Her Majesty the Queen - v. -, 2020 SKPC 7

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2020 SKPC 7 Date: January 28, 2020 Information: 991084751 Location: Meadow Lake _____________________________________________________________________________ Between: Her Majesty the Queen - and - D.A. Appearing: Andrew Clements For the Crown Rosanne Newman, Q.C. For the Accused Warning: Pursuant to s. 486.4 of the Criminal Code , no information that could identify the victim may be published in any document or broadcast or transmitted in any way.

Pursuant to s. 110 of the Youth Criminal Justice Act , no person may publish the name of the accused, a young person, or any other information related to the young person, if it would identify the young person as a young person dealt with under the Act. TRIAL DECISION M. MARTINEZ , J Introduction [ 1 ] The accused, D.A., faces a charge of sexually assaulting A.J. on February 28, 2019, contrary to s. 271 of the Criminal Code ,

RSC 1985, c C-46. [2] The accused was 16 years of age, and the complainant was 17, at the time of the alleged offence. [3] The physical elements – the actus rea – of the offence of sexual assault are proven when the evidence shows beyond areasonable doubt that the accused intentionally touched the complainant, that the touching was sexual in nature, and that the complainantdid not consent to the accused touching him or her in that manner: R v Ewanchuk, (SCC), [1999] 1 SCR 330 at para 25[Ewanchuk]. [4] In this case, the accused admits that he intentionally touched the complainant.

On the evidence before me, which I reviewbelow, the sexual nature of that touching is readily apparent. [5] The accused’s defence is that either the complainant consented to his physical contact with her and to the sexual nature ofthat contact, or that he had an honest but mistaken belief that she had consented to the sexual touching.

The Evidence [6] Both the complainant and the accused testified that they had been in a dating relationship for a few months in late 2018, andthat they had rekindled their relationship at a party on the night before the incident that is the subject of this case. [7] It also is common ground between them that they spent most of the next day at her residence, watching movies. In the mid tolate afternoon, the complainant was tired and went to her bedroom to sleep. The accused joined her.

Neither of them had consumed anyalcohol or drugs that day. [8] The complainant testified that she fell asleep and when she woke up, she discovered that her pants and underwear werearound her ankles, and that the accused was having sexual intercourse with her from behind. [9] She did not do, or say, anything until the accused finished (meaning that he ejaculated). She then pulled a blanket around herand asked the accused to take her to a friend’s home.

The complainant asserted that she did not consent to the accused’s sexual contactwith her after she awoke. [10] The accused’s evidence does not differ in any material way from that of the complainant. [11] The accused testified that, at first, when he and the complainant were laying in her bed, he watched movies and then he fellasleep for a short period. When he awoke, he positioned himself behind the complainant, with the front of his body facing her back.Then he took her hand and put it on his penis. Next, he asked her whether she was awake. She responded “mmhmm”. He took hermumbled response to mean “Yes”.

According to his testimony, the complainant often answered his questions with a similar, affirmative,mumble. [12] The accused testified that the complainant rubbed his penis and then he asked her if she “wanted to”. Again, her response was“mmhmm”. After receiving this response from her, he began stimulating her vagina with his fingers. Eventually, he pulled down thecomplainant’s pants and underwear. The accused said that the complainant lifted her hips “a little” to facilitate this action.

The accusedthen inserted his penis in her vagina and proceeded to have sexual intercourse with her. [13] All of this occurred while the complainant had her back to the accused so that he could not see her face. In cross-examinationthe accused admitted that he never attempted to look at her face, nor did any other conversation pass between them. [14] The accused confirmed that the complainant told him to stop after he had ejaculated on her groin area, and then she asked himto drive her to her friend’s house.

[ 15 ] At this juncture it is important to note that the complainant testified that, ever since she was a young child, she has been told that she sometimes talks in her sleep and that, sometimes, she responds to questions while asleep. When asked in cross-examination whether she also might move in her sleep, she said that she cannot control her body movements when she is asleep.

I took this to mean that she does not know what her body may be doing when she is sleeping. [ 16 ] In cross-examination, the accused denied knowing that the complainant talked in her sleep. [ 17 ] Later the same afternoon, after the accused had taken the complainant to her friend’s home, the complainant asked her friend to use the complainant’s telephone to send a message to the accused on Instagram. She instructed her friend to ask the accused what he had done to her while she slept. A short text message conversation ensued with the complainant instructing her friend what to say.

The complainant’s friend photographed the resulting text message string and those photographs were entered into evidence at trial. [ 18 ] The following is the text message conversation, which began at 5:51 p.m.: A.J.: What happened when I was sleeping D A.J.: D D.A.: Im sorry…. im horrible. I understand if u dump me A.J.: Why what’d you do? D.A.: Fingered u…. put ur hand on my dick D.A.: Im sorry…. Its ok if u hate me and dump me A.J.: What else D.A.: Fucked u…. i thought u were awake cuz u were reacting to everything I did. I asked if u were awake and u said mhm D.A.: Im sorry i am.

U can dump me if u want I deserve it D.A.: I did sleep for 30-40 minutes tho D.A.: Im sorry tho…. ill understand if u dump me A.J.: I’m sorry but I’m not okay with what you did. It was wrong. I do love you but I was sleeping when you did that. You can even ask shanaya, I talk in my sleep and I make weird noises. But this is not going to work anymore. I’m sorry but we are done. D.A.: Fuck im so stupid

D.A.: Idk i was born…. Im just stupid. The Issue of Consent [ 19 ] The question of whether a complainant consented to sexual touching is subjective: Ewanchuk at paras 26 and 48 ; R v Barton , 2019 SCC 33 , 376 CCC (3d) 1 at para 89 [ Barton ]. In other words, it is about what was in her mind when the sexual touching took place. [ 20 ] If I believe the complainant, she was asleep throughout most of the accused’s sexual interactions with her, and for this reason was not able to consent.

Further, if I believe her, she also did not consent to the sexual intercourse that continued after she woke up. [ 21 ] The majority of defence counsel’s cross-examination of the complainant was directed at the accused’s defence of an honest but mistaken belief in her consent. [ 22 ] Defence counsel’s questioning of the complainant did not seriously challenge her credibility.

Nor did defence counsel question the truthfulness of the complainant’s assertions that she was asleep when the accused began touching her, that she is a sleep- talker, or that she did not consent to any of the accused’s sexual interactions with her. [ 23 ] In his own testimony, the accused did not say that the complainant was not being truthful about being asleep, about talking in her sleep, or about not consenting to his sexual activities with her. [ 24 ] The complainant testified in a straight forward manner. She did not dodge questions or change her version of events in cross- examination.

Even though, at the end of her cross-examination, the complainant said that her memory of the day in question was “really fuzzy”, I see no reason why I should not rely on her ability to remember the relevant events. [ 25 ] In the end, I found the complainant to be credible, and I found her ability to recollect events to be reliable. I accept her evidence. [ 26 ] For these reasons, I find that, throughout most of the accused’s sexual activities with her, the complainant was asleep. During that period, she was not capable of consenting to anything he was doing to her.

In addition, I believe the complainant when she says that she did not consent to what the accused was doing to her after she awoke. [ 27 ] Consequently, I find that the Crown has proven, beyond a reasonable doubt, the essential physical elements of sexual assault.

Honest Belief in Consent [ 28 ] In order to satisfy the requisite fault element – the mens rea – of sexual assault, the Crown must prove beyond a reasonable doubt that the accused intentionally touched the complainant, knowing that she did not consent to that touching, or being reckless of , or willfully blind as to , her lack of consent: Ewanchuk at para 25 . [ 29 ] An honest but mistaken belief in consent is a mistake of fact defence that, if successful, negates the moral culpability that otherwise would be associated with an accused touching a complainant without their consent: Ewanchuk at paras 42-43 . [ 30 ] An accused’s honest but mistaken belief that the complainant consented to the impugned activity is a defence to an assault charge, if the accused’s subjective belief is objectively reasonable: Criminal Code s. 265(4) . [ 31 ] In the context of the offence of sexual assault, an accused’s honest but mistaken belief must be that the complainant communicated his or her consent through their words or through their conduct:

Ewanchuk [46] In order to cloak the accused’s actions in moral innocence, the evidence must show that he believed that the complainant communicated consent to engage in the sexual activity in question . [47] What matters is whether the accused believed that the complainant effectively said “yes” through her words and/or actions. … [64] In cases such as this, the accused’s putting consent into issue is synonymous with an assertion of an honest belief in consent. If his belief is found to be mistaken, the honesty of that belief must be considered.

As an initial step the trial judge must determine whether any evidence exists to lend an air of reality to the defence. If so, then the question which must be answered by the trier of fact is whether the accused honestly believed that the complainant had communicated consent . Any other belief, however honestly held, is not a defence. [underlining in original] [ 32 ]

Section 273.2 of the Criminal Code further constrains the accused’s defence: 273.2 It is not a defence to a charge under

section 271 , 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where (

a) the accused’s belief arose from (

i) the accused’s self-induced intoxication, (ii) the accused’s recklessness or wilful blindness, or (iii) any circumstance referred to in subsection 265(3) or 273.1(2) or (3) in which no consent is obtained; (

b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting; or (

c) there is no evidence that the complainant’s voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct. [italics added] [ 33 ] While s. 273.2 does not refer to communicated consent, in Barton , the Supreme Court of Canada confirmed that in order to make out the defence, “the accused must have an honest but mistaken belief that the complainant actually communicated consent, whether by words or conduct”: Barton at para 91 [emphasis in original]. The Court also made clear that the defence hinges upon the accused satisfying the reasonable steps requirement.

While the Court declined to enumerate a list of words or actions that might qualify as reasonable steps, it did offer the following guidance on the reasonable steps inquiry: [104]

Section 273.2(

b) imposes a precondition to the defence of honest but mistaken belief in communicated consent – no reasonable steps, no defence. It has both objective and subjective dimensions: the accused must take steps that are objectively reasonable, and the reasonableness of those steps must be assessed in light of the circumstances known to the accused at the time. Notably, however, s. 273.2(

b) does not require the accused to take “all” reasonable steps. … [107] …an accused cannot point to his reliance on the complainant’s silence, passivity, or ambiguous conduct as a reasonable step to ascertain consent, as a belief that any of these factors constitutes consent is a mistake of law. Similarly, it would be perverse to think that a sexual assault could constitute a reasonable step. Accordingly, an accused’s attempt to “test the waters” by recklessly or knowingly engaging in non-consensual sexual touching cannot be considered a reasonable step.

This is a particularly acute issue in the context of unconscious or semi-conscious complainants. … [121] An accused who wishes to rely on the defence of honest but mistaken belief in communicated consent must first demonstrate that there is an air of reality to the defence. This necessarily requires that the trial judge consider whether there is any evidence upon which a reasonable trier of fact acting judicially could find (1) that the accused took reasonable steps to ascertain consent and (2) that the accused honestly believed the complainant communicated consent.

[citations in original omitted] [34] Although the Crown urged me not to believe the accused because of some minor contradictions between his testimony-in-chief and his answers in cross-examination, I found him to be a credible witness. I accept his evidence. However, I find that theaccused’s defence of honest but mistaken belief in communicated consent cannot stand.

The reason why is that, in my opinion, in thecircumstances known to him at that time, the accused did not take objectively reasonable steps to ascertain the complainant’s consent. [35] First, knowing that the complainant might be asleep, and before asking her if she was awake, the accused took her hand andput it on his penis.

In the circumstances, touching, before asking, certainly was not a reasonable step toward ascertaining thecomplainant’s consent. [36] Second, although asking the complainant whether she was awake and whether she “wanted to” were appropriate steps for theaccused to take before continuing with what he was doing or, more accurately, with what he wanted to do, they were not objectivelyreasonable steps in the circumstances. [37] The complainant’s mumbled answers to the accused’s questions did not affirmatively express her consent by words.

Theaccused should not have accepted “mmhmm” as “Yes, I am awake” and “Yes, I want to have sexual intercourse with you”. Suspectingthat the complainant might be asleep, the accused should have done more to assure himself that the complainant was fully awake andconsenting to his sexual overtures. He should have asked her more questions and gotten clearer answers before pursuing his desires. Heshould have looked at her face.

Mens Rea [38] Having disposed of the accused’s defences, the remaining question is whether the Crown has proven the fault element ofsexual assault beyond a reasonable doubt. [39] As I noted earlier, criminal culpability attaches to the accused’s actions if he knew that the complainant did not consent, or ifhe was reckless of, or willfully blind as to, her consent. [40] In Canadian criminal law, a person acts recklessly if they are aware of the risk that their conduct may be unlawful, and yet,they persist in that conduct despite the known risk: R v Sansregret, (SCC), [1985] 1 SCR 570 at para 16.

In my opinion,this is precisely where the accused’s culpability lies. [41] Referring first to my observations about whether the accused took reasonable steps to ascertain the complainant’s consent, hisfailure to do so demonstrates that he was reckless of the complainant’s consent. [42] I also find that the post-offence text message exchange between the complainant and the accused provides furthercircumstantial evidence that, at the relevant time, the accused was aware of the risk he was taking. [43] In his test message exchange with the complainant, the accused’s response to her question about what he did to her while shewas sleeping was not one of surprise at her accusation, nor did he deny any wrongdoing on his part.

Instead, he immediately expresseddeep remorse and apologized for his actions. [44] In my opinion, the accused’s responses tend to confirm that, at the relevant time, he was aware of, and ignored, the risk thatthe complainant might not be fully awake and consenting to what he was doing. [45] In

summary, on the evidence before me, I find that, on the afternoon in question, the accused knew the risk he was taking andrecklessly persisted in his intended course of action. In short, he heard what he wanted to hear, and he did what he wanted to do.

Conclusion [ 46 ] For these reasons, I find that the Crown has proven all the elements of sexual assault beyond a reasonable doubt. Consequently, I find the accused guilty as charged. ___________________________ M. Martinez, J.