R. v. W., 2023 QCCA 13

McKillop c. R. 2023 QCCA 13COURT OF APPEAL CANADAPROVINCE OF QUEBECREGISTRY OFMONTREAL No: 500-10-007215-195(550-01-105293-189) DATE: January 10, 2023 CORAM:THE HONOURABLE MARTIN VAUCLAIR, J.A. STEPHEN W. HAMILTON, J.A. GUY COURNOYER, J.A. HAMISH MCKILLOPAPPELLANT – Accusedv. HIS MAJESTY THE KINGRESPONDENT – Prosecutor JUDGMENT The parties informed the Court that a publication ban was made at trial under ss. 486(1)and 486.4(1) of the Criminal Code and remains in effect. [1] Hamish McKillop appeals from a judgment rendered on October 16, 2019, by the Honourable Gaston-Paul Langevin, J.C.Q.,district of Gatineau, who found the appellant guilty on two counts: sexual assault (s. 271(

a) Cr.C.) and assault (s. 266(

a) Cr.C.) on thecomplainant, his then common-law partner. [2] The verdict rests exclusively on the credibility of the witnesses. Although the appellant did not testify, the prosecutionintroduced into evidence his lengthy police interview given before the charges were laid. [3] The appellant claims that the judge erred in law in four ways. First, he erred in applying the well-known principles of R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742, when he limited himself to a “credibility contest” between the complainant’s versionand that of the appellant.

In so doing, the judge ignored several contradictions in the complainant’s testimony and made errors of fact.Second, the judge’s analysis shows that he reversed the burden of proof. Third, the judge erred in rejecting the defence of honest beliefin the complainant’s consent to the appellant’s advances that resulted in touching of a sexual nature. Finally, fourth, because of the errorsdiscussed, the judge erred in rejecting the appellant’s denial of the existence of the alleged acts and in finding him guilty of assault. [4] The arguments are without merit. A review of the judgment shows no error of law.

The judge stated that he considered all of theevidence and demonstrated that he had. While it is true that the judge did not mention all the inaccuracies and nuances of thecomplainant’s testimony, he was not required to do so: R. v. G.F., 2021 SCC 20, para. 76. [5] The Crown acknowledged some errors of fact and also conceded that the decision was sometimes unclear. For example, it is truethat the complainant never testified that the appellant had persisted to the point where he had, in fact, had sexual intercourse with herwhile she was under the influence of medication.

It is also true that the judge wrote “the next morning she would realize more whathappened”, when the evidence is silent in this respect. [6] Other errors, described by the appellant as contradictions, are more akin to nuances, such as the fact that the complainanttestified that the appellant was “trying to break” an object of value to her, when in her written out-of-court statement she had instead saidthat the appellant was “threatening to break” that object. [7] The Court agrees with the respondent that the errors invoked do not affect the core of the judge’s reasoning.

More specifically,the appellant has not shown that the nuances not commented on by the judge would in any event be determinative, individually orcollectively, of the reliability or credibility of the complainant’s testimony. [8] The charges cover a period of approximately six months and use general terms: “commit a sexual assault” and “commit anassault.” It should be noted that the appellant never required the Crown to furnish particulars and specify the events in dispute, nor did hecomplain, either at trial or on appeal, that he was prejudiced at trial by such broad language. [9] The events happened when the appellant and the complainant lived together.

The complainant described many assaults and

sexual assaults. It should be added that the appellant himself confirmed, during his police interview filed into evidence, that, at best, hewas generally reckless about the complainant’s consent. He admitted being upset by the complainant’s refusals.

Given these refusals,and in view of their particularly difficult relationship in general, but also specifically when it came to intimacy, the appellant should haveensured that the complainant consented, which he clearly never did, thus shutting the door to any mens rea defence based on an honestbut mistaken belief in consent, because the defence is only available when the “complainant communicated consent to engage in thesexual activity in question”: R. v. J.A., 2011 SCC 28 , [2011] 2 S.C.R. 440, para. 48. [10] The evidence supports that conclusion.

With respect to the count of sexual assault, the complainant recalled numerous assaultsover the period covered by the charge. The assaults generally occurred at bedtime, when the appellant kissed her and touched her nakedbody, hoping for more sexual activity. According to the evidence, this unwanted behaviour was discussed between the complainant andthe appellant, but he persisted. [11] The complainant did not want to engage in sexual activities with the appellant.

Sometimes the complainant would turn her backto him, sometimes she would say “no”, but the appellant would continue, kissing her and touching her breasts and genitals. Sometimes hewould get upset, asking for more sex. [12] It is true that the complainant’s testimony is not consistent with her police statement, in which she stated that the appellant hadbeen verbally, but not physically, insistent on having sexual relations with her. As the Crown points out, this aspect was not lost on thejudge, as indicated by his specific remarks at trial.

Although he did not explicitly address the point in his reasons, he concluded that theappellant had sexually touched the complainant’s body at these times. [13] The complainant testified that because of the appellant’s persistence, she sometimes gave in and had full sexual relations withhim. In short, she submitted to him. On this point, the Supreme Court held: “This does not mean that a failure to tell the accused to stop means that the complainant must have been consenting. As this Court hasrepeatedly held, the complainant is not required to express her lack of consent for the actus reus to be established.

Rather, the questionis whether the complainant subjectively consented in her mind”. R. v. J.A., 2011 SCC 28 , [2011] 2 SCR 440, para. 41. [14] The complainant testified that, on one occasion, the following morning, she explained to the appellant that: “[…] the way he was behaving, it was rape, and... that... he got so upset​​ and that is when the physical abuse started.

But he didn’t stoppressuring me into having sex with him until I broke up with him.” Appellant’s brief, p. 94. [transcribed verbatim] [15] In cross-examination, the complainant made it clear that she “told [the appellant] many times that if [she] wanted to have sexwith him, he would know”: Appellant’s brief, p. 186. [16] The appellant’s statement, while not explicitly incriminating as the Crown asserted, nevertheless provides context that mayconfirm the complainant’s lack of expressed consent: The sexual allegations are to do with... there’s some misunderstandings with her medication.

She has some medication that she was onthat would make her very drow... like, drowzy,... […] ... and... at night, and we would initiate foreplay for, you know, for sexual act and... she’d be uttering... she would be communicating but,not very intelligibly, I thought she was just... tired, like, but I didn’t know that... So I would, I know, initiate sex and then... and... and then she would say “no, I don’t, you know, I don’t feel... I don’t feel this is... thisis... like, I’m too tired.” So... But two (2) or three (3) minutes in - or maybe less - I stopped. I did not continue.

Or [follow] through oranything like that. Appellant’s brief, p. 233. [transcribed verbatim] [17] While the appellant does not admit to having sexually touched the complainant in this sequence of events, he also does notspecify that it was only verbal. The statement was evidence that the judge had to interpret in context.

It supported the judge’s conclusionthat the appellant was confirming the complainant’s version that his insistence was manifested by sexually touching her when she hadindicated to him, either verbally or by her behaviour, that she did not consent. [18] The appellant also confirmed the complainant’s testimony regarding their discussion about his conduct: I genuinely thought that she was just a little tired or drowsy. I didn’t know that it was due to her medication and, so... but I got to stop,you know. And then... and then later, when she recalled that instance, she would use it as ammunition or as...

I means to... to say, youknow, “you’re a sexual predator” or, you know, allegations like that. And... this is what I think should be... like, this kind of allegationshould not be taken... Appellant’s brief, p. 234. [transcribed verbatim] [19] Again, the Supreme Court has said that “the defence of honest but mistaken belief in communicated consent is not unlimited”: R.v. Barton, 2019 SCC 33 , [2019] 2 S.C.R. 579, para. 101. The law imposes a precondition to this defence: s. 273.2(

b) Cr.C. Anaccused must take reasonable steps, in the circumstances known to him or her at the time, to ascertain that the complainant wasconsenting. No reasonable steps, no defence: R. v. Barton, [2019] 2 S.C.R. 579, para. 104; R. v. Ofter, 2022 QCCA 439, para. 30 ; R. v.

I.A.D., 2021 ONCA 110. [20] While the appellant said that he always respected the complainant’s wishes not to have sex and that he stopped after a fewminutes when he was unsuccessful in convincing her, this, however, is of no assistance to him. The Supreme Court ruled: […] Similarly, it would be perverse to think that a sexual assault could constitute a reasonable step […]. Accordingly, an accused’sattempt to “test the waters” by recklessly or knowingly engaging in non-consensual sexual touching cannot be considered a reasonablestep.

This is a particularly acute issue in the context of unconscious or semi-conscious complainants […]. R. v. Barton, 2019 SCC 33 , [2019] 2 S.C.R. 579, at para. 107 [references omitted] [21] All in all, the evidence supports the judge’s conclusion that the appellant could not have been unaware that the complainant hadrepeatedly expressed her disinterest in receiving sexual touches of any kind.

The evidence, including the appellant’s repetitive conductwithout taking reasonable steps to ascertain that the complainant was consenting, lends support to the judge’s finding that the actus reusand mens rea of sexual assault had been proved. [22] The complainant also testified to physical assaults that occurred in various situations. In particular, the appellant allegedlygrabbed her by the throat during verbal arguments. The complainant acknowledged that she had a blurrier recollection of the details ofthese events.

However, in his statement, the appellant also acknowledged violent events of a similar, though slightly different, nature. Headmitted that at different times, to get the complainant’s attention during an argument, he grabbed her by the jaw or blocked her path andgrabbed her wrist, or while they were in their car, he grabbed her by the throat. This constitutes assault. [23] In sum, the judge was entitled to conclude that the evidence did not raise any reasonable doubt as to the occurrence of theassaults and that the prosecution had proved them beyond a reasonable doubt.

FOR THESE REASONS, THE COURT: [24] DISMISSES the appeal; [25] ORDERS the appellant to report to the Hull Detention Centre, before noon on January 13, 2023. MARTIN VAUCLAIR, J.A. STEPHEN W. HAMILTON, J.A. GUY COURNOYER, J.A. Mtre Diane MagasFor the Appellant Mtre Francis Villeneuve-MénardDIRECTOR OF CRIMINAL AND PENAL PROSECUTIONSFor the Respondent Date of hearing: December 13, 2022