R v Bileski, 2022 SKCA 150

Court of Appeal for Saskatchewan Docket: CACR3504 Citation: R v Bileski , 2022 SKCA 150 Date: 2022-12-29 Between: His Majesty the King Appellant And Devin Lee Bileski Respondent Before: Richards C.J.S., Leurer and Kalmakoff JJ.A. Disposition: Appeal allowed Written reasons by: The Court On appeal from: Provincial Court, Yorkton Appeal heard: December 9, 2022 Counsel: Erin Bartsch for the Appellant Ronald Piché for the Respondent The Court I. INTRODUCTION [ 1 ] The Crown appeals from the acquittal of Devin Bileski on a charge of sexual assault, contrary to s. 271 of the Criminal Code . Its right to do so is limited to questions of law, in accordance with s. 676(1)(

a) of the Code . [ 2 ] Mr. Bileski did not contest that the Crown’s evidence established most of the elements of the offence. The trial judge identified the only issue in dispute at the trial to be whether the Crown had proven, beyond a reasonable doubt, that the complainant had not consented to Mr. Bileski’s sexual touching. This, of course, is part of the actus reus of the offence created by s. 271 (see: R v Barton , 2019 SCC 33 at para 89 , [2019] 2 SCR 579). [ 3 ] We agree with the Crown that the trial judge erred in law by considering irrelevant evidence in her assessment of this issue.

Because the trial judge’s verdict would not necessarily have been the same had this error not been made, the acquittal must be quashed and a new trial ordered. II. ANALYSIS [ 4 ] At a new trial, the evidence and arguments may differ from those at the trial that was held. Accordingly, we will limit our reasons to only what is essential to explain why a new trial is required. [ 5 ] Over a long weekend in August of 2019, Mr. Bileski, the complainant and other family members were camping at a Saskatchewan provincial park. After others had gone to bed, Mr.

Bileski and the complainant retreated to the camper in which the family was staying. [ 6 ] The complainant testified that once she and Mr. Bileski were in the trailer for the night, he made sexual advances toward her. She testified that she told him she did not want to have sex, as her children and his sister were also in the camper. Her evidence was that Mr. Bileski persisted, took her clothes off and proceeded to have non-consensual sex with her. She testified that Mr. Bileski stopped when she refused to kiss him. An argument ensued, which ended with Mr.

Bileski driving away from the campsite. [ 7 ] No one else saw or heard the sexual encounter between Mr. Bileski and the complainant, although other witnesses were able to describe the actions of Mr. Bileski and the complainant after it occurred. Mr. Bileski did not testify. [ 8 ] The relationship between the complainant and Mr. Bileski continued for a time after these events. It ended after an unrelated incident [second incident]. [ 9 ] Part of the evidence at the trial was text messages exchanged between Mr. Bileski and the complainant after these events. The Crown relied on them as part of its case. Mr.

Bileski referred to their contents as part of his challenge to the complainant’s credibility and to support his contention that the trial judge should find that he believed the sexual encounter was consensual. [ 10 ] All the evidence was led in one day. Counsel’s oral arguments were presented several weeks later. The trial judge delivered her oral reasons seven weeks after that. [ 11 ] The trial judge began her reasons by recounting the evidence. After doing this, she observed that certain details of the incident were clear. These included that, on the night in question, Mr.

Bileski and the complainant had been drinking, they had engaged in sexual relations for a short period of time, and that Mr. Bileski stopped prior to ejaculating because the complainant refused to kiss him. [ 12 ] The trial judge then reviewed the arguments made to her. She observed that the Crown had submitted that the evidence established all of the elements of the offence under s. 271 and that Mr. Bileski had made four arguments.

[ 13 ] First, Mr. Bileski had submitted that, because this incident had occurred approximately two years prior to the trial, memories had faded, and the text messages should be taken as better evidence of the events. In considering this argument, the trial judge determined that the complainant’s testimony was not contradicted by the statements she made in her text messages. For this reason, the trial judge found “no basis for an argument about fading memory”. [ 14 ] Second, Mr.

Bileski argued that repeated requests made by the complainant for him to return to the campsite after the incident should give rise to a reasonable doubt as to whether the sex had been consensual. The trial judge rejected this submission, concluding that “conduct of a complainant post accident is rarely of any assistance in determining the issue of consent”. She held that it would be “an error to accept that [the complainant’s] request for Mr. Bileski to return is inconsistent with a sexual assault having occurred”.

She found that the complainant’s conduct in this regard neither supported nor refuted a possible sexual assault. [ 15 ] Third, Mr. Bileski suggested that demands by the complainant that he pay her money, made after the second incident, created a reason to doubt her testimony. The trial judge found the complainant’s demands to be “troubling”, but concluded that there was “nothing in the exchange between [the complainant] and Mr. Bileski to suggest that [the complainant] was prepared to fabricate evidence”.

Accordingly, the trial judge determined that the complainant’s conduct in this regard was not damaging to her credibility. [ 16 ] Mr. Bileski’s fourth argument was that “the text message exchange following this second incident supports a finding that [he] believed the sex was consensual”. In her consideration of this submission, the trial judge observed that the “lack of punctuation, various typographical and spelling errors, as well as the abbreviated form of speech that is commonly used in text messaging” rendered parts of the messages “not subject to clear

interpretation”. Nonetheless, among the things the trial judge gleaned from the text messages was that “there were accusations by Mr. Bileski of [the complainant] cheating on him” and that there was “confirmation by both parties that [the complainant] refused to kiss Mr. Bileski, and that he ended the sexual encounter as a result”. The Crown pointed to certain statements made by Mr. Bileski in these texts as evidence that he was aware of the complainant’s lack of consent. The trial judge determined that she could not “find those to be clear statements that Mr.

Bileski was aware that [the complainant] had not consented to the activity”. The trial judge referred to other parts of the text messages, which she found could be reasonably interpreted as meaning that “Mr.

Bileski believed [the complainant] was consenting, but questioned the motivation for that consent”. [ 17 ] After making these findings, the trial judge turned to consider the role that consent plays in defining the actus reus and the mens rea of an offence under s. 271, stating as follows: … In an analysis of consent, with respect to sexual assault cases, the Court must consider both actus reus and the mens rea . To quote Barton : For purposes of the actus reus , consent means that the complainant in her mind wanted the sexual touching to take place.

The Court went on to say: … if the complainant testifies that she did not consent, and the trier of fact accepts this evidence, then there was no consent … With respect to the mens rea of the offence, Barton states that: For the purposes of the mens rea , and specifically for purposes of the defence of honest but mistaken belief in communicated consent, consent means that the complainant had affirmatively communicated by words or conduct her agreement to engage in the sexual activity with the accused. [ 18 ] The trial judge found that the “text messages sent by Mr.

Bileski, taken as a whole, are insufficient to amount to the defence of honest but mistaken belief in communicated consent, as described in Barton ”. Following this, she noted that she “did not understand defence counsel to have suggested [honest but mistaken belief in communicated consent] as a defence; but, rather, to have focused on the - - on the actus reus of the offence”. The trial judge then concluded that the “only issue to be determined is whether the Crown has proven lack of consent [on the part of the complainant] beyond a reasonable doubt”. Mr.

Bileski’s counsel confirmed in his submissions to this Court that this was a fair distillation of his client’s position at the trial. [ 19 ] After doing all of this, the trial judge considered the issue as she had identified it to be.

We will reproduce the entirety of the trial judge’s analysis of this issue, recognizing that the organization of the trial judge’s spoken words into paragraphs reflects the editorial choices made by the official transcriber, rather than by the trial judge: … [The complainant] testified that she said, “No,” at least two or three times, and confirmed that she said it loudly enough and in close enough proximity that Mr. Bileski would have heard her. Of course, [the complainant] was under no obligation to say no, or in any way communicate a refusal to sexual activity. Mr.

Bileski was required to take reasonable steps to determine consent through [the complainant’s] words or actions. I accept the defence argument that the text messages can be read to support a belief on the part of Mr. Bileski that [the complainant] initially consented to the sexual activity, and that Mr. Bileski stopped when he determined she was not or might not be consenting. That belief is inconsistent with [the complainant] saying, “No,” more than once, prior to the sexual activity. [The complainant’s] responses on cross-examination, with respect to her reason for not wanting to have sex were concerning.

When asked to confirm that she didn’t want to have sex because of the presence of Mr. Bileski’s sister in the cabin – camper, she denied that and said that was just a good reason. When she was asked if that meant she had used the sister’s presence as an excuse not to have sex, [the complainant] denied that as well. When counsel pursued further questioning on whether Mr.

Bileski’s sister’s presence was the reason, or part of the reason, for her not wanting to have sex, she gave the non-responsive replies, “No means no,” and, “I don’t think I need a reason.” I note that her clear testimony on direct examination was that she did not want to have sex because of the presence of Mr. Bileski’s sister and her children. The defence raised the question of why the discussion regarding [the complainant] not going to the police did not include a discussion of the [August 3, 2019] incident. [The complainant’s] suggestion that Mr.

Bileski was at risk of losing his job and going to jail was equally applicable to the [August 3, 2019] incident. I would have expected one or both parties to raise this incident as well, if, as the Crown had

argued, both parties understood that Mr. Bileski had acknowledged having sex with [the complainant] without her consent in the August3rd text messages. When I consider all of the foregoing together, I am left with a reasonable doubt about the actus reus of the offence. [The complainant]testified that she did not consent, and while I do not entirely reject that evidence I do not accept it. As a result, I find Mr. Bileski not guiltyof the charged offence.

And so that concludes that matter. [20] As we interpret this passage, the trial judge had three reasons for finding that while she did “not entirely reject” thecomplainant’s testimony, nor could she “accept it”. First, she agreed with Mr. Bileski that “the text messages can be read to support abelief on the part of Mr. Bileski that [the complainant] initially consented to the sexual activity”. Second, she attached weight to the factthat the complainant had said different things in her testimony in-chief than she had under cross-examination, which caused the trial judgeto find her testimony to be “concerning”.

In other words, the contrast that the trial judge saw between her “clear testimony on directexamination” and what she said in cross-examination bore negatively on her credibility. Third, the trial judge found it to be significantthat, in the text messages, the complainant had suggested that, because of the second incident that led to the breakup of the couple, “Mr.Bileski was at risk of losing his job and going to jail”. The trial judge thought it would have been expected that the complainant wouldalso have raised the August incident if she thought that Mr. Bileski had committed a sexual assault on that occasion.

It is when the trialjudge “consider[ed] all of the foregoing together” that she was left with a reasonable doubt. [21] We see no issue or concern with the second and third considerations that the trial judge weighed when assessing thecomplainant’s testimony. What is problematic is the trial judge’s consideration of Mr. Bileski’s belief that the complainant had consentedto the sexual touching as something that bore on whether the complainant had in fact consented. This is because Mr.

Bileski’s belief aboutthis is not probative as to whether the complainant in fact had consented to the sexual touching. [22] The actus reus component of sexual assault involves the touching of another person in a sexual way without their consent.Given how this case unfolded at trial, the dispositive question before the trial judge was whether the complainant had consented to thesexual touching that occurred. Mr. Bileski’s subjective belief that she had consented was irrelevant to that determination, as Moldaver J.explained in Barton: [89] Consent is treated differently at each stage of the analysis.

For purposes of the actus reus, “consent” means “that the complainantin her mind wanted the sexual touching to take place” ([R v Ewanchuk, (SCC), [1999] 1 SCR 330], at para. 48). Thus, atthis stage, the focus is placed squarely on the complainant’s state of mind, and the accused’s perception of that state of mind is irrelevant.Accordingly, if the complainant testifies that she did not consent, and the trier of fact accepts this evidence, then there was no consent —plain and simple (see Ewanchuk, at para. 31). At this point, the actus reus is complete.

The complainant need not express her lack ofconsent, or revocation of consent, for the actus reus to be established (see [R v J.A., 2011 SCC 28, [2011] 2 SCR 440], at para. 37). (Emphasis added) [23] Because Mr. Bileski’s own belief that the complainant had consented is irrelevant to whether she had in fact consented, it wasan error in law for the trial judge to take this into account in her analysis of the complainant’s credibility. In short, the trial judge erred inlaw when she considered the “belief on the part of Mr.

Bileski that [the complainant] initially consented to the sexual activity” as one ofthe three factors that “together” led her to have a reasonable doubt as to whether the complainant had, in fact, consented to the sexualtouching. [24] Mr. Bileski invites us to interpret the trial judge’s reasons as if she did not consider his subjective belief in her overallcredibility analysis. His suggestion is that she should be taken as giving two reasons (the second and third as we have summarized them)for not being convinced beyond a reasonable doubt by the complainant’s testimony.

However, we cannot do this, for several reasons. [25] First, Mr. Bileski’s suggestion that the trial judge did not account for his subjective belief in her assessment of thecomplainant’s credibility is inconsistent with the argument he made at trial. As we have reviewed, he invited the trial judge to consider hisstate of mind. In the context of his agreement with the trial judge that the only issue was if the complainant had in fact consented to thesexual touching, Mr. Bileski’s counsel must be taken to have submitted that Mr. Bileski’s subjective belief was relevant to the dispositivetrial issue.

The trial judge stated that she accepted this part of Mr. Bileski’s argument. There was no reason for the trial judge to have doneso, unless she viewed it as bearing on this question. [26] Second, the broader textual context of the trial judge’s reference to Mr. Bileski’s subjective belief supports the idea that sheconsidered it to be relevant to the dispositive issue. In this regard, it was after identifying the issue to be “whether the Crown has provenlack of consent beyond a reasonable doubt” that the trial judge stated that she “accept[ed] the defence argument” that the texts supportedthat Mr.

Bileski had a belief that the complainant had consented. [27] Third, the idea that the trial judge did not take Mr. Bileski’s subjective belief into account is completely inconsistent with herplainly spoken statement, that it was when she considered “all of the foregoing together” that she was left with a reasonable doubt. Whilean argument could be made that the “foregoing” might include some of what the trial judge said before she identified the dispositive issue– for example, it is possible to read this as referring back to when she entered into consideration of all of Mr.

Bileski’s arguments – wefind it impossible to read it as not including the trial judge’s analysis after the issue was identified. [28] Mr. Bileski also argues that when the trial judge concluded that the text messages can be read as supporting his belief that thecomplainant initially consented to the sexual activity, she was doing nothing more than taking “into account the totality of the evidence,including any ambiguous or contradictory conduct by the complainant”, as the trier of fact must (R v Ewanchuk, (SCC),[1999] 1 SCR 330 at para 61).

The foundation for this submission rests in the idea that the words and conduct of a complainant that caninfluence an accused’s subjective belief can be relevant to assessing the credibility of a complainant who testifies that the touching was notconsensual. We agree that the same facts which underly an accused’s beliefs may, in some circumstances, undermine a complainant’scredibility when they say that they did not consent to the sexual touching. However, as we have explained, the trial judge did not reason inthis way.

We also observe that the trial judge accounted for those parts of the complainant’s text messages that cast doubt on hercredibility in the second and third reasons she gave for finding there to be reasonable doubt.

[ 29 ] We are mindful that the trial judge’s reasons were oral. Because of this, even though they were delivered many weeks after the argument was made to her, some allowance can be made for them not being as tightly organized, or as artfully crafted, as when written reasons are delivered. However, even accounting for this reality, we find it impossible to look past the error in law that the trial judge’s reasons disclose. [ 30 ] For all these reasons, we can only conclude that the trial judge erred in law when she considered Mr.

Bileski’s subjective belief as bearing on whether the complainant had, in fact, consented to the sexual touching. [ 31 ] Of course, in the case of a Crown appeal from an acquittal, the mere existence of a legal error in a trial decision does not require that a new trial be held.

It is only if the error may well have affected the verdict that it is appropriate for a new trial to be ordered (see: R v Graveline , 2006 SCC 16 at para 14 , [2006] 1 SCR 609; and R v Wesaquate , 2022 SKCA 101 at para 16 , 418 CCC (3d) 225). [ 32 ] In assessing whether the trial judge’s legal error may have impacted the trial outcome, we are mindful that the evidence of Mr. Bileski’s subjective belief was only one of three reasons she gave for having a reasonable doubt. The trial judge was not required to measure the weight she attached to each of these reasons.

It is possible that her conclusion would have been the same had she considered only the second and third of the reasons she gave for harbouring reasonable doubt. However, by the same token, it is also impossible to say that this one reason was less important than the other two the trial judge gave for finding that she had a reasonable doubt and that her consideration of it did not affect her overall conclusion.

In this regard, the trial judge stated that it was when she considered all three factors “together” that she had this doubt. [ 33 ] Accordingly, in the “concrete reality of the case at hand” – to quote from Graveline at paragraph 14 – we have sufficient certainty that the outcome of the trial may well have been affected by the error. Therefore, a new trial is required. In short, we are satisfied that had the trial judge not weighed Mr.

Bileski’s subjective belief in her consideration as to whether the complainant had consented to the sexual touching, she might have rendered a different verdict. [ 34 ] For these reasons, we allow the Crown’s appeal, set the acquittal aside and order a new trial. “Richards C.J.S.” Richards C.J.S. “Leurer J.A.” Leurer J.A. “Kalmakoff J.A.” Kalmakoff J.A.