R. v. Burry, 2020 NLSC 40

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Burry , 2020 NLSC 40 Date : March 5, 2020 Docket : 201905G0090 Her Majesty The Queen v. DEVON Burry Before: Justice Glen L. C. Noel Place of Hearing: Gander, Newfoundland and Labrador Date of Hearing: February 13, 2020

Summary: The Appellant was convicted following trial in Provincial Court of two counts of sexual assault contrary to

section 271 of the Criminal Code and one count of unlawfully providing alcohol to a minor under the Liquor Control Act . He appealed the

summary convictions on the basis the Trial Judge erred in fact and law on his failure to conclude the complainant consented to the sexual touching, and that the evidence raised a reasonable doubt on all charges. The appeal was dismissed and convictions upheld. Appearances:

P. Cory Binderup Appearing on behalf of the Crown Devon Burry Appearing on his own behalf as Appellant Authorities Cited: CASES CONSIDERED: R. v. Ewanchuk, 1999 SCC 711; R. v. Sinclair, 2011 SCC 40; R. c. P. (R.), 2012 SCC 22 , [2012] 1S.C.R. 746; R. v. MacIsaac, 2013 NLCA 26; R. v. Sheppard, 2002 SCC 26; R. v. Sullivan, 2020 NLCA 5; R. v. Beaudry, 2007 SCC 5; R.v. K.P., 2019 NLCA 37; R. v. Radcliffe, 2017 ONCA 176; R. v. A. (J.), 2011 SCC 28; R. v. Barton, 2019 SCC 33; R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742; Faryna v.

Chorny, (BC CA), 1951 CarswellBC 133, [1952] 4 W.W.R. 171(C.A.) STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46; Liquor Control Act, R.S.N.L. 1990, c. L-18 TEXTS CONSIDERED: The Dictionary of Canadian Law, 2nd ed.; Collins English Dictionary

(1979) REASONS FOR JUDGMENT Noel, J.: OVERVIEW [1] The Appellant, Devon Burry, was convicted in the Provincial Court, Gander, of two counts of sexual assault on separate datescontrary to

section 271 of the Criminal Code, R.S.C. 1985, c. C-46 (the “Criminal Code”), and one count of unlawfully providingalcohol to a minor contrary to section 76(1) of the Liquor Control Act, R.S.N.L. 1990, c. L-18, (the “Act”). He appeals his

summaryconvictions under

section 813 of the Criminal Code.[1] [2] Mr. Burry is seeking to have the convictions overturned and acquittals entered, or alternatively a new trial ordered. [3] The primary focus of Mr. Burry’s appeal is that the Trial Judge erred in fact and law in his determination on what constitutesconsent to sexual touching. Mr. Burry, at trial and in this appeal, contends the complainant’s “submissiveness” to touching is a form ofconsent or amounted to reasonable doubt on a key element of the offence of sexual assault. He relies primarily on the Supreme Court ofCanada decision in R. v.

Ewanchuk, 1999 SCC 711. [4] The learned Trial Judge made no reversible error in entering convictions for sexual assault and the charge under the Act. [5] In these reasons, I will explain why Mr. Burry has a misguided and erroneous understanding of Ewanchuk and the law ofsexual assault. Ewanchuk made clear (at para. 31), “[there] is no defence of implied consent to sexual assault in Canadian law.” I amunable to disturb the Trial Judge’s finding that any “acquiescence” on the part of the complainant to Mr.

Burry’s sexual touching did notconstitute consent. background [6] A review of the evidence is necessary to understand the convictions and Mr. Burry’s appeal. I have reviewed the entiretranscript, and I find the Trial Judge accurately summarized the evidence of each witness in his oral decision.[2] [7] There is almost a ten-year age difference between Mr. Burry and the complainant. They met when she was 13 or 14, and hewas 23 or 24. Mr.

Burry would hang out with the complainant’s peer group, at times provide them with cigarettes and alcohol, and givethem car rides to parties and other events. [8] One of the friends in the peer group, R.W., gave evidence that there were occasions when Mr. Burry would inappropriatelytouch the complainant such as grabbing “her boob over her hoodie.” He observed the complainant’s reaction was one of mixedconfusion and not wanting it to happen. The complainant herself testified that Mr. Burry’s touching of her was a regular thing that shetolerated.

She explained she felt “trapped” in her “social position.” She was afraid her friends would “hate” her if she stopped hangingaround with Mr. Burry. [9] The complainant did not go to the police about the incidents giving rise to the two sexual assault charges until she received anextremely disturbing and sexually graphic letter from Mr. Burry. Over the course of four or five months, beginning in January orFebruary 2017, Mr. Burry sent other letters to the complainant. The letters started out “nice and friendly” and made her feel better aboutsome personal issues she had in her life at the time.

Things changed on May 28, 2017, when she received a letter that terrified her. [10] The complainant had lost her dad in March 2015 to sudden death. Mr. Burry testified he was concerned about the complainanthaving a difficult time coping with the loss of her father, and he helped her out with relationship and other personal issues.

[ 11 ] Before the letter of May 28, 2017, the complainant had confronted Mr. Burry and told him she did not want to receive his letters anymore. She had been advised by a friend that Mr. Burry was “saying that you’re in love with him.” The complainant told Mr. Burry that she did not love him and questioned why he was so infatuated with her. After this, Mr. Burry wrote to her (in one of the letters entered as an exhibit) indicating, “I’m so proud of you tonight. You expressed yourself. In front of five other people, you made yourself heard. There is no reason to keep anything in.” [ 12 ] The letters kept coming.

A letter of unknown date (also entered into evidence) was perversely addressed, “To: Little Girl, From: Daddy.” Then finally came the letter of May 28, 2017. The sexually explicit content scared the complainant and she decided to tell her mom about it. The following day the complainant went to the police about the letter and, upon questioning from the police, reported the other matters forming the basis of the charges. [3] [ 13 ] The Trial Judge found, on or about December 22, 2016, Mr.

Burry sexually assaulted the complainant by touching her breasts under her bra and putting his hand on her thigh and towards her genital area. The touching occurred in Mr. Burry’s car while they were alone driving on the highway. Mr. Burry also grabbed the complainant’s hand and forcefully pulled it over to his genital area (the “December 2016 Incident”). [ 14 ] Mr. Burry was convicted that on or about May 25, 2017, he sexually assaulted the complainant by touching her breast while she was seated in the back seat of a parked car.

The witness, R.W., corroborated the touching did occur (the “May 2017 Incident”). [ 15 ] In addition, he was convicted of

section 76 under the Act for providing alcohol to the complainant, on or about May 6, 2017, a person under the age of 19. issues [ 16 ] Mr. Burry in his Factum raised the following grounds of appeal: (

i) The trial judge erred in law by determining the accused to be more culpable by reference to subjective evidence not relating to the complainant’s state of mind.

This amounts to a determination by the Court that sexual assault is a crime of specific intent. (ii) The trial judge erred in law by determining an absence of consent by reference to the complainant’s objective evidence; the trial just found the complainant to be in a state of submissiveness to the accused, yet gave no effect to this finding. (iii) The trial judge erred in fact by determining that the complainant was not moved from assertions on cross-examination. [ 17 ] Mr. Burry’s grounds of appeal and arguments were fleshed out during his submissions at the appeal hearing.

He specifically seeks the Court’s determination on whether the Trial Judge erred in: 1. finding that the complainant never consented to the touching; 2. reversing the onus of proof on the Crown to the accused; 3. treating the crime of sexual assault as a specific intent offence as opposed to a general intent offence; 4. failing to canvass with the complainant on whether she would prefer to testify without her mother in the courtroom; 5. relying upon section 265(3) (

d) of the Criminal Code to enter convictions for sexual assault; and 6. convicting on the

section 76 charge of the Act . analysis Powers on Appeal [ 18 ] The Criminal Code gives jurisdiction to this Court to hear a

summary conviction appeal: section 812(1)(g). Section 822(1) indicates, where an appeal is taken under

section 813 in respect of any conviction,

section 686 governs the appeal. The appellate powers to address both procedural and substantive errors during the trial are as follows: 686(1) Powers On the hearing of an appeal against a conviction …, court of appeal (

a) may allow the appeal where it is of the opinion that (

i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,

(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or (iii) on any ground there was a miscarriage of justice; (

b) may dismiss the appeal where … (iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided infavour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred, or (iv) notwithstanding any procedural irregularity at trial, the trial court had jurisdiction over the class of offence of which the appellantwas convicted and the court of appeal is of the opinion that the appellant suffered no prejudice thereby; … Standard of Appellate Review [19] Charron, J. in R. v.

Sinclair, 2011 SCC 40, commented on the common purpose of the grounds of appellate review (at para.76): Read together, it is apparent that the three grounds allowing an appellate court to overturn a conviction share a common purpose. Doherty J.A. usefully described the underlying rationale in R. v. Morrissey (1995), (ON CA), 97 C.C.C. (3d) 193(Ont. C.A.), as follows (at para. 219) [sic] 87: While s. 686(1)(

a) provides three distinct bases upon which [an appellate court] may quash a conviction, each shares the sameunderlying rationale. A conviction which is the product of a miscarriage of justice cannot stand. Section 686(1)(a)(

i) is concerned withthe most obvious example of a miscarriage of justice, a conviction which no reasonable trier of fact properly instructed could havereturned on the evidence adduced at trial. Section 686(1)(a)(ii) read along with s. 686(1)(b)(iii) presumes that an error in law produces amiscarriage of justice unless the Crown can demonstrate the contrary with the requisite degree of certainty.

Section 686(1)(a)(iii)addresses all other miscarriages of justice not caught by the two preceding subsections. [Charron, J.’s Emphasis] [20] The principles applicable when there is an allegation of unreasonable verdict are summarized in R. c. P. (R.), 2012 SCC 22, [2012] 1 S.C.R. 746. Deschamps J., for the majority wrote (at para. 9): To decide whether a verdict is unreasonable, an appellate court must, as this Court held in R. v. Yebes, (SCC), [1987] 2S.C.R. 168, and R. v.

Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36, determine whether the verdict is one that a properlyinstructed jury or a judge could reasonably have rendered. The appellate court may also find a verdict unreasonable if the trial judge hasdrawn an inference or made a finding of fact essential to the verdict that (1) is plainly contradicted by the evidence relied on by the trialjudge in support of that inference or finding, or (2) is shown to be incompatible with evidence that has not otherwise been contradicted orrejected by the trial judge (R. v.

Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 4, 16 and 19-21; R. v. Beaudry, 2007 SCC 5, [2007]1 S.C.R. 190). [21] Rowe, J.A. (as he then was) in R. v. MacIsaac, 2013 NLCA 26, stated (at para. 17), “[t]he misapprehension of the evidencemust be such that it could have affected the verdict.” He endorsed the comments Laskin J.A. wrote in R. v. G. (G.) (1995), (ON CA), 97 C.C.C. (3d) 362, 1995 CarswellOnt 1756 (Ont.

C.A.), at paragraph 59: 17. … When an appellate court finds error, it has a duty to consider the nature of the error, its effect on the verdict, and when the verdict isrendered by a judge alone, on the reasoning process by which the verdict was reached. Obviously not every error in the apprehension orappreciation of evidence or in the drawing of a conclusion from evidence warrants quashing a conviction. But s. 686(1)(a)(

i) of theCriminal Code requires this court to intervene if the error leads to an unreasonable verdict, or if the error is an error of law which cannotbe cured by s. 686(1)(b)(iii), or if the error results in a miscarriage of justice. [Emphasis added] Sufficiency of Reasons

[ 22 ] The proposed approach to appellate intervention on the duty of a trial judge to give sufficient reasons was outlined by Binnie J. in R. v. Sheppard , 2002 SCC 26 , at paragraph 55 . The most salient points I take from the approach for this appeal are as follows: • Mr.

Burry “should not be left in doubt about why” he was convicted, paragraph 55(2). • “The trial judge is not held to some abstract standard of perfection,” paragraph 55(7). • The trial judge’s reasons must be “reasonably intelligible to the parties” and provide “for meaningful appellate review of the correctness of the trial judge’s decision,” paragraph 55(8). • Where there is any deficiencies in the reasoning process of the trial judge, the appeal court may rectify this in its own reasons, paragraph 55(10).

Findings of Fact and Factual Inferences [ 23 ] When dealing with findings of fact and factual inferences, Goodridge J.A. in the recent case of R. v. Sullivan , 2020 NLCA 5 , stated (at para. 11 ): … Findings of fact made and the factual inferences drawn by the trial judge cannot be reversed on appeal unless the trial judge has made a palpable and overriding error, i.e. an error that is plainly identifiable and affected the result, see R. v. Phelan , 2013 NLCA 33 , 337 Nfld. & P.E.I.R. 64 (N.L. C.A.), at para. 14 and R. v. Clark , 2005 SCC 2 , [2005] 1 S.C.R. 6 (S.C.C.), at para. 9 .

In the latter case, Fish J. stated at paragraph 9: ... Appellate courts may not interfere with the findings of fact made and the factual inferences drawn by the trial judge, unless they are clearly wrong, unsupported by the evidence or otherwise unreasonable. The imputed error must, moreover, be plainly identified. And it must be shown to have affected the result. "Palpable and overriding error" is a resonant and compendious expression of this well- established norm. Credibility Assessments [ 24 ] Finally, the trial judge holds a “privileged position” in the assessment of credibility of witness testimony: ( R v.

Beaudry , 2007 SCC 5 at paras. 62 and 63 ). Credibility findings are “within the purview of the trial judge and not to be lightly interfered with on appeal:” ( R. v. K.P ., 2019 NLCA 37 , at para. 26 ). An appellate court is therefore required to show “significant deference” when the verdict is primarily based on the trial judge’s credibility assessments, as is the case in this appeal: ( R. v. Radcliffe , 2017 ONCA 176 , at para. 23 ). [ 25 ] I will now address each of the issues, mindful of the guiding authorities on the standard of appellate review. 1.

Did the Trial Judge err in his finding that the complainant never consented to the touching? [ 26 ] Mr. Burry submits the complainant’s evidence supported a conclusion that she consented, or at least there was a reasonable doubt raised by her testimony on consent. His position is that the complainant never described a violation of her sexual integrity, and did not take offence to the touching. Submissiveness on the part of the complainant, he says, is a form of consent and “the one who is silent is considered to consent.” [ 27 ] Mr.

Burry relies on evidence that the complainant gave in cross-examination. [4] It was put to the complainant that throughout her friendship with Mr. Burry he would at times touch her “on the butt or things like that.” She was asked and replied (at page 171 of the transcript): Q. You didn’t really take offence to it [be]cause it was a way that basically he carried on and you just put up with it? A. Yes.

She agreed if the police had not asked about the sexual touching she never would have brought it to the attention of the police. [ 28 ] The complainant was very clear in her direct evidence on the December 2016 Incident. Her testimony was as follows (at pages 125-126 of the transcript): A. So we started the drive. The drive was very--it was okay. It was kind of--we were just talking normally, I guess, for a bit. It started to get weird as I--we passed Lumsden, and there’s a little shack and he looked at me, he’s like, “Let’s go have sex in that shack?” Alright, that was when it began.

So from there on out I was, like, kind of uneasy. I was doing everything to, like, make jokes and just, like, get the vibe going back to a friendly, personal, you know, vibe. Then the night fell and increasingly he kept touching me. He was like my shoulder, start off with my shoulder. Then he went up under my bra, no like this, and he’s like, “Just let me do it. Just let me do it.” So he touched my boob. Q. What did you say?

A. I said--I pulled away initially when he touched my boob. Then he put his hand on my thigh and crept it towards my genital area and I pushed his hand away and I moved towards the corner of the car even more so uncomfortably. Then he grabbed my hand really forcefully and pulled it over to his genital area and he said, “No, stop, just come on, come on, it’s gonna be okay, stop, stop, stop.” And I said, no Devon. I tried to pull my hand and it wouldn’t work. For the first like five times I was yanking, jerking my hand and then finally, I got it and I let go and I was like, Devon stop.

And that was right before Centreville, so about five minutes later, quiet. He dropped me off. And I cried to my girlfriend. I told her I was, like, I can’t go back with him. I was like, mom’s coming to pick me up in the morning. [ 29 ] She further testified (at page 133 of the transcript) that Mr. Burry did not acknowledge her uncomfortableness and he continued to try to grope her and touch her thigh. She moved over further to the corner of the car and (at page 134) “just kept on repeatedly telling him, ‘I’m uncomfortable’.” She was trying to get away and avoid the touching.

She stated (further at page 134): “I’m shuttering in the seat, I am nervous, I’m trying to talk to him like I would have a normal conversation with a friend, trying to laugh; ultimately I’m in the corner of the car pressed up against the wall, like barely able to move.” After he grabbed her hand she jerked her arm away, and (at page 137), “I assertively said stop and it did stop, and for the rest of the remainder of the ride it was very uneasy ride.” [ 30 ] The December 2016 Incident was squarely raised with her in cross-examination (at pages 172-173 of the transcript): Q.

It was in December on the drive there really you didn’t--you found it inappropriate, but and you probably weren’t happy about it, but you didn’t really consider that, after it happened, to be, like, an assault or anything, did you? A. I definitely, I told my mother about it. Q. You did tell your mom? A. I messaged Devon personally telling him how out of line it was and how friends don’t do that and how uncomfortable it has made me. I blocked him further after that and to which I got messages from girls telling them to--telling them--unblock me. Q. But now this is--this is December? A.

Yeah. [ 31 ] There was another exchange in cross-examination where it was put to the complainant that she continued to be friends with Mr. Burry after the December 2016 Incident, and it was also erroneously suggested to her that her mom did not testify about the complainant mentioning anything to her mother. The exchange as recorded in the transcript (at pages 196-197): Q. And after this date you continued to be friends with Devon? A. I--he--I demanded an apology and I told my mom and I wasn’t really allowed to hang out with him for a while. Q.

And the apology part--I mean your mom testified and she didn’t mention anything about this? A. I did--she didn’t know half of what was going on. Q. She didn’t know anything about this? A. She made that very clear that she was not a part of this. Q. Right, so you didn’t--of course, if your mom had known about this she would’ve called the police, right? A. About the--

Q. That he’d sexually assaulted you on a drive? A. She known about it. Yeah, she asked me if I wanted to call the police and I said no. Q. Okay cause she testified she didn’t mention anything about that? A. No, well sorry, what are you-- Q. So your evidence is that you did tell your mother that she--that he sexually assaulted you in December and she chose not to call the police? A. She asked me if I wanted to call the police and I said, no. [ 32 ] The complainant’s mother testified earlier in the trial under cross-examination by Mr. Burry that there were a couple of incidents the complainant told her about.

The Trial Judge intervened and explained to Mr. Burry what the complainant said to her mother would be hearsay evidence. The Trial Judge (at page 84 of the transcript) stated: “But, if you wish to illicit this evidence then I’ll make use of it somehow, but it would be hearsay but it may have some use. I don’t know what your--what the focus of your strategy is for your cross examination.” [ 33 ] Mr. Burry did not pursue the questioning of the mother on details of the incidents the complainant had described to her. [ 34 ] Mr.

Burry focuses on the Trial Judge’s findings that the complainant “had a casual attitude to the touching,” and the Trial Judge’s comment “acquiescence to persistent grabbing of a sexual nature is not consent” (at page 350). He relies on a dictionary definition of “acquiescing,” meaning “to ascent to without protest” and “to assent to is to agree.” [5] The Trial Judge’s use of the word “acquiescence,” Mr.

Burry argues, is a conclusion on the part of the Trial Judge that the complainant agreed without protest to the grabbing of a sexual nature, and therefore he had to acquit. [ 35 ] It is helpful to put the Trial Judge’s comments in the full context of his analysis. He stated (at pages 350 and 351 of the transcript): L.C.’s evidence was presented in a clear manner and she was not moved on Cross from her assertions. She had a complicated relationship with Mr. Burry and by his own admission he exercised some kind of control over her. She had a casual attitude to the touching she alleged Mr.

Burry engaged in, but that does not equate to consent. Acquiescing to persistent grabbing of a sexual nature is not consent. I accept that she asked for an apology and one was provided by Mr. Burry for the December incident. [ 36 ] If there were any remaining doubt after her cross-examination that the complainant consented to the touching during the December 2016 Incident, she answered any such doubt on re-direct (at page 210 of the transcript): Q. Is it possible that Mr. Burry was misreading your signals that night? A. There can be no way that my signals could be misread.

They were loud. [ 37 ] Regarding the May 2017 Incident, the Trial Judge concluded (at pages 350-351): “I too accepted her version of the incident in May 2017 and it was corroborated to a degree by the testimony of Mr. Wiseman who I accepted to be a neutral party with no motive to embellish or fabricate his evidence.” [ 38 ] In Ewanchuk Mr. Burry submits the accused was acquitted originally and his acquittals were overturned, and the Trial Judge has made the exact same error in this case except the Trial Judge used the error to convict him.

I will conduct a detailed analysis of Ewanchuk , and make reference to more recent Supreme Court of Canada authorities, to demonstrate Mr. Burry is wrong in both his understanding of Ewanchuk and the reasons for the Trial Judge convicting him. The Components of Sexual Assault [ 39 ] A conviction for sexual assault requires that the Crown prove beyond a reasonable doubt that the accused committed the actus reus (conduct element) and had the necessary mens rea (mental element). Major, J. for the Supreme Court of Canada in Ewanchuk (at para. 23) set out:

A conviction for sexual assault requires proof beyond reasonable doubt of two basic elements, that the accused committed the actus reusand that he had the necessary mens rea. The actus reus of assault is unwanted sexual touching.

The mens rea is the intention to touch,knowing of, or being reckless of or wilfully blind to, a lack of consent, either by words or actions, from the person being touched. [40] The crime of sexual assault is committed (at para. 24) when “the sexual integrity of the victim is violated.” The Trial Judgeindicated (at page 351) in his reasons: [The complainant] had not characterized the grabbing of her “boobs” as meaning what sheunderstood to be “a sexual assault.” The Trial Judge was correct in stating, “[t]hat is not a requirement.” The complainant’s evidenceand that of the witness, R.W., established there was a violation of her “sexual integrity.” [41] The actus reus of sexual assault is committed by proof of three elements: (

i) touching, (ii) the sexual nature of the contact, and(iii) the absence of consent. The first two elements are objective. The Crown need only prove that the accused's actions were voluntary(Ewanchuk at para. 25). A person commits the actus reus of sexual assault “if he touches another person in a sexual way without herconsent” (R. v. A. (J.), 2011 SCC 28, at para. 23). [42] The mens rea of sexual assault contains two elements: (

i) intention to touch, and (ii) knowing of, or being reckless of orwilfully blind to, a lack of consent on the part of the complainant (Ewanchuk at para. 42). [43] For the purposes of determining the absence of consent as an element of the actus reus (Ewanchuk at para. 27): “the actualstate of mind of the complainant is determinative. At this point, the trier of fact is only concerned with the complainant's perspective.

The approach is purely subjective.” [44] While the complainant’s testimony is the only source of direct evidence as to her state of mind, credibility must still be assessedby the Trial Judge in light of all of the evidence. It is open to the accused to claim that the complainant's words and actions, before andduring the incident, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place(Ewanchuk, at para. 29). [45] The role of consent in the sexual assault analysis was most recently canvassed and succinctly summarized in R. v.

Barton, 2019SCC 33: [88] “Consent” is defined in s. 273.1(1) of the Code as “the voluntary agreement of the complainant to engage in the sexual activity inquestion”.[6] It is the “conscious agreement of the complainant to engage in every sexual act in a particular encounter” (J.A., at para.31), and it must be freely given (see Ewanchuk, at para. 36).

This consent must exist at the time the sexual activity in question occurs(J.A., at para. 34, citing Ewanchuk, at para. 26), and it can be revoked at any time (see Code, s. 273.1(2)(e); J.A., at paras. 40 and 43).Further, as s. 273.1(1) makes clear, “consent” is not considered in the abstract.

Rather, it must be linked to the “sexual activity inquestion”, which encompasses “the specific physical sex act”, “the sexual nature of the activity”, and “the identity of the partner”, thoughit does not include “conditions or qualities of the physical act, such as birth control measures or the presence of sexually transmitteddiseases” (R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346, at paras. 55 and 57 (emphasis deleted)). [89] Consent is treated differently at each stage of the analysis.

For purposes of the actus reus, “consent” means “that the complainantin her mind wanted the sexual touching to take place” (Ewanchuk, at para. 48). Thus, at this stage, the focus is placed squarely on thecomplainant’s state of mind, and the accused’s perception of that state of mind is irrelevant. Accordingly, if the complainant testifies thatshe did not consent, and the trier of fact accepts this evidence, then there was no consent — plain and simple (see Ewanchuk, at para.31). At this point, the actus reus is complete.

The complainant need not express her lack of consent, or revocation of consent, forthe actus reus to be established (see J.A., at para. 37). [90] For purposes of the mens rea, and specifically for purposes of the defence of honest but mistaken belief in communicated consent,“consent” means “that the complainant had affirmatively communicated by words or conduct her agreement to engage in [the] sexualactivity with the accused” (Ewanchuk, at para. 49).

Hence, the focus at this stage shifts to the mental state of the accused, and thequestion becomes whether the accused honestly believed “the complainant effectively said ‘yes’ through her words and/or actions”(ibid., at para. 47). [46] It is the role of the trial judge to assess the credibility of the complainant’s evidence in view of all of the evidence. Contrary toMr. Burry’s assertion, that the Trial Judge found the complainant did consent, what he actually concluded was that she did not consent. The complainant testified she did not consent to the touching.

Despite the Trial Judge describing her having “a casual attitude to thetouching,” he still accepted she did not consent to it. The evidence supports no other conclusion. 2. Did the Trial Judge reverse the onus of proof on the Crown to the Accused? [47] The Trial Judge was very clear in his reasons that the Crown has the onus to prove the offences charged (at page 347 of thetranscript): “Any person charged with a criminal offence is presumed to be innocent until the Crown has proven beyond a reasonabledoubt that he or she has committed the offence with which that person is charged.

The onus of proof is always on the Crown.” [48] He cited case law on the meaning of “proof beyond a reasonable doubt.” He also referred to (at pages 347-348) and quotedparagraphs 26 to 28 of R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742, that it is not simply a matter of believing the Crownevidence or the Defence evidence. In terms of credibility, he referred (at page 349) to the case of Faryna v. Chorny, (BC CA), 1951 CarswellBC 133, [1952] 4 W.W.R. 171 (C.A.), paragraph 10. [49] Mr.

Burry refers to a comment from the Trial Judge that he submits the Trial Judge erred in law because he reversed the onusrequiring the accused to show there was consent given. Further, he states the Trial Judge erroneously switched the focus from “thesubjective” state of mind of the complainant to that of the accused.

[ 50 ] The impugned statement from the Trial Judge (at page 351 of the transcript) that Mr. Burry takes issue with is: “ It is the subjective intent of the accused that is key and what must be proven beyond a reasonable doubt .” [ 51 ] I reject Mr. Burry’s position that the Trial Judge reversed the onus and relied on the accused’s state of mind to prove the complainant’s lack of consent. I find the Trial Judge was focusing on the mens rea element of the offence when he made the impugned comment, and addressing the possible defence of communicated consent.

This is apparent from his following comments: “ While she was friendly with Mr. Burry, she clearly maintained that this was purely platonic even though she was aware he felt differently about her. This in no way could be characterized as leading him on.” [ 52 ] Mr. Burry submits he did not argue the defence of communicated consent at trial, and is not relying on the defence in his appeal, so there was no need for the Trial Judge to deal with the accused’s “subjective intent.” An analysis of the accused’s mental state is an essential component of sexual assault.

The trial had to be satisfied on both elements of the mens rea , (

i) the intention to touch, and (ii) lack of communicated consent.

On the second element of mens rea , even where the defence of communicated consent is not raised by the accused, “the accused is entitled to have all available defences founded on a proper basis considered by the court, whether he raises them or not” Ewanchuk , paragraph 55. [ 53 ] Ewanchuk (at paras. 47 and 49) and Barton (at para. 90 ) confirm the focus at the mens rea stage “shifts to the mental state of the accused.” In the context of mens rea , “consent” means the complainant had affirmatively communicated by words or conduct her agreement to engage in sexual activity with Mr.

Burry. “A belief that silence, passivity or ambiguous conduct constitutes consent is a mistake of law, and provides no defence:” ( Ewanchuk at para. 51). To that I include “submissiveness” and “acquiescence.” Mr. Burry was “testing the waters” with the complainant, and once she said “No” he required an unequivocal “Yes” by either her spoken word or her conduct ( Ewanchuk at para. 51).

The Trial Judge was left with no reasonable doubt on the mens rea ; neither am I. [ 54 ] The Trial Judge could have more clearly expressed himself on the role of the mental state of the accused for the purposes of the mens rea of the offence. That does not detract from his finding on lack of consent on the complainant’s part. The basis for the sexual assault convictions was established on the evidence beyond a reasonable doubt on each element of the offence. 3.

Did the Trial Judge treat the crime of sexual assault as a specific intent offence as opposed to a general intent offence? [ 55 ] The court in Ewanchuk under the mens rea analysis pointed out (at para. 41): “Sexual assault is a crime of general intent. Therefore, the Crown need only prove that the accused intended to touch the complainant in order to satisfy the basic mens rea requirement.” [ 56 ] Mr. Burry states the Trial Judge is treating the crime of sexual assault as if it were the same as sexual interference under

section 151 of the Criminal Code to a person under the age of 16 years, which is a crime of specific intent. As Ewanchuk establishes, the Crown need only prove that the accused intended to touch the complainant in order to satisfy the mens rea requirement. The Trial Judge found the Crown had proven the mens rea beyond a reasonable doubt in that Mr. Burry had intended to touch the complainant knowing of a lack of consent on her part. [ 57 ] I find on the whole of the evidence considered by the Trial Judge and his reasoning in convicting Mr. Burry, he did so on the basis of a general intent offence. In the Trial Judge’s

summary of Mr. Burry’s evidence (at page 345 of the transcript) regarding the December 2016 Incident: “He had a good recall of the drive, but mentioned nothing of the touching, either to deny it happened or to confirm it happened . Given the level of detail in Mr. Burry’s testimony, I found that an odd omission.” [Emphasis mine] [ 58 ] As for the May 2017 Incident, Mr. Burry had denied in his evidence it happening, but the Trial Judge rejected his evidence and found sexual touching had occurred based on the complainant’s evidence and that of the witness, R.

W. [ 59 ] In the Trial Judge’s analysis and overall assessment of the evidence he made the following observations (at page 353 of the transcript): “Mr. Burry’s evidence was self-congratulatory and largely lacked credibility. I have, as such, rejected his testimony, where it is at odds with the evidence I do accept, and it has not raised a reasonable doubt.” [ 60 ] Later (at page 354 of the transcript), the Trial Judge concluded: “I have accepted [the complainant’s] evidence in terms of the sexual touching and rejected Mr. Burry’s evidence. She provided no consent, quite the contrary and he sought none .

Having reviewed the evidence on the whole, I am satisfied that the Crown has proven both

section 271 charges beyond a reasonable doubt.” [ 61 ] The complainant in her mind, and she was clear in her evidence on this, did not want the sexual touching to take place, and I find no reason to disturb the Trial Judge’s conclusion on the basis of any of the three grounds set out in section 681(1) (

a) of the Criminal Code . 4. Did the Trial Judge err in failing to canvass with the complainant on whether she would prefer to testify without her mother in the courtroom? [ 62 ] Mr. Burry argues the presence of the complainant’s mother in the Courtroom affected the complainant’s testimony and the complainant was unable to be forthright and truthful with her there. At trial, he took the position (at pages 129-132 of the transcript) that in the interests of justice it was not appropriate for the complainant’s mother to be in the courtroom while her daughter was giving testimony.

He stated (at page 130) “… it is very likely that parts of her daughter’s testimony may be directed in order to placate her mother in some way and since she can see her mother visually that it may affect her testimony in a minor way, but it may be in a major way.” On appeal, he argued the Trial Judge, to ensure a fair trial, should have canvassed with the complainant “in closed court” and cautioned the complainant to give her evidence truthfully and without the influence of her mother being in the courtroom. [ 63 ] The Trial Judge, when Mr.

Burry raised his objection, stated the complainant’s mother could no longer influence this proceeding since she had already testified apart from her presence in the courtroom. He pointed out (at page 131), “I’m not detecting anything in – I’m watching [the complainant] testify, and she doesn’t appear, from my observations, to be looking down to her mother for confirmation before she gives an answer.” The Trial Judge further stated (at pages 131-132):

“I don’t see that her present right now can impact on [the complainant’s] testimony, and if it does, if there is – if you can demonstrate or [defence counsel] can demonstrate through his questioning that she apparently is tailoring her answers, well that will undermine her credibility which, obviously, is paramount for the Crown’s case.

So at this stage, I mean, I realize you have concerns and they may be genuine, no doubt that you have genuine concerns, but there’s no real evidentiary basis for me to exclude her right now.” [ 64 ] The complainant’s mother had given her testimony and it would have been contrary to the open court process for the Trial Judge to take the extraordinary step of excluding her from the courtroom.

It would have also been presumptuous of the Trial Judge to admonish or warn the complainant that she had to give her evidence free from the influence of her mother being in the courtroom without, as the Trial Judge indicated, any evidentiary foundation to do so. [ 65 ] The complainant was still under the age of majority (19 years of age) when she gave her evidence at trial. In the absence of an evidentiary reason to do so, there was no basis for the Trial Judge issuing a warning to the complainant. I am satisfied the Trial Judge was cognizant of the concern that Mr.

Burry raised and would have made his assessment of the complainant’s reliability and credibility in light of the concern that Mr. Burry raised with him. 5. Did the Trial Judge erroneously rely upon section 265(3)(

d) of the Code to enter convictions for sexual assault? [ 66 ] Mr. Burry submits he was indirectly convicted on the basis of Section 265 (3) (

d) of the Criminal Code , which states, “no consent is obtained where the complainant submits or does not resist by reason of the exercise of authority.” The basis of Mr. Burry’s argument is the Trial Judge found (at page 350 of the transcript) Mr. Burry “by his own admission [Mr. Burry] exercised some kind of control over her.” [ 67 ] The Trial Judge did not convict on the basis of Section 265 (3) (

d) of the Criminal Code , and he had no reason to conduct such an analysis. He found the complainant did not consent, and made no finding on the evidence that consent was vitiated due to Mr. Burry’s exercising authority or control over the complainant. His comment on the exercising of control over the complainant was simply made in the context of the “complicated relationship” that existed between the complainant and Mr. Burry. [ 68 ] This ground of appeal is without substance or merit. 6. Did the Trial Judge err in convicting on the

section 76 charge of the Liquor Control Act ? [ 69 ] The Trial Judge had ample reason to convict Mr. Burry of

section 76 of the Act charge. He concluded: In terms of the s. 76 Liquor Control act charge, it appears that Mr. Burry was a source of alcohol for L.C. and her friend group. L.C.’s evidence respecting one such incident on May 6, 2017 was clear and I accepted that the casual way she presented her evidence on this incident related to how common this must have been. I am satisfied that her lack of recollection on the type of alcohol was immaterial as she was clearly familiar with alcohol.

That charge has been proven beyond a reasonable doubt. [ 70 ] Despite some uncertainty on the part of the complainant about the precise date the alcohol was provided and the type of alcohol, there is no basis to disturb the conviction. CONCLUSION [ 71 ] The Trial Judge made no reversible error on any of the grounds raised, or otherwise that I could find after a thorough review of the trial transcript and fully considering written and oral submissions. [ 72 ] Given Mr.

Burry is self-represented, I put him on notice that if he disputes my conclusion, he can seek leave to appeal to the Court of Appeal of this decision under

section 839 of the Criminal Code . Although Mr. Burry may not accept the result of his appeal, I hope he can find insight from the reasons provided and put this matter behind him and get on with his life. [7] order [ 73 ] In accordance with s. 686(1) (

b) of the Criminal Code , the appeal is dismissed. _____________________________ Glen L. C. Noel Justice [6]

Section 273.1(2) adds that no consent is obtained where: (

a) the agreement is expressed by the words or conduct of a person other than the complainant; (

b) the complainant is incapable of consenting to the activity; (

c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority; (

d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or (

e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to

engage in the activity.

Section 273.1(3) clarifies that these provisions do not limit the circumstances in which no consent is obtained.