R. v. Walsh, 2015 NLCA 3

Date: 20150121 Docket: 13/65 Citation: R. v. Walsh , 2015 NLCA 3

Section 486.4 of the Criminal Code respecting the non-publication of the identity of a complainant or of a witness and any information from which they might be identified applies to this judgment. IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : CHAD WALSH APPELLANT AND : HER MAJESTY THE QUEEN RESPONDENT Coram: Welsh, White and Harrington JJ.A. Court Appealed From: Provincial Court of Newfoundland and Labrador St. John’s Appeal Heard: September 18, 2014 and October 24, 2014 Judgment Rendered: January 21, 2015 Reasons for Judgment by Welsh J.A. Concurred in by White and Harrington JJ.A.

Counsel for the Appellant: Rosellen Sullivan Counsel for the Respondent: Iain R. W. Hollett

Welsh J.A.: [1] Chad Walsh was convicted of sexual assault as a result of an incident that took place in a trailer where he, his family and afriend of his wife were spending a holiday weekend. He was sentenced to fifteen months imprisonment. He appeals both his convictionand sentence. At issue in the appeal against conviction is the trial judge’s use of Mr. Walsh’s statement to police and application of thelaw regarding mistake of fact. BACKGROUND [2] On Friday, May 20, 2011, Mr. Walsh and his family were camped at a trailer park. Mr. Walsh testified that this was the firsttime they had used their trailer.

The complainant, a friend and co-worker of his wife who had not previously met Mr. Walsh, also stayedin the trailer. Other relatives of the family were camping in the same park. The trial judge summarized the evidence (2013 N.J. 64(provincial court)): [3] The evening began with some socializing and drinking. [The complainant] was drinking wine, Red Bull and vodka, andshooters. She also had a few puffs of a marijuana cigarette. The complainant explained that she socialized with her co-worker’s family,but did not have any particular dealings with [Mr. Walsh].

Later in the evening, between 12:30 and 1:00 a.m. she and her co-worker didone or two shots of Sour Puss, and then set up the bed to sleep. She was sleeping on a fold out couch next to the main bedroom. Whenshe retired for the evening her co-worker and her husband were in the main bedroom and the two kids were in bunk beds further downthe trailer. [3] The complainant acknowledged that Mr. Walsh would have to pass by where she was sleeping to get to the bathroom andreturn to his bed which was located about five feet from her bed. The trial judge found that, on his return from the bathroom, Mr.

Walshhad gotten into the complainant’s bed and had touched her genital area with his hand and with his penis. The trial judge did not acceptthe complainant’s testimony that Mr. Walsh’s penis had penetrated her vagina. [4] Mr. Walsh’s testimony was summarized by the trial judge: [12] … [Mr. Walsh] testified that he was drunk. He testified that he had little contact [that evening] with the complainant, and otherthan knowing that she was drinking and had used marijuana, he did not know anything else that she did.

He testified that later thatevening he, his wife, the complainant, his son and his friend, and his aunt and uncle went back to his camper. He was tired and went tobed. He and his wife were sleeping in the main bedroom, while her friend slept in the fold out couch near the bedroom he occupied. Hetestified that the bathroom is at the farther end of the trailer and that in order for him to get to the bathroom he would have to pass by thebed occupied by the complainant. He described it as squeezing by. He testified he assumes he went to the washroom and upon hisreturn he got into the wrong bed.

He said that he put his arm around the person in the bed, thinking that it was his wife. Thecomplainant rolled over and he looked at her and realized he was in the wrong bed. No words were spoken. She was fully clothed andhe was clothed with pajama pants, underwear and T shirt. He then jumped up out of the bed, went to his own bed and dozed off. Heheard the camper door open and he went out and asked her where she was going. She did not answer and drove away. He did not tell hiswife what happened that night but had done so afterwards. [13] On cross examination, Mr.

Walsh repeated his evidence on direct examination, but when put to him he specifically deniedtouching her in a sexual manner. He testified that his hand was outside the blanket and never was inside the blanket. … [5] The trial judge concluded: [33] When looking at all the evidence in this case, and analyzing that evidence as a whole, and in particular the immediate reaction ofthe complainant to the actions of Mr. Walsh, I must conclude that I do not accept the evidence of Mr. Walsh that he did nothing but placehis arm over the complainant, and thus did not interfere with the sexual integrity of the complainant.

Nor am I left in a reasonable doubtby that evidence. Based on all the evidence, and in particular the strong, concise and evenly presented evidence of the complainant, I amsatisfied beyond a reasonable doubt that the accused did place his penis on her vaginal area, moving it back and forth, and did touch hervaginal area with his hand. I am also satisfied that the complainant did not consent to the sexual touching perpetrated by the accused. [6] After concluding that the mens rea of the offence, being the intention to touch, had also been proven, the trial judge convictedMr. Walsh.

At a subsequent hearing, he was sentenced to a term of imprisonment of fifteen months. ANALYSIS The Conviction Appeal [7] Sexual assault is an offence under

section 271 of the Criminal Code, which provides, in relevant parts: Everyone who commits a sexual assault is guilty of (

a) an indictable offence and is liable to imprisonment for a term not exceeding 10 years … [8] The trial judge reviewed the elements of the offence by referring to the decision in R. v. Ewanchuk, (SCC),[1999] 1 S.C.R. 330. Major J., for the majority, explained: [23] … The actus reus of assault is unwanted sexual touching. The mens rea is the intention to touch, knowing of, or being recklessof or wilfully blind to, a lack of consent, either by words or actions, from the person being touched. …

[25] 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. It is sufficient for the Crown to prove that the accused’sactions were voluntary. The sexual nature of the assault is determined objectively; the Crown need not prove that the accused had anymens rea with respect to the sexual nature of his or her behavior … . [26] The absence of consent, however, is subjective and determined by reference to the complainant’s subjective internal state ofmind towards the touching, at the time it occurred … . Mr.

Walsh’s Statement to the Police [9] Prior to the trial, the judge held a voir dire to determine the admissibility of a statement Mr. Walsh gave to the police. Thejudge concluded that Mr. Walsh’s right to retain and instruct counsel without delay and to be informed of that right, pursuant to section10(

b) of the Charter, was breached sometime after the interview had begun. He determined that the portion of the statement taken afterthe breach must be excluded under section 24(2) of the Charter, but the portion taken prior to the Charter violation was admissible. [10] At the trial, the judge found that the complainant and Mr. Walsh both presented their evidence in a straightforward manner. Regarding Mr. Walsh’s evidence, the judge explained: [30] The evidence of the accused in this case was also very straightforward.

He essentially denied any touching of a sexual natureand explained that because he had been drinking and was half asleep, he made a mistake and got into the wrong bed in the trailer. Heacknowledged putting his arm over the complainant but nothing else. He stated he was startled when she turned over and he jumped upand went back into his own bedroom. However, I should note firstly that in the statement of [Mr. Walsh] admitted into evidence, hespecifically denies that anything happened between himself and the complainant. He states at one point: Walsh: I don’t know. That’s to be honest with ya. I ..

I don’t know what happened from that point, ya know, from the point I went tobed. That’s to be honest with ya, sir. Cst. Foreman: Okay. You don’t know what happened. Walsh: No. I .. I .. I. I don’t know what she’s talking about, I don’t know what happened, I was as .. I … … [31] Neither the Crown in cross examination nor the defence in direct examination referenced these statements to [Mr. Walsh] duringhis testimony. However, they were admitted into evidence and form part of the record of evidence. These comments contradict what[Mr.

Walsh] stated in his testimony that he did remember what had happened and then went on to provide an explanation of that. [32] I also find it strange that the accused provided no explanation at that time to the complainant that he had gotten into the wrongbed and had just put his arm over her. If the action was as innocent as he alleges, one might have expected some immediate explanationfor such an innocent mistake. … (Emphasis added.) [11] The trial judge’s initial statement, at paragraph 30, that Mr.

Walsh “specifically denies that anything happened between himselfand the complainant” is inaccurate to the extent that Mr. Walsh actually said in his statement that he did not remember what hadhappened or what the complainant was talking about. However, in the next paragraph, the judge accurately stated that the distinctionbetween Mr. Walsh’s statement and his testimony was that, on the one hand, he did not remember what happened and, on the other hand,he did remember and gave as an explanation that he got into the wrong bed. The judge went on to explain in detail, without furtherreference to Mr.

Walsh’s statement, why he accepted the testimony of the complainant rather than that of Mr. Walsh (paragraph 5,above). [12] The question on appeal is whether the trial judge erred in his use of the admissible portion of the statement. Fairness to theaccused in providing an opportunity to explain any apparent discrepancy between the statement and his testimony is one concern. Asecond concern is the potential for misuse of the admissible portion of the statement when a portion of the statement has been excludedand may provide context for understanding the admissible portion. A third concern raised by Mr.

Walsh is the potential for the trialjudge to err by inadvertently relying on information in the excluded portion of the statement. [13] These concerns must be considered in light of the trial judge’s reasons for decision as a whole. In R. v. Lohrer, 2004 SCC 80,[2004] 3 S.C.R. 732, Binnie J., for the Court, explained: [2] Morrissey [(1995), (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.)], it should be emphasized, describes a stringentstandard. The misapprehension of the evidence must go to the substance rather than to the detail. It must be material rather thanperipheral to the reasoning of the trial judge.

Once those hurdles are surmounted, there is the further hurdle (the test is expressed asconjunctive rather than disjunctive) that the errors thus identified must play an essential part not just in the narrative of the judgment but“in the reasoning process resulting in a conviction”. [14] In this case, it is clear that the judge’s reference to the statement was not an essential component of his assessment of Mr.Walsh’s credibility or his determination that the offence had been proven beyond a reasonable doubt.

Regarding the above concerns,setting aside the possibility that it was a strategic decision, counsels’ failure to deal with the statement while Mr. Walsh was testifying isindicative of its minimal relevance and usefulness. Reading the whole of the decision, it cannot be said that the trial judge’s reference tothe statement resulted in an unfairness, even considering the absence of an opportunity for Mr. Walsh to explain. [15] Further, there is no basis on which to conclude that the portion of the statement that was admissible was dependent on theexcluded portion to provide context.

Had that been the case, it was open to counsel to apply, on that basis, to have the whole of thestatement excluded. (See: R. v. G. (D.W.), 2000 NFCA 6, 142 C.C.C. (3d) 439, at paragraphs 19 to 25.)

[16] Finally, there is the inaccurate statement by the trial judge that Mr. Walsh “specifically denies that anything happened betweenhimself and the complainant”. However, the judge immediately followed this comment with the portion of the transcript on which hewas relying. This led him to identify the contradiction between the statement and Mr. Walsh’s testimony as relating to Mr. Walsh’sfailure, or not, to remember what happened. No further reference is made to a specific denial in the statement that anything hadhappened.

Placed in context, there is no indication that this comment was material to the judge’s assessment of Mr. Walsh’s credibilityor his determination that the offence had been proven beyond a reasonable doubt. Moreover, to say that Mr. Walsh specifically deniedthat anything happened is not inconsistent with his testimony if read to mean nothing of a sexual nature happened. [17] After alluding to the statement, the trial judge proceeded to explain why he preferred the testimony of the complainant. Hebased his conclusion that Mr.

Walsh had touched the complainant in a sexual manner on an assessment of the circumstances and thedescription of what had occurred provided by each. On this basis, he determined that the actus reus of the offence was proven. [18] In the circumstances, if the trial judge did misapprehend the evidence in relation to the statement, the misapprehension was notmaterial to his decision. Accordingly, applying the principle set out in Lohrer, misapprehension of the evidence does not provide a basison which to set aside the trial judge’s decision.

Mistake of Fact [19] Having determined that the actus reus of the offence had been established beyond a reasonable doubt, the trial judge went on toconsider the mens rea component. He explained, in addition to finding that the complainant had not consented to sexual activity: [34] … Even if I were to accept his evidence that he inadvertently got into the wrong bed, his actions with respect to the female in thebed were certainly reckless.

That is, he knew there was a strange female sleeping just five feet from his room, yet made no effort todistinguish between that bed and its occupant and his own bed and its occupant. He was in a confined space and this was the first timehe had slept in that trailer. Yet he drank to excess to the point of intoxication and commenced to engage in sexual activity withoutdetermining if the person in the bed was his wife, and, without determining whether his wife or someone else, was interested inconsenting to such activity. Yet he persisted in spite of the risk.

Such actions, in my view, in the circumstances of this fact situationconstituted recklessness on his part. (See R. v. Sansregret, (SCC), [1985] 1 S.C.R. 570 per McIntyre J.) … [35] And, in view of the denials of the accused that he touched the complainant sexually, issues of honest but mistaken belief inconsent do not arise in this case. In other words there is no air of reality to consider the operation of s. 273.2. (See R. v. Osolin, (SCC), [1993] 4 S.C.R. 595.) [20] Mr. Walsh submits that the trial judge erred in failing to assess the application of mistake of fact when, without analysis, herelied on

section 273.2 of the Criminal Code, concluding that the defence of honest but mistaken belief in consent lacked an air ofreality. This is an issue engaging the application of a legal standard to the facts of the case which is a question of law subject to reviewfor correctness (R. v.

Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at paragraph 20). [21] I begin with the principles discussed in Ewanchuk: [42] However, since sexual assault only becomes a crime in the absence of the complainant’s consent, the common law recognizes adefence of mistake of fact which removes culpability for those who honestly but mistakenly believed that they had consent to touch thecomplainant. To do otherwise would result in the injustice of convicting individuals who are morally innocent: see R. v. Creighton, (SCC), [1993] 3 S.C.R. 3.

As such, the mens rea of sexual assault contains two elements: intention to touch andknowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched. See Park [(SCC), [1995] 2 S.C.R. 836], at para. 39. [43] The accused may challenge the Crown’s evidence of mens rea by asserting an honest but mistaken belief in consent. The natureof this defence was described in Pappajohn v.

The Queen, (SCC), [1980] 2 S.C.R. 120, at p. 148, by Dickson J. (as hethen was) (dissenting in the result): Mistake is a defence … where it prevents an accused from having the mens rea which the law requires for the very crime with which heis charged. Mistake of fact is more accurately seen as a negation of guilty intention than as the affirmation of a positive defence. Itavails an accused who acts innocently, pursuant to a flawed perception of the facts, and nonetheless commits the actus reus of anoffence. Mistake is a defence though, in the sense that it is raised as an issue by an accused.

The Crown is rarely possessed ofknowledge of the subjective factors which may have caused an accused to entertain a belief in a fallacious set of facts. [44] The defence of mistake is simply a denial of mens rea. It does not impose any burden of proof upon the accused (see R. v.Robertson, (SCC), [1987] 1 S.C.R. 918, at p. 936) and it is not necessary for the accused to testify in order to raise theissue. Support for the defence may stem from any of the evidence before the court, including, the Crown’s case-in-chief and thetestimony of the complainant.

However, as a practical matter, this defence will usually arise in the evidence called by the accused. (Emphasis added.) [22] Regarding a sexual assault charge,

section 273.2 of the Criminal Code addresses limitations where consent is at issue: 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 thatforms the subject-matter of the charge, where (

a) the accused’s belief arose from the accused’s (

i) self-induced intoxication, or (ii) recklessness or wilful blindness; or

(

b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainantwas consenting. (Emphasis added.) [23] The trial judge applied this provision in concluding that there was no air of reality to the defence of mistake of fact “in view ofthe denials of the accused that he touched the complainant sexually” (paragraph 19, above). The difficulty with this analysis is thatsection 273.2 is directed to mistake as to the issue of consent to sexual touching. The mistake of fact on which Mr.

Walsh relies is amistake, not as to consent to sexual touching, but as to the bed he was in and the person he was with. In these unusual circumstances,section 273.2 is not engaged. Rather, the relevant principles are those that apply where mistake of fact is relied upon and the accused ischarged with a general intent offence. [24] In R. v. A.D.H., 2013 SCC 28, [2013] 2 S.C.R. 269, Moldaver J., dissenting, addressed the issue of mistake of fact which themajority found unnecessary to consider (paragraph 17).

In that case, the issue was abandonment of a newborn where the mother testifiedthat she believed the baby was dead. Moldaver J. explained: [154] Nor does an objective standard punish those who act under an honest but mistaken belief that their conduct is not dangerous inthe circumstances – so long as the belief is reasonably held.

Justice Charron put the matter succinctly in Beatty [2008 SCC 5, [2008] 1S.C.R. 49], at paras. 37-38: However, because the accused’s mental state is relevant in a criminal setting, the objective test must be modified to give the accused thebenefit of any reasonable doubt about whether the reasonable person would have appreciated the risk or could and would have donesomething to avoid creating the danger. … … In the same vein, a reasonably held mistake of fact may provide a complete defence if, based on the accused’s reasonable perceptionof the facts, the conduct measured up to the requisite standard of care. [155] What the test does not do is take into account the personal attributes of the accused, short of incapacity to appreciate the risk.

Nor will it allow people who are drunk or high on drugs to escape liability on the basis that they were not capable of foreseeing, or didnot foresee, the likely consequences of their actions. That, with respect, is how it should be. And the circumstances of this case serve toexemplify how the penal negligence standard works to spare the morally blameless from criminal liability. [25] In R. v.

Gunning, 2005 SCC 27, [2005] 1 S.C.R. 627, Charron J., for the Court, dealt with when a defence such as mistake offact will be properly considered by the trier of fact: [32] … A defence will be in play whenever a properly instructed jury could reasonably, on account of the evidence, conclude infavour of the accused: R.v.

Fontaine, [2004] 1 S.C.R. 702, 2004 SCC 27, at para. 74. [26] Where, in the circumstances, a defence, such as mistake of fact, is engaged, the onus is on the Crown to establish beyond areasonable doubt that the defence does not apply (Gunning, at paragraph 25). [27] Applying these principles in this case, it is clear that the complainant did not consent to the touching, but Mr. Walsh has notsuggested that she did consent. Mr. Walsh says he thought he was with his wife, not the complainant. Accordingly, while the trial judgedid not accept Mr.

Walsh’s testimony that he had only put his arm over the person in the bed, the sexual touching which the judgedetermined had occurred would not necessarily preclude the operation of the defence of mistake of fact as to the identity of the person. [28] If Mr. Walsh had entered his and his wife’s bed, it could be inferred from the marital relationship, in the absence of evidence tothe contrary, that the initiation of intimate sexual contact would not require verbal consent, but could be consented to by conduct (R. v. S.(A.W.) (1998), 1998 MBCA 10 , 122 C.C.C. (3d) 442 (Man. C.A.); R. v.

S. (P.W.), 1999 CarswellYukon 101 (Yuk. Terr. Ct.), atparagraph 9). [29] The evidence accepted by the trial judge was that both the complainant and Mr. Walsh had been drinking earlier, had beenasleep, and were half-asleep when the incident occurred. The complainant had her back to Mr. Walsh. When she realized somethingwas wrong, she jumped up, and Mr. Walsh, seeing her, also jumped up. The incident lasted less than a minute. These factors must beconsidered in light of the physical surroundings and other circumstances. Mr.

Walsh’s wife lay just feet away from the complainant’sbed; two young boys also slept nearby, just down the hall; Mr. Walsh and the complainant had just met that evening; the evidence is thatneither exhibited any interest of a sexual nature, or otherwise, in the other prior to their retiring to bed at different times; Mr. Walshtestified that he was happily married and loved his wife and had no reason to seek out the complainant. [30] These factors were sufficient to give an air of reality to the defence of mistake of fact. It would have been for the trial judge todetermine, based on all the evidence, whether Mr.

Walsh had a reasonably held belief that he had returned to his own bed and that theperson he touched was his wife. If so, consideration would have to have been given to whether the Crown had proven beyond areasonable doubt that the defence of mistake of fact was precluded based on self-induced intoxication. [31] In

summary, the trial judge erred by refusing to consider the application of the defence of mistake of fact in the unusualcircumstances of this case. His decision must, therefore, be set aside and a new trial ordered.

SUMMARY AND DISPOSITION [32] In

summary, the trial judge erred by failing to consider the application of the defence of mistake of fact in the unusualcircumstances of this case. As a result, I would allow the appeal, set aside the conviction, and order a new trial.

___________________________________ B. G. Welsh J.A. I Concur: ___________________________________ C. W. White J.A. I Concur: ___________________________________ M. F. Harrington J.A.