Monty Kishayinew Appellant v. Her Majesty the Queen, 2019 SKCA 127

Restriction on Publication An order has been made in accordance with s. 486.4(1) of the Criminal Code directing that any information that could identify the complainant shall not be published. Court of Appeal for Saskatchewan Docket: CACR3074 Citation: R v Kishayinew , 2019 SKCA 127 Date: 2019-11-26 Between: Monty Kishayinew Appellant And Her Majesty the Queen Respondent Before: Jackson, Barrington-Foote and Tholl JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Mr. Justice Barrington-Foote In concurrence: The Honourable Madam Justice Jackson In dissent: The Honourable Mr.

Justice Tholl On Appeal From: 2017 SKQB 177 , Saskatoon Appeal Heard: March 5, 2019 Counsel: Nolan Courteau for the Appellant Beverly Klatt for the Respondent Barrington-Foote J.A. I. Introduction [ 1 ] On June 4, 2017, Mr. Kishayinew was convicted of sexually assaulting L.S. by a judge of the Court of Queen’s Bench [QB decision]. He was sentenced to 4.5 years in prison, less credit for pre-sentence custody.

He has appealed his conviction and sentence. [ 2 ] In my opinion, the trial judge erred by making findings of fact essential to the verdict that were incompatible with evidence that was not otherwise contradicted or rejected. I would allow Mr. Kishayinew’s appeal against conviction and order a new trial. II. ISSUES [ 3 ] Mr. Kishayinew’s conviction appeal is pursuant to s. 686(1) (a)(

i) of the Criminal Code : 686.

(1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal (

a) may allow the appeal where it is of the opinion that (

i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence[.] [ 4 ] More specifically, the following issues arise: (

a) Did the trial judge make inconsistent findings of fact in relation to consent, leading to an unreasonable verdict? (

b) Did the trial judge make a finding of fact relating to reliability that was incompatible with evidence not otherwise contradicted or rejected by the trial judge, leading to an unreasonable verdict ? (

c) Did the trial judge make a finding of fact relating to capacity to consent as a result of intoxication that was incompatible with evidence not otherwise contradicted or rejected by the trial judge , leading to an unreasonable verdict? III. BACKGROUND [ 5 ] My colleague Tholl J.A.’s reasons outline the evidence and the QB decision, and I will accordingly do so only briefly, focusing on matters relevant to these reasons. [ 6 ] On August 23, 2014, Mr. Kishayinew approached L.S. in a back alley in Saskatoon. L.S. had been drinking and was surfacing from a blackout. At Mr. Kishayinew’s behest, she walked with him to his nearby residence, where he directed her to his basement

bedroom. L.S. says that as they lay on his bed, he touched her chest, kissed her, and had vaginal intercourse with her without her consent.However, L.S. does not remember the intercourse, as it occurred during another blackout. The term “blackout” here refers to a lack ofmemory, not sleep or a loss of consciousness. [7] Mr. Kishayinew, whose DNA was found on a vaginal swab, admitted that he touched and had intercourse with L.S. He deniedtouching her chest. He testified that their sexual encounter was consensual and, indeed, that L.S. took the initiative. The trial judge did notbelieve Mr. Kishayinew.

He believed L.S., finding that “[s]he gave her evidence in a credible, forthright, honest and consistent manner”(at para 94). That evidence was a step-by-step description of meeting Mr. Kishayinew, walking to his home, saying no to his uninvitedsexual advances, and being told to take off her pants. She testified that she then blacked out, waking to find her pants and underwear lowerthan usual, and, after Mr.

Kishayinew told her not to leave, escaped from the house. [8] Having found these facts based on L.S.’s evidence, the trial judge stated as follows (at para 97): … All of this evidence, which I do accept, corroborates, at least inferentially, that she did not consent to sexual activity, including sexualintercourse, with Mr. Kishayinew. [9] Mr. Kishayinew did not plead and there would have been no air of reality to a plea of honest but mistaken belief incommunicated consent.

Accordingly, if paragraph 97 means that the trial judge had found L.S. did not subjectively consent and did notcommunicate consent, he had found that all elements of the offence were made out. However, the trial judge did not state that conclusionand find Mr. Kishayinew guilty on that basis. He instead proceeded to deal with whether L.S. had the capacity to consent: [98] Based on her description of the amount she had to drink she thought she was at an eight, on a scale of one to ten, upon leaving thehouse party on Idylwyld Drive.

Although no expert evidence was led as to her level of intoxication, I am satisfied having regard for herevidence and that of R.D. regarding her consumption of alcohol earlier that night; the evidence of her two blackouts; the evidence of Mr.Kishayinew of her “crying like a drunk” and not making sense; the description of her demeanor and sobriety identified by M.S.; and moreparticularly her demeanor and level of sobriety identified by Constable Bear who dealt with her later that morning, including having tohelp her up, steady her when she stood swaying or when she swayed walking, trying to work with her to locate the home where she statedshe had been assaulted, and the illegible and incoherent content of the statement she provided to Constable Bear, that L.S.’s level ofintoxication was such that she did not have the necessary operating mind to be able to freely and consciously grant, revoke or withhold herconsent to engaging in sexual activity with Mr.

Kishayinew, including sexual intercourse. [99] I further find, based on all of the evidence I do accept, that Mr. Kishayinew was reckless or wilfully blind to L.S.’s level ofintoxication and her inability to consent to engage in sexual activity with him, and he failed to take reasonable steps in the circumstancesknown to Mr. Kishayinew at the time to determine whether L.S. was consenting. I determine that L.S.’s level of intoxication was such thatMr.

Kishayinew needed to take additional reasonable steps to assess the extent to which L.S. was capable of consenting to sexual activitywith him. [10] The trial judge then rejected Mr. Kishayinew’s claim that he took L.S. home to keep her safe: [101] Instead, immediately upon arriving at the home, he forcibly led her down into his bedroom in the basement of his home and theresought to engage this distraught, disoriented and very frightened woman in sexual activity. His actions confirm my finding. He was not agood citizen. He was no white knight for L.S.

He decided to take advantage of her sexually, and he did so, without her consent. [11] In reaching this verdict, the trial judge adverted to the need to assess both the credibility and reliability of witnesses. He cited Rv H.C., 2009 ONCA 56 at para 41, 241 CCC (3d) 45, as to the difference between those two concepts. In his analysis of the evidence, hefound that Mr. Kishayinew’s evidence lacked any credibility and, as noted, that L.S. gave her evidence in a credible manner. He did notcomment as to the reliability of any of the witnesses. IV.

ANALYSIS [12] The ultimate issue on this appeal is whether the verdict of the trial judge is unreasonable within the meaning of s. 686(1)(a)(i)of the Criminal Code. A verdict is unreasonable if it could not reasonably have been rendered by a properly instructed judge or jury: R vYebes, (SCC), [1987] 2 SCR 168 at 185, and R v Biniaris, 2000 SCC 15 at paras 35–37, [2000] 1 SCR 381. This verdict isnot unreasonable in that sense. A properly instructed judge or jury could have found Mr.

Kishayinew guilty. [13] The question here, rather, is whether the verdict is unreasonable and must be set aside for the following reason described byDeschamps J. in R v R.P., 2012 SCC 22, [2012] 1 SCR 746: 9 … The appellate court may also find a verdict unreasonable if the trial judge has drawn an inference or made a finding of factessential to the verdict that (1) is plainly contradicted by the evidence relied on by the trial judge in support of that inference or finding, or(2) is shown to be incompatible with evidence that has not otherwise been contradicted or rejected by the trial judge (R. v.

Sinclair, 2011SCC 40, [2011] 3 S.C.R. 3, at paras. 4, 16 and 19-21; R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190). This question arises as a result of the trial judge’s reasoning and conclusions as to whether L.S. consented to or was incapable ofconsenting to the sexual activity with Mr. Kishayinew. [14] I would first note that the QB decision demonstrates that the trial judge was aware of the elements of sexual assault.

As he said: [61] The essential elements for the offence of sexual assault are: (1) that the accused intentionally touched the complainant; (2) that the complainant did not consent to the touching;

(3) that the accused knew that the complainant did not consent to the touching; and (4) that the touching applied took place in circumstances of a sexual nature. [15] The trial judge was also aware that consent is an integral component of both the actus reus and the mens rea of the offence.That was demonstrated during his thorough and methodical review of the law relating to consent that he thought to be relevant.

ChiefJustice McLachlin summarized this aspect of the law of sexual assault in R v J.A., 2011 SCC 28, [2011] 2 SCR 440 [J.A.]: [23] A conviction for sexual assault under s. 271(1) of the Criminal Code requires proof beyond a reasonable doubt of the actusreus and 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 inquestion: Ewanchuk.

As discussed below, the Criminal Code, s. 273.1(2), limits this definition by stipulating circumstances where consentis not obtained. [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). [16]

Section 273.1(2) of the Criminal Code provides that one of the circumstances where consent is not obtained is where thecomplainant “is incapable of consenting to the activity”. Consent means “the conscious consent of an operating mind” (J.A. at para 36),and requires “a conscious, operating mind, capable of granting, revoking or withholding consent to each and every sexual act” (J.A. at para44). In R v Al-Rawi, 2018 NSCA 10, 359 CCC (3d) 237, Beveridge J.A., after noting that some cases suggest “minimal” capacity isrequired to consent, offered the following useful

summary of the law: [60] This begs the question: what constitutes an operating mind? Comatose, insensate or unconsciousness cannot qualify. Major J.,in R. v Esau, supra, reflected that being unconscious due to intoxication is not the only state capable of removing a complainant’s capacityto consent (para. 24). Mere awareness of the activity is also insufficient to ground capacity where the trial judge accepted that thecomplainant was “out of control” and “not able to say no” due to the involuntary ingestion of drugs (R. v. Daigle (1997), (QC CA), 127 C.C.C. (3d) 130 (Que.

C.A.), aff’d (SCC), [1998] 1 S.C.R. 1220). [61] On the other hand, requiring the cognitive ability necessary to weigh the risks and consequences of agreeing to engage in thesexual activity goes too far. … [66] Therefore, a complainant lacks the requisite capacity to consent if the Crown establishes beyond a reasonable doubt that, forwhatever reason, the complainant did not have an operating mind capable of: 1. appreciating the nature and quality of the sexual activity; or 2. knowing the identity of the person or persons wishing to engage in the sexual activity; or 3. understanding she could agree or decline to engage in, or to continue, the sexual activity. [67] In cases where consent and capacity to consent are live issues, the trial judge must determine if it has been established beyond areasonable doubt that the complainant did not consent, or lacked the capacity to consent.

As detailed above, these inquiries are entirelysubjective. [17] In R v G.F., 2019 ONCA 493, 146 OR (3d) 289 [G.F.], Pardu J.A. adopted this

summary of the law “subject to the caveat that,in light of the varieties of human conditions which may raise issues of incapacity, it may not describe all of the circumstances in which acomplainant could be found to lack an operating mind” (at para 37). I concur.

I also agree with her opinion (at para 36) that “capacity forconsidered evaluation of the collateral risks and consequences of sexual activity” is not necessary for capacity to consent, and further: [38] … while mere proof of drunkenness, loss of inhibitions, regret for a bad decision or some memory loss do not of themselvesnegate capacity for consent, some physical actions such as walking a short distance, making a phone call, speaking, and some awarenessof or resistance to sexual activity do not necessarily preclude a finding of incapacity.

I also agree that some memory of the events is notnecessarily inconsistent with incapacity … As the case law demonstrates, the trier of fact must consider all the evidence to make thefactual determination of the complainant’s capacity at the relevant time. Issues of incapacity can arise in a multitude of circumstances,including sleep, intoxication, illness, and intellectual disability. [18] The trial judge was aware of the meaning of communicated consent, citing key passages from J.A.

He also knew that theanalysis of consent is a two-step process, having cited the following statement by McLachlin C.J.C. and Cromwell J. in R v Hutchinson,2014 SCC 19, [2014] 1 SCR 346: [4] The Criminal Code sets out a two-step process for analyzing consent to sexual activity. The first step is to determine whether theevidence establishes that there was no “voluntary agreement of the complainant to engage in the sexual activity in question” under s.273.1(1).

If the complainant consented, or her conduct raises a reasonable doubt about the lack of consent, the second step is to considerwhether there are any circumstances that may vitiate her apparent consent. Section 265(3) defines a series of conditions under which thelaw deems an absence of consent, notwithstanding the complainant’s ostensible consent or participation: Ewanchuk, at para. 36.

Section273.1(2) also lists conditions under which no consent is obtained. … [19] I note the useful discussion of the two-step process to be followed where there are potential issues of both consent and capacityto consent in G.F., at paragraphs 41–49.

[20] The trial judge was, accordingly, well aware that L.S.’s capacity to consent would be in play only if he had determined that L.S.had consented or if he had a reasonable doubt about her lack of consent, as it was that lack of capacity that might vitiate consent.Similarly, he knew the issue of honest but mistaken belief in communicated consent, and thus the issue of whether Mr. Kishayinew wasreckless or wilfully blind to L.S.’s level of intoxication and inability to consent, would arise only if he first found she lacked the capacity toconsent as a result of intoxication.

The trial judge correctly stated the law on these issues (QB decision at paras 67–77). As he said: [70] An accused may raise the defence of honest but mistaken belief in consent if he or she believed the complainant communicatedconsent to engage in sexual activity: R v J.A., at para 24. However, Parliament has limited when an accused may rely upon that defenceunder s. 273.2(

a) and (b), including where the accused’s belief arose from his or her self-induced intoxication, recklessness or wilfulblindness, or where the accused did not take reasonable steps in the circumstances known to him to ascertain that the complainant wasconsenting. [21] In my opinion, the QB decision is properly read in a manner consistent with this analytical framework. Paragraph 97 cannot beread in isolation. It must be read in the context of the reasons as a whole and, in particular, together with paragraph 98.

Read in terms of itsordinary and grammatical meaning and in this context, the meaning of paragraph 97 seems clear. It describes the relevance of certainevidence. It does not state a conclusion about consent because the trial judge had not concluded beyond a reasonable doubt that there wasno consent. That is why, having found that L.S.’s evidence “corroborates, at least inferentially” that L.S. did not consent to sexual activitywith Mr. Kishayinew, the trial judge proceeded to consider L.S.’s capacity to consent, Mr.

Kishayinew’s recklessness or wilful blindness,and the failure to take “reasonable steps to assess the extent to which L.S. was capable of consenting to sexual activity” (at para 99). Thatenquiry was the second step in the two-step analysis. It related to consent in the context of mens rea. [22] This

interpretation of the QB decision sets the first of the three issues arising on this appeal which are listed above to rest. Thetrial judge did not reach inconsistent conclusions that L.S. both did not consent and consented but did not have the capacity to consent. Italso distinguishes this case from cases such as R v Jensen (1996), (ON CA), 106 CCC (3d) 430 (Ont CA) [Jensen], andR v Basra, 2009 BCCA 520, 71 CR (6th) 306 [Basra]. In Jensen, the trial judge had convicted the accused, having found that thecomplainant either did not consent or did not have the capacity to consent.

The Ontario Court of Appeal did not say those two paths toconviction could never co-exist. However, it found the evidence did not support a finding that the complainant lacked the capacity toconsent, which was essential to one of those paths, and ordered a new trial for that reason. Here, the trial judge made a positive findingthat L.S. did not have the capacity to consent. [23] Similarly, the trial judge in Basra – as in Jensen – had convicted the accused on the basis that the complainant either lacked thecapacity to consent or did not in fact consent.

The appellant, citing Jensen, argued that this revealed a reasonable doubt as to whether thecomplainant lacked capacity. The British Columbia Court of Appeal distinguished Jensen, finding that the evidence supported only thosetwo inferences, and dismissed the appeal. [24] Jensen demonstrates there are circumstances in which an accused may be convicted of sexual assault despite the trial judge’sinability to decide whether the complainant consented or lacked the capacity to consent. This is not such a case. Here, the trial judge didnot find there were two alternative routes to a conviction.

He was unable to decide whether L.S. had consented and, indeed, found she “didnot have the necessary operating mind to be able to freely and consciously … withhold her consent to engaging in sexual activity with Mr.Kishayinew, including sexual intercourse” (at para 98). Not having found a lack of communicated consent to the intercourse, he was leftwith only one route to a conviction, being the lack of capacity to consent. He convicted Mr. Kishayinew on that basis. [25] The question, then, is whether the trial judge erred as he travelled that route. In my respectful opinion, he did.

First, the trialjudge did not properly assess L.S.’s reliability, by failing to consider relevant and incompatible evidence. He found that L.S. lacked thecapacity to consent as a result of intoxication. As such, he found that she was so intoxicated that she did not have a conscious, operatingmind capable of appreciating the nature and quality of the sexual activity, knowing who Mr.

Kishayinew was, or understanding she coulddecline to engage in that sexual activity. [26] Given the high bar set by the definition of incapacity to consent, it was essential that the trial judge reconcile how the evidenceof intoxication could support both that finding of incapacity and his implicit conclusion that L.S.’s evidence was reliable. I am unable toconclude that he did so. He certainly referred to evidence of intoxication. He also referred to the difference between credibility andreliability in his legal analysis.

However, he did not explicitly address reliability in his reasons, despite the fact that L.S.’s intoxication wasat the heart of this case. Indeed, he did not discuss the impact of intoxication on L.S.’s memory and reliability at all, other than in relationto her memory blackouts. He nonetheless fully accepted her detailed evidence as to her interactions with Mr.

Kishayinew withoutreservation. [27] Accordingly, and with the greatest respect, the reasons reflect an implicit finding of fact that L.S. was reliable that wasincompatible with evidence of intoxication that was not otherwise contradicted or rejected by the trial judge. That finding of fact wasessential to the verdict. For that reason, the answer to the second of the three issues arising on this appeal is yes. [28] The remaining issue is whether the trial judge found that L.S. was incapacitated despite evidence incompatible with thatconclusion that was not otherwise contradicted or rejected.

Although the trial judge’s analysis of L.S.’s level of intoxication refers toseveral aspects of the evidence that suggested L.S. was intoxicated, it does not refer to crucial direct evidence from L.S. herself relating tothat issue. L.S. said that she was a seven or an eight on a 10-point scale before she met Mr. Kishayinew, but that she felt fine at that time.The trial judge referred to that statement.

It was also her evidence that she felt “a little buzzed” and that at seven on a scale of ten – a scaleshe was not asked to explain – she was “getting buzzed”. [29] Indeed, L.S. directly denied that she was intoxicated. She gave the following evidence as to her level of intoxication when shewas in the company of a friend shortly before she accompanied Mr. Kishayinew: Q Okay. So since you met up with Ryan until -- until the last you drank atthe house, I’m saying that the maximum that you had was -- was ninedrinks? A I would say like eight.

Q Eight drinks. Okay. And again you’re also -- you -- in your direct examination, when you were talking to Ms. Rock, you said, again, at the house you were feeling about number 7 on the scale of one to ten; correct? A Yeah. Q Yeah. And again just to underline this, that that was you were feeling kind of some effects from the alcohol, but you wouldn’t describe yourself as intoxicated; correct? A Correct. [ 30 ] L.S. also testified that she was not intoxicated when she was in Mr. Kishayinew’s bedroom.

Further, she testified as to her sobriety after she had left his home and spoke to the police: Q Oh, no, that was -- that was the wrong way to -- to ask the question. When you were dealing with the police, you were very upset; right? A Yes. Q And did that interfere with your ability to tell the story about what happened? A It could have. Q Yeah. So if the police would say that -- that you gave them a confusing story -- A Yes. Q -- when -- when you were talking to them -- A I was just very scared and upset. Q Right. A And it was just a shock is just what happened. Q Right, but it didn’t have to do with drinking?

A No. Q Right. Do you recall the police helping you up when you got there, helping you up off the curb? A I was on the grass. Q You were on the grass. Do you recall them helping you up? A Yeah, one -- one cop kind of helped me up. Q Yeah. A And then I got up. Q And that was because you were upset and really -- A Yes, I was crying. Q Okay. Not because you were intoxicated? A No. Q Okay. And you had also talked about the statement that you wrote; right? A Yes. Q And that was because the statement that you wrote, you can -- you can’t even read it; right? A Right. Q Right.

And -- and that was because you were saying that it was dark in the car? A It wasn’t in the car. It was on the back of the car. Q Okay. All right. A On the outside. Q Thanks for that clarification. A There was hardly any light at all. Q Mmhmm. A The streetlights were very dim, and I couldn’t see the paper -- Q Right. A -- very good. And I asked for a light, and they just told me to keep writing. Q Okay. And again the -- the difficulty in writing that statement had nothing to do with -- with you being intoxicated? A No. Q Okay. So if they said you were intoxicated they were incorrect?

A I would say, yeah. [ 31 ] This direct evidence was relevant not only to capacity, but – given that the trial judge would have to reject it to find incapacity – to L.S.’s reliability. The QB decision did not refer to this evidence in analyzing capacity, credibility or reliability. Indeed, other than in relation to the comment that L.S. felt “fine” earlier in the evening, it did not refer to it at all.

Strikingly, the trial judge specifically referred to the police evidence of their dealings with L.S. in support of the finding of incapacity without referring to her direct evidence which contradicted his conclusion. [ 32 ] In the result, the trial judge’s conclusion that L.S. lacked the capacity to consent – a finding of fact that was essential to the verdict – was incompatible with important evidence given by L.S. as to the extent of her intoxication that was not contradicted or rejected

by the trial judge. Accordingly, the answer to the third of the three issues arising on this appeal is also yes. V. CONCLUSION [33] For these reasons, it is my respectful opinion that the conviction appeal must be allowed. The matter is remitted to the Court ofQueen’s Bench for a new trial. “Barrington-Foote J.A.” Barrington-Foote J.A.I concur. “Jackson J.A.” Jackson J.A. Tholl J.A. (in dissent) I. Introduction [34] Mr. Kishayinew was convicted of sexually assaulting L.S. and was sentenced to 4.5 years of incarceration, minus pre-sentencecustody. He appeals both conviction and sentence.

For the reasons that follow, I am respectfully unable to agree with my colleaguesregarding the conviction appeal and would dismiss the appeal against conviction. Given that my colleagues would order a new trial, Idecline to address the appeal against sentence. II. Background [35] On August 23, 2014, L.S. had gone out for the evening for drinks with a friend, R.D. Later in the evening, her friend left L.S.alone in order to go and seek permission for her to spend the night on his aunt’s couch.

After her friend left, L.S. suffered a memoryblackout with her next memory being aware that she was in an alley sitting on the ground up against a fence. Mr. Kishayinew was standingby her and started talking to her. Mr. Kishayinew and L.S. had never met before that night. Mr. Kishayinew told L.S. to come with him butshe became upset, started to cry, and said she wanted to go home. Mr. Kishayinew told her she would be safe with him and he led her tohis house six blocks away. [36] In her testimony, L.S. described the events at Mr. Kishayinew’s home. Upon entering the house, Mr.

Kishayinew directed herto his bedroom area in the basement and told her to lay down and go to sleep. She told him she did not want to go to sleep and wanted togo home. L.S. tried to leave the basement, but Mr. Kishayinew prevented her from doing so. He then pulled her close and touched herchest over her clothing while trying to kiss her. L.S. said, “please don’t” and said she wanted to go home. L.S. testified she did not consentto the kiss or Mr. Kishayinew touching her chest and did nothing to invite the kissing or touching. Mr. Kishayinew stopped kissing her andtouching her chest when she told him to stop.

L.S. attempted to leave the basement again but could not open the door at the top of thestairs. Mr. Kishayinew came up to the top of the stairs and took her back to the basement, instructing her to lie on his bed. She testified hetook off his jeans and then told her to lie down. L.S. testified that Mr. Kishayinew started pulling down her pants and she was trying topull them back up. She described this as “I was struggling for a bit”. L.S. had another memory blackout at that point.

She agreed in cross-examination she does not know what happened during the blackout. [37] The next memory L.S. has is laying on the bed with Mr. Kishayinew beside her looking at her. Her pants and underwear wereaskew, in that they were lower than where she wears them, so she pulled them up. She testified she got up, tried to leave and asked again ifshe could go home but Mr. Kishayinew told her to stay. L.S. told Mr. Kishayinew she needed to use the bathroom so he took her to thebathroom upstairs. L.S. snuck out of the bathroom and ran from the house.

L.S. encountered two individuals on the street and the policewere called. [38] Mr. Kishayinew testified to very different details of the events in the basement. Mr. Kishayinew testified they both got on hisbed voluntarily when they got to his bedroom, then L.S. moved closer to him and started kissing him. He put his hands on her waist andkissed her back. L.S. asked him if he had a condom and she removed her pants while he retrieved one from the closet. Mr. Kishayinewdescribed L.S. as being naked from the waist down when he returned to the bed.

He testified he got on top of her – later in his testimonydescribing it as her pulling him on top of her – and they began to have vaginal intercourse. Mr. Kishayinew testified she asked him to stopafter 15 to 20 minutes, so he stopped. He agreed she went upstairs to the bathroom and suddenly left the house. [39] L.S. attended the hospital later in the day where a sexual assault examination was conducted. A vaginal swab was taken, whichrevealed the presence of semen. L.S. has no memory of sexual intercourse occurring.

A sample of the DNA obtained from the sexualassault examination was sent to the national DNA data bank that returned a match with Mr. Kishayinew’s DNA. L.S. testified she did notand would not have consented to sexual intercourse with Mr. Kishayinew. [40] The trial centred on whether the Crown had proven an absence of consent. In his written decision, the trial judge provided asummary of the evidence and then instructed himself on the relevant law: R v Kishayinew, 2017 SKQB 177 [Trial Decision].

Hereferenced the basic principles regarding the presumption of innocence and the requirement for the Crown to prove the offence on thebeyond a reasonable doubt standard. He then instructed himself with regard to the principles from R v W.(D.), (SCC),[1991] 1 SCR 742; R v McKenzie (1996), (SK CA), 106 CCC (3d) 1 (Sask CA); and R v J.H.S., 2008 SCC 30, [2008] 2SCR 152, that are to be applied when an accused testifies. He moved on to discuss the assessment of credibility, referring to the guidanceprovided in R v Baxter, 2013 SKCA 52, 414 Sask R 184; and R v H.C., 2009 ONCA 56, 241 CCC (3d) 45 [H.C.].

After stating that theevidence of the witnesses must be assessed “with respect to the credibility and reliability of their testimony”, he referenced the following

excerpt from H.C. with regard to credibility and reliability (Trial Decision): [41] Credibility and reliability are different. Credibility has to do with a witness’s veracity, reliability with the accuracy of the witness’stestimony. Accuracy engages consideration of the witness’s ability to accurately i. observe; ii. recall; and iii. recount events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, onthe other hand, is not a proxy for reliability: a credible witness may give unreliable evidence: R. v.

Morrissey (1995) (ON CA), 22 O.R. (3d) 514, at 526 (C.A.). The trial judge reminded himself that the assessment of evidence does not involve a credibility contest wherein he chooses which of twoversions of events he prefers. [41] The trial judge described the elements of the offence of sexual assault, defined consent and set out the actus reus and mens reaelements the Crown must prove. The trial judge also reviewed the requirement that a person must have a conscious operating mind toprovide consent, relying on R v J.A., 2001 SCC 28, [2011] 2 SCR 440.

Even though neither the Crown nor defence raised the issue ofhonest but mistaken belief in communicated consent, the trial judge set out the test for honest but mistaken belief in consent and anaccused person’s obligation to take reasonable steps to ascertain whether the complainant was consenting, particularly when an accusedknows the other person is seriously intoxicated. The trial judge also examined jurisprudence related to the effect of alcohol on acomplainant’s ability to consent and the effect of memory blackouts. [42] The trial judge found Mr.

Kishayinew encountered L.S. outside of the bar where she was scared, upset, crying, intoxicated anddisoriented, and he led her back to his sister’s house. The trial judge did not believe Mr. Kishayinew’s testimony with regard to the othersignificant events. He rejected Mr. Kishayinew’s testimony that L.S. was sober enough to know what she was doing, that she voluntarilywent with him and that his focus was to keep L.S. safe (Trial Decision): [85] Under cross-examination, Mr. Kishayinew contradicted aspects of his direct testimony. Examples included: acknowledging holdingL.S.’s hand while walking with her.

He described her as drunk and crying. Then completely sober. Then not knowing if she was drunk, butthat he knew she had been drinking, but her not being completely drunk. Then he said she was sober. She was talking sober and he wasdrunk, or at least she was more sober than him. He said he could smell alcohol on her breath as they kissed. [43] The trial judge rejected Mr. Kishayinew’s testimony that it was L.S. who initiated the sexual activity. The trial judge believed“she rejected Mr.

Kishayinew’s sexual advances while she remained conscious and tried, desperately to get away from him” (at para 95).He found she did not consent to Mr. Kishayinew’s attempts to kiss her and said no when he touched her chest over her clothes. Aftercommenting on additional evidence, the trial judge stated, “All of this evidence, which I do accept, corroborates, at least inferentially, thatshe did not consent to sexual activity, including sexual intercourse, with Mr.

Kishayinew” (at para 97). [44] Continuing his findings of fact, the trial judge determined “L.S.’s level of intoxication was such that she did not have thenecessary operating mind to be able to freely and consciously grant, revoke or withhold her consent to engaging in sexual activity withMr. Kishayinew, including sexual intercourse” (at para 98). The trial judge found Mr. Kishayinew was “reckless or wilfully blind to L.S.’slevel of intoxication and her inability to consent to engage in sexual activity with him, and he failed to take reasonable steps …” todetermine if L.S. was consenting (at para 99).

The trial judge noted there were a variety of different courses of action a reasonable personcould have taken to protect a person found in the state Mr. Kishayinew found L.S. and, again, rejected Mr. Kishayinew’s assertion that hewas trying to keep L.S. safe. [45] The trial judge concluded the Crown had proven an absence of consent beyond a reasonable doubt and convictedMr. Kishayinew of sexual assault. [46] The trial judge adjourned sentencing and ultimately ordered the preparation of a pre-sentence report. Mr.

Kishayinew wassentenced to 4.5 years of incarceration, less 17 months and 2 days of credit for pre-sentence custody, resulting in a sentence of 3 years and28 days of incarceration. Ancillary orders were granted for a DNA sample, sex offender registration and a weapons prohibition. A victimsurcharge of $200 was imposed with two consecutive days of incarceration in default of payment: see R v Kishayinew, 2017 SKQB 340[Sentencing Decision]. III. Jurisdiction and Issues [47] Mr. Kishayinew appeals his conviction pursuant to s. 675(1) of the Criminal Code.

He asserts the conviction is anunreasonable verdict based on the evidence before the court, and, particularly, based on the reliability of L.S.’s evidence. Mr. Kishayinewsubmits a new trial should be ordered pursuant to s. 686(1)(

a) and s. 686(2)(

b) of the Criminal Code. [48] During the course of submissions, the issues related to the conviction appeal distilled to the following: (

a) Did the trial judge fail to properly assess the reliability of L.S.’s evidence, leading to a verdict that is unreasonable orunsupported by the evidence? (

b) Did the trial judge make inconsistent findings of fact in relation to consent, leading to an unreasonable verdict?

IV. Analysis – Conviction Appeal A. Did the trial judge fail to properly assess the reliability of L.S.’s evidence, leading to a verdict that is unreasonable or unsupported by the evidence? [ 49 ] Mr. Kishayinew asserts the trial judge failed to undertake a reliability analysis with regard to L.S.’s evidence. He is particularly concerned with the reliability of L.S.’s evidence in the face of her intoxication and memory blackouts. [ 50 ] The trial judge undertook an evaluation of the credibility of Mr.

Kishayinew’s testimony and did not believe the crucial portions of his evidence (see paragraphs 82–93 of the Trial Decision ). The trial judge appropriately came to his conclusions regarding the lack of believability of the bulk of that testimony by providing detailed reasons and reference to evidence presented at trial. In the final paragraph of that analysis, the trial judge stated the following: [93] … The contradictions in his evidence I find to be directed towards his self-serving attempt to justify his forced sexual activity including sexual intercourse upon L.S.

I determine that his intent all along upon finding L.S., lost, drunk, disoriented and upset having been abandoned by her friend “R.D.” was not to keep her safe or to prevent anyone from bothering her, other than himself. I found his evidence to be contradictory and self-serving to justify his actions. His evidence as to the sexual activity, including that it was L.S. who initiated that sexual activity, including sexual intercourse with him in all the circumstances was wholly and completely incredible. I do not believe him. [ 51 ] Having rejected Mr.

Kishayinew’s testimony, the trial judge then set out the evidence he did accept. In doing so, he found L.S. was credible : [94] I do believe L.S. She gave her evidence in a credible, forthright, honest and consistent manner. Her evidence leading up to the point in time where she and R.D. got separated on the night in question is largely confirmed by R.D. Her evidence with respect to being found by Mr. Kishayinew is largely confirmed by him. She said she was leaning against a fence in the alley behind [a bar] and he said she was sitting on the curbside … adjacent to the parking lot at [the bar].

She recalls being scared, upset, crying, disoriented, and not wanting to go with Mr. Kishayinew. Her evidence in this regard, including him telling her she will be safe, was largely confirmed by Mr. Kishayinew’s testimony, including his comment that she was “crying like a drunk”. [95] L.S. had some recollection of the walk to his home … but not complete recollection. She acknowledged two episodes of blackouts – an earlier episode when R.D. left her to go do something and a second episode at the point in time in Mr.

Kishayinew’s bedroom when he was trying to kiss her, touch her chest and wanted her to pull down her pants. I believe her when she says she rejected Mr. Kishayinew’s sexual advances while she remained conscious and tried, desperately to get away from him. … [96] … She acknowledged she blacked out when he told her to take off her pants after he had taken off his own pants and was wearing only his boxer shorts. … She acknowledged that during her blackout she had no memory of what transpired between her and Mr.

Kishayinew. [97] When she recovered from her blackout, L.S. recognized her pants and underwear, although still above her pubic area, were nevertheless displaced from how she wore them. She felt “weird down below”. She was frightened and wanted desperately to get away from Mr. Kishayinew and eventually fled out the back door, screaming and crying for help. All of this evidence, which I do accept, corroborates, at least inferentially, that she did not consent to sexual activity, including sexual intercourse, with Mr.

Kishayinew. [ 52 ] As a preliminary step, I must determine whether the trial judge actually found that L.S. did not consent to sexual intercourse. This issue arises because the final sentence at the conclusion of paragraph 97 of the Trial Decision is not as clear as it could be. In my view, while paragraph 97 is awkwardly worded, the trial judge made a factual finding at this point that L.S. had not consented to sexual intercourse. This

interpretation fits with the context of the earlier portions of the paragraph and with a reading of the judgment as a whole. [ 53 ] In the paragraphs leading up to his conclusion, the trial judge found L.S. had not done anything to communicate her consent. The trial judge wholly rejected Mr. Kishayinew’s evidence of the alleged verbal utterances and actions by L.S. that Mr. Kishayinew testified he believed had communicated consent. The trial judge found that not only did L.S. not consent, she actively resisted sexual activity.

He found L.S. had attempted to escape, had specifically said no to the initial kissing and touching of her chest and resisted Mr. Kishayinew pulling down her pants. In my view, he then found, inferentially, that she did not consent to sexual intercourse. [ 54 ] Additionally, interpreting the trial judge’s words in paragraph 97 as not being a factual finding of an absence of consent would require this Court to determine the trial judge completely ignored the Crown’s main theory and argument at the conclusion of the trial.

The Crown had put forth two separate paths to conviction during final argument: the absence of consent and the absence of capacity to consent. At trial, the Crown described its submission that there was no consent as “the stronger argument” of the two routes to conviction. In anticipation of this two-path argument by the Crown, defence counsel argued against both theories in final submissions to the trial judge. In my opinion, the trial judge did not ignore the Crown’s stronger argument . There was a finding of fact that L.S. had not consented to the sexual activity. [ 55 ] Turning to Mr.

Kishayinew’s submissions regarding reliability, he concedes there is no basis for this Court to interfere with the trial judge’s conclusion that L.S. was credible . However, he argues credibility does not translate into reliability and submits the trial judge erred by treating L.S.’s evidence as reliable . Mr. Kishayinew submits L.S.’s intoxication and memory blackouts rendered her evidence unreliable and a proper reliability analysis by the trial judge should have led to this determination.

He submits the trial judge’s failure to properly engage in a reliability analysis of L.S.’s evidence renders the conviction unreasonable. The Crown disagrees and submits Mr. Kishayinew is attempting to re-litigate the facts. The Crown submits an examination of the evidence as a whole supports its contention that L.S.’s evidence was reliable and the conviction cannot be found to be unreasonable. [ 56 ] A complete failure to conduct a reliability analysis would be an error of law under s. 686(1)(a)(ii) and would be subject to

review on a correctness standard. This would be no different than a complete failure to conduct a credibility analysis (R v Patrick, 2017SKCA 95 at paras 51 to 72 [Patrick], R v Morrissey (1995), (ON CA), 97 CCC (3d) 193 (WL) (Ont CA) at paras 33 to35 [Morrissey]). [57] When an appellant asserts a proper reliability analysis was not done, relying on s. 686(1)(a)(i), the Court must determinewhether this represents a challenge that the verdict is unreasonable or a challenge that the verdict is unsupported by the evidence becausethe two branches of s. 686(1)(a)(

i) are disjunctive (R v Beaudry, 2007 SCC 5 at paras 89 to 98, [2007] 1 SCR 190, R v Sinclair, 2011 SCC40, [2011] 3 SCR 3). An examination of the jurisprudence demonstrates this type of challenge represents an assertion that the verdict isunreasonable (R v Burke, (SCC), [1996] 1 SCR 474 at paras 2 to 7 and 46 [Burke], Patrick at paras 24 and 67, R vSchaff, 2017 SKCA 103 at paras 21 and 44 [Schaff], R v Perrone, 2014 MBCA 74 at para 4, 313 CCC (3d) 399 [Perrone] (aff’d 2015 SCC8, [2015] 1 SCR 473), and R v Hussain, 2018 ONCA 147 at paras 4 to 8, 140 OR (3d) 593).

A trial judge’s assessment of reliability cannotbe interfered with on appeal unless it cannot be supported on any reasonable view of the evidence: Patrick at para 24, R v Houle, 2019MBCA 17 at para 10.

A finding of reliability by a trial judge, like a finding of credibility, is a finding of fact that attracts significantdeference by a reviewing court: Patrick at para 57, Schaff at para 44, and R v Wolff, 2019 SKCA 103 at para 40 [Wolff]. [58] When a verdict is challenged on the basis of unreasonableness, an appellate court may, to a limited extent, examine, considerand reweigh the evidence but cannot substitute its own view of the evidence for that of the trial judge: R v Yebes, (SCC),[1987] 2 SCR 168 [Yebes]; R v Biniaris, 2000 SCC 15, [2000] 1 SCR 381 [Biniaris]; and R v Britz, 2016 SKCA 2, 331 CCC (3d) 338. [59] In analyzing this ground of appeal, it is important to understand the distinction between credibility and reliability because theassessment of credibility is a separate consideration from the assessment of reliability.

It is the difference between the witness’swillingness to testify truthfully (credibility) and the accuracy of the witness’s testimony (reliability). Finding a witness to be credible doesnot equate to finding a witness’s testimony to be reliable.

While a non-credible witness’s testimony will not be reliable, a crediblewitness’s testimony is not necessarily reliable: see Morrissey, H.C., Patrick, Schaff, Wolff, and R v Pelletier, 2019 SKCA 113 atparas 138–139. [60] There are many reasons why witnesses – who are forthright, acting in good faith and honestly doing their best to tell the truthduring testimony – may not be reliable. Some of those reasons include (but are not limited to) the following: (

a) inability to properly observe the events in the first instance; (

b) confusion with a different event; (

c) intoxication; (

d) passage of time; (

e) nervousness during testimony; or (

f) other factors affecting a witness’s ability to observe, remember and recount the events. [61] The assessment of reliability is often intertwined with the assessment of credibility, and some of the same factors that affectcredibility are relevant to reliability; but reliability is a separate issue. The failure of a trial judge to consider the reliability of crucialevidence is grounds for appellate intervention: Burke at paras 45–46; R v J.S., 2011 ONCA 304 at paras 9–12; and Patrick at para 58. [62] The Manitoba Court of Appeal addressed a matter similar to the case at hand in Perrone.

In that case, the complainant wassitting on a couch with an acquaintance watching television. She was on medication for what she described in her testimony as “psychosis”and was intoxicated by alcohol and marijuana. The complainant had a blackout, with her next memory consisting of being on a bed withthe acquaintance engaging in sexual intercourse. She testified she did not consent to the sexual activity, and immediately left the home andhad another short memory blackout while walking to a different location. The accused was convicted of sexual assault and appealed hisconviction.

The reliability analysis at the trial level was less comprehensive than the trial judge’s analysis in the matter at hand. Indismissing the appeal, Monnin J.A., for the majority, noted the trial judge had made no explicit finding with regard to the reliability of thecomplainant but found the reasons given by the trial judge implicitly demonstrated a finding of reliability: [48] I am of the view that the trial judge, through her reasons, has confirmed that she assessed both the credibility and reliability of thewitness taking into account the areas of concerns which she outlined.

Having done so, it was open to her to find that the complainant’sevidence should be accepted on the core issue of whether the events occurred as she described them. [63] The decision in Perrone came in the context of very similar circumstances to the current matter but with a complainant inPerrone that also had the additional complicating reliability factor of describing herself as having been affected by a psychosis.

Themajority decision in Perrone was upheld by the Supreme Court in R v Perrone, 2015 SCC 8, [2015] 1 SCR 473, in a very brief oraljudgment, which adopted Monnin J.A.’s conclusion that the trial judge had assessed both credibility and reliability: 1. We are all of the view that the appeal must be dismissed. We agree with Justice Monnin of the Court of Appeal, for the majority, whenhe stated at para. 48: I am of the view that the trial judge, through her reasons, has confirmed that she assessed both the credibility and reliability of the witnesstaking into account the areas of concerns which she outlined. 2.

The appeal is therefore dismissed. [64] In my view, trial judges do not have to explicitly address the issue of reliability, if their reasons are sufficient for an appellatecourt to determine they turned their mind to the issue of reliability and evaluated the relevant reliability factors (Perrone and Patrick). [65] Turning to the appeal at hand, the trial judge correctly instructed himself that he must consider credibility and reliability (at

para 56). He then referred to the excerpt from H.C. that succinctly summarized the differences between reliability and credibility (at para 57). After rejecting Mr. Kishayinew’s evidence, the trial judge turned to an analysis of L.S.’s credibility (at paras 94 to 97) but he also implicitly analyzed reliability. He did not use the word “reliability” while doing the analysis in these paragraphs, but he is not required to do so.

I note defence counsel never used the word “reliable” or any of its derivative words in final submissions to the trial judge either, but it is obvious from reading defence counsel’s final submissions that reliability was an issue in the trial. Like the trial judge’s analysis, it is substance not form that matters. [ 66 ] I have re-examined the evidence within the boundaries of appellate review and can find no error in the trial judge’s determination that L.S. did not consent to the kissing and the touching of her chest and his inferential determination that she did not consent to sexual intercourse.

In my view, the trial judge examined credibility and reliability and properly arrived at his conclusion that the Crown had proven an absence of consent beyond a reasonable doubt. [ 67 ] In conducting his analysis, the trial judge made several findings that indicate he implicitly found L.S.’s evidence to be reliable. Firstly, he specifically commented on the testimony from Mr. Kishayinew and R.D. that confirmed L.S.’s testimony.

This is a strong indication that the trial judge was actively evaluating the reliability of L.S.’s testimony. [ 68 ] Secondly, L.S. testified in great detail about the events outside of her memory blackouts and the trial judge noted L.S. was consistent in this testimony. Consistency is another tool used by trial judges to evaluate reliability. [ 69 ] Thirdly, in paragraph 97, the trial judge commented, “All of this evidence, which I do accept, corroborates, at least inferentially, that she did not consent to sexual activity …”.

While a witness cannot corroborate his or her own testimony, the trial judge was referring to all of the evidence, including the evidence that L.S. “fled out the back door, screaming and crying for help”, which was corroborated by other witnesses. [ 70 ] Fourthly, I note the evidence also revealed L.S. located the house the following day and provided the address to Sergeant Ellingboe who confirmed it was Mr. Kishayinew’s home. While not commented on specifically by the trial judge in the analysis

section of the Trial Decision , this was an additional indicator of reliability set out in the trial judge’s

summary of the evidence. [ 71 ] Lastly, and most importantly to this appeal, the trial judge was well aware of L.S.’s level of intoxication, and the resulting two memory blackouts, along with the potential concerns this raised with regard to her reliability. L.S. acknowledged the periods of blackout where she had no memory, but her testimony about the events she could recall was implicitly found by the trial judge to be reliable. [ 72 ] L.S. had consumed a significant amount of alcohol and was found by the trial judge to be significantly intoxicated.

She had two periods of memory blackout during the relevant events of August 23. The first blackout began in the alley and ended when Mr. Kishayinew appeared in the alley. The second memory blackout occurred in the basement and encompassed the entirety of the period when sexual intercourse occurred. This absence of memory raised legitimate concerns about reliability. [ 73 ] When considering the trial judge’s evaluation of the effect of the intoxication and memory blackouts on L.S.’s reliability, the trial judge’s reasons at paragraphs 94 to 97 cannot be read in a vacuum or parsed down to single phrases or words.

The reasons for judgment must be read as a whole. When the reasons for judgment are read in this way, within the permitted scope of appellate review, it emerges that L.S.’s intoxication and the associated lapses in memory complicated the assessment of reliability but the trial judge was alive to these factors and considered them in his determination of reliability. [ 74 ] The concerns regarding L.S.’s memory are highlighted numerous times throughout the whole of the Trial Decision .

In addition to paragraphs 56 and 57, where the trial judge instructed himself on the difference between credibility and reliability, and paragraphs 94 to 97, where L.S.’s evidence is specifically evaluated, it is useful to set out other portions of the Trial Decision where the trial judge repeatedly referred to the issue: [3] … Mr. Kishayinew testified that L.S. initiated the sexual activity with him and was a willing participant in the same. L.S. denied she consented to engaging in any sexual activity with Mr. Kishayinew.

Due to her suffering a blackout, she had no recollection of sexual intercourse occurring. … [21] L.S. testified that when they got back to the alley behind Manchester’s Bar, she recalled talking to R.D. about going home with him, but he had to do something first. He left. She started walking, then blacked out. When she came to, she was further down the alley than she recalled prior to her black out. … … [26] … He told her to take off her pants. She did not. He started trying to pull down her pants.

At that point, she blacked out. [27] When she came to, she said she was lying on the mattress. … … [32] Constable Bear testified L.S. was sitting on the ground when they arrived. He described her as appearing to be intoxicated. She needed his help to stand up. He indicated that when she stood, she swayed from side to side. Her words were “mumbly or slurred”. He stated that it was frustrating trying to get her to try to tell her story as she was “all over the place” and her crying while talking made it difficult to understand her.

He had her write out a statement on the trunk of the police vehicle (Exhibit P-7 as to legibility only). The statement is virtually illegible, and the words written make no sense. [33] Constable Bear and Constable Willard placed L.S. in the back seat of their police vehicle. They spent approximately one-half hour with her trying to locate the home where she alleged she had been assaulted. She took them to a home at the corner of Avenue F North and 34th Street. They knocked on the back door, but there was no answer. L.S. then said the assault occurred in a home near the Subway on

Idylwyld Drive North, but she could not identify that home. [34] Due to her intoxicated and distraught state, they took L.S. to the home of a friend she identified where they could leave her. ConstableBear helped her to the door of that home. He said she continued to sway as she walked and ensured her friend was sober and would lookafter her. … … [76] … L.S. testified to vigorously rebuffing Mr. Kishayinew’s attempts to engage her in sexual activity by kissing her and touching herchest above her clothing. However, she also testified to two episodes of blackouts, including when Mr.

Kishayinew engaged in sexualintercourse with her. L.S. testified to no recollection of having sexual intercourse with Mr. Kishayinew. … [78] That L.S. blacked out at some point during the sexual activity and has little or no memory of the same, is not, in and of itself, enoughto support a conviction. The evidentiary effect of alcohol induced amnesia, or a “blackout” has been considered in other cases.

JusticeDucharme explained the import of lack of memory as follows in R v J.R. (2006), (ON SC), 40 CR (6th) 97 (Ont SupCt) at para 18: [18] … Absent expert evidence, a loss of memory or a ‘blackout’ is direct evidence of nothing except the fact that the witness cannottestify as to what happened during a particular period. Indeed, Ms. Martin the toxicologist called by the Crown described a blackout as, “acomplete loss of memory for a portion of time during a drinking episode.” In a sexual assault case this is particularly unfortunate since, aswas noted in R. v.

Esau (1997), (SCC), 116 C.C.C. (3d) 289 at 296 (S.C.C.), ‘[t] he parties testimony is usually the mostimportant evidence in sexual assault cases.” Esau is particularly relevant to the case at bar because it is a sexual assault case involving acomplainant with no memory of the relevant time.

In Esau at 297, Justice Major said of the complainant’s memory loss, “[a]ny number ofthings may have happened during the period in which she had no memory.” Thus, the only significance of memory loss, without more, isthat the complainant cannot give direct evidence as to whether or not she consented to the sexual contact or whether or not she had thecapacity to do so [emphasis added by Turcotte J. in the Trial Decision]. [79] Of course, the absence of evidence of consent or lack thereof due to the impact of alcohol on a complainant’s memory is notnecessarily fatal to the prosecution — especially where, as here, the Crown has presented other significant evidence, including L.S.’stestimony of her attempts to get away from Mr.

Kishayinew and her expressed rejection of his attempts to engage her in sexual activity. AsJustice Ducharme concluded in R v J.R. at paragraph 20: [20] This does not mean that evidence of memory loss or a blackout is unimportant, irrelevant or necessarily lacking in probative value.

Itmay well be circumstantial evidence which, when considered with other evidence in a case, may permit inferences to be drawn aboutwhether or not a complainant did or did not consent or whether she was or was not capable of consenting at the relevant time. … [80] I am mindful of the caution expressed by Justice Jackson of the Saskatchewan Court of Appeal in R v Olotu, 2016 SKCA 84 atparas 58-59, (2016), 338 CCC (3d) 321 (aff’d 2017 SCC 11), as to the use of the complainant’s evidence rejecting an accused’s earliersexual advances in the context of a subsequent blackout and complete lack of recollection during the time sexual intercourse took place: [58] In this appeal, Mr.

Olotu focusses on the trial judge’s reliance on the complainant’s statement that she would never engage in analintercourse as evidence that the trial judge shifted the burden of proof. In a case where the complainant lacks memory of the event, thecomplainant’s testimony that she would never have agreed to sexual intercourse must be handled with care for the very reason Mr. Olotuarticulates in this case. Such evidence can shift the burden of proof.

It is evidence that is difficult for an accused to refute or overcomebecause countervailing evidence directed to determining whether the complainant would have engaged in the sexual act will usually beinadmissible. [59] Having said this, however, it is clear that a complainant’s statement that she would never have engaged in the sexual act in questioncan be reliable evidence: R v J.R. (2006), (ON SC), 40 CR (6th) 97 (Ont SC); R v Kontzamanis, 2011 BCCA 184[Kontzamanis], and R v Garciacruz, 2015 ONCA 27, 320 CCC (3d) 414 [Garciacruz]; but, as the Court in Garciacruz demonstrates, afinding of fact based on the complainant’s statement to this effect is subject to review on appeal in a criminal matter in the same way asany other critical piece of evidence. [75] The trial judge demonstrated an understanding that a witness who has suffered memory blackouts cannot testify as to whatoccurred during periods when he or she has no memory but that factor alone does not render his or her other evidence unreliable.

It createsan absence of direct evidence from the witness for the blackout periods but an absence of memory of certain portions of the crucial eventsdoes not automatically create an absence of reliability for the witness’s other testimony. The trial judge found L.S. to be highly intoxicatedduring the sexual assault. The result of this intoxication was a fragmented memory with two memory blackouts, not a complete absence ofmemory. The trial judge found the memories L.S. did have were reliable.

He was entitled to do so. [76] A weakness in the trial judge’s analysis is found in the absence of a focus on the inconsistencies between L.S.’s evidence andR.D.’s evidence. There were inconsistencies as to what occurred with R.D.’s bicycle, where they separated and other details of the eventsfrom the point they left the bar to the point they parted company. However, the trial judge did not ignore these inconsistencies. Hesummarized the differing evidence of R.D. and L.S. (at paras 12–21) after highlighting the divergent evidence at the end of paragraph 11:“Here, their versions of the ensuing events differ”.

The trial judge then summarized the portions of the evidence from R.D. and L.S. fromthe point they left the bar, including the conflicting evidence. In his analysis, the trial judge stated L.S.’s evidence leading up to the pointwhere she and R.D. became separated was “largely confirmed” (at para 94). While not commenting further on the inconsistencies, the trialjudge had highlighted them earlier in the judgment and was aware of them when he performed his analysis. A trial judge is not required tocomment specifically on every inconsistency during his or her analysis.

The reasons in this matter are adequate to demonstrate the trialjudge considered the inconsistencies, but did not find they affected reliability in any substantial way. [77] Intertwined with all of the direct and circumstantial evidence in this matter was L.S.’s testimony that she did not consent andwould not have consented to any sexual activity with Mr. Kishayinew. A complainant who has no memory of the sexual activity that

forms the basis for the charge can testify they did not consent and would not have consented to the sexual activity. This testimony isevidence that is relevant to the determination of the absence of consent, despite an absence of memory of the actual sexual activity, andcan be found to be reliable: R v Olotu, 2016 SKCA 84 at paras 59 to 60, 338 CCC (3d) 321, and R v Al-Rawi, 2018 NSCA 10 at paras 69to 71, 359 CCC (3d) 237. In paragraph 97 of the Trial Decision, the trial judge found L.S.’s frightened reaction to finding that her pantsand underwear were askew, her desperate want to get away from Mr.

Kishayinew and her flight out the back door screaming and cryingfor help from strangers supported her claim that she did not consent to the sexual activity on August 23. This is indicative of a finding ofreliability for her testimony that she did not and would not have consented to the sexual activity even though she has no memory of theactual event. [78] The trial judge was acutely aware there were potential problems with L.S.’s reliability due to her memory issues resulting fromthe alcohol consumption and blackouts.

He examined the evidence, addressed this issue, implicitly engaged in the required reliabilityanalysis and determined L.S.’s evidence was reliable. A trial judge’s assessment of reliability is accorded significant deference and cannotbe interfered with on appeal unless it cannot be supported on any reasonable view of the evidence. The trial judge in this matter reached aconclusion on reliability that was reasonably available on the evidence before him. I cannot conclude the verdict reached by the trial judgeis one that could not have been reasonably rendered by a properly instructed trier of fact.

I would not interfere with the verdict on the basisof the assertion that L.S.’s evidence was not reliable. B. Did the trial judge make inconsistent findings of fact in relation to consent,leading to an unreasonable verdict? [79] The second issue in the conviction appeal involves an evaluation of potential inconsistent findings of fact. This was an issueraised during the argument of the appeal. The potential inconsistent findings of fact comprise the trial judge’s finding L.S. did not consentbut also finding she did not have the necessary operating mind to be able to freely and consciously withhold consent.

The trial judge alsofound Mr.

Kishayinew should have taken additional steps to determine if she was consenting. [80] This challenge to the verdict is grounded in the second branch of the test for an unreasonable verdict set out in R v R.P., 2012SCC 22, [2012] 1 SCR 746: [9] … The appellate court may also find a verdict unreasonable if the trial judge has drawn an inference or made a finding of fact essentialto the verdict that (1) is plainly contradicted by the evidence relied on by the trial judge in support of that inference or finding, or (2) isshown to be incompatible with evidence that has not otherwise been contradicted or rejected by the trial judge (R. v.

Sinclair, 2011 SCC40, [2011] 3 S.C.R. 3, at paras. 4, 16 and 19-21; R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190). [81] Turning to the matter at hand, after finding L.S. did not consent to the sexual activity, the trial judge went on to make thefollowing findings of fact (Trial Decision): [98] … L.S.’s level of intoxication was such that she did not have the necessary operating mind to be able to freely and consciously grant,revoke or withhold her consent to engaging in sexual activity with Mr. Kishayinew, including sexual intercourse. [99] I further find, based on all of the evidence I do accept, that Mr.

Kishayinew was reckless or wilfully blind to L.S.’s level ofintoxication and her inability to consent to engage in sexual activity with him, and he failed to take reasonable steps in the circumstancesknown to Mr. Kishayinew at the time to determine whether L.S. was consenting. I determine that L.S.’s level of intoxication was such thatMr.

Kishayinew needed to take additional reasonable steps to assess the extent to which L.S. was capable of consenting to sexual activitywith him. [82] The earlier findings of fact determined L.S. did withhold consent but paragraph 98 states she did not have the necessaryoperating mind to freely and consciously withhold consent.

It appears the trial judge embarked on this second line of inquiry because, asnoted above, the Crown had put forth two separate paths to conviction during final argument. [83] At first glance, this raises the spectre the trial judge was expressing that, even if there was a reasonable doubt about whether theCrown had proven there was an absence of consent, L.S.’s intoxication was at a level that nullified consent.

If this is what the trial judgewas saying, it would represent a significant issue and would require an analysis of whether the evidence of intoxication in this mattersupported a finding that L.S. did not have the capacity to consent.

This potentially creates the type of issue that was seen in R v Jensen(1996), (ON CA), 106 CCC (3d) 430 (WL) (Ont CA) at paras 8 to 21 [Jensen]; R v Basra, 2009 BCCA 520 at paras 14and 37 to 41, 71 CR (6th) 306 [Basra]; and R v G.F., 2019 ONCA 493, 146 OR (3d) 289 [G.F.]. [84] In Jensen, in convicting the accused of sexual assault, the trial judge explicitly stated “it must be one or the other”, meaning thetwo findings available on the evidence were either the complainant did not consent or she did not have the capacity to consent.

TheOntario Court of Appeal did not express a concern about multiple paths to a finding of an absence of consent but ordered a new trialbecause it found the evidence did not support an absence of capacity and it was possible the trial judge was unsure whether there was anabsence of consent, given the language used by the trial judge to describe alternative findings. [85] In Basra, the trial judge, in convicting the accused of sexual assault, found an absence of consent because of a lack of capacityto consent, but then went on to state “[e]ven if the complainant did have the capacity to consent, I find that she did not consent …” (atpara 37).

On appeal, the appellant argued the presentation of the alternative finding revealed a reasonable doubt on behalf of the trialjudge. The British Columbia Court of Appeal disagreed with that submission and upheld the conviction on the basis the trial judge foundas a fact there was an absence of actual consent. [86] The Ontario Court of Appeal in G.F. ordered a new trial because the trial judge failed to identify the relevant factors when heassessed whether the complainant had the capacity to consent to sexual activity.

Additionally, the Court found the trial judge erred by notfirst, and separately, considering the issue of consent before considering the issue of capacity. The Crown had not argued at trial that thecomplainant had not consented to the sexual activity and relied on its position that the complainant did not have the capacity to consent.As a result, the trial judge in G.F. did not consider consent separate from capacity to consent and did not make a clear factual finding of

whether the complainant had consented to the sexual activity. [ 87 ] In my view, the trial judge in this matter did not express any doubt about whether there was an absence of consent and was, therefore, not relying on the path to conviction as being “one or the other” as was done in Jensen . It is also not a case where the trial judge failed to consider consent separately from a consideration of capacity, and made no finding on the absence of actual consent, as was found to have occurred in G.F .

The trial judge made a finding of fact that L.S. did not consent to the sexual activity in the same manner as in Basra before he moved on to consider capacity. This was sufficient to support the conviction.

His findings regarding the second route to conviction, an absence of capacity, do not conflict in any way with his finding of an actual absence of consent or ground a concern that he was not convinced that the first route to conviction had been proven beyond a reasonable doubt. [ 88 ] Lastly, having made the findings of fact regarding the absence of consent that he did, there was no need for the trial judge to determine whether Mr. Kishayinew should have taken additional steps to determine if L.S. was truly consenting.

There was no air of reality to honest but mistaken belief in communicated consent: R v Barton , 2019 SCC 33 at para 121 , [2019] 7 WWR 191; R v Graham , 2019 SKCA 63 at paras 93–96 ; R v Thompson , 2017 SKCA 33 at para 43 . This defence was not even argued by Mr. Kishayinew at trial and was not required to be addressed by the trial judge. However, the trial judge continued in his reasons and made the finding that Mr. Kishayinew should have taken additional steps to ascertain whether there was consent or not.

I do not find this to be the type of error, in the circumstances of this case, that would result in appellate intervention. There was an absence of consent and Mr. Kishayinew knew L.S. was not consenting. The trial judge’s comments regarding the need for Mr. Kishayinew to take additional steps to ascertain whether there was consent or not do not detract from this finding. [ 89 ] I find there are no inconsistent or incompatible findings of fact in this matter that render the verdict unreasonable. V. Conclusion on conviction appeal [ 90 ] In my view, the verdict is not unreasonable.

I would dismiss the appeal against conviction. “Tholl J.A.” Tholl J.A.