R. v. D.G.A., 2020 BCSC 1948

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. D.G.A., 2020 BCSC 1948 Date: 20201209 Docket: 24339 Registry: Revelstoke Regina v. D.G.A. Before: The Honourable Mr. Justice Marchand Corrected Judgment: The front page and text of the Judgment were anonymized for publication purposes on January 11, 2021 BAN ON PUBLICATION: PURSUANT TO

SECTION 486.4(1) C.C.C. On appeal from: An order of the Provincial Court, dated November 6, 2019 (Revelstoke File No. 24339). Reasons for Judgment Counsel for the Appellant: J. van der Walle Counsel for the Crown: A.J. Buchanan Place and Date of Hearing: Salmon Arm, B.C. November 5, 2020 Place and Date of Judgment: Revelstoke, B.C. December 9, 2020 Introduction [ 1 ] On May 8, 2019, D.G.A. was convicted of one count of sexual assault committed on March 7, 2018 in Revelstoke.

The trial judge found that D.G.A. engaged in sexual activity with the complainant when she lacked the capacity to consent due to her high level of alcohol intoxication. [ 2 ] In the alternative, the trial judge found that the complainant did not consent and that the defence of honest but mistaken belief in consent was not be available to D.G.A.

The defence of honest but mistaken belief in consent failed on the basis that D.G.A. had failed to take reasonable steps in the circumstances known to him to ascertain the complainant’s consent. [ 3 ] On November 9, 2019, D.G.A. was sentenced to serve an 18-month conditional sentence order and to comply with various ancillary orders. [ 4 ] D.G.A. has appealed his conviction.

D.G.A. submits that the trial judge: 1. misapprehended critical evidence in his credibility analysis; 2. erred in law by relying on assumptions and stereotypes in his credibility analysis; 3. erred in law in ruling that the complainant lacked capacity to consent due to intoxication; and 4. erred in law by relying on a toxicology report for the truth of its contents. [ 5 ] Given that D.G.A. has now served more than two thirds of his conditional sentence order, D.G.A. submits that if he is successful on his appeal, the court should enter a stay of proceedings rather than order a new trial.

Background [ 6 ] On March 7, 2018, D.G.A. was 42 years old. The complainant was 22 years old. The two met through mutual friends at a local pub. After an evening of drinking at the pub, D.G.A., the complainant and a number of their friends went to D.G.A.’s apartment for an “after-party”.

[7] Shortly after arriving at D.G.A.’s apartment, the complainant became quite ill due to her high level of intoxication. She wasplaced in a spare bedroom to recover while the other attendees continued to drink and socialize. About 30 minutes later, D.G.A. enteredthe spare bedroom and engaged in sexual activities with the complainant. Some of these activities were witnessed by a co-worker ofD.G.A. named D.D. and some were witnessed by a friend of the complainant’s named E.L. [8] E.L. intervened to put an end to D.G.A.’s activities.

The complainant became very upset and left D.G.A.’s apartment with E.L.E.L. took the complainant to the local hospital where a sexual assault examination was completed. [9] The Crown case consisted of the testimony of the complainant and E.L., a statement of admissions filed under s. 655 of theCriminal Code and a toxicology report that was entered by consent. The toxicology report indicated that a urine sample taken from thecomplainant “about 2.5 hours after the incident” detected cocaine and a high concentration of ethyl alcohol. [10] D.G.A. testified in his own defence.

D.G.A. also called evidence from two co-workers who were at the pub and after-party, N.M.and D.D. Reasons for Conviction [11] The trial judge prepared written reasons for judgment. [12] After reviewing the testimony given by each witness, the trial judge set out a rather lengthy excerpt from the toxicology reportconcerning the physiological effects of high blood alcohol concentrations.

The trial judge then summarized the positions of the Crownand D.G.A. before engaging in a detailed analysis. [13] The trial judge adopted what he considered to be a “helpful synopsis of the governing legal principles” concerning sexual assault,consent and capacity to consent as set out in R. v. T.S., 2018 ONCJ 903 at paras. 64-70. Of relevance to this appeal are paras. 67-70which deal with the issue of capacity to consent.

These paragraphs provide as follows: [67] For purposes of sexual assault prosecutions, “consent” is defined in 273.1 of the Criminal Code to mean “the voluntaryagreement of the complainant to engage in the sexual activity in question”. This broad proposition is subject to a number of qualificationsand exceptions. Most immediately pertinent: “no consent is obtained … where”, as set out in sub-s. (2)(b), “the complainant is incapableof consenting to the activity”. An unconscious complainant clearly does not have the capacity to consent. (See, for example, R. v. Esau,, [1997] 2 S.C.R. 777; R. v.

Humphrey, (ONCA), [2001] OJ No 1263,143 O.A.C. 151, at para. 56; R.v. J.A., supra, at para. 36; and R. v. Al-Rawi, infra.) However, the test to be applied in differentiating capacity from incapacity in casesfalling short of complete loss of consciousness has proven a matter of some jurisprudential controversy. [68] Beveridge J.A., speaking for the Nova Scotia Court of Appeal in R. v. Al-Rawi, 2018 NSCA 10, 359 C.C.C. (3d) 237, at para.116, noted that it is legally erroneous to “equate incapacity only with unconsciousness”.

As he said in the preceding paragraph: It is self-evident that a person who is unconscious or insensate lacks the capacity to enter into a voluntary agreement to engage in sexualactivity. But that is not the divide between capacity and incapacity. [69] Following his extensive review of the authorities, Justice Beveridge crafted what he described, at para. 114, as a “minimal orlimited cognitive capacity” test.

More fully set out at para. 66, it reads: [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 continue, the sexual activity. [Emphasis in original.] [70] The importance of identifying the degree of impairment or compromise of a complainant’s “operating mind” most frequentlyarises in cases in which the Crown’s incapacity argument rests on a claim of cognitively disabling intoxication.

As explained BeveridgeJ.A, at para. 113: it is well established in our jurisprudence that an intoxicated person may still have the capacity to voluntarily agree to engage in sexualactivity despite the expectation that if sober or less impaired they would not have done so. Duncan J. said much the same in in R. v. Cedeno, 2005 ONCJ 91, 195 C.C.C. (3d) 468, at p. 475: “Mere drunkenness is not theequivalent of incapacity”. The full paragraph (as adopted by Trotter J., as he then was, in R. v.

Meikle, 2011 ONSC 650, 84 C.R. (6th)172, at para. 57), reads: An obvious example of incapacity would be a complainant who was in a coma at the relevant time. Cases where the complainant is saidto be incapable of consumption of alcohol or drugs are less clear-cut. Mere drunkenness is not the equivalent of incapacity. Nor isalcohol-induced imprudent decision-making, memory loss, loss or inhibition or self-control.

A drunken consent is still a valid consent.Where the line is crossed into incapacity may be difficult to determine at time. [Citations omitted.] [14] Relying on paras. 71-73 of T.S., the trial judge concluded that “although alcohol induced memory loss may be relevantcircumstantial evidence, it does not, without other evidence, establish lack of consent or incapacity”. [15] The trial judge identified that he was “tasked with determining whether the degree of impairment or compromise of the

complainant’s operating mind can be determined on the evidence, and whether it can be concluded beyond a reasonable doubt that shewas incapable of [consenting].” [16] The trial judge then identified assessing the credibility of the witnesses and D.G.A. to be the “first step.” Before doing so, he setout the well-known direction provided by the Supreme Court of Canada in R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742. [17] The trial judge undertook a very detailed credibility analysis of all of the witnesses who testified. [18] Though the complainant had limited memories of the events at issue, the trial judge found her to be a “very credible witness”because: • “she was clear about what she recalled and what she did not recall”; • “she did not overstate to strengthen the position of the Crown, or minimize embarrassing personal facts”; • “she did not present as someone out for vengeance, but only as someone very sad and distraught”; • her testimony that she woke up to D.G.A. being on top of her starting to have sex with her was consistent with E.L.’s observations;and • her emotional reaction following E.L.’s intervention was “honest” and “not feigned for any reason.” [19] The trial judge found that a minor inconsistency between the complainant’s trial testimony and her statement to the policeconcerning whether she could remember vomiting did not detract from her credibility. [20] The trial judge found E.L. to be a credible witness.

She struck the trial judge as honest, readily admitted to a lack of memoryregarding peripheral issues and had a good memory of the significant facts. Her actions on the night in question were “consistent with herstated concern that the complainant was too intoxicated to properly care for herself, or to make decisions and was vulnerable.” Hertestimony was consistent with N.M.’s testimony regarding the complainant’s level of intoxication, with the complainant’s testimonyconcerning body positions and even D.G.A.’s testimony on a number of material points.

The trial judge found that E.L. was mistakenabout who answered a question she asked regarding whether it was safe to leave the complainant in the spare bedroom. The trial judgeconcluded that this mistake did not detract from her credibility. [21] The trial judge found N.M. and D.D. to largely be credible witnesses despite the fact that both were in the uncomfortable positionof having to testify at a trial involving one of their managers.

That said, the trial judge found that D.D. presented with bias when hevolunteered his opinion that he did not see anything “non-consensual” or “rapey” when he briefly looked in on D.G.A. and thecomplainant in the spare bedroom. [22] The only witness the trial judge found lacking in credibility was D.G.A.

Paragraphs 121-139 of the trial judge’s reasons forjudgment were dedicated to explaining why the trial judge reached this conclusion. [23] At para. 121, the trial judge set out his overall view that: Although the accused gave a straightforward account of the events that occurred in the bar and the taxi ride to his apartment, histestimony on the central issues is not in harmony with the external evidence or the testimonies of the other witnesses. [24] The trial judge gave numerous examples of how D.G.A.’s testimony that the complainant did not seem intoxicated and, in fact,seemed “normal” was both internally and externally inconsistent.

Specifically, the trial judge noted that D.G.A.’s testimony wasinconsistent with: • the toxicology report; • D.G.A.’s knowledge concerning the complainant’s consumption of alcohol at the bar; • D.G.A.’s knowledge that the complainant had been intoxicated to the point of vomiting only 25 to 30 minutes prior to thecommencement of the sexual activity; • D.G.A.’s knowledge of E.L.’s opinion that the complainant was so intoxicated she needed to lie down and a bowl to vomit into,the inference being that the complainant would continue to vomit and might be unable to make it to the bathroom on her own; • D.G.A.’s knowledge that E.L. was concerned about whether his apartment was a safe place to leave the complainant, the inferencebeing that E.L. felt the complainant was so drunk she may be taken advantage of; • E.L.’s testimony that the complainant was “out of it”; • N.M.’s testimony that the complainant was “sick, drunk and in bed”, obviously very drunk and not fully responsive to E.L.’squestions; and • his own explanation for entering the spare room to “check on” the complainant. [25] The trial judge next dealt with D.G.A.’s testimony that he did not follow the complainant and E.L. out of the apartment and intothe street after the sexual activity.

The trial judge noted that D.G.A.s’ testimony was inconsistent with testimony provided by E.L. andN.M. In the trial judge’s view, given the commotion, and the fact that N.M. felt compelled to follow the complainant and E.L. into thestreet, it would have been “strange” if D.G.A. did not follow them out. He further noted E.L.’s testimony that, while in the street, sheasked D.G.A. what he was thinking to which D.G.A. answered that he saw the complainant’s face, so kissed her. This testimony was

very similar to D.G.A.’s own description of how the sexual activity started and, in the trial judge’s view, was something E.L. would not have known unless D.G.A. was out in the street. [ 26 ] The trial judge preferred E.L.’s testimony that D.G.A. assisted her in getting the complainant from the bathroom, through the master bedroom to the spare bedroom over D.G.A.’s denial that that occurred.

E.L.’s version of events made sense to the trial judge because “it would have been [D.G.A.] who knew that the spare bedroom could be accessed through the master bedroom.” Further, it made common sense to the trial judge “that the accused would have got involved after being told the complainant was so sick she needed to lie down”.

The trial judge also held it to be inconsistent with common sense that D.G.A. only looked into the spare room briefly while handing over a vomit bowl to E.L. [ 27 ] The trial judge noted that D.G.A.’s description of his sexual activities with the complainant was inconsistent with the observations of D.D. and E.L. D.D. looked into the spare bedroom briefly and saw D.G.A. having sexual intercourse “doggy style” with the complainant. On the first occasion that E.L. looked into the spare bedroom, she saw D.G.A. performing oral sex on the complainant.

On the second occasion that E.L. looked into the spare bedroom, she saw D.G.A. trying to have vaginal intercourse with the complainant. D.G.A., on the other hand, maintained that he and the complainant had only performed oral sex on each other and did not have intercourse. [ 28 ] The trial judge was also concerned about additional details that D.G.A. provided for the first time on cross-examination regarding the sexual activity.

Given D.G.A.’s intelligence, the trial judge held that it “defie[d] belief” that D.G.A. would not have provided the details when asked to do so in direct. [ 29 ] Given the amount of drinking that occurred throughout the night and N.M.’s testimony that D.G.A.’s level of intoxication was “pretty high”, the trial judge concluded that D.G.A. had significantly minimized his level of intoxication. [ 30 ] After noting that the case was not one of “choosing a testimony I most prefer”, the trial judge concluded as follows: [139] I find I can put little weight on the accused’s version of what occurred.

To be clear, I reject the accused’s version that [the complainant], after approximately only 25 or 30 minutes of vomiting, dry heaving, being incoherent, and having to be essentially carried to the bed, instantly sat up in bed when the accused touched her arm, said she felt fine, politely declined an offer of water, then with no further conversation at all, responded willingly to his kisses, unbuckled his pants and within about five minutes of his entering the room to check to see if she was okay, started performing fellatio on him and continued as a fully aware and participating sexual partner up until the encounter was broken up by [E.L.]. [ 31 ] The trial judge dealt with the complainant’s capacity to consent at paras 140-160 of his reasons for judgment. [ 32 ] The trial judge began his analysis by stating that his rejection of D.G.A.’s version of events did not make the Crown case stronger.

The trial judge noted that the issue remained whether the Crown had proven incapacity beyond a reasonable doubt. [ 33 ] The trial judge noted that the complainant’s inability to remember what happened did not establish her incapacity.

In particular, D.D.’s testimony that he observed the complainant on her hands and knees was evidence that “she was not unconscious, asleep, or in a coma-like state for at least part of the sexual activity.” Nevertheless, the trial judge considered the complainant’s inability to remember to be circumstantial evidence of incapacity which had to be considered “with the whole of the evidence, most of it circumstantial, to determine if the only reasonable or rational inference is that the complainant’s cognitive ability was diminished as a result of intoxication to the extent that she was unable to consent.” [ 34 ] The trial judge reviewed the evidence on the complainant’s capacity extensively.

In concluding the Crown had proven the complainant’s incapacity to consent beyond a reasonable doubt, the trial judge noted the following: • The complainant was “engaged and interacting with others” while at the bar but became very sick to the point of vomiting within ten minutes of entering D.G.A.’s apartment; • The complainant vomited to the point of dry heaving; • While in the bathroom, the complainant was unable to converse with E.L. because, in E.L.’s words, the complainant was “so out of it”; • The complainant was unable to walk so was essentially carried to the spare bedroom to lie down; • Once in the spare bedroom, the complainant began dry heaving again so D.G.A. gave E.L. a vomit bowl that E.L. held for the complainant; • During the ten minutes that E.L. and N.M. spent with the complainant in the spare bedroom, both essentially described the complainant as unresponsive, nonsensical and incoherent; • When E.L. intervened to stop the sexual activity, she described that the complainant “sort of [came] to”.

E.L. had to put the complainant’s pants on for her because, in E.L.’s words, it was like the complainant was “waking up from a deep sleep and she did not know what was going on”; • The complainant’s highly emotional reaction in the bedroom, in the street and at the hospital were “very consistent with her having discovered a stranger was having sex with her and with her assertion that she was not okay with that and that she would not have consented to the sex”; and • The toxicology report indicated that at one point in the hours preceding the testing, the complainant’s blood alcohol level was at least 195 mg%.

[35] The trial judge concluded that D.D.’s observation of the complainant being on her hands and knees on the bed did not raise areasonable doubt regarding her incapacity to consent. The trial judge held that the physiological responsiveness of a sexual assaultcomplainant “does not necessarily negate overwhelming evidence of a lack of cognitive capacity.” In reaching this conclusion, the trialjudge relied on a passage from R. v. Cedeno, 2005 ONCJ 91 at para. 12, which I reproduce, in part, as follows: [12] In this case the defendant claimed to have no awareness of having had intercourse with the complainant.

The Crown argues thatsuch a claim is not believable, particularly having regard to the physical requirements inherent in the male role of

an act of intercourse.But I do not think that I can make assumptions about the capabilities or in capabilities of drunken 22-year-old males… The experience ofthe law of homicide and intoxication has shown that people are capable of very complex acts while in a state of intoxication sufficientlyadvanced to deprive them of capacity to form intent. Similarly, individuals who have been asleep have occasionally been known toperform remarkable acts that accompanying consciousness: see R. v.

Parkes, [1991] 2 S.C.R. 871… More directly on point, there havebeen cases of prolonged sexual assault where the defendant was in an alcohol-induced state where he had “no awareness of his actions”:R. v.

Daviault, [1994] 3 S.A.C.R. 63… [36] In this case the trial judge summarized his findings on consent as follows: [159] I find that the whole of the evidence establishes that the complainant did not have an operating mind capable of knowing thenature and quality of the sexual activity taking place, or the identity of the accused during the sexual activity, or of understanding shecould agree or decline to engage or continue the sexual activity.

In short, and to borrow a phrase from Duncan J., I find that at the timethe sexual activity took place the complainant did not possess a state of mind capable of processing the information and of making achoice: (see para. 16 in Cedeno). [37] Though it was not strictly necessary for him to do so, the trial judge went on to consider D.G.A.’s submission that thecomplainant consented or D.G.A. had an honest but mistaken belief in the complainant’s consent. [38] The trial judge rejected D.G.A.’s evidence and submission that the complainant had consented.

Rather, the trial judge found thecomplainant would not have consented and the evidence was at odds with the complainant “having been an enthusiastic or even equallyparticipative or willing partner.” [39] The trial judge also rejected D.G.A.’s evidence and submission that he had an honest but mistaken belief in the complainant’sconsent. Given the age difference between D.G.A. and the complainant, the fact that they were virtual strangers, and the complainant’shigh level of intoxication, the trial judge concluded D.G.A. failed to take reasonable steps to ascertain the complainant’s consent.

Morespecifically, the trial judge concluded that “a clear and unequivocal verbal consent would be the minimum appropriate threshold.” [40] Having made these findings, the trial judge convicted D.G.A. of sexually assaulting the complainant . Analysis Issue 1: Did the trial judge misapprehend critical evidence in his credibility analysis? [41] In R. v. Bird, 2013 BCCA 316, the Court of Appeal succinctly stated the law on misapprehensions of evidence as they relate toconviction appeals: [55] In R. v.

Morrissey (1995), (ON CA), 22 O.R. (3d) 514, 97 C.C.C. (3d) 193 (C.A.) at 221, Doherty J.A.explained when a misapprehension of evidence will result in a miscarriage of justice: When will a misapprehension of the evidence render a trial unfair and result in a miscarriage of justice? The nature and extent of themisapprehension and its significance to the trial judge’s verdict must be considered in light of the fundamental requirement that a verdictmust be based exclusively on the evidence adduced at trial.

Where a trial judge is mistaken as to the substance of material parts of theevidence and those errors play an essential

part in the reasoning process resulting in a conviction then, in my view, the accused’sconviction is not based exclusively on the evidence and is not a “true” verdict. Convictions resting on a misapprehension of the substanceof the evidence adduced at trial sit on no firmer foundation than those based on information derived from sources extraneous to the trial.If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow thatthe appellant has not received a fair trial, and was the victim of a miscarriage of justice.

This is so even if the evidence, as actuallyadduced at trial, was capable of supporting a conviction. [Emphasis in original.] [56] The principles set out in Morrissey were affirmed in R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732: [2] Morrissey, it should be emphasized, describes a stringent standard. The misapprehension of the evidence must go to the substancerather than to the detail. It must be material rather than peripheral to the reasoning of the trial judge.

Once those hurdles are surmounted,there is the further hurdle (the test is expressed as conjunctive rather than disjunctive) that the errors thus identified must play anessential part not just in the narrative of the judgment but “in the reasoning process resulting in a conviction”. [Emphasis in original.] [42] The parties both drew my attention to a number of authorities concerning the high degree of deference afforded to credibilityfindings made by trial judges, including R. v. Thla Ceu, 2018 BCCA 480 at para. 34 and R. v.

Pilkington, 2019 BCCA 374 at para. 20. [43] The Crown emphasizes that it can be difficult for trial judges to articulate their credibility findings with precision, and submitsthat credibility assessments are not intended to be dissected minutely but rather call for an examination of the reasons as a whole: R. v.

Gagnon , 2006 SCC 17 at paras. 19-20 .

In the absence of a palpable and overriding error by the trial judge, the trial judge’s credibility perceptions should be respected: Gagnon at para. 20 . [ 44 ] D.G.A., on the other hand, relies on Pilkington for the proposition that if a trial judge makes a significant error in the evaluation of an accused’s evidence in a credibility case, the accused should get a new trial even if the trial judge gave several reasons for rejecting the accused’s evidence that are unassailable on appeal. [ 45 ] In this case, D.G.A. submits that paras. 133 and 134 of the reasons for judgment establish that the trial judge misapprehended the substance of material parts of the evidence that played an essential role in his reasoning process such that D.G.A.’s conviction must be set aside. [ 46 ] At paras. 133-134, the trial judge held as follows: [133] Another example of a concern about the accused’s credibility is when he did not say until he was asked on cross-examination whether the 69 position, which was the last sexual activity that took place according to the accused, was the first time the complainant had performed oral sex on him, that it was not and that the complainant was the first to perform oral sex and that it occurred with him standing and she sitting on the bed. [134] When asked why he had not mentioned what is obviously an important fact on direct, he said it was because he was not asked.

In fact he was asked on direct to fully describe what happened.

That the accused, who presents as an intelligent man, and who would surely know the issue is whether the complaint was a willing, participating, consenting partner, would forget to tell the court what was, according to his answer on cross, the first act of significant sexual activity and that it was performed on him by the complainant, defies belief. [ 47 ] D.G.A. submits that, contrary to the trial judge’s reasons, he had testified in direct that after he took the complainant’s shirt and bra off, she performed oral sex on him, which was followed by him performing oral sex on her.

His testimony in direct was as follows: Q Okay. And how did the touching start? A After she -- after I asked her if she wanted a glass of water, she said, no, she was good. Then she had some hair on her face. I moved the hair out of her face, and then I leaned in and I kissed her. Q Okay. Why did you do that? A Because I wanted to. It seemed like she was smiling. I was -- we were just kind of -- it was just a moment, and I just leaned in and kissed her, and she kissed me back. Q What do you mean she kissed you back? Describe that. A Well, I leaned in to kiss her, and she leaned in, as well, and reciprocated.

Q And then what happened? A Then we started kissing more, and then we started fooling around a little bit. Q By fooling around, can you just explain who was touching who and what that was like? A It was both ways. She had her hand on me. I was touching her. I went to put my hand up her shirt. She sat up, put both arms over her head, so I could lift her shirt up. I lifted her shirt up. Her shirt and her bra came off at the same time. It was a sports bra of some kind, but it came off at the same time. Then we continued kissing. I took off my shirt then. Then she went to undo my belt. She undid the buckle.

Q The belt buckle? A Yeah. And then I went -- we were still kind of kissing, then I went down and I went to go – she was lying down. I went to pull her -- her pants down. Q Okay. A We were still -- I mean, we were still -- it's not exactly like that's how it happened. We were kissing in between. It wasn't -- it wasn't like a directly action, action, action. We were -- Q Okay. A [Indiscernible] Q Just try to give the court as much precise description as you can. A Okay. Q Okay. A So she was lying down. I went to go pull her pants off. She lifted her butt off the bed so I could get underneath. Q Okay.

A I pulled her pants off. Her pants off – her underwear came off with her pants, at the same time. Then I took my pants off, and then we started fooling around some more. Q Okay. You started fooling around some more. What positions were people in and -- A She performed oral sex on me, and I performed oral sex on her. There was lots of -- Q Can you say for how long? A Maybe about a minute or two -- a minute to two minutes maybe. Q Okay. So she performed oral sex on you for a minute to two minutes? A Yeah. Q Is that correct? A Yep. Q Okay. And then -- A And I performed oral sex on her. Q Okay.

The same amount of time? A Approximately. [Emphasis added.] [ 48 ] Under cross-examination, D.G.A. testified about the same events as follows: Q Well, I am just wondering if there was anything other than -- A No. Q -- the oral sex that we talked about. A No. It was just oral sex. Q Did you tell us what position [the complainant] was in when she performed oral sex on you? Like what position you were in? A She was sitting up. I was standing. Q You were standing where? A At the side of the bed. Q Did you tell us that in your original -- A No. Q -- direct examination? A No. Q No. A Didn't ask.

You didn't ask what -- what the position of the -- of the first time that she was giving me oral sex. That wasn't asked. Sorry. Q Well -- so she is -- how is she -- is she still laying on her side and performing oral sex while you -- A No. Q -- are standing? A She is sitting up. [Emphasis added.] [ 49 ] Despite the Crown’s reliance on Gagnon , during submissions, the Crown took me through the minutiae of precisely what D.G.A. said and precisely what the trial judge held in support of a submission that it is not clear the trial judge in fact misapprehended the evidence.

I find it unnecessary to repeat all of the arguments. That is because, in the context of the evidence as a whole, even if the trial judge misapprehended when D.G.A. first testified about the first time the complainant performed oral sex on him, I agree with the Crown that any such misapprehension went to the detail not the substance, was peripheral not material, and was not essential to the

reasoning process that led to conviction. [50] While the trial judge may have misapprehended when D.G.A. first testified about the first time he says the complainantperformed oral sex on him, this case is not like the Pilkington case. Pilkington appears to have been a two witness case that turnedentirely on the trial judge’s assessment of the credibility of the complainant and the accused. Though the trial judge gave several reasonsfor rejecting the testimony of Mr.

Pilkington, a prominent reason was purely speculative and not grounded in the evidence. [51] In this case, the trial judge heard from a number of witnesses and the parties filed admissions and a toxicology report. The trialjudge gave well-articulated reasons for disbelieving D.G.A., including numerous examples of internal and external inconsistencies inD.G.A.’s testimony.

In my respectful view, all were grounded in the evidence. [52] To the point, even if the trial judge misapprehended when D.G.A.’s first testified about the first instance of oral sex, the trialjudge’s reasons make clear that he expected D.G.A. to testify in detail about that first event in direct. After all, he was specifically askedto do so by his lawyer, must have understood how important that evidence was and provided many other less important details.

D.G.A.’sfailure to provide key details until his cross is the substance of what the trial found to “defy belief”. [53] The trial judge’s apparent confusion regarding when D.G.A. first testified about the first instance of oral sex was not essential tothe reasoning process that led to conviction for two reasons. First, absent that confusion, he still had every reason to be concerned thatD.G.A. did not provide details about that first incident until cross. Second, that confusion did not undermine the numerous otherindependent reasons given by the trial judge for rejecting D.G.A.’s testimony.

Third, while the trial judge may have used stronglanguage, unlike Pilkington, he did not put a heavy emphasis on this reason for disbelieving D.G.A.’s version of events. D.G.A.’s failureto provide key details until his cross was simply one of many reasons the trial judge gave for disbelieving D.G.A. [54] On the whole of the evidence, the trial judge was clearly in a good position to conclude D.G.A.’s version of events just did notmake sense. [55] I must dismiss this ground of appeal.

Issue 2: Did the trial judge err in law by relying on assumptions and stereotypes in hiscredibility analysis? [56] D.G.A. submits that the trial judge’s credibility assessments of the complainant and D.G.A. are riddled with impermissibleassumptions about the behaviour of both of them. [57] With respect to the complainant, D.G.A. submits that the trial judge improperly relied on her post-event demeanour to concludeshe was a credible witness.

With respect to himself, D.G.A. submits that the trial judge improperly relied on “common sense”assumptions to conclude he was not. [58] The authorities are clear that trial judges must not rely on assumptions and stereotypes in their assessment of testimony given byboth sexual assault complainants and accused persons. Though not essential to the outcome in the case, in R. v.

C.M.M., 2020 BCCA 56,the Court neatly summarized the point as follows: [138] I will note, in passing, that when assessing credibility, trial judges must keep in mind that speculative reasoning relying on“common sense” propositions that are not grounded in the evidence can give rise to reversible error. See, for example, R. v. P. (T.), 2007ONCA 585. [139] The law is also clear that a negative assessment of credibility based on an unfounded stereotype constitutes an error of law: R.v. A.R.D., 2017 ABCA 237 at paras. 28, 50, 57, aff’d on appeal, 2018 SCC 6; Lacombe at para. 33.

Moreover, this principle applies toboth complainants and the accused. Rejecting an accused’s testimony based on a “stereotypical assumption or generalization lacking inan evidentiary foundation” can necessitate a new trial: R. v. Kodwat, 2017 YKCA 11 at para. 41. See also R. v. Thompson, 2019 BCCA 1at paras. 52–69; R. v. Quartey, 2018 ABCA 12 at paras. 2, 21, aff’d on appeal, 2018 SCC 59. [59] Ordinarily, the issue of improper assumptions arises in the context of trial judges improperly drawing adverse inferences aboutthe credibility of sexual assault complainants based on myths and stereotypes.

A classic example is A.R.D., 2017 ABCA 237, aff’d 2018SCC 6, where the trial judge improperly concluded that the lack of evidence of the complainant avoiding the accused raised a reasonabledoubt about his guilt. The accused’s acquittal was set aside and a new trial ordered. [60] If trial judges may not make adverse credibility assessments of sexual assault complainants based on non-conformance withstereotypes, D.G.A. submits that, in fairness, trial judges should not be permitted to make favourable credibility assessments of sexualassault complainants based on conformance with stereotypes.

D.G.A. puts it this way in his written argument: If the myth… is the problem, the myth cannot be relied on for any purpose; the myth does not become imbued with probative value justbecause a complainant acts in accordance with it. [61] While D.G.A. makes a good point, in this case, the trial judge’s assessment of the complainant’s credibility was not based onconformance with myths and stereotypes, but rather was grounded in the evidence. [62] It has long been the law in Canada that the post-event demeanour of a sexual assault victim can be used as circumstantialevidence to corroborate the complainant’s version of events: R. v.

Murphy, (SCC), [1977] 2 S.C.R. 603; R. v. J.A.A.,2011 SCC 17. [63] In J.A.A., the complainant fled the scene without taking time to clean herself and was emotionally distraught in the immediateaftermath of a sexual assault. In endorsing the trial judge’s reliance on the complainant’s post-event demeanour in finding her to be

credible, the Court held as follows: [38] This post-event demeanour evidence is consistent with a sexual assault having occurred. For the first incident in particular, therewas no time lapse. The complainant was observed within minutes of her leaving the matrimonial home; this evidence was reflective ofthe complainant’s reaction to the events that had just occurred... [39] Defence counsel at trial argued that the post-event demeanour evidence “jar[red] somewhat” with the fact that the complainantdid not take a shower, clean her teeth or put clean clothes on in order to preserve evidence (R.R., at pp. 10-11).

However, the only placethe complainant could have changed her clothes, cleaned her teeth or showered was at the matrimonial home, where the sexual assaulthad just taken place, and where the accused remained. The fact that she fled the scene of the sexual assault and the accused withouttaking time to clean herself up is entirely consistent with the conclusion that she had just been sexually assaulted and wanted to escapefrom her attacker. [40] I agree with the majority of the Court of Appeal that this post-event demeanour evidence was “strong evidence indeed” (para.38).

This Court has long held that evidence of the demeanour of a sexual assault victim can be used as circumstantial evidence tocorroborate the complainant’s version of events. In Murphy v.

The Queen, (SCC), [1977] 2 S.C.R. 603, Spence J.,writing for the majority and the unanimous Court on this point, found (at pp. 612-13): The respondent’s factum, I believe, sets out the proper view as follows: Independent testimony of a rape complainant’s emotional condition is capable at law of corroboration where it is sufficiently damningthat it may be considered by a jury to be more consistent with her denial of consent than with the existence of consent, or, to put itanother way, where a reasonable inference can be drawn by a jury, considering all the circumstances, that there is a causal relationshipbetween the assault and the complainant’s distraught emotional condition. [Emphasis added.] [64] Similarly, in R. v.

Woollam, 2012 ONSC 2188, the

summary conviction appeal court judge rejected the very arguments D.G.A.makes in this case. After citing a number of authorities in support of the proposition that “[p]ost-event demeanour or emotional stateevidence is admissible and may be used to support a complainant’s evidence of a sexual assault”, the

summary conviction appeal courtjudge held as follows: [49] In outlining the applicable law, the trial judge said, “If the court was satisfied that her condition was genuine and not feigned orpossibly attributable to some other cause or hurt, then it may be seen as providing circumstantial support as being consistent with herallegation and inconsistent with the defendant’s denial.” The authorities are clear, His Honour was entitled to make the findings he did inrelation to J.P.’s post-event condition. [65] In this case, the trial judge held: [111] I also find that after E.L. effectively put an end to the sexual activity, [the complainant’s] reactions of immediately leaving theaccused’s apartment and going out into the street, sitting down and crying uncontrollably, consenting to an intrusive examination at thehospital, refusing to have a male doctor examine her, choosing instead to wait five-to-six hours for a female doctor to arrive from SalmonArm, were honest reactions and not feigned for any reason.

More specifically, I wholly believe the [complainant] when she said sheremembers going to sleep and the next thing she remembers is waking up with a man she did not know on top of her inserting his penisinto her. [66] As can be seen, the trial judge did not leap to his credibility finding regarding the complainant based merely on conformance withmyths and stereotypes about how a victim of sexual assault should be expected to react. Instead, he made his finding in the context of theevidence as whole.

As was done in J.A.A., he relied on a series of reactions in the immediate aftermath of what, on the complainant’sversion of events, must have been a terrifying event. As was done in Woollam, the trial judge found the complainant’s reaction wasgenuine, not feigned. [67] The trial judge’s finding that the complainant’s reaction was “honest” was particularly important in this case because D.G.A.testified that, on entering the spare bedroom a second time to put a stop to the sexual activity, E.L. had yelled at the complainant.

Thisevidence provided a possible alternative explanation as to why the complainant had become so upset and made a complaint againstD.G.A., namely that she had been shamed by her friend.

Though not explicitly addressed at para. 111 of his reasons for judgment, it wasentirely appropriate for the trial judge to determine whether the complainant reacted emotionally because she had just awoken to beingsexually assaulted by a stranger or, in the words of the Woollam decision, “possibly [due] to some other cause or hurt”. [68] Turning to the trial judge’s assessment of D.G.A.’s testimony, D.G.A. submits that the trial judge drew adverse inferences abouthis credibility based on assumptions that were not grounded in the evidence.

In particular, D.G.A. objects to the trial judge’s findings atparas. 128 and 130 of the reasons for judgment. To provide all of the necessary context, I will reproduce paras. 128-130 in full: [128] Another example of a credibility concern I have regarding the accused is his testimony that he never followed [the complainant]and [E.L.] out of the apartment into the street. Both [E.L.] and [N.M.] testified that the accused did come outside and had a verbalaltercation with [E.L.].

Given the commotion and the two women leaving the apartment and [N.M.] apparently also compelled to go intothe street to try to speak to [the complainant], it would be strange if the accused did not follow them out. [129] I also note [E.L.’s] testimony that while out in the street when she asked the accused what he was thinking and other words to thateffect, and says he said that he saw [the complainant’s] face, so kissed her, that this response is very similar to the accused’s testimonyabout how the sexual activity started, and is something that [E.L.] would not have known.

I find he did go into the street. [130] The accused also denied being the person who assisted [E.L.] in holding onto the complainant’s shoulder to assist in getting herfrom the bathroom, through the master bedroom to the spare bedroom. [E.L.] said she was 100% sure it was the accused and that there is

no chance it was someone else. The accused, in his denial, said essentially that [E.L.] was as wrong on this point as she was about him following them into the street. However, it has been established he did go into the street. It also makes sense that it would have been the accused who knew that the spare bedroom could be accessed through the master bedroom. It is also consistent with common sense that the accused would have gotten involved after being told [the complainant] was so sick she needed to lie down, as opposed to his testimony that he was busy in the kitchen.

I also find it inconsistent with common sense that after having been asked for vomit bowl, and knowing [the complainant ] was lying down in the spare bedroom, that the accused would just briefly look into the room while handing over the bowl, as he said he did. [ 69 ] Looked at in a vacuum, I agree entirely with D.G.A. that there is nothing particularly “strange” or “inconsistent with common sense” about a homeowner not following guests into the street or not taking much interest in a highly intoxicated guest who was under the care of others.

The trial judge was not, however, engaged in an exercise of judging the case in a vacuum. As his reasons make clear, he was judging the case in the context of the evidence as a whole. [ 70 ] As can be seen, the trial judge accepted the testimony of E.L. and N.M. that D.G.A. followed the complainant and E.L. into the street. He also noted that E.L. would not have known D.G.A.’s version of how the sexual activity started unless D.G.A. told her so in the street. Finally, the trial judge took into consideration the degree of commotion that spilled from D.G.A.’s apartment into the street.

In this context, the trial judge’s comment that “it would be strange if the accused did not follow [the others] out” can be seen as reflecting a conclusion made by the trial judge that it made sense that, contrary to D.G.A.’s own testimony, he ended up in the street. [ 71 ] As can be seen, the trial judge also accepted E.L.’s testimony that D.G.A. was actively involved in caring for the complainant.

In reaching this conclusion, the trial judge noted that D.G.A. knew the way through his own apartment to the spare bedroom, was aware the complainant was so sick she needed to lie down and brought a bowl for the complainant to vomit into. He also noted that a similar denial of a heightened level of involvement by D.G.A. (following others into the street) was not credible.

In this context, the trial judge’s comments about what was and what was not consistent with common sense can be seen as reflecting a conclusion made by the trial judge that it made sense that D.G.A. was more involved in caring for the complainant than he had indicated. [ 72 ] The judge was well placed to determine that D.G.A. assisted E.L. in getting the complainant through his apartment to the spare bedroom, took more than a passing interest in the complainant’s wellbeing, and followed the complainant and E.L. into the street.

These evidence-based findings appropriately contributed to the trial judge’s negative credibility assessment of D.G.A. [ 73 ] On my reading of the reasons for judgment as a whole, it is apparent that the trial judge was engaged in the everyday fact-finding exercise of asking himself if certain evidence made sense. I am not convinced his choice of words that certain conduct would be “strange”, “consistent with common sense” or “inconsistent with common sense” demonstrates that he fell into legal error in doing so. [ 74 ] I must dismiss this ground of appeal.

Issue 3: Did the trial judge err in law in ruling that the complainant lacked capacity to consent due to intoxication [ 75 ] D.G.A. submits that the trial judge erred in law by “equating the minimal capacity to consent to sexual activity with the mental awareness or acuity required for a specific intent offence.” As a result, D.G.A. submits that the trial judge “raised the degree of mental acuity needed for capacity to consent to sexual activity above the minimal amount the law required to make the consent valid.” [ 76 ] I agree with D.G.A. that “just because someone is intoxicated to the point that they cannot perform the ‘more complex thought and reasoning processes’ required to commit a specific intent offence, this does not mean that same level of intoxication would render them incapable of consenting to sexual activity”.

But, that is not what happened in his case. [ 77 ] In my view, the law on capacity to consent was described accurately in the excerpt from T.S. that was relied on by the trial judge. During submissions, I took D.G.A. to agree. [ 78 ] D.G.A.’s assertion that the trial judge conflated the minimal standard to establish capacity with the standard required to establish specific intent is based on the trial judge’s subsequent reliance on para. 12 of Cedeno .

That passage certainly refers to authorities dealing with specific intent offences — but only to illustrate that physiological responsiveness is not determinative of cognitive functioning.

I simply cannot conclude from the trial judge’s reliance on para. 12 of Cedeno that he adopted the wrong legal test regarding the capacity of a sexual assault complainant to consent. [ 79 ] The reasons for judgment demonstrate that the trial judge understood that: • the test for capacity to consent to sexual activity was a minimal standard that involved determining whether the complainant had an operating mind capable of appreciating the nature and quality of the sexual activity, knowing the identity of the person wishing to engage in the sexual activity, or understanding that she could choose whether to engage in or continue the sexual activity; • the standard of proof regarding the complainant’s incapacity to consent was proof beyond a reasonable doubt; • the relevant time frame was when the sexual activity occurred; • just because the complainant experienced a blackout due to alcohol intoxication did not mean she was unable to consent, was unconscious or in a coma-like state; and • the evidence of D.D. was sufficiently credible to establish that the complainant was in fact not unconscious, asleep or in a coma- like state for at least part of the sexual activity. [ 80 ] Despite the evidence that the complainant had physically moved her body, the trial judge applied the correct legal test and found

the evidence that she lacked the cognitive capacity to consent to sexual activity to be overwhelming. This finding was well-supported bythe evidence. [81] I must dismiss this ground of appeal. Issue 4: Did the trial judge err in law by relying on the toxicology report for the truthof its contents? [82] No weight can be given to expert opinion evidence unless the factual basis of the expert’s opinion is established through properlyadmissible evidence: R. v. Lavallee, (SCC), [1990] 1 S.C.R. 852 at 893; R. v.

Abbey, (SCC), [1982] 2S.C.R. 24 at 46. [83] In this case, the toxicology report was marked as an exhibit at the outset of the trial by consent. The parties did not explicitlyinform the trial judge of their purpose for doing so. Further, no evidence was adduced at trial to establish that the complainant hadprovided a sample of her blood and urine for analysis. [84] In the hurly-burly of circuit court proceedings in the Provincial Court, it is understandable that, from time to time, certain nicetiesmay be overlooked.

Nevertheless, the trial judge and counsel should have been careful to explicitly address the purpose for marking thetoxicology report as an exhibit and counsel should have been careful to establish the evidentiary link tying the samples analysed by theexpert to the complainant. However, that is not the end of the story. [85] On a review of the transcript as a whole, including the submissions of counsel, it is clear the trial judge correctly understood theparties’ intention. They intended for him to rely on the opinions expressed in the toxicology report.

Notably, Crown counsel referred tothe opinions expressed within the toxicology report no fewer than four times during her submissions. Counsel for D.G.A. (who is notcounsel on this appeal) did not object and, in fact, did not even respond to these submissions. [86] In the criminal law context, there is no steadfast rule whether failure to raise an objection to evidence at trial should prevent anappeal grounded on admissibility.

The authors of Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 5th ed. (Toronto:LexisNexis, 2018) state at 84-88: 2.109 In both civil and criminal cases, it is advisable that any objections to the admissibility of evidence be made at the time the evidenceis tendered. In a civil case, an objection on appeal will not usually succeed unless the objection is made at trial… 2.110 The position in criminal cases is not as clear. As stated by Fauteux J. in R. v.

Kissick, [ (SCC), [1952] 1 S.C.R.343]: [The] authorities are sufficient to support the proposition that, as to the consequences of the failure to object, there is no steadfast rule,and that, while the failure to object to inadmissible evidence is not always fatal, it cannot be said that it is never so. … 2.114 If counsel concedes the admissibility of evidence and the evidence meets the criteria for admissibility, counsel cannot challengeadmissibility on appeal in the absence of an allegation of incompetent counsel. [87] In R. v.

C.(U.), 2009 ONCA 367, Justice Moldaver, as he then was, made the following comment: [46] That scenario - counsel on appeal raising issues that competent trial counsel could have raised, but did not - is not an uncommonone in this court. And, as in this case, it will generally result in a failed appeal. Indeed, it will only succeed in those cases where, despitethe failure to raise the issue now said to be crucial, counsel on appeal can demonstrate a reversible error of law or a miscarriage ofjustice. As our jurisprudence indicates, that will be no easy task. [88] The issues in R. v.

Choudhary, 2008 ABCA 35, bear some resemblance to this case. The appellant, a taxi driver, was convicted attrial for sexually assaulting a woman who was his passenger. He appealed the verdict, arguing it was based on documentary evidencethat the trial judge misunderstood to be business records. The Court concluded: [9] In any event, it is apparent on this record that counsel understood and agreed that the documents could be tendered andconsidered as business records, which is to say that they were accepted for the truth of their contents.

The Crown disclosed those recordsprior to trial, and the matter was addressed informally, but without dispute at trial. Indeed, at the request of defence counsel (not counselin this appeal), the impugned documents were initially marked as an exhibit for identification only, subject to cross-examination. At theconclusion of Mr. Saleh’s cross-examination, the Crown applied to have the documents entered as full exhibits and defence counsel wasspecifically asked whether he objected. He promptly replied that he did not.

Thereafter, defence counsel referred to the documents as“business records” and proceeded on the basis that they were admissible as such, with the only issue being their weight. [10] Therefore, as the documents seemingly met the criteria for admissibility as business records and because counsel essentiallyconceded their admissibility on that basis, it is not now open for new counsel to challenge that issue in the absence of an allegation ofincompetent counsel: [cites omitted] [89] In this case, I am satisfied counsel for D.G.A. was aware the toxicology report had been entered for the truth of its contents and,in fact, wanted that to be the case. [90] First of all, the toxicology report was entered by consent.

Next, D.G.A. cross-examined the complainant on whether she had usedcocaine on the night in question. Contrary to an opinion expressed in the toxicology report, she denied that she had. It seems fairlyobvious that D.G.A. himself was relying on the truth of the opinion within the report to challenge the complainant’s credibility on this

point. Finally, counsel for D.G.A. did not raise any objections in response to Crown’s submissions referencing the opinions expressed within the report. [ 91 ] These factors all indicate that counsel for D.G.A. made a conscious decision not to object to the report or its use to establish the complainant’s blood alcohol concentration on the night in question.

In the absence of an allegation of incompetent counsel, it is not open for D.G.A. to now challenge the trial judge’s reliance on the toxicology report. [ 92 ] In any event, I am satisfied there was ample evidence to establish the complainant’s degree of intoxication and overall lack of capacity to consent in the absence of the toxicology report.

It is clear from the trial judge’s reasons that he considered the evidence of E.L., N.M., and even D.G.A. himself that the complainant was highly intoxicated, ill, and unable to care for herself to be compelling. [ 93 ] For all of these reasons, the failure to expressly address the purpose for marking the report as an exhibit, and the failure to establish its factual foundation, did not result in a reversible error of law or miscarriage of justice. [ 94 ] I must dismiss this ground of appeal. Conclusion [ 95 ] For all of these reasons, I dismiss D.G.A.’s appeal. “L.S. Marchand J.” MARCHAND J.