2)(b). Since “consent” must hold the same meaning throughout thelegal analysis of a sexual assault, this may be understood to mean that no consent is obtained where the complainant is incapable ofknowingly and voluntarily agreeing to engage in each and every act of a sexual nature with a particular partner. [62] Jurisprudence has often defined incapacity in the negative.

Incapacity is not found where a complainant later regretted herdecision, or where she would not have made the same decision had she been sober: R v JR (2006), 40 CR (6th) 97, atpara 43 (Sup Ct J), aff’d 2008 ONCA 200, leave to appeal to SCC refused, 32606 (31 July 2008). It is not mere drunkenness, alcohol-induced imprudent decision-making, memory loss, loss of inhibition or self-control: R v Jensen (1996), 106 CCC (3d) 430 at para 13, (Ont CA), appeal quashed (SCC), [1997] 1 SCR 304; R v Merritt, [2004] OJ No 1295 at para 55(Sup Ct J); R v McRae, 2010 BCSC 558 at paras 85-87.

It is not a state of “automatism or even one of being unconscious or insensate,although all of those states would result in incapacity”: R v Siddiqui, 2004 BCSC 1717 at para 55; see also R v JR, supra at paras 42-43;R v Innes, [2004] OJ No 4150 at paras 22-24 (Sup Ct J). [63] It is clear that capacity to consent requires consciousness, or in other words an operating mind: R v JA, supra at paras 36, 40.

It is also clear that it requires something more than the ability to execute baseline physical functions: R v Haraldson, 2012 ABCA 147 atpara 7. [64] In R v Al-Rawi, 2018 NSCA 10 the Nova Scotia Court of Appeal reviewed the jurisprudence on capacity and distilled thefollowing test at paragraph 66: [A] complainant lacks the requisite capacity to consent if the Crown establishes beyond a reasonable doubt that, for whatever reason, thecomplainant did not have an operating mind capable of: 1. appreciating the nature and quality of the sexual activity; or 2. knowing the identity of the person or persons wishing to engage in the sexual activity; or 3. understanding she could agree or decline to engage in, or to continue, the sexual activity.

The capacity inquiry is entirely subjective from the complainant’s perspective: Al-Rawi at para 67. Honest mistaken belief and incapacity to consent [65] Mistaken belief in consent is a particular expression of the defence of mistake of fact. Mistake of fact will exculpate when,because of an honestly held belief, the accused did not have the mens rea to commit a criminal act.

The defence is merely a denial ofmens rea; the accused bears no burden of proof: Ewanchuk, supra at para 44. [66] In the sexual assault context, the defence of mistaken belief is governed by two Criminal Code provisions: 273.2 It is not a defence to a charge under

section 271, 272 or 273 that the accused believed that the complainant consented to theactivity that forms the subject-matter of the charge, where (

a) the accused’s belief arose from the accused’s (

i) self-induced intoxication, or (ii) recklessness or wilful blindness; or (

b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that thecomplainant was consenting. 265(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge,a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shallinstruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider thepresence or absence of reasonable grounds for that belief. [67] For purposes of this defence, the complainant must have “affirmatively communicated by words or conduct her agreement toengage in sexual activity with the accused”: Ewanchuk at para 49.

There must be a “yes”; “not no” will not suffice. The evidence mustshow that the accused subjectively believed that the complainant “communicated consent to engage in the sexual activity in question. …

The accused’s speculation as to what was going on in the complainant’s mind provides no defence”: Ewanchuk at paras 45-46 [emphasisin original]. [68] Because the defence of mistaken belief is grounded in mistake of fact, mistakes of law — including mistakes about whatconstitutes consent — provide no defence: Ewanchuk at para 51; Dippel, supra at para 21.

In other words, the defence operates wherethe accused believed in the presence of a consent that the law would recognize as valid: the knowing and voluntary agreement of thecomplainant to engage in each and every act of a sexual nature with him as her partner. [69] At common law, a mistaken belief in consent would exculpate when the accused honestly believed the complainant wasconsenting, no matter how unreasonable that belief was: Sansregret v The Queen, (SCC), [1985] 1 SCR 570 at 581,583. The Criminal Code provisions add objective requirements to the basic requirement of subjective belief.

In particular, section273.2(

b) exists to address situations where “the circumstances preceding the sexual activity call out for the accused to take positive stepsto assure himself that the complainant is knowingly consenting to that activity”: R v Malcolm, 2000 MBCA 77 at para 36, leave toappeal to the SCC refused, [2001] 1 SCR xiv. The

section imposes an objective standard: “the issue is whether the accused is aware ofcircumstances which would lead a reasonable man to inquire further into the issue of consent”: ibid at para 21. [70] As stated in R v RG (1994), 38 CR (4th) 123, at para 29 (BCCA), what constitutes “reasonable steps … toascertain that the complainant was consenting” will vary in proportion to the accused’s knowledge of the circumstances: [Section] 273.2(

b) clearly creates a proportionate relationship between what will be required in the way of reasonable steps by an accusedto ascertain that the complainant was consenting and “the circumstances known to him” at the time. … [T]he

section clearlycontemplates that there may be cases in which … nothing short of an unequivocal indication of consent from the complainant, at the timeof the alleged offence, will suffice to meet the threshold test which it establishes as a prerequisite to a defence of honest but mistakenbelief.

See also R v R(R) (2001), 159 CCC (3d) 11, at paras 57-58 (Ont CA); Dippel, supra at para 22. [71] An unequivocal communication of consent will be required, for instance, where the accused and complainant were completestrangers and the complainant was asleep at the time of the sexual contact. “Anyone seeking sexual activity in these circumstances couldhardly fail to know that he was obliged, at a minimum, to let the person from whom permission for such activity was sought, know whowas seeking the consent”: Dippel at para 24, quoting Osvath, supra at para 29, Abella JA, dissenting; Crangle, supra.

This resultnecessarily flows from carrying the meaning of “consent” into s 273.2(b). [72] Further, as was held in R v S(T), 1999 CarswellOnt 268 (Ct J Gen Div) at para 160, non-verbal expressions of alleged consentbetween strangers must be unequivocal: As a general rule, non-verbal behaviours, when relied upon as expression of consent, must be unequivocal.

Where this is not the case,avoidance of serious risk-taking, and the defeat of confusion, miscommunication, and unfounded assumption demands that reasonablesteps be taken, not themselves involving sexually assaultive activity, to clarify the limits of any agreement to sexual touching. A personis not entitled to take ambiguity as the equivalent of consent: R v Esau, [ (SCC), [1997] 2 SCR 777] at314 per McLachlin J [dissenting].

A sexual encounter between persons with no history of sexual experience together, in order to respectphysical integrity and sexual autonomy, as a matter of logic and common sense, requires clear and unambiguous communication ofconsent, not self-serving

interpretations of equivocal or contradictory behaviour. See also R v Cornejo, 68 OR (3d) 117, at paras 15-16 (CA). [73] It has been suggested that an accused cannot claim an honest belief in consent where he gave no thought to the complainant’scapacity to consent: R v R(R),supra at para 59. This idea was more accurately framed in then-Justice McLachlin’s dissent in R v Esau, (SCC), [1997] 2 SCR 777. I take caution in using any part of the Esau judgment as authority because it was decidedbefore Ewanchuk, supra, and was apparently argued without reference to

section 273.2 of the Criminal Code. However, McLachlin J’sexplanation of the common law defence of mistaken belief is untainted by these difficulties. As she explained at paragraph 70, an honestbut mistaken belief in consent is not honest where the accused has deceived himself, or has taken advantage of a passive or unclearresponse from the complainant. A mistaken belief in consent is not legally valid if it is based on wilful blindness, or “a deliberateavoidance of the facts and circumstances”.

By contrast, [t]he person who is not wilfully blind is the person who is appropriately aware, not only of the need to obtain consent (which he ispresumed to know), but of what the conduct and circumstances reveal to one who looks to see whether that consent was being given orwithheld. [74] In R v Briscoe, 2010 SCC 13 at para 21, [2010] 1 SCR 411, the Supreme Court explained that wilful blindness can take theplace of knowledge for mens rea purposes: Wilful blindness does not define the mens rea required for particular offences.

Rather, it can substitute for actual knowledge wheneverknowledge is a component of the mens rea. The doctrine of wilful blindness imputes knowledge to an accused whose suspicion isaroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries.

See R vSansregret, (SCC), [1985] 1 SCR 570 ((SCC)), and R v Jorgensen, (SCC), [1995] 4 SCR 55 ((SCC)).As Sopinka J. succinctly put it in Jorgensen (at para 103), "[a] finding of wilful blindness involves an affirmative answer to the question:Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge?" [emphasis inoriginal] [75] It follows that for purposes of

section 273.2, “reasonable steps” must be evaluated in the context of the circumstances thatwere known to the accused or that he deliberately chose not to know.

The process of determining capacity on the evidence [76] In incapacity cases, there may be a lack of, or gaps in, direct testimony from the complainant as to her consent. A court mustassess consent, including capacity to consent, in light of all the evidence, direct or circumstantial: Ewanchuk at para 51; Al-Rawi, supraat para 69.

Of course no one symptom of incapacity, such as an inability to remember or to communicate, mandates a legal finding ofincapacity to consent, but any symptom or symptoms may provide cogent circumstantial evidence: Al-Rawi at para 50, R v Chen, 2016ABQB 644 at para 87, citing R v JR, supra at paras 18-20 . [77] Though the tests differ, the process of determining a complainant’s capacity or incapacity is analogous to the process ofdetermining an accused’s state of intoxication for mens rea purposes.

A trier of fact may look to the complainant’s actions before, duringand after the events in question: R v Lemky, (SCC), [1996] 1 SCR 757 at paras 19-22. Capacity to consent “does notdie with the first drink;” experience and common sense indicate that “the effect of alcohol on thought processes is a continuum”: R vDaley, 2007 SCC 53 at para 104, [2007] 3 SCR 523, quoting R v Courtereille, 2001 BCCA 17 at para 32.

See also R v Walle, 2012 SCC41 at paras 61,65, [2012] 2 SCR 438, quoting R v Seymour, (SCC), [1996] 2 SCR 252 at para 104. [78] Expert evidence may assist in some cases but it is not required as a matter of law: Haraldson, supra at para 7, citing R vFaulkner (1997), (ON CA), 120 CCC (3d) 377 and Merritt, supra. It is well established that a lay witness may giveopinion evidence about another person’s state of intoxication: Graat v The Queen, (SCC), [1982] 2 SCR 819 at 837-38. Findings [79] I have instructed myself according to R v W(D), (SCC), [1991] 1 SCR 742, restated in terms that fit thematters at issue here.

If I believe Mr. Shrivastava’s evidence, or if I do not believe it but am left in reasonable doubt by it, and if as aresult I cannot conclude that the Crown has satisfied all relevant legal tests beyond a reasonable doubt, I must acquit. Even if I am not leftin doubt by Mr. Shrivastava’s evidence, I must ask myself whether the evidence I do accept has convinced me beyond a reasonable doubtof his guilt based on all relevant legal tests. [80] I have considered Mr.

Shrivastava’s evidence in the context of all the evidence before me: R v Hoohing, 2007 ONCA 577 atpara 15; R v D(JJR) (2006), 215 CCC (3d) 252, at para 42 (Ont CA), leave to appeal to SCC refused, 31767 (10May 2007). As I will explain below, it is irreconcilable with credible evidence led in the Crown’s case. I therefore reject his evidence andfind it is incapable of contributing to a reasonable doubt. Of course, these conclusions do not end my analysis. I must determine whetherthe Crown’s evidence has satisfied me of Mr.

Shrivastava’s guilt beyond a reasonable doubt. [81] All of the Crown’s witnesses were unable to remember certain details. Some, such as who rode with whom in a cab or whatkind of pizza was ordered, are immaterial to the issues before me, except insofar as they may illustrate the witnesses’ abilities to observeand to remember. It is natural that people would not remember unimportant details of what at the time seemed an unremarkable night.They would be more likely to remember events that were remarkable or important. [82] For example, both Mr. Takaki and Dr. Schultz testified that Mr. Shrivastava gestured to Ms.

B and said something like “whois that” or “whose is that”, and implied an intention to sleep next to her. Neither witness professed to recall the exact words, but bothwere clear about the impression the words and gestures made. Dr. Schultz found Mr. Shrivastava’s comment odd and objectifying, andfelt he needed to direct Mr. Shrivastava to sleep on the couch. Mr. Takaki was concerned enough about Mr. Shrivastava’s comments andhis decision to sleep next to Ms. B that he felt he needed to wake her and to inform her of what was happening.

The witnesses’ inabilityto relate exact words is to be expected and does not affect my perception of their reliability. [83] The evidence given by Dr. Schultz and Mr. Takaki establishes key links in the chain of events before they went to sleep. Dr.Schultz, in particular, impressed me as a good observer and a good narrator. Mr. Takaki’s testimony was somewhat less reliable overall,but nonetheless has value when taken in the context of all the evidence. [84] I find that when Dr. Schultz, Mr. Takaki, Adam and Ms. B arrived at the house, Adam and Ms. B were in an advanced state ofintoxication. Dr. Schultz and Mr.

Takaki set up a mattress and a futon in the living room. Adam passed out shortly afterward and Ms. Bsoon after that. Neither of them roused while the pizza and Mr. Shrivastava arrived and the men ate and talked. [85] When Dr. Schultz, Mr. Takaki, and Mr. Shrivastava were preparing to go to sleep, they moved into the living room. Adamwas still passed out on the futon and Ms. B on the mattress. Mr. Takaki took the small couch. Mr. Shrivastava made comments andgestures that the other men found unusual, as described above. Because of his concern about Mr. Shrivastava’s intentions, Dr. Schultzdirected Mr.

Shrivastava to take the large couch, which was unoccupied; Mr. Shrivastava complied. There was not an empty mattress orfuton in the room at that time. [86] Mr. Takaki saw Mr. Shrivastava lying next to Ms. B on her mattress, and decided to wake her to inform her of that. Mr.Takaki and Ms. B each made trips to the washroom. [87] Mr. Takaki and Dr. Schultz did not witness the alleged sexual activity; on that point, the Crown’s case depends on the DNAevidence and Ms. B’s testimony. Owing to her admittedly spotty memory, Ms. B’s evidence mandates care in the credibility analysis. [88] I find that Ms.

B was an honest witness. It would have been easy for her to exaggerate her memory or to adopt details from hertranscripts even when she did not remember them, but she did not do so. In her testimony, she sometimes made blanket statements abouta lack of memory, only to realize she did remember a detail. Defence counsel suggests that these occurrences were contradictionsrelevant to credibility. I accept them as part of an honest process. Ms. B was oppositional under cross-examination and often showedfrustration. These attitudes are understandable, given the long and opaque process in which she has been involved.

Where she made ablanket statement out of frustration, I take it as such, and not as a contradiction that raises concern about her reliability. Similarly, the fact

that memories came back to her in a disorganized way is not a concern. [ 89 ] Ms. B’s memory was weakest on details that are not central to the alleged offence. I would find it difficult to rely on her evidence of peripheral details for its content, unless corroborated. [ 90 ] By contrast, her sensory memory of being vaginally penetrated and trying to push someone away, though fleeting, was clearly and consistently related. She described feeling drunk, with a spinning head and foggy brain. She did not fully understand what was going on. After several seconds, everything went black again.

Afterward, she wondered whether her memory of the penetration was a dream or reality, but the DNA evidence establishes that it was real. Her wondering was consistent with, as she said to Detective Archer, “making up … stuff in [her] head… like nothing could have happened.” Denial is a plausible reaction. So is caution. Her expressions of incredulity do not undermine her credibility. I accept that her memory of this period of time is reliable. [ 91 ] Ms. B’s testimony, in its content and its form, provided evidence relevant to her cognitive state. At times during the evening, she had some difficulty walking.

She had difficulty remembering. She gave direct evidence that she was extremely intoxicated and that she passed out in Dr. Schultz’s living room. She could see Mr. Takaki speaking during the night but could not seem to hear his words, and she did not fully understand what was happening when she was being penetrated. [ 92 ] The evidence of Mr. Takaki and Dr. Schultz shows that Ms. B was heavily intoxicated before passing out or falling into a deep sleep from which she did not rouse. In Dr. Schultz’s opinion, she was incapable of consenting to someone sharing her mattress or anything else.

Though he is a doctor, this was not offered as a medical opinion. It certainly was not a legal opinion or a comment on a legal standard. I take it as a compendious expression of Dr. Schultz’s observations. His factual statement is not converted into a legal one by coincidence of language: Graat v The Queen , supra at 837-41. [ 93 ] I accept that Ms. B had some degree of awareness at a few moments during the night and was able to perform the baseline physical function of walking to the bathroom; therefore, this is not a case of complete and uninterrupted unconsciousness.

Nonetheless, I find that at all relevant times she lacked an operating mind. [ 94 ] She was unconscious or sleeping heavily when Mr. Shrivastava began touching her sexually. In the moments when she was awake, she did not fully understand what was being done and did not know who was doing it to her. Then she passed out of awareness again. She lacked the capacity to agree or to decline to engage in the sexual activity, let alone the capacity to understand that she had that choice. She was unable to give her knowing and voluntary consent to any of the sexual activity with Mr.

Shrivastava. [ 95 ] As indicated, I have rejected Mr. Shrivastava’s evidence. It is irreconcilable with other credible evidence, including but not limited to Ms. B’s. I will identify only its most significant flaws. [ 96 ] Mr. Shrivastava’s evidence is irreconcilable with the fact that his DNA was found on a swab taken from the far end of Ms. B’s vaginal canal. On his evidence, his penis did not penetrate Ms. B’s vagina. His statement that it “could have” was nothing more than an attempt to cover all bases. [ 97 ] His evidence on the sleeping arrangements contradicts that of the other witnesses.

In context, the contradiction is significant. [ 98 ] On his evidence, he was barely aware of AB, which contradicts the other witnesses’ evidence that he focused some attention on her. [ 99 ] Finally, Mr. Shrivastava’s descriptions of Ms. B’s state of awareness are telling. When describing his arrival at the house, he said “there was a boy and a girl pa – lying on the mattress on the floor”. Later in his testimony he said he did not know whether they were awake or asleep. From the evidence of the other witnesses, Ms. B was, at a minimum, asleep, and in context Mr. Shrivastava could not have failed to know that.

I find that he started to say the boy and girl were passed out, and that his claimed lack of knowledge is false. [ 100 ] Therefore I have rejected Mr. Shrivastava’s evidence. I believe it is a self-serving fabrication. It does not contribute to a reasonable doubt and has not influenced my findings of fact. [ 101 ] Having rejected Mr. Shrivastava’s evidence, nothing remains on which I could base an honest belief in consent. I decline to speculate on thoughts he could have entertained during events to which he did not testify: R v Flaviano, 2013 ABCA 219 at paras 38 , 39, 49, aff’d 2014 SCC 14 , [2014] 1 SCR 270 .

On the facts I have found, it is not possible to find a legally effective belief in Ms. B’s knowing, voluntary and ongoing agreement to engage in sexual activity with Mr. Shrivastava. Some, likely most, of the sexual activity occurred while Ms. B was passed out. [ 102 ] Though it is not strictly necessary for me to do so, I will address Crown counsel’s submission that I should not consider the defence of mistaken belief in any event, as it did not have any air of reality. Of course, the trier of law (me) may only place a defence before the trier of fact (also me) if it has an air of reality.

As the Supreme Court explained in R v Mayuran , 2012 SCC 31 at para 21 , [2012] 2 SCR 162 [citations omitted]: In determining whether a defence has an air of reality, there must be an examination into the sufficiency of the evidence. It is not enough for there to be “some evidence” supporting the defence. The test is “whether there is (1) evidence (2) upon which a properly instructed jury acting reasonably could acquit if it believed the evidence to be true”.

For defences that rely on indirect evidence or … that include an objective reasonableness component, the trial judge must examine the “field of factual inferences” that can reasonably be drawn from the evidence. [ 103 ] It may seem counterintuitive to apply an air of reality analysis where the complainant is said to be the initiator of and active participant in the sexual activity. However, these factors are not direct criteria in any of the relevant legal tests.

If the initiator could never be the victim of sexual assault, it would mean that anyone who initiates sexual activity abandons her right to set limits, change her mind, or revoke her consent. This is not the law. By the same token, the recipient of a sexual advance is not automatically a victim of a sexual assault. The roles of assailant and victim are defined not by initiation but by consent.

[ 104 ] In many circumstances, initiation and participation could be compelling evidence of non-verbally communicated consent. Nonetheless, I must examine the circumstances known to the accused and consider whether the subjective and objective components of the mistaken belief defence have the air of reality. [ 105 ] On Mr. Shrivastava’s evidence, he knew that when he arrived at Dr. Schultz’s house after closing time, Ms. B was lying on a mattress with a man. He did not know who she was. He went to sleep on a different mattress in the same dark room. He woke up when she touched his penis.

They did not speak or make eye contact. [ 106 ] The Crown’s evidence on Ms. B’s capacity shows that she did not have an operating mind at any relevant time. Mr. Shrivastava’s denial of knowledge of her state of intoxication does not contradict or undermine that evidence. Therefore, even for purposes of the air of reality analysis (and as always when considering mistaken belief), Ms. B did not consent to sexual contact. At most, the evidence may support an awkward inference that her body participated while her mind was not operating at a level necessary for legal consent. [ 107 ] From Ms.

B’s acts as he described them, Mr. Shrivastava likely had grounds to believe that Ms. B wanted to engage in sexual activity. However, he did not have grounds to believe that she wanted to do so with him, as opposed to the man on the mattress where she started the night, or anyone other than the stranger on the other mattress. A reasonable person in these circumstances would have taken a step to ascertain that she wanted to engage in sexual activity with him.

It would have been a sufficient, and not overly onerous, step to ask “do you know who I am?” It may have been a sufficient step to make eye contact or find another verbal or non-verbal way to ensure she knew who he was. Instead, he did nothing. He acted not on a legally recognized mistaken belief, but on a hopeful assumption. This does not provide a defence. [ 108 ] Since Mr. Shrivastava took no steps to ascertain that Ms. B was knowingly and voluntarily agreeing to sexual activity with him,

section 273.2 would bar the operation of the defence of mistaken belief in consent at the air of reality stage, as well as at the ultimate stage of considering whether the offence has been proved beyond a reasonable doubt. [ 109 ] It could be argued that, on his evidence, Mr. Shrivastava was wilfully blind to Ms. B’s state of capacity, and that this could affect the availability of the mistaken belief defence. It is unnecessary for me to consider this further alternative. [ 110 ] In sum, I do not believe that Mr. Shrivastava honestly believed he had Ms. B’s voluntary agreement to being vaginally penetrated.

I believe he wanted to obtain sexual gratification from an unconscious stranger, and that is what he did. He deprived her of control over who touched her body and how, and thereby criminally violated her human dignity and autonomy: Ewanchuk , supra at para 28 . Conclusion [ 111 ] Mr. Shrivastava touched Ms. B in a sexual manner. Ms. B did not voluntarily and knowingly agree to being sexually touched by him. Mr. Shrivastava intended to touch her sexually and knew that she had not consented.

Therefore, the Crown has proved the elements of sexual assault beyond a reasonable doubt. [ 112 ] I find Prachur Shrivastava guilty as charged. Heard on the 22 nd day of November, 2018. Dated at the City of Calgary, Alberta this 7 th day of December, 2018. J.A. Antonio J.C.Q.B.A. Appearances: Tiffany Dwyer Crown Prosecutor’s Office for the Crown

Tonii Roulston and Jeanine Zahara, student-at-law Roulston Urquhart Criminal Defence for the Accused