r v. R., 2020 NBCA 7

COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 86-18-CA SHANE FOSTER APPELLANT SHANE FOSTER APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Foster v. R., 2020 NBCA 7 CORAM: The Honourable Justice Quigg The Honourable Justice Green The Honourable Justice LaVigne Foster c.

R., 2020 NBCA 7 CORAM : l’honorable juge Quigg l’honorable juge Green l’honorable juge LaVigne Appeal from a decision of the Provincial Court: May 14, 2018 (conviction) July 19, 2018 (sentencing) Appel d’une décision de la Cour provinciale : le 14 mai 2018 (déclaration de culpabilité) le 19 juillet 2018 (détermination de la peine) History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o.

Appeal heard: September 10, 2019 Appel entendu : le 10 septembre 2019 Judgment rendered: February 6, 2020 Jugement rendu : le 6 février 2020

Reasons for judgment by: The Honourable Justice LaVigne Concurred in by: The Honourable Justice Quigg The Honourable Justice Green Counsel at hearing: For the appellant: Nathan Gorham For the respondent: Kathryn Gregory, Q.C. Motifs de jugement : l’honorable juge LaVigne Souscrivent aux motifs : l’honorable juge Quigg l’honorable juge Green Avocats à l'audience : Pour l’appelant : Nathan Gorham Pour l’intimée : Kathryn Gregory, c.r. THE COURT The appeal is allowed, the conviction is set aside, and a new trial is ordered.

LA COUR L’appel est accueilli, la déclaration de culpabilité est annulée et la tenue d’un nouveau procès est ordonnée. The judgment of the Court was delivered by LAVIGNE, J.A. I. Introduction and Overview [ 1 ] This is another case which illustrates that sexual assault trials raise unique challenges.

It also highlights the importance for the trier of fact to determine, first and separately, whether the Crown has proved the essential element of non-consent beyond a reasonable doubt, before proceeding to analyze the defence of honest but mistaken belief in communicated consent. [ 2 ] Shane Alexander Foster was charged with committing a sexual assault on AB. Mr. Foster did not, with words, ask Ms. AB if she consented to the sexual activity which ended with vaginal intercourse, and, Ms. AB did not, with words, indicate her consent or her non-consent to the sexual activity. [ 3 ] Mr.

Foster maintained the complainant consented to engage in sexual activity at the time; alternatively, he argued that if she did not consent, he honestly, but mistakenly, believed she did. A Provincial Court judge held Ms. AB did not consent to the sexual activity. He also rejected Mr. Foster’s defence of honest but mistaken belief in consent, concluding Mr. Foster did not take reasonable steps, in the circumstances known to him at the time, to ascertain whether the complainant was consenting.

[ 4 ] He found Mr. Foster guilty as charged of committing an indictable offence contrary to s. 271(1) (

a) of the Criminal Code , R.S.C., 1985, c. C-46 , sentenced him to one-year imprisonment and subjected him to several ancillary orders which flow from the nature of the offence, including an order requiring him to register under the Sex Offender Registry for a period of twenty years. [ 5 ] Mr. Foster appeals his conviction. He alleges the verdict was unreasonable, the trial judge conflated the element of consent with the defence of mistaken belief in consent , reversed the burden of proof regarding the defence of mistake and misapprehended the evidence concerning the mistaken belief in consent. Mr.

Foster, who was released on bail pending the outcome of his appeal, acknowledges a verdict of acquittal from this Court would not be appropriate in the circumstances. He seeks a new trial. [ 6 ] I am satisfied the appeal must be allowed on the ground that the trial judge conflated the essential element of the offence of sexual assault − the actus reus /non-consent component − and the last essential element – the mens rea defence of honest but mistaken belief in communicated consent.

The trial judge failed to determine, first and separately, whether the Crown had proved the essential element of non-consent beyond a reasonable doubt, apart from the issue of mens rea , before proceeding to analyze the defence of honest but mistaken belief in communicated consent. This is an error of law, for which the standard of review is correctness, and justifies the intervention of this Court. Consequently, for the reasons below, I would allow the appeal, set aside the conviction, and order a new trial. II.

Summary of the Evidence [ 7 ] The trial lasted less than a day. Both Mr. Foster and Ms. AB testified at trial. The only other witnesses were two police officers. Mr. Foster and Ms. AB agreed on many of the events which occurred on the night of the incident, but there were also significant differences between their testimonies. A. They substantially agreed on the following facts [ 8 ] The incident happened between August 19 and August 20, 2016. Mr. Foster had turned 20 in May , while Ms. AB was one month shy of her 18 th birthday.

Although they were friends from high school, where they hung out with the same group of people, they had never been romantically involved. He was one year ahead of her and had graduated from high school the previous year. They had remained Facebook friends but had not seen each other during the previous year. [ 9 ] Prior to the incident, either the same day or the previous day, they started a conversation through Facebook Messenger. She liked his Facebook status, and he sent the first text message. They were both going through difficult times. Mr.

Foster had fathered a child and was experiencing some issues regarding that situation. Ms. AB’s boyfriend, CD, had broken up with her, by text, a few days prior to the incident, while she was in Prince Edward Island. Mr. Foster asked Ms. AB, by text message, if she wanted to cuddle and she answered “sure.” They agreed he would pick her up on August 19, around 5:00 p.m. and they would hang out at his house and watch movies.

As planned, he picked her up and drove to his house, arriving around 5:30 p.m. [ 10 ] They immediately went downstairs to his bedroom, where they spent the evening watching television while sitting on his bed. They made small talk and she petted his cat. At times during the evening, Mr. Foster had his arm around Ms. AB, and he cuddled her. A few hours later, they ordered pizza and ate it while continuing to watch television. [ 11 ] Later, Mr. Foster removed Ms. AB’s tank top and gave her a back massage. The tank top remained off the rest of the evening, leaving Ms.

AB dressed in a bra and bandeau covering her upper body, and underwear, leggings and socks, covering her lower body. [ 12 ] No alcohol was consumed while they were together, and no one was impaired. During the evening, Ms. AB played with her cellphone. Her mother called, and she told her she was watching a movie with a friend.

[ 13 ] They continued to watch television sitting or lying over the covers on the bed. Mr. Foster was still dressed. Later they got under the blankets. Ms. AB remained dressed as she was. Mr. Foster asked her if he could take off his clothes and come to bed wearing only his underwear; she agreed. [ 14 ] There was no discussion about having sex, nor any talk about using a condom. Mr. Foster did not wear a condom. Ms. AB testified she always carried a “package” of “birth control” with her. [ 15 ] Ms. AB lay in bed under the covers with her back to Mr. Foster.

At some point, he moved closer to her, they kissed, and he put his hand in her underwear. Ms. AB’s underwear and leggings were either completely removed or at least lowered to her ankles. Mr. Foster positioned himself between Ms. AB’s legs and vaginal intercourse occurred. No words were spoken during the sexual activity. After the sexual intercourse ended, he rolled over; she got up and went to the bathroom. B. Here are the major differences in their testimonies Event Ms. AB’s Account Mr.

Foster’s Account Text messages exchanged prior to their encounter The agreed plan was that he would drive her home between 8 and 9 p.m. as he would be leaving then to attend a 9 or 10 p.m. meeting. She had also agreed he could come over to her apartment after the meeting. Shortly thereafter, she deleted her messages, which was her usual practice. He testified they had exchanged flirtatious text messages, where she had called him “cutie” or “handsome”. Two days prior to the incident, they had agreed by text that he would pick her up at 5 p.m. on August 19 and she would stay at his house overnight.

Physical interaction during the early part of the evening She was uncomfortable and nervous from the start. They sat on the bed. They watched one movie and some TV shows. During the early part of the evening, he touched her arm, and hair, and tried to kiss the back of her neck. She testified she did not like to be touched and stated : “ every time he tried to make a move, I kinda shrugged it off and was like kind — doing movements and he was like you don’t like that. No, I don’t like that.” They watched 3 or 4 horror movies while sitting on his bed.

She said she liked to watch horror movies because she could cuddle up to him if she got scared. While watching the movies, they cuddled, held their arms around each other, and she leaned her head on his shoulder. She never refused with words or with actions any of his advances, or told him not to touch her, or told him she did not like that. Back rub/massage He asked whether she wanted a back rub; she said no. He asked again later; she said yes. He took off her tank top and the back rub lasted five seconds. After they had pizza, she asked him for a back massage.

He agreed and took her shirt off, without any objection from her. She lay on the bed on her stomach, and he gave her a back massage which lasted from five to ten minutes. Marihuana She saw him consume marihuana: taking “a hit out of a bong”. He did not consume marihuana, nor use a bong. Decision to stay overnight He received a call before 9 p.m., informing him his meeting was cancelled. He offered to drive her home, but s he decided to stay overnight, as she was apprehensive about meeting an old boyfriend, EF, who lived in the same house as Mr. Foster if she left at that time.

There was never any meeting, nor mention of a meeting, nor phone call cancelling a meeting. The plan from the beginning was that she would stay overnight, which plan was never discussed again until she left. Getting into bed for the night They got in bed, under the blankets, to go to sleep. She curled up in a ball, next to the wall facing away from Mr. Foster, pretending to be asleep. Mr. Foster fell asleep. They continued watching television and were now lying in bed on top of the covers. Between 11 p.m. and midnight, they decided to get under the blankets. They cuddled, and he spooned her.

They did not fall asleep.

Kissing and hand in her pants Sometime during the night, he awoke, moved over towards her and started putting his hand down her pants, “like just the beginning of it” . She “rolled over to tell him to stop”, but he kissed her, and she kissed him back. The kiss lasted from two to five seconds. She recalled she was about to stop him, but she couldn’t recall whether he had stopped by himself or whether she had stopped him. She explained it as follows: “ The hand stopped once I turned around.

Like it moved when I flipped over.” He put his hand in her underwear and touched her vagina with his fingers and perceived “she was wet.” She responded by turning around and she kissed him, and he kissed her back. The kiss lasted from five to ten seconds. She did not tell him to stop, either with words or actions. Removal of her underwear and leggings With “a one hand motion” he pulled her underwear and leggings almost down to her ankles. He positioned himself between her legs and inserted his penis in her vagina. It was difficult to take her tight leggings off.

However, with her help, he was able to pull her underwear and leggings off completely. He got on top of her and they had consensual vaginal intercourse which lasted from five to ten minutes. Choking during intercourse During intercourse, he was holding himself up with one arm and had the other arm on her throat, with his hand wrapped around her throat, blocking her ability to breathe. Her “eyes got really big”; she “couldn’t breathe.” She saw “black spots” and thought she was going to “pass out.” He stopped choking her and gave her a peck on the lips. Then, he started choking her again.

This continued for a while. He moved his penis in and out of her vagina as he continued to choke her, kiss her and choke her again. She wanted to move but couldn’t because her “ body was Jell-O like.” Once he was finished, he rolled over and said: “That was amazing.” She was left with marks on her neck. He held himself up with both arms during intercourse. He did not choke her or put his hands around her throat at any time. After he had finished, he rolled over. C. After the sexual intercourse [ 16 ] Mr. Foster testified that Ms.

AB went to the bathroom and remained there for what seemed like an unusually long time. When she came out, he thought she seemed upset. She told him she was going home as she missed her cat. [ 17 ] He offered to drive her home, but she declined his offer saying she had called a cab. He offered to wait with her, but she said: “no it’s okay, I’m just gonna wait outside.” He hugged her before she walked out the door. When the door opened, he saw a car, which he thought was waiting for her. He then looked out the window and the car was gone, so he assumed she was in it.

Asked what time he thought it was, he answered: “I’d say about probably one o’clock or so.” Later, he texted her and asked if she was okay, but she never replied. [ 18 ] Ms. AB testified that after the sexual intercourse, she “felt disgusting and wrong.” She pulled her pants up, grabbed her cellphone and went to the bathroom. She noticed CD had texted her earlier. She had seen him that morning. While in the bathroom, she texted him. She testified as follows : “I tell him I did something horrible.

That he’s gonna hate me”, and “I told him I had sex with someone .” He then called her several times while she was still in the bathroom, even though she told him not to. “[E]ventually after like the sixth phone call [she] finally answered.” She was crying and at first told him she did not “want to talk about it right now”, but then she “kinda tell[s] him what happened ,” and he said he would come to get her. However, she testified he changed his mind when she told him she had exited Mr. Foster’s house. He wanted her to stay in the house until he arrived, so he could confront Mr.

Foster, but she did not want him to. Ms. AB lived by herself in an apartment located some distance from Mr. Foster’s apartment. She walked home alone. She estimated it was around 2:00 or 2:30 a.m. when she left.

[ 19 ] While she was walking home, she “was on the phone with [CD]”. She told him “everything that happened”, and he told her she “was a horrible person” and “that he didn’t believe [her] and that it was [her] fault.” As she was walking across the Saint John Harbour Bridge (which is prohibited to pedestrians) she contemplated jumping off several times. When Crown counsel asked her why she was thinking this way, she answered it was because she “knew that nobody would believe” she “didn’t want to have sex.” [ 20 ] She testified that while on the bridge, a taxi driver stopped and talked her out of it.

He offered her a ride home, but she refused. He left her there, and she continued on her way home. She arrived at her apartment around 2:30 or 3:00 a.m. She swallowed five or six Tylenols, got a knife, sat in the bathtub with her clothes on, and considered cutting her wrists. She heard her cat meow, so she got out of the bathtub. [ 21 ] She then called her mother and told her: “Mom, I was raped.” Her mother called the police. Shortly thereafter, her mother and Constable Rob King arrived at her apartment. Constable King testified it was 4:32 a.m. Half an hour later, Ms. AB was taken to the hospital. D.

Other evidence heard during the trial [ 22 ] As mentioned, Mr. Foster testified the plan from the beginning was that Ms. AB would be staying at his house overnight, while she testified he was to take her back around 9 p.m., as he had a meeting around that time. During examination in chief, Ms. AB testified she decided to sleep over in Mr. Foster’s bed, rather than accept Mr. Foster’s offer to drive her back home around 9 p.m., because she was nervous about leaving, given the risk she might meet her former boyfriend, EF, who resided upstairs in the same house as Mr. Foster. Ms.

AB had gone out with EF for two to three years in the past. They apparently had a difficult break-up about a year prior to the incident, and a restraining order had been issued to keep him away from her. She wanted to avoid a confrontation with him and his girlfriend. However, in cross-examination, she testified she went to Mr. Foster’s residence that evening, in part, because she “just wanted to know if [EF’s] life was better without [her] in it.” Mr.

Foster acknowledged they had discussed her concern about a chance meeting with EF while she would be at his house, and he had informed her there was a door downstairs which they could use to exit the house, if they needed to. [ 23 ] The first witness to be called by the Crown was Constable King. He testified he responded to a call “ in regards to an alleged sexual assault that occurred.” He said he had not noticed any physical marks or injuries on the complainant. He was not asked, nor did he say whether he had taken photographs. Then Ms. AB testified.

She said she was left with a mark on her neck caused by the choking and she “had pointed it out to [the officer] and he took a picture with his […] cellphone.” The Crown then called Constable Mansel Leslie Drost, the lead investigator on the file. He testified there was no evidence in the investigative brief about photographs of injuries to the complainant. He was not aware of any photograph having been taken, and if one had been taken, it should have been in the file along with a narrative from the officer who took the photo.

He agreed that if an officer investigating a sexual assault allegation notices discernable bruising, marks or cuts, he would expect these would be photographed by someone from the police identification services. III. Analysis – Did the trial judge commit a reversible error by erroneously conflating “consent” ( actus reus ) with “honest but mistaken belief in consent” ( mens rea )? A.

What are the essential elements of sexual assault? [ 24 ] An accused must be found not guilty of sexual assault unless the Crown has proved beyond a reasonable doubt that he or she is the person who committed the offence on the date and in the place described in the indictment. Specifically, the Crown must prove each of the following essential elements of the offence beyond a reasonable doubt: • That the accused touched the complainant directly or indirectly; • That the touching by the accused was intentional;

• That the touching by the accused took place in circumstances of a sexual nature; • That the complainant did not consent to the sexual activity in question; and • That the accused knew that the complainant did not consent to the sexual activity in question. [25] Unless the trial judge is satisfied beyond a reasonable doubt that the Crown has proved all theseessential elements, he or she must find the accused not guilty of sexual assault. [26] The actus reus of sexual assault is established by the proof of three elements: (

i) touching; (ii)the sexual nature of the contact; and (iii) the absence of consent. The first two of these elements are objective. The absence of consent,however, is subjective and determined by reference to the complainant’s subjective internal state of mind towards the touching, at thetime it occurred: R. v. Ewanchuk, (SCC), [1999] 1 S.C.R. 330, [1999] S.C.J. No. 10 (QL), at paras. 25-26. The lastelement – the accused’s knowledge of the complainant’s lack of consent – deals with the mens rea of the offence, and this is where thedefence of mistaken belief in communicated consent comes in. B.

What were the live issues at trial? [27] In her written submission, Crown counsel (who was not counsel at trial) submits that “a closereading of the record confirms that the central issue was just as the parties and the trial judge determined it to be: the defence ofmistaken belief in consent. [R. v. Barton, 2019 SCC 33, [2019] S.C.J.

No. 33 (QL)] is determinative of this issue” (para. 3); “[n]eithercounsel for the defence nor counsel for the Crown advanced this case as anything other than one based on mistaken belief in consent”(para. 21); and “the defence was clearly and almost exclusively focused on mistaken belief and not on the issue of actus reus consent”(para. 30). With respect, I disagree. [28] Although it may be that the trial judge determined the case to be about one issue only, i.e.mistaken belief in consent, Mr. Foster raised both defences: consent and mistaken belief in consent.

He maintained all sexual activity wasconsensual, but that Ms. AB regretted what she had done and changed her story because of her boyfriend’s bad reaction when she toldhim she had sex with someone.

At trial, in his closing arguments, defence counsel (who was not counsel who appeared before this Court)summarized the issues as follows: Now I know consent you’re gonna figure that out legally, but so what’s critical here though it’s either it’s consent and then she says uhoh I got a boyfriend here and I probably shouldn’t have done this so apparently according to her, she texted him and says that she didsomething wrong. It’s either fully consensual on her part and then she has regrets and goes down a different path with it which we seehere. But I thought the Crown did a great job when they cross-examined Mr.

Foster because it’s what’s critical’ cause I’m gonna also putto the Court that he has a mistaken but honest belief that she consents. [Emphasis added.] [29] Also, as stated by Major J. writing for the majority in Ewanchuk, in cases where the accusedacknowledges that the sexual activity unfolded more or less as the complainant describes it, but disputes any crime took place, bothdefences are before the Court: […] the accused can only make one claim: that on the basis of the complainant’s words and conduct he believed her to be consenting.This claim both contests the complainant’s assertions that in her mind she did not consent, and posits that, even if he were mistaken in hisassessment of her wishes, he was nonetheless operating under a morally innocent state of mind.

It is for the trier of fact to determinewhether the evidence raises a reasonable doubt over either her state of mind or his. [para. 63] [30] Both consent and mistaken belief in consent were argued by the appellant and the Crown duringthe appeal hearing. [31] I will first review the concepts of actus reus and mens rea, in the context of sexual assault, andwill then discuss the correct approach for analysis when both consent and mistaken belief in consent are potentially in issue.

C. What is the role of consent in the sexual assault analysis? [32] Sexual activity only becomes a crime in the absence of the complainant’s consent. In Barton,the Supreme Court refined the judicial lexicon and relabelled the defence of “honest but mistaken belief in consent” as the defence of“honest but mistaken belief in communicated consent” and reiterated the components of the offence of sexual assault: 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). [para. 87] [33] “Consent” means “the voluntary agreement of the complainant to engage in the sexual activityin question”: s. 273.1(1) of the Criminal Code. [34] Consent is an integral component of the actus reus and the mens rea but considered fromdifferent perspectives and “treated differently at each stage of the analysis” (Barton, at para. 89).

The physical element of non-consent isdistinct from the mental element, i.e. whether the accused knew or was reckless as to whether or not consent has been communicated.The trier of fact must always separate the actus reus of the offence, which is whether or not consent was present, and the mens rea,whether the accused believed that consent was present. [35] The analysis of the consent component, as it relates to the actus reus of sexual assault, shouldbe kept separate from the analysis of consent, as it relates to the mens rea of the offence, as the Supreme Court teaches in Ewanchuk: There is a difference in the concept of “consent” as it relates to the state of mind of the complainant vis-à-vis the actus reus of theoffence and the state of mind of the accused in respect of the mens rea.

For the purposes of the actus reus, “consent” means that thecomplainant in her mind wanted the sexual touching to take place. In the context of mens rea – specifically for the purposes of the honest but mistaken belief in consent – “consent” means that thecomplainant had affirmatively communicated by words or conduct her agreement to engage in sexual activity with the accused. Thisdistinction should always be borne in mind and the two parts of the analysis kept separate. [paras. 48-49] [Emphasis added.] [36] At the first stage, the focus should be placed squarely on the complainant.

The absence ofconsent is subjective and must be determined by reference to the complainant’s subjective internal state of mind towards the touching atthe time it occurred. The accused’s perception of that state of mind is irrelevant. At the second stage, the focus “shifts to the mental stateof the accused, and the question becomes whether the accused honestly believed ‘the complainant effectively said ‘yes’ through herwords and/or actions’” (Barton, at para. 90; and Ewanchuk, at para. 47). [37] In R. v. G.F., 2019 ONCA 493, [2019] O.J.

No. 3106 (QL), (application for leave to appealgranted (without reasons) January 9, 2020, [2019] S.C.C.A. No. 331), the Court held a two-step approach should be followed where bothconsent and capacity to consent are potentially in issue. It set aside the sexual assault convictions and ordered a new trial for twoappellants, based on two grounds, one being the trial judge failed to, first and separately, consider the issue of consent, apart from theissue of capacity to consent, which the Court held was itself a reversible error of law.

Pardu J.A., writing for the Court, held the trialjudge “should first consider whether the Crown has proven beyond a reasonable doubt that the complainant did not consent to sexualcontact” and then turn, if necessary, to whether or not the complainant had the capacity to consent (para. 41); and, that “[i]n any case, theanalysis should not be blurred between the two separate issues, consent and capacity to consent” (para. 48).

If the complainant did notconsent, then there was no ostensible consent vitiated by lack of capacity. [38] In my view, this rationale also applies to the present case, even though it is the notions ofconsent and mistaken belief in consent that are potentially in issue. In this case, if non-consent is not proved, then there is no need toproceed with the second inquiry. Therefore, as in G.F., the issue of consent must be considered and decided first and separately from thesecond issue, that is mistaken belief in communicated consent. If proof of non-consent failed, the defence of mistaken belief became

moot. D. The importance of assessing the complainant’s credibility when analyzing consent at the actus reus stage [ 39 ] The consent must be to each and every act that occurred. A complainant is not obliged to express a lack of consent either by words or conduct. There is no consent unless the complainant has agreed in her mind to the sexual activity at the time it was occurring. Silence does not constitute consent. Nor does submission or lack of resistance.

However, the onus is on the Crown to prove beyond a reasonable doubt that the complainant did not consent to the sexual activity in question. [ 40 ] For a trial judge to determine whether the Crown has proved beyond a reasonable doubt that the complainant, in her mind, did not want the sexual touching to take place, he or she must assess the complainant’s credibility at the first stage of the analysis. Unless the trier of fact is satisfied beyond a reasonable doubt that the complainant did not consent to the sexual activity in question, he or she must find the accused not guilty.

If there is reasonable doubt that she did, the case is over. Only if he or she is satisfied beyond a reasonable doubt that the complainant did not consent to the sexual activity in question, must he or she go on to the next essential element of the offence, the mens rea , often referred to as the defence of honest but mistaken belief.

If the Crown does not convince the trier of fact beyond a reasonable doubt that the complainant did not consent to the sexual activity in question, he or she must find the accused not guilty. [ 41 ] A complainant may say she did not consent; however, the trier of fact must decide beyond a reasonable doubt that this is true.

At this stage the question is purely one of credibility, which must be assessed by the trial judge in light of all available evidence, including the complainant’s conduct before and during the sexual activity in question, any words or gestures, evidence of any ambiguous or contradictory conduct by the complainant, and any other indication of the complainant’s state of mind at the time.

If the trier of fact accepts the complainant’s testimony that she did not consent, no matter how strongly conduct may contradict her claim, the absence of consent is established and the third component of the actus reus of sexual assault is proved. At this point, the actus reus is complete. [ 42 ] As to the importance of assessing the complainant’s credibility, the Supreme Court in Ewanchuk explained it as follows : While the complainant’s testimony is the only source of direct evidence as to her state of mind , credibility must still be assessed by the trial judge, or jury, in light of all the evidence .

It is open to the accused to claim that the complainant’s words and actions, before and during the incident, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place. If, however, as occurred in this case, the trial judge believes the complainant that she subjectively did not consent, the Crown has discharged its obligation to prove the absence of consent. The complainant’s statement that she did not consent is a matter of credibility to be weighed in light of all the evidence including any ambiguous conduct.

The question at this stage is purely one of credibility , and whether the totality of the complainant’s conduct is consistent with her claim of non-consent. The accused’s perception of the complainant’s state of mind is not relevant.

That perception only arises when a defence of honest but mistaken belief in consent is raised in the mens rea stage of the inquiry. [paras. 29-30] [Emphasis added.] [ 43 ] The proper approach, as explained by Major J. in Ewanchuk , is for the trial judge to first consider whether the complainant wanted the sexual touching, which comes down to a question of credibility, taking into consideration the totality of the evidence.

Only once he or she has determined that the complainant did not consent, should he or she proceed to an analysis of the defence of mistaken belief in communicated consent: In sexual assault cases which centre on differing

interpretations of essentially similar events, trial judges should first consider whether the complainant, in her mind, wanted the sexual touching in question to occur . Once the complainant has asserted that she did not consent, the question is then one of credibility . In making this assessment the trier of fact must take into account the totality of the evidence, including any ambiguous or contradictory conduct by the complainant. If the trier of fact is satisfied beyond a reasonable doubt that the complainant did not in fact consent, the actus reus of sexual assault is established and the inquiry must shift to the accused’s

state of mind. [para. 61] [Emphasis added.] [44] At the actus reus stage, the issue is: did the complainant consent? If there is a reasonable doubtthat she did, the case is over. The complainant’s state of mind must be proved beyond a reasonable doubt, and the court must look at allavailable evidence, including the accused’s evidence of what the complainant was doing at the time. If the trial judge believes thecomplainant’s assertions that she did not consent, the Crown has discharged its obligation to prove the absence of consent.

On the otherhand, if the trial judge has any reasonable doubt with respect to the complainant’s claim that she did not consent, he or she is simplyapplying the burden of proof to the actus reus and must find the accused not guilty. [45] In R. v. D.I.A. (1999), (NB CA), 215 N.B.R. (2d) 330, [1999] N.B.J. No.303 (C.A.) (QL), an appeal by the Crown was allowed and a new trial directed. Larlee J.A., for the Court, held the trial judge’s failure togive adequate reasons raised doubt as to whether he had understood the defence of mistaken belief in consent.

She also stated that, as theevidence was contradictory, the trial judge was required to make the necessary findings of fact. Since the presence or absence of consentturned on the complainant’s state of mind at the time of the touching, a credibility finding with respect to the complainant’s evidencewas required. [46] In Barton, the Supreme Court makes it clear once again that, at the actus reus stage of theanalysis, the focus is only on whether the trial judge accepts as credible the complainant’s testimony that she did not consent, in her ownmind, to the sexual activity (para. 89).

It is only if, and when, the trial judge has reached the second step, that the defence of honest butmistaken belief in communicated consent should be considered. E. The trial judge’s reasons [47] Considering the aforementioned principles, I turn now to the reasons of the trial judge. [48] The trial judge reserved judgment and then rendered full reasons seven weeks later. Thetranscript of his oral decision is 31 pages in length. The first hint the trial judge may have conflated the issues of consent and mistakenbelief in consent is revealed at the outset of his reasons.

He correctly indicated that the identity of the accused, the date, the jurisdiction,and the fact the parties engaged in a sexual act had been agreed to, but then indicated only one issue remained to be determined: The sole issue for the Court to determine is whether the complainant, [Ms. AB], consented to the sexual act and whether the […]defendant had the necessary mens rea to commit the offence.

In other words was the […] defendant operating under a mistaken beliefthat the complainant by her words or actions communicated her consent to the defendant to engage with him in sexual relations. [pp. 2-3] [Emphasis added.] [49] As already noted, there were two important and separate issues to be borne in mind, analyzed,and determined separately. In the first 17 pages, the trial judge summarized in detail the evidence, which brought out the contradictionsin the testimonies. He then announced he would deal with a credibility assessment of the witnesses.

Without addressing thecontradictions in the evidence, he declared that both Mr. Foster and Ms. AB came across as credible and sincere. He found their evidencereliable, and commented it was more a question of perception. Without concluding he believed the complainant’s claim that in her mindshe did not want the sexual touching to take place, he proceeded to consider the mens rea, i.e., the defence of mistaken belief: Next part of my decision is dealing with the witness […] credibility assessment.

Both witnesses are young and I found for the most part they were attempting to recollect the events of August 19th, 2016 in a truthful and honest manner. My overall impression was that theyinterpreted the events of that night from different perspectives and were unaware of the other’s aspirations that night. Regarding thecomplainant I believe she thought she was looking for a fun night out with an old acquaintance to watch movies which would be a gooddistraction from the feelings of […] sadness she felt about being rejected by her boyfriend a few days earlier. She had no romanticdesires towards the defendant.

From the defendant’s point of view, he viewed the situation differently. He believed that the complainanthad been flirting with him and when she accepted his invitation to come to his residence to watch movies, he believed and desired thatshe was interested in him romantically. I believe due to the young age and sexual immaturity of the parties […] that both felt awkwardabout discussing the respective romantic […] positions.

Had they discussed same hopefully the complainant would have told thedefendant she – that she had no romantic interest in him and the defendant would have [ceased] any sexual advances towards her.

Unfortunately no discussion took place and the defendant believed his pre-sex actions of cuddling, back massaging, kissing, etcetera without any serious objections from the complainant were all signals to him that she was consenting to further sexual intercourse. As I have said both witnesses came across as credible and sincere . Despite the events occurring over 18 months prior to trial, they had good recollection of the events of that night and their evidence was consistent for the most part.

Neither appeared to exaggerate their evidence and both the defendant and the complainant came across as being persons of generally good character. As mentioned earlier there’s no dispute that a sexual act occurred in this case. All the essential elements of the offence have been proved by the Crown or admitted by the defendant. Now, I’ll look at the law on the subject. The question is whether the defendant has a legal defence to the charge under the defence of mistaken belief [in] consent. A

summary of this legal defence is required . [pp. 17-19] [Emphasis added.] [ 50 ] At this point, although the trial judge stated all essential elements had been proved or admitted, there had been no prior analysis or conclusion by him that the Crown had proved “non-consent,” and the defendant certainly had not admitted non-consent. His conclusion on the essential element of non-consent would only come twelve pages later.

Even though the sexual act had been admitted, the trial judge still had to decide whether this was a crime or consensual sex before proceeding to analyze the defence of mistaken belief. [ 51 ] For the next six to seven pages, the trial judge summarized and analyzed the defence of mistaken belief in consent, referring to the Criminal Code sections and case law dealing with this defence. He then acknowledged he must determine whether there was evidence of the complainant agreeing to engage in sex.

However, as is apparent in the following excerpt, he immediately jumped to the defendant’s state of mind, concluding he was not reckless or willfully blind, but questioned whether the accused took reasonable steps to ascertain that the complainant was consenting: The issue is whether the complainant consented to the sexual act. I am satisfied that no verbal communications between the parties determined whether consent was made. The Court must […] next determine whether there was any other evidence pointing to the complainant agreeing to engage in sex.

It is insufficient for the defendant to state he […] believed the complainant was consenting to sex. After listening to the evidence, I do not believe the defendant was reckless or wilfully blind. I accept his evidence that he […] read the complainant’s signals of allowing him to cuddle despite her earlier objections allowing her to be massaged and allowing her neck to be kissed as signs she was consenting to further sexual relations.

However, the defendant must also convince the Court that he took reasonable steps to ascertain that the complainant was consenting . [pp. 25-26] [Emphasis added.] [ 52 ] The trial judge then went on to examine, in the next three to four pages, whether Mr. Foster had taken reasonable steps and then reached, at the same time, his conclusion on both non-consent and mistaken belief in consent: I believe a reasonable person in these circumstances would have taken […] further steps before proceeding with the sexual acts.

In addition to engaging in sex without discussing using a condom could have resulted in unwanted pregnancy. Based on the foregoing I conclude that the complainant did not consent to sex with the defendant and the Crown has proven same beyond a reasonable doubt. I further conclude that the defence of mistaken belief and consent by the defendant had not been satisfactory made out.

I find the defendant did not […] convince the Court that he took reasonable steps in the circumstances known to him at the time to determine whether [she] was consenting to sexual relations with him . [pp. 29-30] [Emphasis added.] [ 53 ] The defence of mistaken belief in consent should not have been considered before the trial judge decided the issue of non-consent. [ 54 ] Another example that demonstrates the trial judge appeared to have conflated or confused the actus reus with the mens rea occurred when he analyzed the defence of mistaken belief in consent.

He referred to and quoted from different parts of paras. 26-30 of Ewanchuk . He quoted from the beginning of para. 29, which deals with the actus reus and requires the trial judge to assess the complainant’s credibility in light of all the evidence. Then he strayed and quoted only parts of para. 29, and seemed to attempt to explain what those words meant: [Major J.] noted that: “While the complainant’s testimony is the only source of direct evidence as to her state of mind, credibility must still be assessed by the

trial judge… in light of all the evidence.” The accused may “claim […] that the complainant’s words” or “actions… raise a reasonable doubt against her assertion that she… did not want the sexual touching to take place.” In other words the accused acted […] innocently under a flawed perception of facts and nonetheless committed the actus reus - actus reus of the offence . [p. 21] [Emphasis added.] [ 55 ] He then continued to quote other parts of paras. 29 and 30 of Ewanchuk .

It is not clear this belief that the accused “ nonetheless committed the actus reus - actus reus of the offence ” did not constitute the basis for the trial judge’s conclusion that the actus reus of the offence − non-consent being the important component – had been proved. He failed to distinguish between the essential element of non-consent and the defence of mistaken belief in consent. [ 56 ] To commit the actus reus , the accused must touch another person in a sexual way without that person’s consent : Barton , at para. 87 .

Therefore, non-consent, from the complainant’s perspective, must be proved before the actus reus can be considered complete. While an accused’s “flawed perception of facts” may be relevant to the mens rea , it is not relevant to the consent component of the actus reus − which is only concerned with the complainant’s state of mind − and surely does not prove beyond a reasonable doubt that the accused “ nonetheless committed the actus reus - actus reus of the offence .” F. The assessment of the complainant’s credibility [ 57 ] The trial judge reached very few conclusions about the contradictions in the testimonies.

The most significant ones are captured in the following passage, made when he analyzed the defence of mistaken belief in consent:

(3) The defendant and the complainant had cuddled and kissed before intercourse along with the defendant giving the complainant a backrub with her shirt removed leaving her bra on and

(4) I accept the complainant’s evidence that she had […] rebuffed the defendant’s earlier advances to cuddle and told him she didn’t like being touched. [p. 25] [ 58 ] Many contradictions were not dealt with. Had they agreed by text, prior to their encounter, that she would stay overnight ? Did she ask him for a back massage? Did she see him consume marihuana using a bong? Did she, around 9 p.m., decide to stay overnight because she was afraid to meet EF and his girlfriend , if she left? Did she kiss the accused first ? Did she assist him in removing her underwear and leggings? Did Mr.

Foster violently choke her during sexual intercourse? Did a police officer take a photograph of marks on her neck? Did she have a motive to allege that the sexual activity which occurred was non-consensual? [ 59 ] Proof beyond a reasonable doubt, the standard in criminal law matters, applies equally to the issue of credibility; the issue at the end of a trial is not credibility, but reasonable doubt. A trier of fact need not firmly believe or disbelieve any witness. A reasonable doubt need not rest upon the same sort of foundation of factual findings that is required to support a conviction.

The trial judge is under no obligation to enter into a detailed account of all conflicting evidence or to set out every finding or conclusion in the process of addressing the credibility issue; however, non-existent or inadequate reasons with respect to credibility may justify appellate intervention. Yet, successful appeals from a trial judge’s verdict in a criminal law case, on the grounds the judge did not provide sufficient reasons for a credibility assessment or that the judge did not properly apply the burden of proof, should be rare. See Wilson v.

R. , 2013 NBCA 38 , 412 N.B.R. (2d) 100, where the Court, in a decision penned by Richard J.A. (as he then was), reviewed many of the principles established in earlier cases relating to the standard of proof regarding credibility in criminal law cases and sufficiency of reasons regarding the credibility issue. [ 60 ] In Murphy v. R. , 2004 PESCTD 31 , [2004] P.E.I.J. No. 34 (QL), Jenkins J. (as he then was), sitting as a

Summary Conviction Appeal Court, set aside a conviction for sexual assault, finding the trial judge had committed three reversible errors, each being a separate stand-alone ground for finding the conviction was unreasonable and unsafe. One such error was the trial judge’s failure to properly assess the evidence of the complainant. He concluded the analysis of this error by stating:

All of this does not imply that the complainant evidence is necessarily unreliable or untrue or that a sexual assault did not occur. It does satisfy me though that absent proper assessment of the complainant’s evidence the trial judge’s findings as to credibility are tenuous and that it would not be reasonable to rest a conviction upon them. An accused is entitled to the benefit of reasonable doubt.

Concomitant with that is a proper assessment of the complainant’s evidence before accepting it as proof beyond a reasonable doubt of an essential element of the offence. [para. 21] [ 61 ] As noted, in this case, the trial judge’s “overall impression was that they interpreted the events of that night from different perspectives” (p. 17). Mr. Foster argues that it is more than a different perception; it is in fact two different versions. He describes a planned romantic evening with consensual, incremental steps that eventually leads to consensual intercourse, while Ms.

AB describes feeling uncomfortable from the beginning and a series of unwanted touching, sexual assaults and unwanted sexual intercourse. [ 62 ] Perhaps the most striking difference between testimonies, which was not addressed or resolved by the trial judge, was Ms. AB’s allegations concerning the choking incident, and the marks left on her neck which she said was photographed by the officer. Ms. AB testified Mr.

Foster violently choked her without warning; he denied any choking or putting his hand around her throat. [ 63 ] The defence argues this allegation of the use of force during the sexual activity was highly suspect considering the absence of any injuries to her neck. Further undermining her credibility, the defence argues, was her insistence that there were visible injuries and that an officer photographed those injuries, claims which seem inconsistent with the evidence of the officers who testified.

The defence submits this could not reasonably be seen as simply unreliable or owing to an ordinary honest but mistaken perception or recollection; either he choked her violently to the verge of passing out, or he did not. Defence counsel further argues the trial judge was required to resolve this glaring conflict because it necessarily impacted the analysis of both consent and mistaken belief in consent.

Had he found her evidence concerning the violent choking and the photographs was false or may have been false, then great care and caution was required before believing her assertions of non-consent. [ 64 ] The Crown argues that while Mr. Foster’s denial of choking the complainant does constitute a difference and a conflict in their testimonies, it is not a conflict in the evidence essential to the verdict, because nowhere in the record does the complainant testify that Mr. Foster choked her to overcome her will and to force her to physically submit to intercourse.

The intercourse had started, penetration had already occurred and then, alleges the Crown, as part of the act, Mr. Foster had one hand on her throat, choking her as he continued the act. Therefore, the Crown submits the trial judge did not have to reach a conclusion on whether these allegations were true or not. [ 65 ] Even if the Crown is right in contending the choking incident was not determinative of the offence, this would not mean it was irrelevant when assessing the veracity of the complainant’s claim that she did not consent.

The law requires the trial judge to consider all the evidence when assessing the complainant’s credibility, including what happened before and during the sexual activity . Even if the differences between the testimonies may not be relevant regarding whether or not the sexual assault occurred, evidence is relevant if it makes an issue, including her credibility, more or less likely to be true. Sexual activity is not a crime; non-consensual sexual activity is. [ 66 ] In R. v. L.S ., 2017 ONCA 685 , [2017] O.J.

No. 4586 (QL), the Court had to determine whether evidence related to the relationship between the parties following an alleged sexual assault was relevant. Doherty J.A., writing for the Court, held that evidence, although not determinative of whether an assault occurred, can be relevant in deciding whether the Crown had proved beyond a reasonable doubt that the incident described by the complainant (i.e. forced sexual activity) had in fact occurred.

He wrote: I do not suggest that evidence that E.K. and the appellant continued a relationship that included consensual sexual intercourse after the alleged assault demonstrated that the assault did not occur. Different people will react differently to the same event. However, to acknowledge that evidence that the relationship continued as before was far from determinative of whether the assault occurred, is not the same as holding that the evidence is irrelevant.

Evidence does not have to establish or refute a fact in issue to be relevant; it need only, as a matter of common sense and human experience, have some tendency to make the existence or non-existence of that material fact more or less likely. There is a big difference between evidence that is relevant and evidence that is determinative: see R. v. A. (No. 2), [2001] 2 W.L.R. 1546, at para. 31 (H.C.) . This evidence was relevant. [para. 89] [ 67 ] In R. v. Butler , [1998] O.J. No. 392 (C.A.) (QL) , the Ontario Court of Appeal set aside a sexual assault conviction and ordered a new trial.

The Court based its decision on the appellant’s principal ground of appeal which alleged the trial judge had erred in failing to determine whether the Crown had proved non-consent beyond a reasonable doubt before commencing his analysis of the defence of honest but mistaken belief, and this resulted in reversible error. Borins J.A., for the Court, also held that the

trial judge failed to make critical findings of fact before he considered the application of s. 273.2.: There was evidence which if believed, or not rejected, was capable of raising a reasonable doubt. This was a case in which the trial judge appeared to have difficulty in deciding whether the complainant’s evidence, or the appellant’s evidence, was believable. He never resolved this issue .

He did not specifically reject the evidence of either, and neglected to consider whether the appellant’s evidence created a reasonable doubt in regard to the issue of the complainant’s consent before he commenced his s. 273.2 analysis. He made a probable, and not a definite, finding as to how the complainant’s panties were removed.

In the particular circumstances of this case, a definite finding as to how, and in what manner, the complainant’s panties were removed was critical to both the issue of consent and the issue of honest, but mistaken, belief in consent. [para. 7] [Emphasis added.] [ 68 ] Although many of the contradictions in this case had nothing to do with whether the sexual assault occurred, they could be relevant when assessing the credibility of the complainant. [ 69 ] Mr. Foster testified the complainant, just before intercourse occurred, assisted him in removing her underwear and tight leggings.

She testified he had lowered them to her ankles by himself and that they were not completely removed. Although not determinative of the offence, the complainant’s evidence on this question could be an indicator regarding credibility, depending on the trial judge’s conclusion. If the trial judge had found the complainant conducted herself as alleged by Mr.

Foster, assisting him in removing her underwear and leggings, having said she did not, how would that affect her overall credibility? [ 70 ] What is the implication for the reliability and the veracity of the complainant’s evidence should it be determined that she was, or may have been, either lying or wrong about what happened before or during the sexual activity? The trial judge’s conclusions about what actually happened could have been material, individually or cumulatively. Confidence in both the veracity of her statement and the reliability of her subjective assessment is critical to a conviction.

Furthermore, it is not a question of simply comparing her evidence with the accused’s evidence. All of this is subject to the assessment of whether the evidence is credible and reliable, filtered through the Crown’s burden to prove the essential element of non-consent beyond a reasonable doubt. If proof of the essential element of non-consent fails, the defence of mistaken belief becomes moot. [ 71 ] The defence argued Ms. AB had a motive to depict the events as non-consensual because of the exchange she had with her boyfriend CD, immediately after the incident.

Relying on the complainant’s evidence of what transpired between her and CD in the minutes following sexual intercourse with Mr. Foster, and during her walk home, defence counsel at trial suggested the complainant fabricated the sexual assault as a way to salvage her relationship with her boyfriend, with whom she had reunited by the time of trial. The trial judge made no comment concerning motive. The existence or absence of a motive by the complainant to fabricate is a relevant factor to be considered in assessing credibility in a sexual assault trial: R. v. Zepeda , 2018 ABCA 425 , [2018] A.J.

No. 1491 (QL), at para. 10 ; and R. v. Greer , 2009 ONCA 505 , [2009] O.J. No. 2566 (QL), at para. 5 . [ 72 ] Once the complainant asserts that she did not consent in her mind, the question is one of credibility. Her testimony is the only source of direct evidence as to her state of mind; credibility becomes very important and therefore, in these circumstances, it is beyond debate that the rule of reasonable doubt applies to the issue of credibility. IV. Conclusion [ 73 ] The trial judge did not first and separately deal with the actus reus . He did not keep each analysis distinct and apart.

As a result, he conflated the concepts of actus reus and mens rea , and did not in fact analyze whether the Crown had proved beyond a reasonable doubt that the complainant’s claim of non-consent was true, as the law requires him to do, before proceeding to the second stage – the analysis of the mens rea , i.e. mistaken belief in communicated consent. [ 74 ] Conflating these two notions led the trial judge into an incorrect legal analysis, whereby he erroneously considered the accused’s state of mind as relevant to non-consent and failed to consider and assess aspects of the complainant’s evidence which were relevant to the question of her credibility and her state of mind.

Had he made a separate analysis of the actus reus , he would have realized that he had to assess the complainant’s credibility in order to determine whether the Crown had proved non-consent beyond a reasonable doubt. [ 75 ] As Major J. noted in Ewanchuk : “While the complainant’s testimony is the only source of direct

evidence as to her state of mind, credibility must still be assessed by the trial judge, or jury, in light of all the evidence” (para 29), and “[o]nce the complainant has asserted that she did not consent, the question is then one of credibility” (para. 61). The inquiry at the first stage of the analysis should have focused on the complainant’s credibility generally, and whether her words or actions (as found by the trial judge), before and during the sexual activity, including any ambiguous action, undermined her assertion about her state of mind.

Although the trial judge was not obligated to deal with each contradiction, had he assessed the complainant’s general credibility, I expect he would have dealt with a few of the more significant contradictions. [ 76 ] It is clear the trial judge did not engage the two-step analytical process, nor embark on an assessment of the complainant’s credibility, in the manner that the Supreme Court instructs us to do in Ewanchuk and Barton , by first evaluating whether the complainant did not consent and then turning, if necessary, to the defence of mistaken belief in consent.

The way the reasons are structured leaves me to conclude the trial judge did not consider the issue of non-consent, a component of the issue of actus reus , separately from the issue of the mens rea before proceeding to examine the defence of mistaken belief; he conflated both issues and thereby committed a reversible error of law. [ 77 ] In view of this error, I would set aside the conviction and order a new trial. Mr.

Foster raised other grounds of appeal which, in view of my conclusion on the principal ground, are unnecessary to consider. [ 78 ] To successfully navigate a sexual assault charge, trial judges must be very careful about distinguishing between the actus reus and mens rea elements. Many cases and jury charges go wrong through a simple failure to properly distinguish whether one is addressing a physical element, most often the issue of non-consent, or the mental element, which deals with communication of consent.

We can and must do better: Barton , at para. 1 . [ 79 ] I conclude with two quotes which bear repeating in the context of this case. In 1999, Major J. concluded his reasons in Ewanchuk with the following paragraph: Cases involving a true misunderstanding between parties to a sexual encounter infrequently arise but are of profound importance to the community’s sense of safety and justice. The law must afford women and men alike the peace of mind of knowing that their bodily integrity and autonomy in deciding when and whether to participate in sexual activity will be respected.

At the same time, it must protect those who have not been proven guilty from the social stigma attached to sexual offenders. [para. 66] [ 80 ] In July 2019, Karakatsanis J., writing for the majority of the Supreme Court, in R. v. R.V ., 2019 SCC 41 , [2019] S.C.J. No. 41 (QL), began her reasons with the following sentence: “ Sexual assault trials raise unique challenges in protecting the integrity of the trial and balancing the societal interests of both the accused and the complainant.” V. Disposition [ 81 ] For the reasons set out above, I would allow the appeal, set aside the conviction and order a new trial.

Version française de la décision de la Cour rendue par LA JUGE LAVIGNE

I. Introduction et aperçu [1] Voici une autre affaire qui illustre le fait que les procès pour agression sexuelle donnent lieu à des difficultés uniques. Elle souligne également l’importance pour le juge des faits de déterminer, en premier lieu et séparément, si le ministère public a prouvé hors de tout doute raisonnable l’élément essentiel du non-consentement avant de passer à l’analyse de la défense de croyance sincère mais erronée au consentement communiqué. [2] Shane Alexander Foster a été accusé d’agression sexuelle à l’endroit d’AB. M.

Foster n’a pas demandé verbalement à M me AB si elle consentait à l’activité sexuelle qui s’est terminée par des rapports vaginaux, et M me AB n’a pas indiqué verbalement son consentement ou son non-consentement à l’activité sexuelle. [3] M. Foster a soutenu que la plaignante avait consenti à cette occasion à se livrer à l’activité sexuelle; subsidiairement, il a fait valoir que si elle n’avait pas consenti, il avait cru sincèrement, mais à tort, qu’elle l’avait fait. Un juge de la Cour provinciale a conclu que M me AB n’avait pas consenti à l’activité sexuelle.

Il a également rejeté la défense de croyance sincère mais erronée de M. Foster au consentement, concluant que celui-ci n’avait pas pris des mesures raisonnables, dans les circonstances qu’il connaissait alors, pour vérifier si la plaignante était consentante. [4] Il a déclaré M. Foster coupable de l’infraction indiquée dans l’acte d’accusation, à savoir l’acte criminel visé à l’ al. 271(1)

a) du Code criminel , L.R.C. 1985, ch. C-46 , l’a condamné à une peine d’emprisonnement d’un an et lui a imposé plusieurs ordonnances accessoires découlant de la nature de l’infraction, y compris une ordonnance l’enjoignant à s’inscrire au registre des délinquants sexuels pour une période de 20 ans. [5] M. Foster interjette appel de sa déclaration de culpabilité.

Il prétend que le verdict était déraisonnable, que le juge du procès a confondu l’élément du consentement et la défense de la croyance erronée au consentement, a inversé le fardeau de la preuve concernant la défense de la croyance erronée et a mal apprécié la preuve concernant la croyance erronée au consentement. M. Foster, qui a été libéré sous caution en attendant l’issue du présent appel, reconnaît qu’un verdict d’acquittement de notre Cour ne serait pas approprié dans les circonstances.

Il demande un nouveau procès. [6] Je suis convaincue que l’appel doit être accueilli pour le motif que le juge du procès a confondu l’élément essentiel de l’infraction d’agression sexuelle — l’élément de l’ actus reus ou du non-consentement — et le dernier élément essentiel — la défense de croyance sincère mais erronée au consentement communiqué, qui sert à réfuter la mens rea .

Le juge du procès n’a pas déterminé, en premier lieu et séparément, si le ministère public avait prouvé hors de tout doute raisonnable l’élément essentiel du non-consentement, en faisant abstraction de la question de la mens rea , avant de passer à l’analyse de la défense de croyance sincère mais erronée au consentement communiqué. Il s’agit d’une erreur de droit à laquelle s’applique la norme de contrôle de la décision correcte et qui justifie l’intervention de notre Cour.

En conséquence, pour les motifs qui suivent, je suis d’avis d’accueillir l’appel, d’annuler la déclaration de culpabilité et d’ordonner la tenue d’un nouveau procès. II. Résumé de la preuve [7] Le procès a duré moins d’une journée. M. Foster et M me AB ont tous les deux témoigné au procès. Les seuls autres témoins ont été deux agents de police. M. Foster et M me AB s’entendaient sur beaucoup de choses qui se sont produites le soir de l’incident, mais il y avait aussi des différences importantes dans leurs témoignages. A.

Ils s’entendaient essentiellement sur les faits suivants [8] L’incident s’est produit entre le 19 et le 20 août 2016. M. Foster avait eu 20 ans en mai, tandis que M me AB allait avoir 18 ans dans un mois . Même s’ils avaient été amis à l’école secondaire, où ils se tenaient avec le même groupe d’amis, ils n’avaient jamais eu de relation amoureuse. Il avait un an d’avance sur elle et avait obtenu son diplôme d’études secondaires l’année précédente. Ils étaient restés amis sur Facebook, mais ne s’étaient pas vus pendant l’année précédente.

[9] Avant l’incident, le même jour ou la veille, ils ont commencé une conversation sur Facebook Messenger. Elle a aimé son statut Facebook, et il a envoyé le premier message texte. Les deux traversaient une période difficile. M. Foster avait engendré un enfant et éprouvait certains problèmes concernant cette situation. Le petit ami de M me AB, CD, avait rompu avec elle par message texte quelques jours avant l’incident, pendant qu’elle était à l’Île-du-Prince-Édouard. M. Foster a demandé à M me AB, par message texte, si elle voulait qu’ils se fassent des câlins, et elle a répondu : [TRADUCTION] « Bien sûr. »

Ils ont convenu qu’il irait la chercher le 19 août vers 17 h et qu’ils passeraient du temps ensemble chez lui et regarderaient des films. Comme prévu, il est passé la chercher et l’a conduite chez lui; ils sont arrivés vers 17 h 30. [10] Ils sont immédiatement allés au sous-sol, dans sa chambre, où ils ont passé la soirée à regarder la télévision, assis sur son lit. Ils ont bavardé, et elle a caressé le chat de M. Foster. À l’occasion, pendant la soirée, M. Foster entourait M me AB de son bras et la caressait.

Quelques heures plus tard, ils ont commandé une pizza et l’ont mangée tout en continuant de regarder la télévision. [11] Plus tard, M. Foster a enlevé à M me AB son chandail débardeur et lui a donné un massage du dos. M me AB n’a pas remis le débardeur pendant le reste de la soirée et est restée vêtue d’un soutien-gorge et d’un bandeau qui couvraient le haut de son corps et d’une petite culotte, des leggings et des bas qui couvraient le bas de son corps. [12] Aucune boisson alcoolisée n’a été consommée pendant qu’ils étaient ensemble, et aucun des deux n’avait les facultés affaiblies.

Pendant la soirée, M me AB a joué avec son téléphone cellulaire. Sa mère a appelé, et elle lui a dit qu’elle regardait un film avec un ami. [13] Ils ont continué de regarder la télévision, assis ou couchés sur les couvertures du lit. M. Foster était encore habillé. Plus tard, ils se sont mis sous les couvertures. M me AB a gardé les vêtements qu’elle avait. M. Foster lui a demandé s’il pouvait se déshabiller et venir au lit avec seulement son sous-vêtement; elle a accepté. [14] Ils n’ont pas eu de discussions sur des relations sexuelles ni parlé d’utiliser un condom. M. Foster ne portait pas de condom.

M me AB a témoigné qu’elle avait toujours des [TRADUCTION] « contraceptifs » avec elle. [15] M me AB était couchée sous les couvertures, le dos vers M. Foster. À un certain moment, il s’est approché d’elle, ils se sont embrassés, et il a mis sa main dans sa petite culotte. La petite culotte et les leggings de M me AB étaient soit complètement enlevés soit descendus jusqu’aux chevilles. M. Foster s’est placé entre les jambes de M me AB, et une relation vaginale a eu lieu. Aucune parole n’a été dite pendant l’activité sexuelle.

Après la fin des rapports sexuels, il s’est viré de bord; elle s’est levée et est allée à la salle de bains. B. Voici les différences majeures entre leurs témoignages Événement Récit de M me AB Récit de M. Foster Messages texte échangés avant leur rencontre Le plan convenu était qu’il la reconduirait chez elle entre 20 h et 21 h, car il allait partir ensuite pour aller à une réunion à 21 h ou à 22 h. Elle avait également convenu qu’il pourrait venir à son appartement à elle après la réunion. Peu après, elle a effacé ses messages, comme elle en avait l’habitude.

Il a témoigné qu’ils avaient échangé des messages texte de flirt dans lesquels elle l’avait appelé [TRADUCTION] « mignon » ou « beau ». Deux jours avant l’incident, ils avaient convenu par messages texte qu’il irait la chercher à 17 h le 19 août et qu’elle passerait la nuit chez lui.

Interaction physique en début de soirée Elle était mal à l’aise et nerveuse dès le début. Ils se sont assis sur le lit. Ils ont regardé un film et des émissions de télévision. Pendant le début de la soirée, il a touché son bras et ses cheveux et a essayé de lui donner un baiser à l’arrière du cou. Elle a témoigné qu’elle n’aimait pas être touchée et a dit : [TRADUCTION] « chaque fois qu’il essayait de me toucher, je me dérobais un petit peu et je faisais comme… je faisais des mouvements et il disait, bon, tu n’aimes pas ça. Non, je n’aime pas ça. »

Ils ont regardé trois ou quatre films d’horreur, assis sur son lit. Elle a dit qu’elle aimait regarder des films d’horreur parce qu’elle pouvait se blottir contre lui si elle était effrayée. En regardant les films d’horreur, ils étaient blottis l’un contre l’autre, s’entouraient l’un l’autre de leur bras, et elle appuyait sa tête sur son épaule. Elle n’a jamais refusé ses avances par des paroles ou des gestes, elle ne lui a pas dit de ne pas la toucher et elle ne lui a pas dit qu’elle n’aimait pas ça. Friction ou massage du dos Il a demandé si elle voulait se faire frictionner le dos; elle a dit non.

Il le lui a redemandé plus tard; elle a dit oui. Il lui a enlevé son débardeur, et la friction du dos a duré cinq secondes. Après qu’ils ont mangé la pizza, elle lui a demandé un massage du dos. Il a accepté et lui a enlevé son chandail, sans aucune objection de sa part. Elle s’est couchée sur le ventre, et il lui a donné un massage du dos qui a duré de cinq à dix minutes. Marihuana Elle l’a vu consommer de la marihuana, prendre [TRADUCTION] « une dose avec une pipe à eau ». Il n’a ni consommé de marihuana ni utilisé une pipe à eau.

Décision de rester pour la nuit Il a reçu un appel avant 21 h l’informant que sa réunion était annulée. Il a offert de la reconduire, mais elle a décidé de rester pour la nuit, car elle redoutait de rencontrer un ancien petit ami, EF, qui vivait dans la même maison que M. Foster, si elle partait à cette heure-là . Il n’y a jamais eu de réunion, ni de mention d’une réunion, ni d’appel téléphonique pour annuler une réunion. Le plan, depuis le début, était qu’elle reste pour la nuit, et ce plan n’a jamais été rediscuté avant qu’elle parte.

Mise au lit pour la nuit Ils se sont mis au lit, sous les couvertures, pour dormir. Elle s’est roulée en boule, près du mur, tournant le dos à M. Foster et faisant semblant de dormir. M. Foster s’est endormi. Ils ont continué de regarder la télévision, et ils étaient alors couchés sur les couvertures. Entre 23 h et minuit, ils ont décidé de se coucher sous les couvertures. Ils se sont blottis l’un contre l’autre, en cuillères. Ils ne se sont pas endormis.

Baisers et mains dans son pantalon À un certain moment au cours de la nuit, il s’est réveillé, est venu vers elle et a commencé à mettre sa main dans son pantalon, [TRADUCTION] « comme, juste sur le bord du pantalon ». Elle [TRADUCTION] « s’est retournée pour lui dire d’arrêter », mais il l’a embrassée, et elle l’a embrassé elle aussi. Le baiser a duré de deux à cinq secondes. Elle s’est souvenue qu’elle allait l’arrêter, mais elle ne se souvenait pas s’il s’était arrêté de lui-même ou si elle l’avait arrêté. Elle a expliqué : [TRADUCTION] « La main s’est arrêtée quand je me suis retournée .

C’est-à-dire qu’elle a bougé quand je me suis retournée. » Il a mis sa main dans sa petite culotte et a touché son vagin avec ses doigts, et il a senti [TRADUCTION] « [qu’]elle était mouillée ». Elle a réagi en se retournant et en l’embrassant, et il l’a embrassée lui aussi. Le baiser a duré de cinq à dix secondes. Elle ne lui a pas dit d’arrêter, ni par ses paroles ni par ses gestes. Enlèvement de sa petite culotte et de ses leggings Avec [TRADUCTION] « un geste d’une seule main », il a baissé sa petite culotte et ses leggings presque jusqu’aux chevilles.

Il s’est mis entre ses jambes et a introduit son pénis dans son vagin. Il était difficile d’enlever ses leggings serrés. Toutefois, avec son aide, il a été capable de lui enlever complètement sa petite culotte et ses leggings. Il s’est mis sur elle, et ils ont eu une relation vaginale consensuelle qui a duré de cinq à dix minutes.

Étouffement pendant la relation sexuelle Pendant la relation sexuelle, il se soulevait d’un bras et avait l’autre bras sur sa gorge à elle, avec sa main entourant sa gorge, ce qui l’empêchait de respirer. Ses [TRADUCTION] « yeux sont devenus vraiment gros »; elle [TRADUCTION] « ne pouvait pas respirer ». Elle a vu [TRADUCTION] « des points noirs » et a pensé qu’elle allait [TRADUCTION] « s’évanouir ». Il a cessé de l’étouffer et lui a donné un petit bec sur les lèvres. Ensuite, il a recommencé à l’étouffer. Cela a continué pendant quelque temps.

Il introduisait son pénis dans son vagin et l’en ressortait en continuant de l’étouffer, de la baiser et de l’étouffer de nouveau. Elle voulait bouger, mais ne pouvait pas, parce que son [TRADUCTION] « corps était comme du Jell-O ». Après avoir fini, il s’est retourné et a dit : [TRADUCTION] « C’était formidable. » Elle s’est retrouvée avec des marques sur le cou. Il se soulevait des deux bras pendant la relation sexuelle. Il ne l’a jamais étouffée et n’a jamais mis ses mains autour de sa gorge. Après avoir fini, il s’est retourné. C. Après la relation sexuelle [16] M.

Foster a témoigné que M me AB est allée dans la salle de bains et y est restée pendant un bout de temps qui a semblé inhabituellement long. Quand elle est sortie, il a pensé qu’elle semblait troublée. Elle lui a dit qu’elle retournait chez elle parce qu’elle s’ennuyait de son chat. [17] Il a offert de la reconduire, mais elle a refusé son offre en disant qu’elle avait appelé un taxi. Il a offert d’attendre avec elle, mais elle a dit : [TRADUCTION] « Non, ça va, je vais juste attendre dehors. » Il l’a serrée dans ses bras avant qu’elle sorte de la maison.

Quand la porte s’est ouverte, il a vu une voiture et a pensé que la voiture l’attendait. Ensuite, il a regardé par la fenêtre et la voiture était partie, donc il a supposé qu’elle était dans la voiture. Quand on lui a demandé quelle heure il pensait qu’il était, il a répondu : [TRADUCTION] « Je dirais probablement vers 1 heure. » Plus tard, il lui a envoyé un message texte pour lui demander si elle allait bien, mais elle n’a jamais répondu. [18] M me AB a témoigné qu’après la relation sexuelle, elle [TRADUCTION] « s’est sentie dégoûtante et comme si [elle] avai[t] fait quelque chose de mal ».

Elle a remonté son pantalon, a pris son téléphone cellulaire et est allée dans la salle de bains. Elle a remarqué que CD lui avait envoyé un message texte plus tôt. Elle l’avait vu ce matin-là. Dans la salle de bains, elle lui a envoyé un message texte. Elle a témoigné ainsi : [TRADUCTION] « Je lui ai dit que j’avais fait quelque chose d’horrible, qu’il allait me détester », et [TRADUCTION] « je lui ai dit que j’avais eu une relation sexuelle avec quelqu’un. »

Ensuite, il lui a téléphoné plusieurs fois pendant qu’elle était encore dans la salle de bains, même si elle lui avait dit de ne pas le faire. [TRADUCTION] « [A]près peut-être le sixième appel, [elle a] finalement répondu ». Elle pleurait, et elle a commencé par lui dire qu’elle ne [TRADUCTION] « voulai[t] pas en parler maintenant », mais ensuite, elle [TRADUCTION] « lui [a] comme dit ce qui était arrivé », et il a dit qu’il viendrait la chercher. Toutefois, elle a témoigné qu’il a changé d’avis quand elle lui a dit qu’elle était sortie de chez M. Foster.

Il voulait qu’elle reste dans la maison jusqu’à ce qu’il arrive, pour qu’il puisse confronter M. Foster, mais elle ne voulait pas qu’il le fasse. M me AB vivait seule dans un appartement situé à une certaine distance de l’appartement de M. Foster. Elle est retournée chez elle à pied toute seule. Elle a estimé qu’il était vers 2 h ou 2 h 30 quand elle est partie. [19] En retournant chez elle à pied, elle [TRADUCTION] « était au téléphone avec [CD] ».

Elle lui a dit [TRADUCTION] « tout ce qui était arrivé », et il lui a dit qu’elle [TRADUCTION] « était une personne horrible » et [TRADUCTION] « qu’il ne [la] croyait pas et que c’était [sa] faute ». En traversant à pied le pont du port de Saint John (interdit aux piétons), elle a envisagé plusieurs fois de sauter en bas.

Quand l’avocat du ministère public lui a demandé pourquoi elle avait cette idée, elle a répondu que c’était parce qu’elle [TRADUCTION] « savait que personne ne croirait » qu’elle [TRADUCTION] « ne voulait pas avoir de relation sexuelle ». [20] Elle a témoigné que, pendant qu’elle était sur le pont, un chauffeur de taxi s’est arrêté et l’a convaincue de ne pas le faire. Il a offert de la conduire chez elle, mais elle a refusé. Il l’a laissée là, et elle a continué son chemin. Elle est arrivée à son appartement vers 2 h 30 ou 3 h.

Elle a avalé cinq ou six Tylenol, a pris un couteau, s’est assise dans la baignoire tout

habillée et a pensé à s’entailler les poignets. Elle a entendu son chat miauler, et elle est donc sortie de la baignoire. [21] Ensuite, elle a appelé sa mère et lui a dit : [TRADUCTION] « Maman, j’ai été violée. » Sa mère a appelé la police. Peu après, sa mère et le gendarme Rob King sont arrivés à son appartement. Le gendarme King a témoigné qu’il était

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