R v Sium, 2022 SKCA 102

Restriction on Publication An order has been made in accordance with s. 486.4(1) of the Criminal Code directing that any information identifying the complainant shall not be published. Court of Appeal for Saskatchewan Docket: CACR3522 Citation: R v Sium , 2022 SKCA 102 Date: 2022-09-19 Between: Robel Sium Appellant And His Majesty the King Respondent Before: Caldwell, Schwann and Tholl JJ.A. Disposition: Appeals dismissed Written reasons by: The Honourable Mr. Justice Caldwell In concurrence: The Honourable Madam Justice Schwann The Honourable Mr.

Justice Tholl On appeal from: CRM 98 of 2020 (Sask QB) (Conviction) and 2022 SKQB 24 (Sentence) Appeal heard: May 20, 2022 Counsel: M. Danish Shah and Rylan Bridge for the Appellant Erin Bartsch for the Respondent Caldwell J.A. I. INTRODUCTION [ 1 ] Robel Sium appeals against his conviction after trial ( R v Sium (8 October 2021) Regina, CRM 98/2020 (Sask QB) [ Conviction Decision ]) and against his sentence of 42 months of incarceration ( R v Sium , 2022 SKQB 24 [ Sentencing Decision ]) for a sexual assault ( Criminal Code , s 271). I would dismiss both appeals. [ 2 ] In the conviction appeal, Mr.

Sium principally asserts that the trial judge erred in law by failing to appreciate the difference between unconsciousness and a lack of memory, and by failing to consider whether the complainant’s intoxication had affected her capacity to consent to sexual activity. In a related argument, Mr. Sium alleges that the trial judge erred in law by failing to fully consider the defence of honest but mistaken belief in communicated consent. I conclude that the unchallenged fact that the trial judge found the complainant had been unconscious during the sexual activity undermines the merit of these arguments. [ 3 ] Mr.

Sium also argues that the trial judge erred in law in his assessment of witness credibility because he referred twice to Mr. Sium’s criminal record and stated that Mr. Sium was motivated to lie to secure an acquittal. I am not, however, persuaded that the trial judge crossed into legal error in either circumstance. In another argument, Mr. Sium says his trial was rendered procedurally unfair by the use of Snapchat messages between him and the complainant. However, I am not persuaded that the trial judge’s use of those messages was prohibited in the circumstances of this trial. [ 4 ] Lastly, I cannot accede to Mr.

Sium’s argument that a sentence of 42 months of incarceration for a sexual assault is demonstrably unfit in the circumstances. II. BACKGROUND [ 5 ] In this case, identity and the fact that sexual activity had occurred were uncontested. The issue at trial was whether the complainant had consented to engaging in sexual activity with Mr. Sium. [ 6 ] Mr. Sium and the complainant knew each other and had occasionally seen each other at a lounge in Regina. They were both at the lounge on the evening of June 29, 2018, having arrived there separately.

They interacted there a bit and later both ended up at a house party, arriving at different times, sometime between 2:30 and 3:15 a.m. on June 30, 2018. The complainant testified that she had intended to stay at a friend’s home that night but her friend had left the party without her. Shortly thereafter, Mr. Sium and the complainant left the party in his car, leaving behind her shoes and purse. Mr. Sium testified that he had been drinking alcohol but nonetheless decided to drive. He drove the complainant to a hotel in Regina where he rented a room. [ 7 ] In his testimony, Mr.

Sium admitted that he had performed cunnilingus on the complainant and had had vaginal intercourse with her in the hotel room. The complainant testified that she was quite intoxicated, was drifting in and out of consciousness and had not consented to the sexual activity. Mr. Sium said the complainant had shown no signs of intoxication, had initiated the sexual activity, and had actively participated in it. At the trial, Mr.

Sium adduced into evidence parts of a June 30, 2018, conversation between himself and the complainant that occurred after she had left the hotel room, which the complainant had recorded through screenshots from Snapchat Messenger. The trial judge interpreted that text-based conversation as being consistent with the complainant’s version of events.

[8] The trial judge found that the complainant had been unconscious at the commencement of the sexual activity and at timesduring it. He convicted Mr. Sium on the basis that an unconscious person cannot subjectively consent to engage in sexual activity. III. ISSUES AND ANALYSIS [9] Mr. Sium’s grounds of appeal raise questions principally about the trial judge’s handling of the issue of consent. However, Iaddress those issues last because he also asserts that the trial judge erred in his use of the Snapchat messages and Mr.

Sium’s criminalrecord, and by attributing to him the motivation to lie to obtain an acquittal. This latter group of issues has the potential to have affected thetrial judge’s apprehension of the facts and, therefore, I will address them first. In his sentence appeal, Mr. Sium asks this Court to find thathis sentence is demonstrably unfit. A. Credibility [10] Mr. Sium alleges that the trial judge erred when assessing his credibility by improperly referring to his criminal record and bystating that he was motivated to lie to obtain an acquittal. 1. Propensity reasoning based on a prior criminal record [11] Mr.

Sium asserts that the trial judge erred in law because he referred to Mr. Sium’s criminal record but failed to self-instructabout the limitation on the use that could be made of it. He locates this error in two paragraphs of the Conviction Decision: [47] While we do not have the entire conversation [i.e., the Snapchat messages] – only the part recorded by [the complainant] –Mr. Sium, in testimony, said he understood [the complainant] was accusing him of sexual assault. In his testimony, Mr. Sium said he madethese admissions in the snapchat messages just to get [the complainant] to stop bothering him.

Given the serious nature of the allegationsand Mr. Sium’s criminal record, I do not believe his explanation. … [55] Mr. Sium testified that he believed at the time that he was taking a risk in driving if he was stopped by police, because he was likelyover the legal limit for blood alcohol. He had a criminal record and required his vehicle for work. The consequences of a conviction wouldbe serious. It does not make sense that he would take the risk of driving. (Emphasis added) [12] Mr. Sium interprets paragraphs 47 and 55 as the trial judge using his criminal record for propensity reasoning.

He says the trialjudge improperly reasoned from the existence of his criminal record that he would have acted in a way that was inconsistent with how hesaid he had acted. Then, says Mr. Sium, the trial judge used that inconsistency to negatively assess his credibility. Relying on R v Linklater,2021 MBCA 65, and R v Corbett, (SCC), [1988] 1 SCR 670, Mr.

Sium submits that the trial judge erred in law because hefailed to instruct himself on the limited use he could make of a criminal record. [13] The Crown argues this ground of appeal from the premise that trial judges are presumed to know the law and to have applied itcorrectly until error has been established (R v R.E.M., 2008 SCC 51 at para 45, [2008] 3 SCR 3). It interprets paragraphs 47 and 55 of theConviction Decision differently than Mr. Sium, submitting that the trial judge’s references to his criminal record do not reveal propensityreasoning or any other improper use.

The Crown also submits that the trial judge had no legal obligation to overtly instruct himself on thelimited use to which he could put Mr. Sium’s criminal record. [14] As a starting point for the analysis, an accused’s criminal record is admissible evidence under s. 12 of the Canada Evidence Act,RSC 1985, c C-5. This is because “the character of a witness… is a relevant fact in assessing the testimonial reliability of the witness” (R vStratton (1978), (ON CA), 42 CCC (2d) 449 at 461 (Ont CA)).

Stating the law in broad and general terms, an accused’scriminal record may be adduced into evidence and an accused who testifies may be cross-examined on it in challenge to their credibility,but the trier of fact may not use it for an improper purpose, such as propensity reasoning (see R v Corbett). [15] However, I find no support in the law for Mr. Sium’s contention that trial judges, sitting alone, are under an obligation to overtlyself-instruct on the limited use to which an accused’s criminal record may be put.

R v Corbett stands for the proposition that judges mustgive juries “a clear direction as to the limited use they are to make of such information” (at para 36) but it does not impose an obligation onjudges sitting alone to instruct themselves. The trial judge in R v Linklater (who was sitting with a jury) did review the limitation on use ofthe accused’s criminal record but did so in the context of the accused’s application for an order preventing the Crown from cross-examininghim on his prior criminal record—i.e., a Corbett application.

As such, it cannot be said that R v Linklater obliges trial judges sitting alone toself-instruct on this issue. Further, Mr. Sium did not make a Corbett application or formally object to the cross-examination on his criminalrecord. [16] The root issue under this ground of appeal is whether the trial judge used Mr. Sium’s criminal record in propensity reasoning. Iam not persuaded, however, that the trial judge reasoned from Mr.

Sium’s criminal record that he had a general propensity to commitwrongdoing and therefore, by inference, was less credible or must have committed the sexual assault in question. [17] The Crown narrowly cross-examined Mr. Sium on only parts of his criminal record—seeking his acknowledgment of fourconvictions and associated sentences: (1) for contempt of court; (2) for criminal harassment; (3) for trespassing at night; and (4) for twofailures to comply with a probation order. [18] As noted, the trial judge referred to Mr. Sium’s criminal record twice.

In the first instance, he referenced it when assessing thecredibility of Mr. Sium’s explanation for admitting over Snapchat to having sexually assaulted the complainant, i.e., “just to get [her] tostop bothering him” (Conviction Decision at para 47). The second instance occurred as part of the trial judge’s assessment of the credibilityof Mr. Sium’s testimony about how he had ended up driving the complainant away from the house party to a hotel. In the latter regard,

Mr. Sium testified that he had not wanted to leave the house party, he did not know the complainant’s address, he was not sexuallyinterested in the complainant, he had just offered to call a taxicab for the complainant’s friend (with whom the complainant had originallyintended to leave), and he believed he was taking a significant risk by driving the complainant due to his alcohol consumption. Amididentifying other concerns with the veracity of that narrative, the trial judge stated that, given that Mr.

Sium “had a criminal record andrequired his vehicle for work”, it did “not make sense that he would take the risk of driving” (at para 55). In the paragraphs immediatelyfollowing, the trial judge wrote: [56] According to Mr. Sium, he had offered to call and pay for a taxi for [the complainant’s friend] immediately before agreeing to drive[the complainant]. Why not also call a taxi for [the complainant]? [57] According to Mr. Sium, he asked [the complainant] for her address before leaving the driveway.

She did not give it to him and said“Let’s just hang out.” Yet he drove anyways, not knowing where he was going. [19] With respect, I am not persuaded that either of the impugned references exhibits propensity reasoning or suggests that the trialjudge engaged in propensity reasoning. I understand the trial judge to have used the fact of Mr. Sium’s prior criminal record, in bothreferences, as a small part of his overall assessment of the credibility of specific aspects of Mr. Sium’s testimony. He found that Mr.

Sium’sexplanation for admitting to a sexual assault and for committing a driving offence were not believable but only in part because, having aprior criminal record, he could be expected to understand the consequences of being accused or convicted of a serious criminal offence. Theinference that Mr. Sium had an understanding or knowledge of the criminal justice system made certain aspects of his testimony lessbelievable to the trial judge, which is not propensity reasoning. [20] While the trial judge disbelieved aspects of Mr.

Sium’s testimony by reason that he had a prior criminal record, I am notpersuaded that the trial judge inferred from the mere existence of that record that Mr. Sium was not a credible witness or that it was morelikely that Mr. Sium had committed the sexual assault. I conclude that the trial judge’s use of the prior criminal record in his assessment ofMr. Sium’s credibility did not cross into propensity reasoning. 2. Motive to lie to obtain an acquittal [21] Mr. Sium argues that the trial judge erred in law because he stated that Mr.

Sium was motivated to lie to secure an acquittal andthereby undermined the presumption of innocence. The relevant paragraphs of the Conviction Decision are: [48] Mr. Sium’s account raises other concerns, including inconsistencies and implausible explanations, that lead me to conclude that hisevidence is not credible. Put plainly, I do not believe Mr. Sium. His account appears to be manufactured, combining parts that are factualwith parts that are false. The false parts are made up to provide a defence to the charge.

In coming to this conclusion, I considered thefollowing evidence. ... [72] [The complainant’s] actions on the evening, on both her and Mr. Sium’s accounts, are consistent with intoxication. I find thatMr. Sium lied when he maintained that [the complainant] was not intoxicated and show[ed] no signs of impairment.

I find that he did so toavoid any potential jeopardy of conviction based on incapacity to consent. (Emphasis added) [22] There is no absolute rule prohibiting a trier of fact from considering an accused’s motive to lie when assessing the accused’scredibility as a witness (R v Laboucan, 2010 SCC 12 at paras 13-16, [2010] 1 SCR 397). Rather, a trier of fact’s reference to an accused’smotive to lie “must be placed within the context of the trial and the reasons as a whole” (at para 18) to determine whether the commentundermined the presumption of innocence.

In R v Laboucan, Charron J. for a unanimous Court wrote: [11] The fact that a witness has an interest in the outcome of the proceedings is, as a matter of common sense, a relevant factor, amongothers, to take into account when assessing the credibility of the witness’s testimony. A trier of fact, however, should not place undueweight on the status of a person in the proceedings as a factor going to credibility.

For example, it would be improper to base a finding ofcredibility regarding a parent’s or a spouse’s testimony solely on the basis of the witness’s relationship to the complainant or to the accused.Regard should be given to all relevant factors in assessing credibility. [12] The common sense proposition that a witness’s interest in the proceedings may have an impact on credibility also applies to anaccused person who testifies in his or her defence. The fact that the witness is the accused, however, raises a specific concern.

The concernarises from the fact that both innocent and guilty accused have an interest in not being convicted. Indeed, the innocent accused has a greaterinterest in securing an acquittal. Therefore, any assumption that an accused will lie to secure his or her acquittal flies in the face of thepresumption of innocence, as an innocent person, presumably, need only tell the truth to achieve this outcome. In R. v.

B. (L.) (1993), (ON CA), 13 O.R. (3d) 796 (C.A.), Arbour J.A. (as she then was) succinctly described the inherent danger in considering theaccused’s motive arising from his or her interest in the outcome of the trial. In an often-quoted passage, she stated as follows (at pp. 798-99): It falls into the impermissible assumption that the accused will lie to secure his acquittal, simply because, as an accused, his interest in theoutcome dictates that course of action. This flies in the face of the presumption of innocence and creates an almost insurmountabledisadvantage for the accused.

The accused is obviously interested in being acquitted. In order to achieve that result he may have to testify toanswer the case put forward by the prosecution. However, it cannot be assumed that the accused must lie in order to be acquitted, unless hisguilt is no longer an open question. If the trial judge comes to the conclusion that the accused did not tell the truth in his evidence, theaccused’s interest in securing his acquittal may be the most plausible explanation for the lie.

The explanation for a lie, however, cannot beturned into an assumption that one will occur. (Emphasis added by Charron J.) [23] In my view, the impugned comments by the trial judge do not undermine the presumption of innocence when they are read with

the whole of the trial judge’s reasons. I begin by observing that the trial judge understood that witness credibility was the focus of the trial.In that context, he also understood that Mr. Sium had denied the truth of (or had tried to explain away) an admission in the Snapchatmessages to having sexually assaulted the complainant. [24] The trial judge began his analysis of witness credibility under R v W.(D.), (SCC), [1991] 1 SCR 742, byreviewing the evidence and noting where the complainant and Mr.

Sium had given consistent accounts of what had occurred and wherethere were differences in their respective testimony. The trial judge correctly instructed himself on the burden of proof and the law under Rv W.(D.). He then followed the guidance the R v W.(D.), examined the evidence, and assessed whether the Crown had met its burden ofproof. No appeal has been taken from these aspects of the Conviction Decision. [25] In his assessment of Mr.

Sium’s credibility, the trial judge gave many reasons for disbelieving his testimony in general and onspecific aspects of it (see Conviction Decision at paras 48–63 and 84–85). His written analysis is a coherent and well-reasoned explanationof why he found Mr. Sium’s testimony was not believable. As examples only, the trial judge found that there were serious internalinconsistencies in Mr. Sium’s testimony, including: (

a) Mr. Sium testified that the complainant had shown absolutely no signs of intoxication but also that she had forgotten her shoesand purse at the house party and that both he and the complainant had “passed out” at the hotel (at para 49); (

b) Mr. Sium testified that the complainant was the sexual aggressor, that he had no sexual interest in her, but also that he hadfrequently flirted with her, had bought her drinks, and had taken her on a date (at paras 50–51); and (

c) Mr. Sium testified that he had taken the complainant to a hotel because she would not give him her address and he feltresponsible for her, but also that he had not wanted to leave the house party, had wanted to return to the party, knew how to contact thecomplainant’s friend, and had offered to call a taxicab for that friend moments before he left the party with the complainant (at para 60). [26] Without repeating all of it, I find that the reasons the trial judge gave for disbelieving Mr. Sium are logical and well-founded inthe evidence. Moreover, I do not interpret the comments about Mr.

Sium having a motive to lie to obtain an acquittal as playing any role inthe trial judge’s assessment of his credibility. That is because each impugned comment came after the trial judge had conducted a carefuland detailed review of the evidence in accordance with the law and had fully explained why he concluded that some aspect of Mr. Sium’stestimony was unbelievable. The comments provided, albeit perhaps gratuitously, the trial judge’s explanation for why Mr. Sium had lied.It did not form part of his reasoning on why Mr.

Sium’s evidence was not to be believed. [27] When read in isolation, I well understand that the impugned comments in paragraphs 48 and 72 of the Conviction Decision giveMr. Sium cause for concern. However, when read with the whole of the trial judge’s reasons, the attribution of a motive to lie to Mr. Siumplayed no

part in the credibility assessment. Put another way, I am not persuaded that the trial judge rejected Mr. Sium’s testimony on thebasis that he was motivated to lie to obtain an acquittal. [28] In short, the trial judge’s reasons reveal that he assessed and weighed the evidence under R v W.(D.) and properly applied theburden of proof, without undermining the presumption of innocence. B. Snapchat messages [29] Mr. Sium submits that the trial judge erred by relying on some Snapchat messages as an admission against interest. He says theCrown had not argued that the messages contained an admission. Further, Mr.

Sium says the record of the conversation was incomplete andwas not adduced for the truth of its content. [30] Before considering Mr. Sium’s arguments, it is important to understand that Mr. Sium himself tendered the Snapchat messagesfor admission into evidence as Exhibit D-1. He used the messages during cross-examination of the complainant in an effort to impeach hercredibility by undermining her contention that it was not possible that she had consented to the sexual activity.

He also acknowledged in histestimony that he knew the complainant was accusing him of sexual assault when he sent the Snapchat messages to her. [31] The Crown did not refer to the Snapchat messages in its cross-examination of Mr. Sium or in its closing arguments at trial. Thetrial judge made the following comments about the Snapchat evidence in the Conviction Decision: [45] Mr. Sium’s written statements in the snapchat conversation with [the complainant] were entered into evidence as Exhibit D-1 andconstitute an admission to her allegation of sexual assault.

The reasoning and conclusion in [R v F.I., 2021 SKQB 264] applies equally toExhibit D-1. [46] The conversation from Exhibit D-1 is reproduced below: [Complainant]: I just want you to admit that you knew I was to drunk to consent to the things you did whether you were drunk or not youknew it wasn’t ok i [sic] need you to admit that [Mr. Sium]: if that’s what you want me to admit to than that’s what I have to admit to. what more can I say [Complainant]: I don’t want you to say it because I’m asking you to say it I want you to say it cause you did it, period. Until then don’t textme [Mr.

Sium]: I am saying it because your right, you are simply right. [Complainant]: Right about what [Mr. Sium]: exactly what you are stating. I’m not sure what else I am to say to you. you keep saving messages so you know what I’mtalking about. you’ve asked me to just keep it funky and I’m asking that you just stop with this. because it’s not cool. I apologized if you feltanyway. what more do you want me to say [name redacted].

[Complainant]: Obviously what you did was not cool I’m just making sure you understand and know exactly what you did and I can seeI’ve done that now [Mr. Sium]: I really thought we were cool. [47] While we do not have the entire conversation – only the part recorded by [the complainant] – Mr. Sium, in testimony, said heunderstood [the complainant] was accusing him of sexual assault. In his testimony, Mr. Sium said he made these admissions in the snapchatmessages just to get [the complainant] to stop bothering him.

I do not believe his explanation. … [82] I find that when [the complainant], in the snapchat conversation admitted as Exhibit D-1, referred to being “to [sic] drunk toconsent”, she was not saying that she suffered from a complete loss of memory of the incident. Nor was she referring to the legal test forcapacity, but rather to the societal and moral norm that it is wrong to take advantage of a woman who is seriously impaired by alcohol. … [85] I reject Mr. Sium’s evidence as not credible. I find he took [the complainant] to the hotel for the purpose of a sexual encounter.

Ifurther find he initiated sexual activity while she was sleeping, when she could not consent, and continued when she awoke, in disregard forher lack of consent. I find she did not consent to sexual intercourse and that Mr. Sium knew there was no consent. [86] The conversation recorded in Exhibit D-1 is consistent with these findings. [87] What Exhibit D-1 also confirms, along with [the complainant] going to the hospital for a rape-kit examination, is that [thecomplainant], on the morning of June 30, 2018, subjectively believed she had been the victim of sexual assault. 1. Admission against interest [32] Mr.

Sium first argues that the lack of opportunity to address the trial judge’s

interpretation of the Snapchat messages violates theprinciple of audi alteram partem. To be clear, Mr. Sium does not allege that the trial judge misinterpreted the messages. Mr. Siumessentially acknowledged in his trial testimony that the messages contain an admission against interest. He asserts, rather, that the trial wasunfair because he was not given an opportunity to speak to that

interpretation. In his trial fairness argument, Mr. Sium relies on thedecisions in A.(L.L.) v B.(A.), (SCC), [1995] 4 SCR 536, R v White, 2019 BCCA 461, R v Fraillon (1990), (QC CA), 62 CCC (3d) 474 (Que CA), and R v Al-Fartossy, 2007 ABCA 427, 53 CR (6th) 257. [33] In A.(L.L.) v B.(A.), a companion case to R v O’Connor, (SCC), [1995] 4 SCR 411, the Supreme Court appliedthe well-established audi alteram partem principle of natural justice but the decision does not otherwise assist in this matter.

In that case,the Court addressed, as a secondary issue, whether a complainant and the Crown had standing in a third-party appeal brought against aninterlocutory document-production order. Where that circumstance arises, the Court held that the audi alteram partem principle “requiresthat courts provide an opportunity to be heard to those who will be affected by the decisions” (at para 27). That ratio has no application tothis case. [34] The decisions in R v Frallion and R v Al-Fartossy also applied the audi alteram partem principle in circumstances that are notanalogous to Mr. Sium’s case.

In R v Frallion, the Court held that the trial judge erred by deciding a matter on an issue that had not beenraised or addressed by either of the parties. The appeal Court held that the parties were entitled to an opportunity to make submissions.

In Rv Al-Fartossy, a majority of the appeal Court held that the trial judge erred in law by failing to raise an issue (the determination of whichhad led to a finding of Charter breach and the exclusion of evidence) and by failing to provide the Crown and accused with the opportunityto make submissions on that issue. [35] The judge in R v White, without advance notice to the parties, rejected a concession made by the Crown that drugs found in theaccused’s possession had not been possessed for the purpose of trafficking and then convicted the accused of a trafficking offence.

Onappeal, both the Crown and the accused submitted that the rejection of the Crown’s concession was an error.

Addressing the question as anissue of trial fairness, Abrioux J.A. wrote: [35] I am in substantial agreement with the parties’ submissions, as set out in their factums. [36] While I accept that it was open to the judge to reject the Crown’s concession and reach his own conclusions concerning whether thefentanyl was possessed for the purpose of trafficking regardless of the position taken by the Crown, in my view, if he was not prepared toaccept the Crown’s concession, he was obliged to advise counsel of this and give the defence an opportunity to address the point.

A failureto do so may amount to a reversible error: R. v. Whincup, 2011 BCCA 520 at paras. 9–11; R. v. Huon, 2010 BCCA 143 at para. 6; R. v.Poole, 2014 BCSC 102 at para. 10. [37] To state the test in slightly different terms, trial fairness requires that a full and fair opportunity be given to both parties to address ormake submissions on a point of fact or law that may be troubling the court: R. v. Al-Fartossy, 2007 ABCA 427 at para. 24; R. v. Grewal,2018 ONSC 5325 at paras. 60, 68; R. v. Fraillon (1990), (QC CA), 62 C.C.C. (3d) 474 (Que. C.A.) at 476.

This isespecially the case where the court rejects a concession made by a party, and the opposing party does not address it believing that it is notin issue. [38] In the circumstances of this case, had the trial judge indicated his intention to reject the Crown’s concession, or that he wasconcerned by it, the appellant could have argued that the fentanyl was not possessed by him for the purpose of trafficking: see e.g., R. v.Anderson, 2005 BCCA 143 at paras. 11, 14.

Based on the extracts of the proceedings to which I have referred, this did not occur and acrucial finding was made without the defence having an opportunity to address the issue. [36] While R v White reverberates more similarly with the circumstances of Mr. Sium’s case than the other decisions he cites, it doesnot persuade me that there is merit to this ground of appeal. The principal question in this trial was whether the complainant had

subjectively consented to the sexual activity. The answer to that question fell to be determined through an assessment of witness credibility under R v W.(D.) . Mr. Sium tendered the Snapchat messages into evidence because he believed he could use them to undermine the complainant’s credibility. Then, in his examination in chief, he testified that he had known that he was admitting to the sexual assault when he sent the messages to the complainant.

This means that he knew he was adducing an admission against interest into evidence and that the trial judge did not misinterpret the messages as an admission against interest. [37] Further, as his testimony makes clear, Mr. Sium knew the admission would be an issue in the trial because he tried to explain why the trial judge should not rely on the messages as a truthful admission. In that regard, he testified that he had admitted to the offence only to placate the complainant. In his closing remarks, Mr.

Sium’s trial counsel made submissions on how the Snapchat messages, specifically the complainant’s side of those messages, should raise doubt in the trial judge’s mind as to the credibility of her evidence. As noted, the Crown did not rely on the messages in its cross-examination of Mr. Sium or in its closing arguments. [38] Mr. Sium put the Snapchat messages in play in the trial knowing that he had admitted to the offence in question in those messages. He explained why his admission was not truthful.

His counsel made closing submissions about how the trial judge should use the Snapchat messages in his assessment of the complainant’s credibility. This was not an unreasonable trial strategy, but it was not without risk in these circumstances. [ 39 ] With that in mind, I cannot accept that Mr. Sium was unaware of the possibility that the trial judge might not believe his explanation for the admission against interest. Put another way, I am unable to conclude that trial fairness was compromised because the trial judge rejected Mr.

Sium’s proffered explanation for having admitted to sexually assaulting the complainant in the evidence that Mr. Sium himself had tendered without signalling that he intended to do so or without providing Mr. Sium with an opportunity to make further submissions. [ 40 ] I would dismiss the conviction appeal under this ground. 2. Hearsay and the incomplete record of the conversation [ 41 ] Mr.

Sium says that, before the trial judge could use the Snapchat messages as an admission against interest, he had an obligation to ensure that he had the entirety of the conversation before him, not just the messages that the complainant had recorded. In support of this argument, Mr. Sium cites R v Rojas , 2008 SCC 56 , [2008] 3 SCR 111, and R v Park , 2018 BCSC 1632 . [ 42 ] In R v Rojas , the issue on appeal was whether the trial judge erroneously instructed the jury to give more weight to inculpatory out-of-court statements than exculpatory out-of-court statements made by the accused.

In addressing that issue for a unanimous Court, Charron J. stated the general rule that out-of-court statements cannot be adduced into evidence (because they violate the evidentiary rule against the admission of hearsay) unless they are adduced for purposes other than to prove the truth of their content or they satisfy an exception to the hearsay rule.

The exception at issue in R v Rojas was the mixed statement exception, which provides that, where the Crown seeks to tender an out-of-court statement that contains both inculpatory and exculpatory elements, “it must tender the entire statement, and the exculpatory portions are substantively admissible in favour of the accused” ( R v Rojas at para 37 ). In R v Park , the trial judge, relying on R v Rojas , stated that the mixed statement exception is only allowed so that inculpatory portions of a statement cannot be isolated and considered alone.

In other words, a statement containing exculpatory and inculpatory elements must be considered as a whole. [ 43 ] The root issue in both R v Rojas and R v Park was whether the trial Courts had mishandled the admission of what was ostensibly hearsay evidence. In R v Baldree , 2013 SCC 35 at para 30 , [2013] 2 SCR 520, the Court explained the defining features of hearsay as being “(1) the fact that the statement is adduced to prove the truth of its contents and (2) the absence of a contemporaneous opportunity to cross- examine the declarant”.

This exclusionary rule of evidence renders hearsay presumptively inadmissible in circumstances where its reliability cannot be tested. [ 44 ] In Mr. Sium’s trial, the question of whether the Snapchat messages were admissible hearsay evidence was raised before the trial judge because Mr. Sium had himself tendered the messages into evidence and had then relied on them. Because he tendered the Snapchat messages into evidence, I can only infer that Mr. Sium had taken the position that the messages were admissible evidence—i.e., not hearsay.

Both he and the complainant—the only parties to the recorded conversation—testified at trial. Furthermore, he tendered the messages for the purpose of impeaching the complainant’s credibility. He had the opportunity to and did test the reliability of the complainant’s side of the messages in her cross-examination. Mr. Sium also testified as to the meaning of his side of those messages, averring that his admission to having committed the sexual assault was not reliable .

Given this context, I am not persuaded that this evidence was hearsay or otherwise inadmissible. [ 45 ] In any event, I am not convinced that the trial judge relied on Mr. Sium’s Snapchat messages as an admission against interest. This is not to say that he did not interpret the messages in that way—I am certain that he did. It is simply to say that the trial judge did not state that the admission itself was true or that he believed it. What he said was that he rejected Mr. Sium’s testimony as to his reason for making the admission.

This is consistent with use of the Snapchat messages in the assessment of witness credibility, which is the purpose for which they were tendered. [ 46 ] Given the context of this trial, I am also unable to conclude that the trial judge erred because he did not have the whole Snapchat conversation in evidence before him. He took into account all of the messages that Mr. Sium had tendered and knew that Exhibit D-1 did not contain the whole conversation. He discussed this point with trial counsel and acknowledged it in the Conviction Decision .

In these circumstances, the fact that parts of the conversation were missing from the evidence goes to the weight to be given to the evidence, which is a matter for the trial judge in the absence of palpable and overriding error.

Moreover, it is simply not a compelling argument for an appellant, having tendered an incomplete record of a conversation into evidence at trial, to allege that the trial Court erred by only considering the evidence that was tendered. [ 47 ] In short, the circumstances under which the Snapchat messages were admitted into evidence and used in the trial are outside what the rule against the admission of hearsay is designed to address. I am not persuaded there is merit to this ground of appeal. C. Consent

[48] I turn now to the principal issues raised in the appeal hearing. Mr. Sium focused his main arguments on what he asserts werefailures by the trial judge to: (

a) conduct a comprehensive analysis of the complainant’s intoxication and her capacity to consent; and (b)fully consider his assertion that he mistakenly believed that the complainant had communicated her consent to the sexual activity. [49] These allegations of error engage with the elements of the actus reus and the mens rea of the offence of sexual assault unders. 271 of the Criminal Code, which the majority of the Supreme Court recently summarised in R v G.F., 2021 SCC 20, 459 DLR (4th) 375: [25] The actus reus of sexual assault requires the Crown to establish three things: (

i) touching; (ii) of an objectively sexual nature; (iii)to which the complainant did not consent: Ewanchuk, at para. 25; R. v. Chase, (SCC), [1987] 2 S.C.R. 293. The first twoelements are determined objectively, while the third element is subjective and determined by reference to the complainant’s internal state ofmind towards the touching: Ewanchuk, at paras. 25-26. At the mens rea stage, the Crown must show that (

i) the accused intentionallytouched the complainant; and (ii) the accused knew that the complainant was not consenting, or was reckless or wilfully blind as to theabsence of consent: Ewanchuk, at para. 42. The accused’s perception of consent is examined as part of the mens rea, including the defenceof honest but mistaken belief in communicated consent: R. v. Barton, 2019 SCC 33, at para. 90. 1. Subjective consent [50] In her testimony at trial, the complainant said that she had been blacking out and was drifting in and out of consciousness aftershe had left the house party and while she was at the hotel with Mr.

Sium. When cross-examining the complainant, Mr. Sium’s counselattempted to draw out from her that by “blacking out” she meant that she had experienced memory loss but had not lost consciousness.When addressing her testimony and Mr. Sium’s argument on this point, the trial judge found that the complainant had been unconsciousduring the sexual activity, writing (Conviction Decision): [73] Regardless, I find that [the complainant] did not agree with the defence definition of “blacking out”. Instead, she meant that she waslapsing in and out of consciousness at times, what is sometimes referred to as “passing out”.

In other words, she was drowsy and would gofrom a waking (conscious) state to sleep (unconscious state). ... [76] So although [the complainant] did agree that she was “blacking out”, she stated in her own words what she took this to mean, whichwas “in and out of consciousness”. [77] [The complainant] testified in both examination-in-chief and under cross-examination that she was aware of what was happeningduring most of the alleged sexual assault and she recalled those events.

So this is not the same factual situation as considered in R v C.J.,2020 SKQB 318 [C.J.], where the complainant admitted there were times she had no memory of anything, which the court described as“memory gaps, associated with an alcohol induced blackout”: C.J. at paras 14 and 75. [78] The factual scenario is similar to R v G.F., 2021 SCC 20, in which the Supreme Court upheld a conviction made on the basis ofincapacity alone. While it may be that the complainant was not capable of giving consent, I need not rely upon that because I find there wasno consent and that Mr.

Sium knew there was no communicated consent to sexual activity, including intercourse. [51] Although he submitted that it was the correct approach at trial, Mr. Sium now says that the trial judge erred in law by ending hisanalysis of subjective consent once he found that the complainant had been unconscious. Mr. Sium submits that the trial judge was legallyrequired to conduct a capacity-to-consent analysis because the complainant “may have been able to give consent but simply couldn’tremember”. [52] Respectfully, Mr.

Sium’s argument is completely precluded by the trial judge’s finding of fact that the complainant had beenunconscious at times during the sexual activity. Even though Mr. Sium did not cast his appeal in these terms, I see no palpable error in thatfinding.

Since that fact is undisturbed in this appeal, the ratio in R v J.A., 2011 SCC 28, [2011] 2 SCR 440, is, as I explain below, a fullanswer to this ground of appeal. [53] The reasons in R v J.A. address whether someone can consent in advance to sexual activity that will occur while the person isunconscious; however, its ratio is that “the absence of consent is established if the complainant was not experiencing the state of mind ofconsent while the sexual activity was occurring” (at para 45), e.g., when a complainant is unconscious. The ratio is made clear by themajority’s

summary of its reasons: [66] The definition of consent for sexual assault requires the complainant to provide active consent throughout every phase of the sexualactivity. It is not possible for an unconscious person to satisfy this requirement, even if she expresses her consent in advance.

Any sexualactivity with an individual who is incapable of consciously evaluating whether she is consenting is therefore not consensual within themeaning of the Criminal Code. [54] In R v G.F., a majority of the Supreme Court reaffirmed the ruling in R v J.A. by holding that subjective consent to sexualactivity requires “contemporaneous voluntary agreement to the sexual activity in question” (at para 45), i.e., subjective consent requiresconsciousness. [55] Since the trial judge found that the complainant had been unconscious when the sexual activity commenced and during it, thecomplainant could not have been “experiencing the state of mind of consent while the sexual activity was occurring” and she was incapableof forming a “contemporaneous voluntary agreement” to that sexual activity.

The trial judge’s finding of unconsciousness can only bedisturbed if it was the product of a palpable and overriding error. Therefore, because the first two elements of the actus reus of sexualassault (i.e., a touching of an objectively sexual nature) had been admitted, the finding of unconsciousness meant that the Crown had proventhe final element (i.e., a lack of subjective consent). That is, the complete actus reus of the offence was established beyond a reasonabledoubt once the trial judge found that the complainant had been unconscious.

There was, in this circumstance, no reason for the trial judge toassess whether the complainant had or had lacked the capacity to consent due to her intoxication. [56] For these reasons, I conclude that the trial judge did not err by ending his inquiry into consent without assessing whether the

complainant’s level of intoxication had or had not prevented her from subjectively consenting to the sexual activity. [57] As an aside, I note that Parliament amended the Criminal Code in December of 2018 in a way that confirms the law of consentas set out in R v J.A. 2. Honest but mistaken belief in communicated consent [58] Mr.

Sium submits that the trial judge erred in law by failing to fully consider the defence of honest but mistaken belief incommunicated consent. [59] As noted, to establish the mens rea for sexual assault, the Crown must prove that the accused intentionally touched thecomplainant and that the accused knew that the complainant was not consenting (or was reckless or wilfully blind as to the absence ofconsent).

Where the evidence supports it (i.e., where there is an “air of reality” to it), a person accused of sexual assault may defend againstthat charge by establishing that they “took reasonable steps to ascertain consent” and “honestly believed the complainant communicatedconsent” (R v Barton, 2019 SCC 33 at para 121, [2019] 2 SCR 579; and see R v Graham, 2019 SKCA 63 at paras 92–95, [2019] 12 WWR207; Criminal Code, s. 273.2(b)).

Put another way, before a defence of honest but mistaken belief in communicated consent can beconsidered, “given the evidence, it must be possible for a reasonable trier of fact to conclude that the actus reus is made out but the mensrea is not” (R v Davis, (SCC), [1999] 3 SCR 759 at para 81; emphasis in original).

The majority of the Court in R vBarton summarised the proper approach to this issue in these terms: [122] Accordingly, if there is no evidence upon which the trier of fact could find that the accused took reasonable steps to ascertainconsent, then the defence of honest but mistaken belief in communicated consent has no air of reality and must not be left with the jury.This threshold analysis serves an important purpose: it keeps from the jury defences that lack a sufficient evidentiary foundation, therebyavoiding the risk that the jury might improperly give effect to a defective defence.

As such, contrary to what occurred at trial in this case,the air of reality test should not be ignored. [60] In this trial, Mr. Sium defended himself principally on the basis that the complainant had, by her conduct, communicated herconsent to receiving cunnilingus and had verbally consented to having sexual intercourse with him. He testified that she had initiated thesexual activity, was sober and conscious throughout it, and had actively (if not enthusiastically) participated in it. Given his testimony, thetrial judge stated in the Conviction Decision that Mr.

Sium’s alternate defence of honest but mistaken belief in communicated consent was“at odds” with his contention that the complainant had given her “explicit consent to sexual activity” (at para 90). Mr. Sium says thisstatement is an error of law because it effectively prevented him from asserting that the complainant had consented and that he honestly butmistakenly believed that she had consented.

I conclude his arguments must fail. [61] The determination of whether the mens rea component of sexual assault has been proven focuses on what, if anything, thecomplainant communicated to the accused regarding consent (R v Barton at para 90). Put another way, the question is whether thecomplainant “had affirmatively communicated by words or conduct her agreement to engage in sexual activity with the accused” (R vEwanchuk, (SCC), [1999] 1 SCR 330 at para 49).

As the assessment of whether there is an air of reality to the defence ofmistaken belief calls for an objective analysis (versus an analysis of subjective consent under actus reus), the trier of fact’s focus should beon “(1) the complainant’s actual communicative behaviour, and (2) the totality of the admissible and relevant evidence explaining how theaccused perceived that behaviour to communicate consent” (R v Park, (SCC), [1995] 2 SCR 836 at para 44; emphasis inoriginal).

However, as the Crown points out in this case, to find there was an air of reality to the defence of mistaken belief, the trial judgewould have had to reject all of Mr. Sium’s evidence about what had occurred at the hotel as well as much of the complainant’s account ofit. [62] As noted, the complainant testified that she was intoxicated, had been in and out of consciousness and, when conscious, had notconsented to engaging in sexual activity with Mr. Sium. Mr. Sium testified that the complainant was sober, had initiated the sexual activity,was conscious throughout it, and had actively participated in it. On Mr.

Sium’s account of it, there was no ambiguity to the complainant’ssobriety, consciousness and verbal consent, and little conduct that would have been left open to misperception. Having testified to havingsought and obtained verbal consent, it is understandable that he said nothing about having taken any other steps to ascertain whether thecomplainant consented. All told, his evidence strongly supported his principal defence that the complainant had been a conscious andvocally and physically willing participant in the sexual activities at all times.

However, the Crown established the actus reus of sexualassault in this case by proof beyond a reasonable doubt that the complainant had been unconscious. What all of this means is that there wasno evidence in this trial that could have explained how Mr. Sium had honestly but mistakenly formed the belief that the complainant hadconsented to engage in sexual activities with him. [63] As the trial judge understood, Mr.

Sium’s testimony about what had happened at the hotel obviated any air of reality to hisalternative defence that he had honestly but mistakenly believed that the complainant had communicated her agreement to engaging insexual activities with him (R v Park at para 26; R v Graham at para 96; R v Knox, 2017 SKCA 8 at paras 74–79, 36 CR (7th) 89). [64] In sum, I conclude that the trial judge did not err when he found there was no air of reality to the defence of honest but mistakenbelief in communicated consent in this case. [65] As an aside, s. 273.2(1)(a)(iii) of the Criminal Code now negates the mistaken belief defence in the circumstances of anunconscious complainant.

D. Sentence appeal [66] In his appeal against sentence, which was not strenuously argued, Mr. Sium asserts that a sentence of 42 months incarceration is“overly harsh and not in line with similar cases”. He acknowledges that the starting point for major sexual assaults committed against anadult is three years of incarceration under Saskatchewan jurisprudence (see R v L.V., 2016 SKCA 74 at paras 56 and 58, 480 Sask R 181).In submitting that his sentence is “clearly or manifestly excessive”, Mr. Sium cites only R v Jackson (1993), (SK CA),116 Sask R 146 (CA).

[ 67 ] In R v Jackson , which confirmed a “threshold sentence” of three year’s incarceration for sexual assault, this Court increased the sentence imposed for the sexual assault of a physically disabled complainant from two-years-less-a-day to three years of imprisonment. In doing so, the Court observed that “the starting point [of three year’s imprisonment] assumes a ‘mature accused with previous good character and no criminal record’” (at para 24).

However, as the Crown observes, starting points and sentencing ranges are only guidelines and sentencing courts are entitled to deviate from them when tailoring sentences to fit the individual circumstances of each case ( R v Friesen , 2020 SCC 9 at paras 37–38 , 391 CCC (3d) 309).

The fact that a sentence is higher or lower than a starting point or outside an established range of sentences for an offence does not itself render it demonstrably unfit ( R v Lacasse , 2015 SCC 64 at para 58 , [2015] 3 SCR 1089; R v Nasogaluak , 2010 SCC 6 at para 44 , [2010] 1 SCR 206). [ 68 ] On the facts of this case, the complainant was unconscious at the time Mr. Sium sexually assaulted her.

As Kalmakoff J.A. recently noted in R v Bear , 2022 SKCA 69 at para 78 , “this Court has repeatedly held that sexual assaults committed against sleeping or unconscious victims are particularly serious, and ‘should not be approached in such a way as to effectively reward an offender for taking advantage of a helpless victim rather than one who is in a position to resist the assault’ ( R v Chanalquay , 2015 SKCA 141 at para 45 , 472 Sask R 110; see also: R v Okemaysim , 2021 SKCA 33 at para 79 ; R v Cappo (1993), 116 Sask R 15 (CA) at para 13 ; and R v M.J.H. , 2004 SKCA 171 at para 16 , 257 Sask R 1)”. Mr.

Sium has a prior criminal record that includes a conviction for assault causing bodily harm, which is an aggravating factor. Given that these two circumstances take this case outside the threshold assumptions described in R v Jackson , I am not persuaded to interfere with the 42-month sentence imposed in this case. IV. CONCLUSION [ 69 ] I would dismiss the conviction and sentence appeals. Mr. Sium’s judicial interim release order shall expire two days following the date hereof. He shall turn himself in to the Saskatoon Correctional Centre prior to its expiry. “Caldwell J.A.” Caldwell J.A.

I concur. “Schwann J.A.” Schwann J.A. I concur. “Tholl J.A.” Tholl J.A.