R. v. D.K.B., 2012 MBCA 114

Citation: R. v. D.K.B., 2012 MBCA 114 Date: 20121205 Docket: AY 12-30-07799 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Mr. Justice Marc M. Monnin Mr. Justice Alan D. MacInnes BETWEEN: ) R. D. HarrisonHER MAJESTY THE QUEEN ) for the Appellant ) Respondent ) R. N. Malaviya ) for the Respondent- and - ) ) Appeal heard and ) Decision pronounced:B. (D.

K.) ) November 29, 2012 ) (Young Person, Accused) Appellant ) Written reasons: ) December 5, 2012 NOTICE OF RESTRICTION ON PUBLICATION: No one may publish any information that could identify a person as havingbeen dealt with under the Youth Criminal Justice Act, S.C. 2002, c. 1 (see s. 110(1)). STEEL J.A. 1 The accused appeals his conviction for sexual assault.

The accused admits that he and two male friends had driventhe 17-year-old complainant to a gravel pit and that they had all engaged in sexual activity with her without her consent. 2 While he admits to non-consensual sexual activity with the complainant, the accused submits that he had an honestbut mistaken belief that she was consenting. 3 The trial judge did not believe the accused, rejected his evidence and found him wilfully blind as to whether thecomplainant was consenting.

She convicted him of sexual assault. 4 The accused argues that the trial judge erred in the application of the well-known test arising from the case of R. v.W.(D.), (SCC), [1991] 1 S.C.R. 742. In particular, it is submitted that the trial judge erred in the second part of the testbecause, after finding that she did not believe the accused, she did not go on to consider whether the testimony of the accused raised areasonable doubt in her mind. 5 The trial judge was aware of the test in W.(D.) and referenced it.

It was also clear from her reasons that shecompletely rejected the accused’s evidence to such an extent that no reasonable doubt arose in her mind. 6 It would have been preferable had she been more explicit in her reasons. However, the Supreme Court of Canada hasindicated repeatedly that the W.(D.) procedure was not meant to be followed “word for word as some magic incantation” (R. v. S. (W.D.), (SCC), [1994] 3 S.C.R. 521 at 533). The key is whether the correct burden and standard of proof were applied, not whatwords were used in applying them.

7 See R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5 (at para. 7): … [T]his Court has also consistently confirmed that these steps need not be religiously followed or articulated.

Cory J. made this veryclear in W. (D.): … the failure to use such language is not fatal if the charge, when read as a whole, makes it clear that the jury could not have been underany misapprehension as to the correct burden and standard of proof to apply. [p. 758] …. 8 A complete reading of the reasons of the trial judge satisfies us that she did not inappropriately shift the burden andthat the correct standard of proof was applied. 9 In any case, even if the trial judge had accepted the accused’s evidence, his testimony did not support his defence ofhonest but mistaken belief. 10 It is not enough that the accused believed that the complainant was consenting.

He must take reasonable steps toascertain her consent to engage in the relevant sexual activity and believe that the complainant affirmatively communicated her consentby words or actions. Silence, passivity or ambiguous conduct does not constitute consent. See R. v. Ewanchuk, (SCC),[1999] 1 S.C.R. 330, and R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440. 11 The accused in this case admitted on cross-examination that he took no steps to ascertain whether the complainantconsented.

The fact that the complainant consented to sexual activity with him at a prior time or kissed him does not mean she consentedto sexual activity with three men at the same time, as well as anal penetration. 12 Key to the trial judge’s decision here is that the accused did not testify to any actions or steps which he took to ascertainthe complainant’s consent to the relevant sexual activity. His subjective

interpretation of the complainant’s conduct, whichinterpretation the trial judge found to be erroneous, cannot support the defence of honest but mistaken belief. 13 The appeal is dismissed. J.A. I agree: J.A. I agree: J.A.