Her Majesty the Queen Respondent - v. -, 2021 NUCA 1

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: R v Nauya , 2021 NUCA 01 Date: 20210108 Docket: 18-18-12-CAP Registry: Iqaluit Between: Her Majesty the Queen Respondent - and - Lee Jordan Nauya Appellant Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that may identify the complainant or the witness must not be published, broadcast, or transmitted in any way. NOTE: This judgment is intended to comply with the identification ban. _______________________________________________________ The Court: The Honourable Mr. Justice Thomas W. Wakeling The Honourable Madam Justice Ritu Khullar The Honourable Madam Justice Elizabeth Hughes _______________________________________________________

Memorandum of Judgment Appeal from the Conviction by The Honourable Mr. Justice E.D. Johnson Dated the 30 th day of May, 2018 Docket 18-14-139 _______________________________________________________ Memorandum of Judgment _______________________________________________________ The Court: Background [ 1 ] The appellant was convicted by a jury of sexual assault in May, 2018.

Consent [1] was the primary issue for the jury as the Agreed Statement of Facts (ASF) entered at trial established sexual intercourse between the appellant and the complainant. [ 2 ] The uncontested evidence at trial was that the appellant and his cousin approached the complainant while she was waiting for a friend. After some discussions, the three of them went to an abandoned mine where they consumed alcohol and socialized. The complainant testified that at some point she blacked out and could not remember anything else that happened until she woke up in the hospital.

The complainant also testified that before she blacked out she was fully dressed: she was wearing her parka, mitts, toque and her clothes. She further testified she did not want to have sex with the appellant. [ 3 ] The ASF described the appellant carrying the complainant with her pants down around her ankles along a street in Rankin Inlet, leaving her on the ground when a vehicle approached. The driver of the vehicle found the complainant on the ground, mumbling and unable to get up.

She was transported to the health centre, and then medevaced to a hospital in Winnipeg for hypothermia. [ 4 ] The appellant testified. He described that after drinking for an hour to an hour and a half with the complainant and his cousin, he and the complainant began kissing. His cousin left the area and the appellant then asked the complainant if she wanted to have sex, she said “yes”, and they both took off their clothes and began to have sex on the ground.

The appellant testified the complainant did not “look like she was too drunk.” He also testified that after the “sex was finished”, the complainant was unable to put on her pants and then she passed out on the ground. He attempted to get her pants on her but was unable to do so. After that, he picked the complainant up and carried her.

His plan was to carry her home but when he saw the vehicle coming, he set the complainant down on the ground and walked home. [ 5 ] In cross examination, the appellant agreed that he was saying that within a half hour the complainant went “from seeming totally sober to passing out drunk.” [ 6 ] The Crown submitted to the jury that the appellant took advantage of an intoxicated and unconscious complainant who could not and did not consent to sexual intercourse. [ 7 ] The defence position was that the appellant’s evidence should be believed and that the jury should find the sexual intercourse was consensual.

Grounds of Appeal [ 8 ] The appellant raises three grounds of appeal: 1. The verdict was unreasonable; 2. The trial judge’s failure to instruct the jury on the mens rea for sexual assault undermined the verdict; and

3. The trial judge erred by mischaracterizing the evidence of the complainant’s consumption of alcohol in the charge to the jury. Standard of Review [9] The principles governing the review of a jury verdict are well-known and were recently set out in R v RJM, 2019 ABCA 386at para 14: A jury verdict is unreasonable or cannot be supported by the evidence within the meaning of s 686(1)(a)(

i) of the Criminal Code if it isone that a properly instructed jury acting judicially could not reasonably have rendered: R v Biniaris, 2000 SCC 15at para 36; R vWH, 2013 SCC 22at para 26; R v Villaroman, 2016 SCC 33at para 55. The reviewing court must ask not only whether the verdict issupported by evidence on the record, but also whether the [jury’s] conclusion conflicts with the bulk of judicial experience: Biniaris atpara 40; WH at para 28.

The reviewing court must show great deference to the jury’s assessment of witness credibility given theadvantage the jury has in seeing and hearing the witnesses’ evidence: WH at paras 30-34.

Jur[ies] are entitled to accept all, some, or noneof the evidence of each witness; the mere presence of contradictory details is not sufficient to establish that a jury verdict isunreasonable: WH at para 32 citing R v Francois, (SCC), [1994] 2 SCR 827 at 837, 19 OR (3d) 322. [10] Whether the trial judge has misdirected the jury or failed to provide an essential direction to the jury is a question of law,subject to the correctness standard of review: R v JOL, 2020 ABCA 73 at para 14.

Analysis [11] We begin our analysis with the second ground of appeal – that the trial judge failed to instruct the jury on the mens rea forsexual assault, and this failure undermined the verdict. [12] In R v Barton, 2019 SCC 33 at paras 87 to 90, the Supreme Court described the role of consent vis a vis the elements of theoffence: A conviction for sexual assault, like any other true crime, requires that the Crown prove beyond a reasonable doubt that the accusedcommitted the actus reus and had the necessary mens rea.

A person commits the actus reus of sexual assault “if he touches anotherperson in a sexual way without her consent” (R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at para. 23).

The mens rea consists of the“intention to touch and knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched” (R. v.Ewanchuk, (SCC), [1999] 1 S.C.R. 330, at para. 42). [emphasis added] “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”… 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., atpara. 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, ass. 273.1(1) makes clear, “consent” is not considered in the abstract.

Rather, it must be linked to the “sexual activity in question”, whichencompasses “the specific physical sex act”, “the sexual nature of the activity”, and “the identity of the partner”, though it does notinclude “conditions or qualities of the physical act, such as birth control measures or the presence of sexually transmitted diseases” (R. v.Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346, at paras. 55 and 57 (emphasis deleted)). Consent is treated differently at each stage of the analysis.

For purposes of the actus reus, “consent” means “that the complainant in hermind 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, for the actusreus to be established (see J.A., at para. 37). 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). [13] The Canadian Judicial Council’s Model Jury Instructions set out the elements of the offence of sexual assault based on R vEwanchuk, [1999] 1 SCR 330, , R v JA, 2011 SCC 28, Barton, and other decisions of the Supreme Court as follows: You must find (NOA – Name of accused) not guilty of sexual assault unless the Crown has proved beyond a reasonable doubt that (NOA) is the person who committed the offence on the date and in the place described in the indictment.

Specifically, the Crownmust prove each of the following essential elements of the offence beyond a reasonable doubt: 1. That (NOA) touched (NOC-Name of Complainant) directly or indirectly;

2. That the touching by (NOA) was intentional; 3. That the touching by (NOA) took place in circumstances of a sexual nature; 4. That (NOC) did not consent to the sexual activity in question; and 5.

That (NOA) knew [or was wilfully blind or reckless] that (NOC) did not consent to the sexual activity in question . [2] [ 14 ] The first four elements in the specimen instruction relate to the actus reus of the offence; the fifth element relates to the mens rea . [ 15 ] In this case, the trial judge instructed the jury that the Crown had to prove beyond a reasonable doubt “four things” in order to find the appellant guilty of sexual assault. Those were: 1. That the appellant applied some force to the complainant; 2. That the physical force violated the complainant’s sexual integrity; 3.

That it was the appellant who physically touched the complainant; and 4. That the complainant did not consent to the sexual activity. [ 16 ] The jury was not advised specifically of the fifth element – the mens rea element. [ 17 ] Rather, the trial judge advised the jury that the appellant admitted in his testimony to the first three elements he set out. His jury instructions then focused on the issue of the complainant’s lack of consent, including incapacity.

In the course of these instructions on the actus reus of the offence, the trial judge said: “The Crown must prove that [the appellant] knew that [the complainant] did not consent.” This appears to refer to the mens rea .

The trial judge then returned to the issue of capacity – the actus reus, concluding with advising the jury that the Crown must prove “each of these ingredients beyond a reasonable doubt.” [ 18 ] At no point did the trial judge separately and clearly advise the jury that the Crown had to prove the appellant knew that the complainant did not consent to the sexual activity in question – the mens rea of the offence.

Neither trial counsel raised any objection or concern to this omission. [ 19 ] The position of the Crown on appeal is that this was not the issue on which the case turned. [ 20 ] We are unable to agree with the Crown’s submission on the facts of this case, including the appellant’s evidence. On the evidence before the jury, the jury had to decide two issues. First, did the Crown establish beyond a reasonable doubt that the complainant was incapacitated and therefore incapable of consenting to the sexual intercourse?

Second, if the jury found the complainant was incapable of consenting, it was still necessary for the Crown to establish beyond a reasonable doubt that the appellant knew, was willfully blind, or reckless that the complainant was incapable of consenting due to her incapacity. The jury was never told this was an element of the offence that the Crown had to establish beyond a reasonable doubt. This omission was a significant error in law on the facts of this case.

Therefore, this ground of appeal is allowed, the conviction is set aside and a new trial is ordered. [ 21 ] In light of our decision on the second ground of appeal, it is not necessary for us to address the third ground of appeal. Further, we see no merit in the first ground. Conclusion [ 22 ] We allow the appeal, set aside the conviction and direct a new trial. Appeal heard on September 15, 2020 Memorandum filed at Iqaluit, Nunavut this day of January, 2021 Authorized to sign for: Wakeling J.A. Authorized to sign for: Khullar J.A.

Hughes J.A. Appearances: B. Flight for the Respondent E. Tache-Green for the Appellant