Her Majesty the Queen - v. -, 2021 SKPC 5

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2021 SKPC 5 Date: January 18, 2021 Information: 991099430 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Wade E. Merasty Ms. Elizabeth Addabor For the Crown Mr. Peter Abrametz For the Accused PUBLICATION RESTRICTION : The publication of these reasons is restricted pursuant to s.486.4 of the Criminal Code such that any information that could identify the complainant shall not be published in any way. DECISION S.D.

SCHIEFNER, J INTRODUCTION [ 1 ] Wade Merasty is charged with sexual assault contrary to s.271 of the Criminal Code . The facts giving rise to this charge occurred on June 30, 2019 following a social interaction involving Mr. Merasty, the complainant and others. Alcohol and drugs were involved.

[ 2 ] There is no dispute that there was physical contact between Mr. Merasty and the complainant and that it was sexual in nature. Rather, Mr. Merasty argues that this sexual encounter was consensual. [ 3 ] Having considered the evidence in these proceedings, I am satisfied beyond any reasonable doubt that, when Mr. Merasty began touching the complainant, she was sleeping and thus she was not capable of consenting. Furthermore, I am satisfied that the complainant did not consent to having a sexual encounter with Mr. Merasty prior to falling asleep.

However, even if she did communicate some form of consent, that consent was no longer valid as soon as she fell asleep. [ 4 ] Finally, having considered the evidence, I am also satisfied that Mr. Merasty was either aware that the complainant was not actively communicating her consent or that he was wilfully blind as to her lack of consent and/or capacity to consent because she was sleeping during the sexual encounter. Sexual touching performed without consent and without an honest belief in consent to that touching constitute the crime of sexual assault.

THE EVIDENCE [ 5 ] A trial was conducted on December 9, 2020. The Crown called three witnesses – the complainant; Constable Hilary Hood, a member of the Prince Albert Police Service; and Ms. Vivian Mohrbutter, a forensic specialist with the RCMP. The defense called two witnesses who will be identified only by the names, Amanda and Deanne. [ 6 ] Mr. Merasty is 30 years of age; the complainant is 29. They both live in Prince Albert, Saskatchewan and have known each other for approximately 17 years. They originally met playing sports together and their friendship continued after that.

Crown Evidence : The Complainant’s Testimony : [ 7 ] The complainant testified that, on the evening of June 29, 2019, she went out drinking with some girlfriends. Later that night, the complainant and her friends ended up at the home of Kayla Chartier. That evening, the complainant met Amanda. While at Ms. Chartier’s residence, the complainant and Amanda realized that Mr. Merasty was a mutual friend. [ 8 ] Sometime during the early morning of June 30, 2019, Amanda contacted Mr. Merasty and learned that he was only a few blocks away at the home of Deanne.

The complainant and Amanda decided to walk to Deanne’s residence and visit Mr. Merasty. The complainant believed they got there between 5:00 and 6:00 a.m. Mr. Merasty was present, as was Deanne. [ 9 ] After arriving, the four of them - the complainant, Amanda, Deanne and Mr. Merasty - sat around the kitchen table and talked about a variety of things – travel, past relationships, and other subjects. The complainant testified that they all sat around the kitchen for hours and that they drank alcohol and consumed drugs – cocaine.

In cross-examination, the complainant clarified that, while they all consumed cocaine, she did not think Deanne was drinking alcohol. [ 10 ] The complainant testified that at some point during the morning of June 30, 2019, Deanne went to bed, leaving her, Mr. Merasty and Amanda visiting at the kitchen table. The three continued talking and consuming alcohol and drugs. The complainant testified that Mr.

Merasty was “laying out lines” (of cocaine) for them to consume – which they all did. [ 11 ] The complainant testified that, at some point after Deanne went to bed, Amanda went to sleep on the couch in the living room, leaving just her and Mr. Merasty in the kitchen. The two of them continued talking and visiting but had stopped consuming drugs by this point in time.

[ 12 ] The complainant testified that at about 12:00 or 12:30 p.m. she sent a text message to a friend hoping to get a ride home. However, this person lived some distance away and could not immediately come pick her up. Soon thereafter, Mr. Merasty suggested that they get some sleep – specifically, he asked her if she wanted to come to bed. The complainant testified that she agreed and stated that her thinking at that time was that she might as well get a few hours of sleep before her ride got there. [ 13 ] The complainant testified that she followed Mr. Merasty downstairs to a bedroom.

In that bedroom, there were two beds. The complainant testified that Mr. Merasty went to one of the beds and she went to the other. The complainant testified that she went to sleep with her clothes on, wrapped in a blanket, and sleeping on her side. The complainant testified that only she and Mr. Merasty were in that room when she went to sleep and they were in separate beds. [ 14 ] The complainant testified that she awoke up on her back, with Mr. Merasty on top of her, and he was kissing her. As she woke up, she realized that her pants and underwear were down around her ankles, that Mr.

Merasty’s pants were pulled down, and that he was trying to insert his penis into her vagina. The complainant testified that she immediately shoved him, moved her body away, and told him “no, no, no .. this is not happening”. She testified that she pulled her clothing back on, grabbed her purse, ran out the door, and went back upstairs. The complainant confirmed that only Mr. Merasty was in the bedroom with her at that time. The complainant estimated that they had been in the bedroom for approximately ½ hour. [ 15 ] When she got upstairs, the complainant was upset and wanted to get away.

She woke up Amanda and told her that Mr. Merasty had just “tried to rape her”. Then, she went out on the balcony and phoned two different friends hoping that one could come pick her up. However, neither could come right away. The complainant then went back into the apartment. At this point, Mr. Merasty was upstairs. It was approximately 1:00 or 1:30 p.m. [ 16 ] The complainant testified that, when she came back inside the apartment, Mr. Merasty was yelling and screaming at her and saying that she was “over-reacting” and that “she was making it up”. The complainant said that Mr.

Merasty had never shown any aggression toward her in the past. Deanne then came upstairs. At which point, the complainant decided to leave. [ 17 ] The complainant testified that she grabbed her shoes, ran out of the house, and went back to Kayla Chartier’s residence. The complainant testified that she told Ms. Chartier what happened. The complainant then went home and told her mother what happened. Her mother convinced her to call the police. The complainant testified that a police officer arrived soon thereafter.

The officer asked the complainant to give her the clothes that she was wearing when the incident happened. The complainant changed, gave the officer her clothes, and then they went to the hospital. At the hospital, an examination was completed. [ 18 ] The complainant was asked to comment on the alcohol and drugs she consumed and her level of intoxication. The complainant confirmed that she consumed a “number of lines” (of cocaine) with Mr. Merasty on June 30, 2019.

Somewhat counter- initiatively, the complainant testified that the reason she would do cocaine while drinking alcohol was that it would “sober her up” and take away that “drunk wobbly feeling”. In the complainant’s own words, cocaine tends to “straighten you out” and “helps you focus”. [ 19 ] As for alcohol, the complainant testified that she was drinking rum when she was out with the girls at the bar but was drinking beer (Bud Light) at Deanne’s residence. The complainant was not sure but she thought maybe she and Mr.

Merasty were also drinking rum. [ 20 ] The complainant testified that, just prior to heading downstairs with Mr. Merasty, she was “definitely intoxicated” but was also “clear”. As she put it, she had had a lot to drink but stated that she was still very clear, that she was able to hold conversations, and that she was walking and speaking fine. In her testimony, the complainant described the house with some degree of detail, including the layout of the house and the location of rooms. [ 21 ] The complainant testified that she did not consent to having sexual contact with Mr. Merasty.

In cross-examination, the complainant confirmed that Mr. Merasty stopped touching her as soon as she said “no”. The complainant also confirmed that she drank a lot that day – as she put it “we all drank a lot”. However, in cross-examination, the complainant denied being so intoxicated that she “blacked out” or that maybe she could not fully remember what happened that evening. [ 22 ] In accordance with the rule in Browne v Dunn (1893), 6 R 67 (UKHL) [ Browne v Dunn ], the complainant was asked to comment on potentially contradictory evidence that the defense anticipated would be given by a subsequent witness.

For example, the complainant was asked and denied sitting on Mr. Merasty’s lap and kissing him prior to them going downstairs. To the latter question,

the complainant declared “that never happened”. Constable Hillary Hood : [ 23 ] Constable Hillary Hood is a patrol officer with the Prince Albert Police Service. On June 30, 2019, Officer Hood was dispatched to an address in Prince Albert for an alleged sexual assault complaint. She arrived at approximately 3:15 p.m. and met with the complainant. [ 24 ] At approximately 4:00 p.m., Officer Hood transported the complainant to the Victoria Hospital in Prince Albert so that an assault kit could be completed.

Officer Hood waited with the complainant at the hospital, stayed with the complainant during the procedure, and then took possession of the kit once complete. At approximately 8:00 p.m., Officer Hood gave the complainant a ride home and then returned to the police station.

Officer Hood then placed all evidence she gathered into an exhibit locker. [ 25 ] As to her demeanor, Officer Hood testified that, while the complainant was tired, she was awake and cooperative when the officer dealt with her. [ 26 ] In cross-examination, Officer Hood testified that the complainant had told her she had consumed both alcohol and drugs prior to the assault. Officer Hood testified that the complainant told her the drug she consumed was “weed” (marijuana). Vivian Mohrbutter : [ 27 ] Vivian Mohrbutter is a forensic specialist with the National Forensic Laboratory Service of the RCMP. By consent, Ms.

Mohrbutter was qualified as an expert in a number of areas. Of relevance to these proceedings, Ms. Mohrbutter was qualified in the

interpretation of search results as they pertain to the examination of exhibits for the presence of human biological material. [ 28 ] Ms. Mohrbutter examined two exhibits seized by Officer Hood – a vaginal swab and underwear. While male DNA was detected, it was not in sufficient quantity to prepare a DNA typing profile for comparative purposes. While Ms. Mohrbutter had a sample of Mr. Merasty’s DNA, it was not possible for her to either include or exclude him as the contributor of the male DNA she observed in the exhibits she examined.

Defence Evidence : Amanda’s Testimony : [ 29 ] Amanda testified that she met the complainant on June 29, 2019 at the home of her friend, Kayla Chartier. Amanda explained that she had not met the complainant prior to this evening. Several people were at Ms. Chartier’s residence and Amanda testified that everyone, including the complainant was drinking. [ 30 ] Amanda confirmed that early the next morning, she and the complainant walked to Deanna’s home. Amanda confirmed that it was her idea to go see Mr.

Merasty and that the complainant decided to go along with her after they realized that he was a mutual friend. [ 31 ] Amanda confirmed the complainant’s description of everyone sitting around the kitchen table at Deanne’s residence and that they were drinking. When asked, Amanda testified that everyone was drinking, including Deanne. [ 32 ] As for the complainant’s state of intoxication, Amanda described her as being drunk.

[ 33 ] Amanda testified that at some point Deanne went to sleep. Amanda testified that she, Mr. Merasty and the complainant sat around the kitchen table for a period of time before she decided to go to sleep on the couch. While she was lying on the couch and prior to falling asleep, Amanda explained that she could see Mr. Merasty and the complainant in the reflection on the television set. They were still sitting around the kitchen table. Amanda testified that she saw the complainant on Mr.

Merasty’s lap and that she was kissing him. [ 34 ] Amanda testified that, while she was sleeping on the couch, the complainant came upstairs and woke her up. The complainant told her that she fell asleep downstairs and that, when she woke, Mr. Merasty was on top of her. Amanda explained that, after Mr. Merasty came upstairs, he said “that’s not true”. Amanda testified that people were not yelling but she did confirm that the complainant abruptly grabbed her belongings and left. [ 35 ] When asked by Crown counsel about her observations of the complainant and Mr.

Merasty in the TV’s reflection, Amanda altered her testimony. Amanda testified that soon after they got to Deanne’s residence, the complainant was sitting close to Mr. Merasty and on his lap. When pressed on this point, Amanda again altered her testimony. This time stating that she was not sure whether the complainant had been sitting on the complainant’s lap but testified that she was flirting with him. Amanda explained that she was not surprised when she thought she saw the complainant on Mr. Merasty’s lap after she moved to the couch because she thought the complainant wanted to “be with him”.

When pressed by Crown counsel, Amanda was not sure she saw the complainant kissing Mr. Merasty because she could only see in the reflection on the TV. She thought that their heads were close together. [ 36 ] In cross-examination, Amanda confirmed that she was consuming alcohol with Mr. Merasty and the complainant. Amanda could not remember with confidence what she was drinking at Deanne’s residence but thought it was rum. When pressed, Amanda also acknowledged that they were consuming drugs and that the drug being consumed was cocaine. Deanne’s Testimony : [ 37 ] In her testimony, Deanne confirmed that Mr.

Merasty was at her residence on June 30, 2019. Mr. Merasty is her cousin and they are close. While he had his own place at the time, their relationship was such that Mr. Merasty would routinely come and stay at her residence. For example, Mr. Merasty had been staying at her place for a few days prior to June 30, 2019. [ 38 ] Deanne confirmed that Mr. Merasty was contacted by Amanda sometime after 3:00 a.m. on June 30, 2019. Both her and Mr. Merasty were awake at the time. Mr. Merasty indicated that two women wanted to come over – Amanda, whom Deanne knew, and the complainant, whom she did not. Mr.

Merasty told her that he had known the complainant for years and it was agreed the women could come over. They showed up soon after. [ 39 ] Deanne confirmed that she, Mr. Merasty, the complainant and Amanda sat around the kitchen table, visiting, telling stories and playing cards. [ 40 ] Deanne testified that she was sober and was not drinking. Deanne testified that the complainant was intoxicated and kept repeating herself.

Deanne testified that the complainant had brought over a water bottle full of “Captain Morgan” (rum) and that’s what the complainant and Amanda were drinking. [ 41 ] Deanne testified that, after a couple of hours of everyone sitting in the kitchen, Amanda went to sleep on the couch. Deanne said that she was still upstairs when Amanda went to sleep on the couch. She testified that, on one point, while Amanda was on the couch, Mr. Merasty went to the bathroom, leaving just her and the complainant at the kitchen table. Deanne testified that, when they were alone, the complainant told her that she liked Mr.

Merasty and that she wanted to “hook up” with him. Deanne testified that she was disgusted by this comment and responded by telling the complainant that she could not do that at her place. Deanne testified that she was annoyed with the complainant. As a result, as soon as Mr. Merasty came out of the bathroom, she went downstairs to her bedroom. [ 42 ] In cross-examination, Deanne explained that her bedroom was downstairs and next to the bedroom that Mr. Merasty and the complainant went in. She testified that she was awake when they came downstairs and that she heard them go in the room.

Deanne testified that she was upset when she heard Mr. Merasty and the complainant go into a bedroom because she had just told the complainant that she could not “hook up” with Mr. Merasty at her place.

[ 43 ] When asked by Crown counsel if she heard anything from the room next door, Deanne answered that she did. She testified that soon after Mr. Merasty and the complainant went in the bedroom she heard “foreplay”. When asked to explain, Deanne said she heard “giggling” and “moving around on the bed”. Deanne testified that she assumed that these noises were “foreplay” because of her previous conversation with the complainant about wanting to hook up with Mr. Merasty. [ 44 ] When asked if she saw anything, Deanne answered that she did. She explained that she got up to use the bathroom when the complainant and Mr.

Merasty first went in the bedroom and that she briefly looked in that bedroom as she walked by. Deanne testified that she saw the complainant on top of Mr. Merasty on one of the beds. Deanne testified that she could tell that the complainant had her shirt on but could not see much else. Deanne testified that she did not go in the bedroom and that she only briefly looked in the room. [ 45 ] Deanne testified that she then went back to her bedroom, turned on a fan, and went to sleep. Deanne denied hearing when the complainant left the bedroom. She also said she did not hear Mr. Merasty shouting at the complainant.

Deanne testified that she did not see the complainant leave her place. [ 46 ] In cross-examination, Deanne denied drinking any alcohol on June 30, 2019. She said she sat around the kitchen table with everyone but was drinking water – not alcohol. As for drugs, Deanne denied consuming any. She said that the complainant consumed drugs but denied that anyone else did. [ 47 ] Finally, in cross-examination, Deanne acknowledged that Mr. Merasty told her that “he did not do anything” and that she believed him.

Deanne also acknowledged that she had seen the complainant on a couple of occasions since the incident that she “had words with her” and acknowledged making the complainant “feel uncomfortable”. Evaluation of the Evidence : [ 48 ] In the present case, there are many inconsistencies in the evidence. For example, Deanne testified that Amanda was the first to leave the kitchen table and go to sleep, leaving Deanne, the complainant and Mr. Merasty alone at the kitchen table (when Amanda was sleeping on the couch). However, both the complainant and Amanda testified that Deanne went downstairs first.

Also, while the complainant and Deanne testified that Deanne was not drinking alcohol, Amanda thought she was. In addition, the complainant and Amanda both testified that everyone including Deanne consumed cocaine. However, Deanne testified that the only person consuming drugs was the complainant. Finally, Constable Hood’s testified that when she spoke with the complainant on June 30, 2019, that she admitted to consuming alcohol and drugs but told her the drug being consumed was “weed” (cannabis). [ 49 ] It is not unusual for inconsistencies to occur in testimony.

People seldom remember the same events exactly the same. However, both consistency and inconsistency in testimony may provide a helpful lens through which to assess both the credibility of a witness and the reliability of that person’s evidence. [ 50 ] The complainant’s testimony was clear, cogent and compelling. She testified in some detail as to where she went, who she was with, and what people did both before and after the incident with Mr. Merasty. In addition, the complainant provided an accurate and detailed description of Deanne’s residence.

In my opinion, her testimony was generally consistent with the events as described by Deanne, Amanda and Constable Hood with only one exception worth noting. The complainant misrepresented the nature of the drug being consumed to Constable Hood. In my opinion, when considered in context, this misrepresentation did not significantly impair the complainant’s credibility. My observation was that the complainant was transparent and candid with the court, including with respect to her consumption of alcohol and an illicit drug. Her description of the events of June 29 & 30, 2019 was internally consistent and detailed.

She was subject to cross-examination by able counsel and her evidence was unassailed. [ 51 ] On the other hand, I struggle with the weight to be given to Deanne’s evidence for a couple reasons. First, the breach of the rule set forth in Browne v Dunn . The gravamen of Deanne’s testimony was that the complainant had a conversation with her wherein the complainant expressed a desire to “hook up with” (have sex) with Mr. Merasty. However, the complainant was not given an opportunity to address this evidence in cross-examination.

In addition, Deanne also testified during cross-examination by the Crown that she overheard the complainant playing and laughing with Mr. Merasty in the bedroom downstairs and that she observed the complainant sitting on top of Mr. Merasty on one of the beds downstairs. The complainant was never given an opportunity to address any of this evidence. [ 52 ] Second, Deanne’s testimony was littered with statements tending to support myths and stereotypes involving sexual assault

complainants, including that the complainant was annoying, pushy, loud and poorly-dressed. First, none of this evidence was probativeon the issue of communicated consent. Second, these statements tended to signal that Deanne may not be an unbiased witness. Whentaken alone, these statements may not have undermined Deanne’s credibility. However, Deanne also stated her belief that “nothinghappened”. She also acknowledged confronting the complainant after the incident and making her feel uncomfortable. [53] I discuss my findings of fact later in these reasons for decision.

ANALYSIS [54] A conviction for sexual assault requires the Crown to prove that on June 30, 2019 Mr. Merasty committed the essentialelements of that offence. Two cases of the Supreme Court of Canada are instructive in understanding the essential elements of sexualassault. These cases are R v Ewanchuk, (SCC), 1999 SCC 7110, [1999] 1 SCR 330 [Ewanchuk] and R v Barton, 2019SCC 33, 376 CCC (3d) 1 [Barton]. The actus reas (the physical element) of sexual assault comprises three elements; (1) touching orphysical contact; (2) the sexual nature of that contact; and (3) the absence of consent.

See: Ewanchuk at para. 25; Barton at para. 87.The mens rea of sexual assault comprises two elements: (1) intention to touch or have physical contact; and (2) knowledge of, or wilfulblindness as to, a lack of consent on the part of the person touched. See: Ewanchuk at para. 42; Barton at para. 87. [55] It is a fundamental principle of criminal law that the Crown must present evidence to the court to establish each element of theoffence and that such evidence must provide proof beyond a reasonable doubt. If the Crown cannot discharge this burden, I must acquitMr. Merasty.

If there is evidence inconsistent with guilty and I accept that evidence, I must also acquit. If, after hearing all the evidence,I am left in reasonable doubt by it, I must again acquit. In a criminal trial, the burden never shifts from the Crown to prove their case andto do so beyond a reasonable doubt. See: R v W. (D.), (SCC), [1991] 1 SCR 742 at pages 757-58. [56] As I have already noted, there is no dispute that there was physical contact between Mr. Merasty and the complainant, thatthis contact was sexual in nature, and that Mr. Merasty intended that contact to occur. Mr.

Merasty advances two defences; first, that thecomplainant is not being truthful with the court when she denies that she consented; and second, that the complainant does not rememberthat she communicated her consent because of her level of intoxication. Counsel argues that the evidence heard by the court should atleast raise a reasonable doubt and thus takes the position that the Crown has not proven its case. [57] As this case turns on the issue of consent, some background may be helpful.

Consent in the Context of Sexual Assault [58] The Supreme Court of Canada reviewed the concept of consent in the context of sexual assault in R v J.A., 2011 SCC 28,[2011] 2 SCR 440 [JA]. In this particular case, the Court was concerned with whether a complainant could consent to sexual activity inadvance of that activity taking place – to sexual activity taking place while she was unconscious. The majority led by McLachlin C.J.held that she could not, emphasizing the significance of obtaining timely consent to sexual activity.

Paragraphs 23, 24 & 25 of thisdecision are instructive on the meaning and significance of consent: [23] A conviction for sexual assault under s. 271(1) of the Criminal Code requires proof beyond a reasonable doubt of the actus reusand the mens rea of the offence. A person commits the actus reus if he touches another person in a sexual way without her consent.Consent for this purpose is actual subjective consent in the mind of the complainant at the time of the sexual activity in question:Ewanchuk.

As discussed below, the Criminal Code, s. 273.1(2), limits this definition by stipulating circumstances where consent is notobtained. [24] A person has the required mental state, or mens rea of the offence, when he or she knew that the complainant was not consentingto the sexual act in question, or was reckless or wilfully blind to the absence of consent. The accused may raise the defence of honest butmistaken belief in consent if he believed that the complainant communicated consent to engage in the sexual activity.

However, asdiscussed below, ss. 273.1(2) and 273.2 limit the cases in which the accused may rely on this defence. For instance, the accused cannotargue that he misinterpreted the complainant saying “no” as meaning “yes” (Ewanchuk, at para. 51). [25] The issue in this case is whether the complainant consented, which is relevant to the actus reus; the Crown must prove theabsence of consent to fulfill the requirements of the wrongful act. However, the provisions of the Criminal Code with respect to the

mens rea defence of honest but mistaken belief also shed light on the issue of whether consent requires the complainant to have been conscious throughout the duration of the sexual activity. [ 59 ] In Ewanchuk , the Supreme Court discussed consent in the context of the defence of honest but mistaken belief in consent. Paragraphs 45 to 49 of that decision are instructive. They read as follows: [45] As with the actus reus of the offence, consent is an integral component of the mens rea , only this time it is considered from the perspective of the accused.

Speaking of the mens rea of sexual assault in Park, supra , at para. 39, L'Heureux - Dubé J. (in her concurring reasons) stated that: ... the mens rea of sexual assault is not only satisfied when it is shown that the accused knew that the complainant was essentially saying "no", but is also satisfied when it is shown that the accused knew that the complainant was essentially not saying "yes". [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 .

A belief by the accused that the complainant, in her own mind wanted him to touch her but did not express that desire, is not a defence. The accused's speculation as to what was going on in the complainant's mind provides no defence. [47] For the purposes of the mens rea analysis, the question is whether the accused believed that he had obtained consent. What matters is whether the accused believed that the complainant effectively said "yes" through her words and/or actions. The statutory definition added to the Code by Parliament in 1992 is consistent with the common law: 273.1

(1) Subject to subsection (2) and subsection 265(3), “consent” means, for the purposes of sections 271 , 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question. [48] 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 the offence and the state of mind of the accused in respect of the mens rea .

For the purposes of the actus reus , “consent” means that the complainant in her mind wanted the sexual touching to take place. [49] In the context of mens rea – specifically for the purposes of the honest but mistaken belief in consent – “consent” means that the complainant had affirmatively communicated by words or conduct her agreement to engage in sexual activity with the accused. This distinction should always be borne in mind and the two parts of the analysis kept separate. [ 60 ] As can be seen, consent is relevant when considering both the actus reus and mens rea of the offence of sexual assault.

Consent as part of the actus reus of the offence, involves the question of whether or not the complainant in her mind wanted the sexual contact to take place. As such, the focus at this stage is on the complainant’s subjective intent. For the second stage, the dominant issue is whether or not Mr. Merasty honestly believed that the complainant had affirmatively communicated her consent by means of her actions or her words. As such, the focus at the second stage is on Mr. Merasty’s state of mind.

Actus Reas - Did the Complainant Voluntarily Agree to the Activity that Occurred? [ 61 ] As noted, there is no dispute that Mr. Merasty touched the complainant in a sexual manner. The issue is consent. At this first stage in the analysis, the focus is on the complainant’s state of mind - whether or not in her mind she voluntarily agreed to the sexual touching that took place. However, before I address that issue, I must address the issue of capacity. All witnesses agreed that the complainant was intoxicated. Deanne testified that she was very intoxicated.

Defence counsel cross-examined the complainant on whether or not she was so intoxicated that she “blacked out” – that she could not accurately remember what happened. Did the Complainant have the Capacity to Consent ? [ 62 ] No consent can be obtained where a complainant lacks the mental capacity to give consent. Meaningful consent requires “a conscious, operating mind, capable of granting, revoking or withholding consent to each and every sexual act”. See: JA at para 44. Such

incapacity can flow from intoxication. However, the threshold to find that someone does not have an operating mind capable of consent is high. In R v Kwon , 2020 SKCA 56 , 386 CCC (3d) 553 [ Kwon ] our Court of Appeal summarized this threshold at para. 33. The evidence must prove beyond a reasonable doubt that the complainant lacked the capacity: (

a) to appreciate the nature and quality of the sexual activity in question; or (

b) to identify the person or persons wishing to engage in that activity; or (

c) to understand that they could agree or decline to participate in or continue the sexual activity in question. In other words, extreme intoxication is usually involved. [ 63 ] While there was evidence that the complainant was intoxicated on June 30, 2019, I am satisfied beyond a reasonable doubt that she was not so intoxicated that she was incapacitated. With the exception of when she was sleeping, I am satisfied that the complainant had an operating mind capable of granting, revoking or withholding consent.

She clearly remembered the nature and quality of the sexual activity in question and the identity of the person attempting to engage in that activity. In addition, she clearly understood that she could decline to participate in the activity as she did so when she pushed Mr. Merasty away and told him “no”. Was the Complainant being Truthful ? [ 64 ] Through counsel, Mr. Merasty takes the position that his encounter with the complainant was consensual.

He argues that the evidence reasonably supports the inference that the complainant was not being honest when she said that she did not consent to the encounter with him. Mr. Merasty’s counsel pointed to evidence that the complainant was flirting with him, that she told Deanne that she was interested in hooking up with him, and that she voluntarily went into a bedroom with him. He also points to the evidence of Deanne that she heard sounds consistent with foreplay and saw the complainant on top of Mr. Merasty. Mr. Merasty also points to the complainant’s own evidence that Mr.

Merasty stopped immediately as soon as she said “no”. Finally, Mr. Merasty argues that it is improbably that the complainant’s clothes could have been removed without her consent. In other words, the complainant may have “communicated” her consent by permitting her clothes to be moved. [ 65 ] After considering the whole of the evidence, I am satisfied that the complainant was being truthful in her testimony. In my opinion, the complainant’s testimony was compelling - so compelling that it wholly overwhelmed the inferences to the contrary that can be drawn from other testimony.

Amanda and Deanne only observed events before and after the sexual encounter. Neither witness made any observations at the relevant time. On the issue of consent, the complainant’s evidence was unequivocal. She did not remove her pants or underwear and she did not consent to their removal by Mr. Merasty. She did not consent to him kissing or being on top of her. Finally, she did not consent to having intercourse with him before falling asleep. [ 66 ] Even if I accept that the complainant was flirting with Mr.

Merasty upstairs, and that possibly she was sitting on his lap and kissed him when they were upstairs, such evidence is of limited probative value as to her state of mind downstairs in the bedroom. As the Court noted in JA at para.34, consent must be contemporaneous with the activity in question and consent to one act does not amount to consent to another act. In other words, even if the complainant was kissing Mr. Merasty at the kitchen table, such evidence is not contradictory to the complainant’s evidence that she did not consent to the sexual activity that later occurred downstairs in the bedroom.

Consent cannot be ‘implied’ by a pre-existing relationship. It must be conscious, continuing and present at the time the sexual activity in question takes place. See: JA at para 66. See also: s.273.1(1.1) of the Criminal Code . [ 67 ] Similarly, even if I accept that the complainant communicated a desire to “hook up” with Mr. Merasty to Deanne, this evidence is of limited probative value as to whether or not she communicated that intention to Mr. Merasty. Again, even if I accept that the complainant was “playful” with Mr.

Merasty when they first went into the bedroom and that at some point she may have been sitting on top of him on the bed, this evidence is also of limited probative value as to the complainant’s state of mind 30 minutes later. This evidence is of limited value because it is not inconsistent with the complainant’s evidence that she and Mr. Merasty went to sleep in separate beds and that she was fully clothed when she fell asleep. Deanne’s evidence is also not inconsistent with the complainant’s evidence that, when she woke approximately 30 minutes later, her pants and underwear were around her ankles and that Mr.

Merasty was kissing her and attempting to have sex with her without her consent. [ 68 ] Simply put, none of the defence evidence – individually or collectively – raised any doubt in my mind as to the credibility of the complainant’s testimony. To the contrary, the complainant’s feelings of personal violation and breach of trust were readily apparent. The credibility of her testimony was enhanced by the clarity and consistency of her testimony. Her description of the events leading up to the incident was detailed and internally consistent.

Furthermore, I do not accept the argument that the complainant’s clothes could not have been removed without her consent and thus she must be lying. First, the argument is based on an error of law, namely – that unless and until a woman says “no”, she has implicitly given her consent. Second, the complainant did wake up and, as soon as she did, she emphatically said ‘no”. [ 69 ] Finally, immediately after the incident, the complainant told four different people (Amanda, Ms. Chartier, her mother, and Constable Hood) about the incident and took actions consistent with her allegations.

While the repetition of a statement does not add weight to that statement, the fact that the complainant undertook a reasonable and consistent course of action following the incident is

relevant. For example, the complainant said she left Deanne’s residence because she felt unsafe. When she left, she went to Ms. Chartier’s resident (which was within walking distance) and then to her mom’s place. The complainant was asked by her mom to call the police. She did. The complainant then cooperated with Constable Hood by giving a statement, she went to the hospital and agreed to have an invasive physical examination. In my opinion, the complainant’s post-incident conduct was consistent with her statement that she did not consent to a sexual encounter with Mr. Merasty.

Certainly, there is nothing in her post-incident conduct that sheds any doubt on her credibility. The only exception being that the complainant may have told Constable Hood that the drug consumed was marijuana when in fact it was cocaine. I am not satisfied that this misrepresentation, when considered in context, was sufficient to undermine her credibility before the Court in any meaningful way. [ 70 ] After considering the evidence, I am satisfied beyond a reasonable doubt that the complainant was being truthful in her testimony.

Is it Possible that the Complainant Merely Can Not Remember Accurately What Happened? [ 71 ] Mr. Merasty argues that I should find the complainant’s testimony to be unreliable because of her state of intoxication at the time. Mr. Merasty asks that I consider the possibility that the complainant consented to the removal of her pants and underwear (or did so herself) and then permitted Mr. Merasty to be on top of her and to kiss her but is now unable to remember these actions.

For this argument to be successful, I must be satisfied that the complainant may have been sufficiently intoxicated that she “blacked out” but not so intoxicated that she lost the capacity to consent. [ 72 ] Having considered the evidence, I do not believe that the complainant may have blacked out. To the contrary, I am satisfied that her testimony is reliable. Granted, this Court heard considerable evidence as to the complainant’s consumption of both alcohol and drugs. As I have already noted, all witnesses agreed that she was intoxicated.

The complainant candidly admitted she was and provided details of her consumption. However, the complainant also testified that she was not so intoxicated that she could not accurately remember what happened in the bedroom. She was pressed on this point in cross-examination and her evidence was unwavering. [ 73 ] Simply put, I am satisfied beyond any doubt that the complainant accurately remembers what happened on June 30, 2019. I base this conclusion on the fact that the complainant testified in some detail as to where she went, who she was with, and what people did both before and after the incident.

As I have noted, her testimony was coherent and generally consistent with the events as described by Deanne, Amanda and Constable Hood. While there were some inconsistencies, in my opinion these inconsistencies were not significant. With all due respect, it is improbable in the extreme that the complainant would be able to retain a detailed and accurate memory of these events and yet not be able to remember that she actively consented to a sexual encounter.

If there is a gap in the complainant’s memory as to what happened downstairs in the bedroom, I find that it is because events occurred at a time when she was sleeping - not because she was too intoxicated to remember. Conclusion : [ 74 ] Having considered the evidence in these proceedings, I am satisfied beyond any reasonable doubt that, when she and Mr. Merasty were downstairs in the bedroom, the complainant had an operating mind capable of agreeing to, or declining to, engage in a sexual activity (with the exception of when she was sleeping).

I am also satisfied beyond any reasonable doubt that the complainant did not subjectively consent to having a sexual encounter with Mr. Merasty when she was awake. [ 75 ] Having considered the evidence in these proceedings, I am also satisfied beyond a reasonable doubt that the complainant’s pants and underwear were removed after she fell asleep. Even if the complainant had communicated some form of consent to Mr. Merasty, that consent was gone as soon as she fell asleep. It is settled law that a person cannot consent to sexual activity when they are asleep. See: R v Al-Rawi , 2018 NSCA 10 at paras. 33 and 60 .

See also: Kwon at para. 22 . [ 76 ] As consent (at least for this stage) depends upon the internal subjective perception of the complainant and because the complainant testified that she did not consent to a sexual encounter with Mr. Merasty and because I have found her evidence to be both credible and reliable, the actus reas of the offence has been made out. See: JA at para. 37 and Kwon at para. 21 . Mens Rea :

[ 77 ] As noted, there is no dispute that Mr. Merasty touched the complainant in a sexual manner. Furthermore, I have found that the complainant did not consent to that sexual encounter when she was awake and that she was incapable of consenting when she was sleeping. [ 78 ] The corollary of Mr. Merasty’s defence is that he believed the complainant had communicated some form of consent either through her actions or her words. As a result, I will consider the issue of ostensible consent. [ 79 ] The defence of mistaken belief in consent is a denial of mens rea .

It arises whenever the accused asserts their belief that a complainant effectively said “yes” through their words or actions. An evidentiary foundation for the defence can come from the accused, the complainant, or any other person. While there is no requirement that this evidence must be adduced by the accused, often no one else can provide the necessary foundation for this defence because of the strict statutory and common law limits on its availability. [ 80 ] I must begin this analysis by determining if there is an air of reality to this defence.

For if there is, the Crown must prove beyond a reasonable doubt that the accused did not honestly believe that the complainant had communicated her consent. Irrespective of my findings with respect to the availability of this defence, I must nonetheless be satisfied by the evidence that Mr. Merasty either knew or was wilfully blind to that fact that the complainant had not communicated her consent or that she was incapable of granting her consent because of incapacity. Is it possible that Mr.

Merasty held an Honest but Mistaken Belief that the Complainant had Communicated her Consent to Him? [ 81 ] For purposes of determining whether or not there is an air of reality to the defence, I begin by assuming that the evidence adduced by the defence is true. See: R v Cinous, 2002 SCC 29 at para. 53 . [ 82 ] If I assume the evidence of Amanda and Deanne to be true, there is some evidence before this Court from which I could infer that the complainant had an interest in having a sexual encounter with Mr. Merasty. For example, Amanda testified that she perceived that the complainant was flirting with Mr.

Merasty. Although her testimony was somewhat inconsistent – she testified that the complainant was sitting close to Mr. Merasty, that she may have been sitting on his lap at one point, and that possibly she saw the complainant kiss him when they were at the kitchen table. In addition, Deanne testified that the complainant told her that she was interested in “hooking up” with Mr. Merasty. She also testified that the complainant was “playful” with Mr.

Merasty when they first went into the bedroom and that at some point she was sitting on top of him on the bed. [ 83 ] However, this evidence taken together (and assuming it all to be true) falls short of supporting the inference that Mr. Merasty could have mistakenly believed that the complainant was communicating her consent at the relevant time. The uncontradicted evidence of the complainant was that the sexual touching occurred approximately 30 minutes after she and Mr. Merasty entered the room downstairs and after she had fallen asleep with her clothes on.

Neither Amanda nor Deanne made any observations inconsistent with this evidence. At that point in time, they were both asleep in other rooms. Had Mr. Merasty testified, the evidence of Amanda and Deanne would have been relevant to the assertion of ostensible consent (that Mr. Merasty “honestly” believed that the complainant had communicated her agreement to a sexual encounter with him). However, he did not testify. [ 84 ] In the present case, the only evidence of what happened at the relevant time comes from the complainant and her evidence is uncontradicted.

There is no evidential foundation for the assertion that Mr. Merasty may have mistakenly believed that the complainant was consenting. First, I have no evidence that Mr. Merasty took any steps - let alone reasonable steps - to ascertain that the complainant was affirmatively consenting. Pursuant to s.273.2 of the Criminal Code , reasonable steps are a precondition to the defence of honest but mistaken belief in communicated consent. Second, I have no evidence that Mr. Merasty took steps to ascertain that the complainant was awake and capable of consenting.

Section 273.2 bars an accused from advancing the defence of honest but mistaken belief if the complainant is unconscious or otherwise incapable of providing meaningful consent. [ 85 ] Mr. Merasty cannot rest the basis of his belief in ostensible consent on the false logic that the complainant’s prior flirtation, even if it involved kissing and sexual foreplay, made her more likely to have consented to the sexual activity in question. The crucial question is his honest albeit mistaken belief in communicated consent at the relevant time.

Implied consent, which rests on the assumption that unless a woman protests or resists, she should be deemed to consent, has no place in Canadian law. Similarly, the belief that the complainant gave broad advance consent to sexual activity affords Mr. Merasty no defence, as that belief is premised on a mistake of law.

Mens Rea: [ 86 ] In

summary, the complainant’s testimony that she went to sleep with her clothes on is compelling and uncontradicted, as is her testimony that when she awoke her pants and underwear had been pulled down, and that Mr. Merasty was attempting to have sex with her without her consent. Because Mr. Merasty does not dispute touching her, the only and overwhelming inference that I must draw is that Mr.

Merasty began touching her in a sexual manner at a point in time when the complainant was sleeping. [ 87 ] As I have already noted, a person cannot consent while unconscious and they cannot consent in advance to a sexual activity. Consent must be affirmatively communicated, and it must be active and continuing at the relevant time.

Thus once the complainant fell asleep, any consent she may have previously expressed was lost, as was her capacity to meaningfully communicate consent until she was sufficiently awake to appreciate the nature of the sexual activity desired and the identity of the person wishing to engage in that activity. [ 88 ] Having considered all of the evidence presented in these proceedings, I am satisfied beyond a reasonable doubt that Mr.

Merasty was either aware that the complainant was not actively communicating her consent or that he was wilfully blind to her lack of consent or capacity to consent while he was touching her. CONCLUSION [ 89 ] For the foregoing reasons, I am satisfied that the Crown has proven the actus reas of the offence of sexual assault – namely, that Mr. Merasty touched the complainant on June 30, 2019; that the nature to that touching was sexual, and that the complainant did not subjectively consent to that touching. I am also satisfied that the Crown has proven the mens rea of the offence – namely, that Mr.

Merasty intentionally touched the complainant and that he was either aware of or wilfully blind to an absence of consent on her part. [ 90 ] As a consequence, I find Mr. Merasty guilty of sexual assault contrary to

section 271 of the Criminal Code . Dated this 18th day of January, A.D. 2021, at the City of Prince Albert, in the Province of Saskatchewan. __________________________ S.D. SCHIEFNER, J