R. v. Walsh, 2013 NLCA 56

Date: 20130904 Docket: 13/65 Citation: R. v. Walsh , 2013 NLCA 56

Section 486.4 of the Criminal Code respecting the non-publication of the identify 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 MICHAEL WALSH APPELLANT AND: HER MAJESTY THE QUEEN RESPONDENT Coram: Barry J.A. Application Heard: August 28, 2013 Decision Rendered: August 28, 2013 (Orally) Written Reasons Filed: September 4, 2013 Counsel for the Appellant: Averill Baker Counsel for the Respondent: Iain R.W.

Hollett Barry J.A.: [ 1 ] The appellant was convicted of sexual assault on February 14, 2013, contrary to s. 271 of the Criminal Code . He was sentenced to 15 months imprisonment. He has appealed his conviction. In this application, he seeks judicial interim release pending his appeal. [ 2 ] Release pending determination of an appeal is governed by s. 679(3) of the Criminal Code , which reads, in part: [T]he judge of the court of appeal may order that the appellant be released pending the determination of his appeal if the appellant establishes that (

a) the appeal or application for leave to appeal is not frivolous, (

b) he will surrender himself into custody in accordance with the terms of the order, and

(

c) his detention is not necessary in the public interest. [3] The Crown accepts that appropriate conditions can be put in place to alleviate any concern regarding subsections 679(3)(b)and (c). The principal issue here is whether the appeal is “frivolous”, that is, whether there is no “arguable case with respect to …guilt”: R. v. Wiscombe, 2008 NLCA 1, 76 W.C.B. (2d) 444. [4] The trial transcript has not yet been prepared. From the trial judge’s reasons for decision and the appellant’s application, thefacts giving rise to the charge may be summarized as follows: (

a) After a night of drinking alcohol and consumption of some marijuana at the appellant’s trailer, the complainant went to sleep on afold-out cot about five feet from the main bedroom where the appellant and his wife, a co-worker of the complainant, were sleeping. (

b) Both the appellant and the complainant were intoxicated. (

c) The appellant says that during the night he went to the bathroom and upon returning must have mistakenly gotten into bed with thecomplainant while half asleep. He explained that was the first time he had slept in the trailer and he had to pass by the complainant’sbed in order to get to and from the bathroom. (

d) The appellant says that while, after returning to bed, he put his arm across the body of the person he believed to be his wife, heremembers nothing about any sexual contact. (

e) The complainant says that she awoke to find the appellant attempting to insert his penis in her vagina from behind. As well, he wasattempting to stimulate her vaginal area by reaching over with his hand. The complainant says that, while initially she briefly may haveresponded positively while in a dream-like state by pushing back, she jumped up in bed and tried to push the appellant away once sherealized where she was. (

f) The complainant confirmed the appellant appeared shocked when she jumped up in the bed. (

g) The appellant says he had been drinking, was half asleep and was startled when the complainant turned over and he realized she wasnot his wife. (

h) The trial judge found that, in a statement to the police, the appellant had specifically denied that anything happened between himselfand the complainant. But at another point in the statement quoted by the trial judge the appellant said that he did not know what hadhappened after he went to bed. [5] The trial judge rejected the evidence of the appellant that he did nothing but place his arm over the complainant. The trialjudge also found that the appellant had the intention to touch the complainant with his penis and with his hand in her vaginal areaalthough knowing there was no consent by her.

The trial judge concluded that, in light of the denials of the appellant that he had touchedthe complainant sexually, the issue of honest but mistaken belief regarding consent did not arise as there could be no air of reality to thedefence. Also, the trial judge held that even if he accepted the appellant’s testimony, that he had inadvertently gotten into the wrongbed, his actions with respect to the female in the bed were “certainly reckless”.

The trial judge went on: That is, he knew there was a strange female sleeping just five feet from his room, yet made no effort to distinguish between that bed andits occupant and his own bed and its occupant. He was in a confined space and this was the first time he had slept in that trailor. Yet hedrank to excess to the point of intoxication and commenced to engage in sexual activity without determining if the person in the bed washis wife, and, without determining whether his wife or someone else, was interested in consenting to such activity, yet he persisted inspite of the risk.

Such actions, in my view, in the circumstances of this fact situation constituted recklessness on his part. (See R. v.Sansregnet (SCC), [1985] 1 S.C. R. 570 per McIntyre J.) On either account I therefore find that the Crown hasestablished the mens rea component of the sexual assault beyond a reasonable doubt. [6] I am not convinced, in these circumstances and with these reasons for decision, that it is frivolous for the appellant to appealon the basis of error by the trial judge in his application of the principle of proof beyond a reasonable doubt.

It is arguable that thereasoning of the trial judge quoted above, regarding the appellant’s knowledge that there was no consent, applies only if the appellant atthe time of sexual contact knew that he was touching the complainant and not his wife. The appellant testified he was “half asleep” andsaid his being in the bed was inadvertent as was any touching that occurred. In these circumstances, it is not frivolous for the appellantto seek, with a proper transcript, appellate scrutiny of the trial judge’s finding that the appellant intended to engage in sexual activitywithout the consent of the person in the bed.

See R. v. Osolin, (SCC), [1993] 4 S.C.R. 595. The issue is not whether thecomplainant consented. On the evidence before me, it is clear that she did not. The question is whether the Crown proved beyond areasonable doubt that the appellant knew she did not consent. [7] Though mindful of

section 273.2 of the Criminal Code, which prevents an accused from relying upon a belief that thecomplainant consented to the sexual activity where the accused’s belief arose from the accused’s self-induced intoxication orrecklessness or wilful blindness, or where the accused did not take reasonable steps in the circumstances to know that the complainantwas consenting, I am not convinced that it is frivolous for the appellant to question whether, if his account of inadvertence was believed,that he should be barred from raising this defence of honest but mistaken belief of consent because his behavior should be regarded asreckless within the meaning of

section 273.2. [8] The appellant should also have the opportunity to question whether the defence of honest but mistaken belief in consentshould not be applicable because of any denials he made. These denials should be considered in the light of a proper transcript and thecomplete statement made to police. As noted above, there appear to be some ambiguities in the language used which it is not frivolousfor the appellant to have scrutinized on appeal.

Also, it is not frivolous for the appellant to assert that the applicability of the defence ofhonest but mistaken belief should be considered in the light of the totality of the evidence, including the Crown’s case. See R. v.Ewanchuk, (SCC), [1999] 1 S.C.R. 330, at paragraph 55. Here the complainant’s testimony provided some support forthe appellant’s testimony that he was startled when he realized the person with him in the bed was not his wife. Also, the complainant

said she responded positively to the appellant’s advance initially for a brief period because she mistakenly believed he was someone else. The appellant should be permitted to argue whether the trial judge should have considered more fully the defence of honest but mistaken belief in these circumstances. [ 9 ] I find that Mr. Walsh has met the three criteria set out in section 679(3) of the Criminal Code and I grant him bail pending his appeal, on the following conditions: (

i) he shall keep the peace and be of good behaviour; (ii) he shall appear before the court when required to do so; (iii) he shall notify the RCMP in Holyrood, in writing, 72 hours prior to any change of address, or prior to leaving to go overseas for work; (iv) he shall not leave the province of Newfoundland and Labrador while on judicial interim release unless it is for work purposes only and he has notified the RCMP as stated above; (

v) he shall have no contact with the complainant, M.G., or with the witnesses, Colette Griffin and Saphron Newell; (vi) he shall reside at the address of 2 Solomon Close, Bay Bulls, NL, A0A 1C0; and (vii) he shall pay into court the sum of $2,000.00. ____________________________ L. D. Barry J.A.