Her Majesty the Queen - v. -, 2014 SKPC 205

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 205 Date: November 27, 2014 Information: 43842507 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - D.R. Appearing: Frank Impey For the Crown Lisa Watson For the Accused JUDGMENT S.L. METIVIER , J I INTRODUCTION [ 1 ] The accused, D.R., is charged with sexual assault of the complainant, C.B., contrary to s. 271 of the Criminal Code . The accused and complainant are related. The charge arises from sexual activity that occurred between the accused and the complainant in December, 2012, in Saskatoon, Saskatchewan.

[2] The complainant says that she has no memory of the sexual activity due to an alcohol induced blackout. The Crown arguesthat there was no consent. The accused does not deny that he had sex with the complainant. He claims that the activity was consensualor, alternatively, that he had an honest but mistaken belief in consent. [3] The Crown called three witnesses: the complainant, C.B., her mother, F.B., and her uncle, R.B.. The accused testified andcalled two additional witnesses: M.R. and J.R.. [4] The Supreme Court of Canada discussed the law of sexual assault in R. v. Ewanchuk, (SCC), [1999] 1 SCR330.

In order for an accused to be convicted of sexual assault, the Crown must prove beyond a reasonable doubt that they committed theactus reus (wrongful act) and that they had the necessary mens rea (mental intent). The actus reus of the offence is unwanted sexualtouching. The mens rea is the intention to touch, knowing of, or being reckless of or willfully blind to, a lack of consent, either by wordsor actions, from the person being touched. (Ewanchuk, at para. 23) [5] Consent is an essential component of both the actus reus and mens rea. If the activity was consensual, there was no actusreus.

If the accused believed the activity was consensual, he lacked the mens rea for sexual assault. II ISSUES [6] The issues in this case are: 1. Did the complainant consent to having sex with the accused? 2. If the complainant did not consent, did the accused have an honest but mistaken belief in consent? [7] As the Court heard contradictory evidence with respect to the central issue of consent, this case involves an assessment ofcredibility, which is to be assessed in light of all the evidence having regard to the principles established by the Supreme court of Canadain R. v W.(D.), (SCC), [1991] 1 SCR 742.

III ANALYSIS 1. Did the complainant consent to having sex with the accused? [8] Consent of the complainant is to be determined by reference to the complainant’s subjective state of mind towards the sexualtouching, at the time it occurred. While the complainant’s testimony is the only source of direct evidence as to her state of mind,credibility must still be assessed 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 totake place. (Ewanchuk, at para. 29) [9] To be legally effective, consent must be voluntary. Therefore, even if the complainant consented, or her conduct raises areasonable doubt about her non-consent, circumstances may arise that call into question what factors prompted her apparent consent.(Ewanchuk, at para. 36) Under

section 273.1(2) of the Criminal Code, no consent is obtained if “the complainant is incapable ofconsenting to the activity”, as might arise due to intoxication.

C.B. [ 10 ] The complainant testified that she spent the afternoon at a friend’s house, where she consumed between 14 and 16 ounces of whiskey. The accused and the complainant’s mother, F.B., picked her up around 5:00 p.m. and took her to SARCAN Recycling to sell some bottles. She used the money from SARCAN to purchase a two litre bottle of Appaloosa beer, which she continued to drink while they drove around in the accused’s vehicle. [ 11 ] The next thing the complainant remembers is lying on a bed in the bedroom of a strange house; she was naked from the waist down, with her pants and underwear still on one leg.

The accused was lying on the floor beside her. She quickly realized what had happened, put her clothes on and left. [ 12 ] The complainant testified that “no one goes and has sex with an uncle”, and stated that she did not consent to having sex with the accused. D.R. [ 13 ] The accused testified that this was not the first time the two of them engaged in consensual sexual activity. In July, 2012, he spent the night at the complainant’s house where they had sex three times throughout the night.

The two of them talked about starting a relationship after the first encounter, but agreed that it would not work because they were close relatives and their family would not accept it. [ 14 ] The evening in December, 2012, began with the accused drinking with the complainant and her mother, F.B., at F.B.’s house. He decided to leave around 10:00 p.m. as was feeling buzzed from the alcohol and wanted to drive home while he was still sober enough to do so. [ 15 ] As he was leaving, the complainant asked him for a ride to a friend’s house.

They stopped at a house on 23 rd Street and eventually ended up back in his vehicle together. The complainant asked him if there was someplace they could “be together” which he understood to mean “sleep together”. He told the complainant that he would ask his sister, J.R., if she had a spare room. They drove to his sister’s house and he obtained his sister’s permission to have a woman sleep over. The complainant followed the accused into the bedroom and they closed the door. [ 16 ] The accused and the complainant laid down on the single bed and started to kiss and touch each other.

They both removed their clothes and the foreplay progressed to sexual intercourse.

While they were engaged in sexual intercourse, the accused’s daughter, M.R., burst into the room, admonished them for having sex, and demanded that the complainant leave. [ 17 ] As the complainant has no memory of the sexual activity, the only evidence before me as to what occurred between the complainant and the accused in the bedroom leading up to and during the sexual activity is the evidence of the accused, which included the following: ∙ The complainant asked him if there was a place where they could “be together”; ∙ They agreed to go to his sister’s house to see if she would give them a room; ∙ They both walked into the room, and took off their own clothes;

∙ They engaged in mutual foreplay which progressed to sexual intercourse. [ 18 ] J.R. testified that the accused came to her house that evening and asked if he could sleep there with a woman. Upon providing her permission, the accused went and got the complainant from his vehicle. Ms. J.R. said that she engaged in a casual conversation with the complainant about their children following which the complainant followed the accused into the bedroom. She felt uncomfortable with the situation because the accused and the complainant are related.

She telephoned the accused’s daughter, M.R., and asked her to come deal with it. [ 19 ] M.R. went to the house after receiving a telephone call from J.R. She burst into the bedroom and demanded to know what was going on. She said that she did not see anything but blankets as it was dark in the room. She got into an argument with her father and told the complainant to leave. [ 20 ] The complainant said that after she realized what happened, she ran from the house and eventually took a cab to a friend’s house. Her mother told her that the incident was all over Facebook.

She said that she felt dirty, gross, and ugly and stayed inside her friend’s residence for four days. [ 21 ] The complainant’s evidence as to her subjective state of mind is not reliable given her testimony that she has no memory of the events due to an alcohol induced blackout. While the complainant’s actions after the incident may be consistent with an absence of consent, they are equally consistent with regret, humiliation and embarrassment caused by the activity being broadcast. The evidence of the accused and J.R. is indicative of active participation.

While there were some minor inconsistencies, the evidence of the defence witnesses raises a reasonable doubt about the complainant’s non-consent. [ 22 ] That is not the end of the matter as I still must consider whether the complainant had the capacity to consent to sexual activity due to her level of intoxication. [ 23 ] The complainant’s evidence pertaining to her level of intoxication is not supported by the other witnesses. F.B. adamantly stated that her daughter was sober when she and Mr. D.R. picked her up to take her to SARCAN.

J.R. testified that when the complainant came into her house that night, they had a conversation about their children; the complainant seemed happy and in a good mood, and not particularly intoxicated.

The accused testified that the complainant had been drinking, but was not drunk or blacked out; she had no difficulty understanding him and was able to communicate effectively. [ 24 ] I am not satisfied beyond a reasonable doubt that the complainant was incapable of consenting due to her level of intoxication. [ 25 ] Having found that the complainant’s conduct raises a reasonable doubt about her non-consent and that she was capable of consenting, I need not consider whether the accused had an honest but mistaken belief in consent.

IV CONCLUSION [ 26 ] I find the accused, D.R., not guilty. _______________________ S.L. Metivier, J