R v Owston, 2023 SKCA 101

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in accordance with s. 486.4(1) of the Criminal Code directing that any information identifying the complainant shall not be published.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: CACR3511 Citation: R v Owston , 2023 SKCA 101 Date: 2023-08-31 Between: Mitchell Owston Appellant And His Majesty the King Respondent Before: Schwann, Barrington-Foote and McCreary JJ.A.

Disposition: Appeal allowed; acquittal entered Written reasons by: The Court On appeal from: CRM 304 of 2019 (Sask QB), Regina Appeal heard: September 9, 2022 Counsel: Brian Pfefferle, K.C. and Thomas Hynes for the Appellant Grace Hession David for the Respondent The Court I. INTRODUCTION [ 1 ] This appeal is about a complainant’s capacity to consent to sexual activity and the Crown’s burden to prove lack of capacity beyond a reasonable doubt. [ 2 ] Mitchell Owston was convicted after a trial by judge alone of sexually assaulting the complainant in November of 2017. Mr.

Owston and the complainant, who were previously acquainted, met by chance at a local bar. Both were intoxicated, but the complainant was very intoxicated and by 11:00 p.m. the bar refused to serve her any more alcohol. About two and a half hours later, Mr. Owston and the complainant left the bar together in a taxi. The complainant testified that she had no memory of anything that happened from several hours prior to her leaving the bar to the time she woke up the next morning at Mr. Owston’s home. She did not remember socializing with Mr. Owston at the bar or leaving with him.

Other witnesses who saw the complainant at the bar testified that she was obviously inebriated – she was slurring her words and had impaired motor skills. The last person who saw the complainant before she left the bar, other than Mr. Owston, was a bouncer, Randy Brandsgaard. He testified that he helped the complainant into a taxi at about 1:30 a.m., asking for and receiving her confirmation that she wanted Mr. Owston to accompany her. Mr.

Owston testified that after he and the complainant left the bar, they went to his home and engaged in consensual sex. [ 3 ] Because the complainant had no memory of anything that had happened with Mr. Owston, she later messaged him to ask what had occurred. He told her that they had sexual intercourse without using a condom. Thereafter, the complainant reported to police that Mr. Owston had sexually assaulted her because she did not have the capacity to consent, had no memory of what had occurred and had no intention of having sex with Mr. Owston that night. [ 4 ] The trial judge convicted Mr.

Owston of sexual assault. He found that evidence of the complainant’s state of intoxication while at the bar proved that she did not have capacity to consent to sexual activity with Mr. Owston later that night. [ 5 ] Mr. Owston appeals from his conviction. He argues that the trial judge misapplied the test for capacity to consent set out by the Supreme Court of Canada in R v G.F. , 2021 SCC 20 , 459 DLR (4th) 375 [ G.F. ]. He also asserts that the trial judge failed to consider relevant evidence, thereby misapprehending the evidence about Mr. Owston and the complainant leaving the bar together.

Finally, he says the conviction is unreasonable because a finding of incapacity is demonstrably incompatible with the evidence from trial that was not otherwise contradicted or rejected by the trial judge. [ 6 ] For the reasons that follow, it is our view that the appeal should be allowed, the conviction quashed, and an acquittal entered. II. THE TRIAL DECISION [ 7 ] The trial judge rendered a written decision in which he convicted Mr. Owston of sexually assaulting the complainant, as charged: R v Owston (26 November 2021) Regina, CRM 304 of 2019 (Sask QB) [ Trial Decision ].

He began with a brief review of the testimony of the witnesses at trial and the exhibits filed. He referred to the relevant provisions of the Criminal Code and noted that the Crown bore the burden to prove the elements of sexual assault, including that there was no consent or that the complainant did not have capacity to consent, beyond a reasonable doubt. He reviewed the consistent or uncontroverted evidence of the witnesses.

[8] The trial judge then considered the inconsistencies in the evidence. He noted that because the complainant had no memory ofthe key events, including the sexual activity in question, there was little inconsistency between her evidence and Mr. Owston’s. However,the trial judge highlighted what he described as a “significant inconsistency” between Mr. Owston’s evidence and that of other witnessesrespecting the complainant’s state of intoxication at the bar, as well as how she and Mr.

Owston left the bar that night (Trial Decision atpara 26). [9] The trial judge referred to the guidance provided on the issue of credibility in R v W.(D.), (SCC), [1991] 1SCR 742 at 757–758 [W.(D.)], determining at the first step of W.(D.) that he did not believe Mr. Owston’s evidence. He determined that itwas inconsistent with the evidence of other witnesses and, thus, that his “entire evidence” was neither reliable nor credible (Trial Decisionat para 42). In particular, he concluded that Mr.

Owston’s credibility was undermined because his evidence about leaving the bar with thecomplainant differed from that of Mr. Brandsgaard. The trial judge expressly found that Mr. Owston lied when he described how he andthe complainant left the bar. [10] Analyzing the second step of W.(D.), the trial judge, for the same reasons, found that Mr. Owston’s evidence did not raise areasonable doubt.

On the third step of W.(D.), which requires a consideration of whether the evidence that is accepted demonstrates theguilt of the accused beyond a reasonable doubt, the trial judge concluded that the Crown had proven beyond a reasonable doubt that thecomplainant lacked the capacity to consent. The trial judge referred to the evidence of the complainant’s friends, Daina Schatz and JamesReid, and of Mr. Brandsgaard, respecting their observations of the complainant’s level of intoxication. He also referred to Mr.

Owston’sstatement to the police that the complainant “passed out” after having sex (Trial Decision at para 92).

He found that the complainant’slevel of functioning at the bar, including her mental functioning, was “grossly impaired” (at para 121). [11] The trial judge summarized his conclusions about the complainant’s capacity as follows: [127] Capacity, as explained in G.F., requires both awareness and decision-making ability. [The complainant] had some awareness of hersurroundings, but she was incapable of coherent thought and rational decision-making. … [128] The evidence is overwhelming that [the complainant] had limited comprehension and her reasoning ability was seriously impaired.On the totality of the evidence, I find that she did not have capacity to consent to sexual activity with Mr.

Owston. She was not capable ofunderstanding she had a choice to refuse to participate in the sexual activity. [12] The trial judge found Mr. Owston guilty of sexually assaulting the complainant on the basis that the complainant did not havecapacity to consent to the sexual activity in question. III. ISSUES [13] The issues arising from this appeal are: (

a) Did the trial judge err in law by misapplying the test for capacity to consent? (

b) Did the trial judge misapprehend the evidence of whether and how the complainant decided to leave the bar? (

c) Did the trial judge render an unreasonable verdict? [14] Mr. Owston abandoned the fourth ground of appeal respecting his pre-trial application brought under s. 276 of the CriminalCode. IV. ANALYSIS A. The trial judge misapplied the test for capacity to consent [15] Mr. Owston argues that the trial judge misapplied the test for capacity to consent by inserting a requirement that a complainanthave the ability to make a rational decision as to whether they want to engage in sexual activity.

We agree that the trial judge erred in thisway. [16] A sexual assault occurs when an individual is intentionally touched for a sexual purpose without their consent. Capacity is aprecondition to consent.

In G.F., the Supreme Court of Canada revisited the framework for assessing whether a complainant has thecapacity to consent, setting out a four-part test to determine the answer to that question: [57] In sum, for a complainant to be capable of providing subjective consent to sexual activity, they must be capable of understandingfour things: 1. the physical act; 2. that the act is sexual in nature; 3. the specific identity of the complainant’s partner or partners; and 4. that they have the choice to refuse to participate in the sexual activity. [58] The complainant will only be capable of providing subjective consent if they are capable of understanding all four factors.

If theCrown proves the absence of any single factor beyond a reasonable doubt, then the complainant is incapable of subjective consent and the

absence of consent is established at the actus reus stage. There would be no need to consider whether any consent was effective in law because there would be no subjective consent to vitiate. [ 17 ] Canadian courts have often looked to evidence of memory, or physical or motor capacity, to indicate whether a complainant has capacity to consent.

However, in G.F ., Karakatsanis J., writing for the majority, made it clear that evidence relating to a complainant’s memory, speech or motor skills is not determinative of whether capacity exists: [65] … Whether the complainant has a memory of events or not does not answer the incapacity question one way or another. The ultimate question of capacity must remain rooted in the subjective nature of consent. The question is not whether the complainant remembered the assault, retained her motor skills, or was able to walk or talk.

The question is whether the complainant understood the sexual activity in question and that she could refuse to participate. [ 18 ] In considering the test for capacity, the Supreme Court expressly adopted a test with a low threshold, initially set out by the Nova Scotia Court of Appeal in R v Al-Rawi, 2018 NSCA 10 at para 60 , 359 CCC (3d) 237 [ Al-Rawi ]. There, the court held that capacity does not require an individual to have the cognitive ability to consider and understand the risks and consequences associated with the sexual activity in question.

An operating mind does not need to be able to rationally reason to have capacity. [ 19 ] Whether the trial judge correctly applied the test for capacity to consent is a question of law – reviewable on a correctness standard: R v Shepherd , 2009 SCC 35 at para 20 , [2009] 2 SCR 527. In this case, the trial judge correctly set out the four-part test established in G.F. and cited Al-Rawi . He noted: [115] Proof of incapacity, short of unconsciousness, is a high threshold. The law of incapacity does not protect people who make bad decisions.

Consensual sexual relations under the influence of intoxicants is not criminalized per se. But the law does protect persons, who are vulnerable because they do not possess an operating mind, against sexual assault. If they lack capacity to give consent, there can be no consent. [ 20 ] However, while the trial judge initially stated the law correctly, he ultimately erred in its application.

He did not simply advert to incoherent and irrational thinking as relevant evidence; he incorrectly introduced the elements of coherence and rationality into the test for capacity, leading him to conclude, at least in part, that the complainant did not have capacity because she was not capable of rational decision-making. His reasoning is reflected in the following passages: [127] Capacity, as explained in G.F ., requires both awareness and decision-making ability. [The complainant] had some awareness of her surroundings, but she was incapable of coherent thought and rational decision making .

This conclusion is supported by the evidence, including the following: • the level and duration of [the complainant’s] intoxication • [the complainant] being the only person cut off from service at the [bar] • the concern[s] of Ms. Schatz, Mr. Reid and Mr. Brandsgaard for [the complainant’s] welfare arising from her level of intoxication • the fact that the sexual activity occurred about a half hour after the last observation, when [the complainant] left the [bar] • [the complainant’s] evidence of memory loss and illness the following day • the observations of Ms. Schatz, Mr. Reid and Mr.

Brandsgaard both as to [the complainant’s] physical impairment (unsteady on feet, eyes unfocused, unable to put on coat) and mental impairment (not normal, requiring assistance to do basic functions, such as dialling a phone, using Mr. Reid’s cell phone when she had her own, jumbled text messages, confusion, repetitive talk, fixation on getting in contact with Daina and getting home, not capable of making decisions) • [the complainant] seeking help from James Reid to contact Daina Schatz • [the complainant’s] fixated and repetitive statements ( i.e. “Where’s Daina?”) • [the complainant’s] use of Mr.

Reid’s cell phone when she had her own • [the complainant’s] difficulty in communicating • [the complainant’s] inability to make phone calls or text on her own • [the complainant] talking on a phone without having dialled and with no one at the other end • Ms. Schatz’s evidence of the jumbled texts received from [the complainant] from Mr. Reid’s phone • [the complainant] changing her mind about going in and out of the [bar] and whether to have contact with the man she told Mr. Brandsgaard was bothering her • [the complainant’s] belief that a ride was coming for her and declining Mr.

Brandsgaard’s offer of a taxi ride home • [the complainant’s] stated intention to go home and then going to Mr. Owston’s home [128] The evidence is overwhelming that [the complainant] had limited comprehension and her reasoning ability was seriously impaired . On the totality of the evidence, I find that she did not have capacity to consent to sexual activity with Mr. Owston. She was not capable of understanding she had a choice to refuse to participate in the sexual activity. (All emphasis added)

[21] In these key paragraphs, the trial judge states the conclusion that the complainant “had some awareness of her surroundings,but she was incapable of coherent thought and rational decision making”. He then lists the evidence that proves “that conclusion”, whichhe describes as “overwhelming [evidence] that [the complainant] had limited comprehension and her reasoning ability was seriouslyimpaired” (at paras 127 and 128). He then equates or conflates this with the incapacity to understand she had a choice to refuse toparticipate in the sexual activity.

That constituted error. [22] Capacity to consent to sexual activity does not require an individual to be able to make rational, logical or reasonable decisions.There is a low threshold to demonstrate capacity in this context, requiring only proof of an understanding of one’s surroundings, the factthat an activity is sexual, the identity of one’s sexual partner(

s) and that one can exercise the choice to refuse to participate in the sexualactivity. [23] For these reasons, it is our opinion that the trial judge erred in law by failing to properly apply the law respecting capacity toconsent. B. The trial judge misapprehended evidence [24] Mr. Owston argues that the trial judge misapprehended the evidence of the complainant leaving the bar with Mr. Owston byfailing to assess Mr. Brandsgaard’s inconsistent evidence respecting his observations of them leaving the bar, and by failing to give effectto Mr.

Brandsgaard’s evidence that the complainant changed her mind about going home and electing to stay with Mr. Owston. Mr.Owston says that this misapprehension is material because the trial judge relied on Mr. Brandsgaard’s evidence as a reason to reject Mr.Owston’s account of what occurred and found that, because the complainant went home with Mr.

Owston, rather than to her own home,this suggested that she did not have capacity. [25] The failure to consider relevant evidence, or the assessment of evidence using an incorrect legal principle, is an error of law: Rv Necroche, 2018 SKCA 24 at para 38; and R v J.M.H., 2011 SCC 45 at paras 29–30, [2011] 3 SCR 197. For an appeal to be successful onthe ground of misapprehension of the evidence, two elements must be established. First, it must be shown that the trial judgemisapprehended the evidence.

Second, it must be shown that the misapprehension was material and essential to the trial judge’s reasoning:R v Lohrer, 2004 SCC 80, [2004] 3 SCR 732; and R v C.B., 2020 SKCA 65 at para 24 [C.B.]. [26] A misapprehension of the evidence may refer to a failure to consider evidence relevant to a material issue, a mistake as to thesubstance of the evidence or a failure to give proper effect to the evidence: C.B. at paras 26–28; and R v Morrisey (1995), (ON CA), 97 CCC (3d) 193 (Ont CA) [Morrisey].

The failure to consider evidence can include the failure to resolve materialinconsistencies in the evidence: R v Dinardo, 2008 SCC 24 at para 31, [2008] 1 SCR 788. [27] There is a stringent standard to establish a misapprehension of the evidence. The alleged mistake must be so central to the trialjudge’s reasons that it results in the appellant not receiving a fair trial. See: Morrisey at 221. [28] Mr. Owston argues that the trial judge failed to consider and resolve a material inconsistency in Mr. Brandsgaard’s evidenceabout the complainant leaving the bar. At the preliminary inquiry, Mr.

Brandsgaard testified that he watched the complainant get into ataxi while he was standing at the bar entrance stairwell. In contrast, at trial, he testified that he helped the complainant into the taxi,holding her arm, and confirmed with her that she wanted Mr. Owston to be in the taxi. [29] Mr. Owston argues that the trial judge was required to address this inconsistency because his acceptance of Mr. Brandsgaard’strial evidence was central to his decision to reject Mr. Owston’s evidence. The trial judge found that Mr. Owston lied about how he hadleft the bar with the complainant: [41] Nor do I believe Mr.

Owston’s account of his departure from the [bar] with [the complainant] in the taxicab. Mr. Owston testifiedthat he and [the complainant] left together and got into the taxi without any participation by Mr. Brandsgaard. Mr. Brandsgaard testifiedthat he put [the complainant] into the taxicab, after which Mr. Owston unexpectedly got into the taxicab from the other side. I do notbelieve Mr. Owston’s different version. I believe Mr. Brandsgaard, who was the only witness from the [bar] who was not impaired byalcohol or drugs and had no previous personal connection with the other witnesses.

I found him an impressive witness and accept hisevidence. I find that Mr. Owston lied about the manner of their departure. [30] While Mr. Owston contends that the trial judge’s findings are flawed because he did not address the alleged inconsistencies inMr. Brandsgaard’s evidence, we are not satisfied that Mr. Brandsgaard’s evidence varied on this point. The following exchange at trialdemonstrates that for his part, Mr. Brandsgaard believed his evidence was consistent: Q Right. So you recall mentioning earlier today that you pushed her into a cab atthe end of the night?A Yeah.

We put her in -- well, not literally pushed her, but put her in a cab. Wemade sure that she got in a cab rather than with a bunch of people that weredrinking inside the bar. Q Yeah.A And we put her in a cab. He jumped in the cab. I said, Do you know whereyou’re going? She said, Yes, I’m going home. He said he -- that they knewwhere they were going, so I just left it at that and closed the door, went inside.Q Okay. I want to take you to page 126 of the transcripts of your evidence fromthe prelim.…Q MR.

HYNES: On line 27, you say: (As read) And then they started walking toward the cab with numer (sic) other peopleon, like, both sides of the railing, and then I seen her get in, so I turned aroundand went back inside.

And then line 31, question: (As read) Okay. So at the time you seen [ sic ] her get into the cab, she’s down the stairway from you? Answer: (As read) Yeah. She’s down both set of stairs in, like, what you would call the alley way there. M-hm. A No. We put her in a cab because we -- well, I had to hold her arm ’cause she almost fell over. Q Okay. ’Cause it sounds to me like you’re saying -- on page 126 here -- that she’s leaving, she’s walking over to the cab with this other guy, and they leave together, and you’re, sort of, on the stair area. A Yeah, no.

She almost fell over, so we made sure that she got into the cab, and then he got in the other side. Q You recall also mentioning today that you were, effectively concerned about her at the end of the night? A Yes. Q I’ll take you to your statement to the police. I’ll take you to the last page, on page 3, where you’re asked the question, Do you have anything else to add? And you answer: (As read) Everyone who left with them, in front or behind, didn’t say anything or wasn’t worried about the situation, so I thought everything was good. Do you recall writing that to the police? A Yes.

Q And similarly, I’ll take you to page 119 of the transcripts of the prelim evidence where, at line 39, you’re asked the question: (As read) Did you feel like she got home safely that night? You answer first, Left in a cab. And then on the second page, you’re asked, So that’s a yes? And you say, Yes. Do you recall being asked those questions and giving those answers? A Yes. Q So that -- I’d suggest to you sir, that you were not concerned about her at the end of the night. You thought everything was good, she got into a cab with someone she appeared to know, and you think she got home safely that night.

A Right when they left, yes, but [at] the end of the night, before everything transpired everybody started pushing out. I was a little concerned because she was still not, you know, walking in a straight line, she didn’t know exactly where she was going, and then everyone started leaving; therefore, she found whoever she was talking to. I think, at that point, she felt safe enough to get into the cab and then leave.

At that point, I felt a little relieved, yes, because she found somebody that she, essentially, knew inside the bar, whether she’d just met them or were friends with them for a while, or -- yeah, they’re -- I have no idea. [ 31 ] In this exchange, Mr. Brandsgaard explained that he helped the complainant into the taxi and that this was consistent with his description of watching her leave from the bar entrance. He also accepted that it was his evidence that he believed the complainant was safe when she left at the end of the night.

That being so, we do not agree that it was necessary for the trial judge to expressly discuss these alleged inconsistencies when he assessed Mr. Brandsgaard’s reliability and credibility. Similarly, we do not agree that the trial judge misapprehended this evidence in his assessment of Mr. Brandsgaard’s reliability and credibility vis-à-vis Mr. Owston’s. [ 32 ] However, we do agree that the trial judge misapprehended the evidence respecting whether and why the complainant decided to leave with Mr. Owston, rather than to go home.

The trial judge found that, because the complainant had expressed that she wanted to go home but later left with Mr. Owston, it suggested that she did not have capacity to consent. Yet the trial judge did not refer to Mr. Brandsgaard’s evidence respecting the complainant’s change of mind, which was elicited through cross-examination: Q So, ultimately, this woman leaves the bar with this guy that she has been together with for most of the night. You agree that that was around 1:15, 1:30 in the morning? A About there, yes.

Q And you recall that it’s earlier in the night, anywhere from, I don’t know 11:30 to 12:30 that she’s trying to make a call for a ride? A The time frame, I’m unsure, but yeah. Q Essentially, there’s enough time between when she’s trying to call for a ride -- A And then when she was -- Q -- and eventually, she kind of decides to not go for the ride but stay with this guy that she’s with. A Yeah. Q And you agree, the guy that she’s with at the end of the night, he’s talking with her? A Yeah. They were talking. Q And he’s making sure when he’s talking with her that she knows where she’s going? A Yes.

Q And that she knew what she was doing? A Yes. [ 33 ] This exchange is significant because it was relevant to the complainant’s state of mind and her level of awareness when she left the bar. The trial judge placed great emphasis on the fact that the complainant had stated an intention to go home, but subsequently left with Mr. Owston, finding that because she did not go home this supported the Crown’s theory that she did not have capacity to consent. However, Mr.

Brandsgaard clearly testified that while the complainant had initially indicated, around midnight, that she wanted to go home, she later decided to stay at the bar. He also agreed that the complainant and Mr. Owston spoke to each other at the end of the night about where they were going, and that he had observed Mr. Owston ensuring that that the complainant knew what she was doing. Finally, Mr. Brandsgaard’s evidence, which was accepted by the trial judge, was that he assisted the complainant into the taxi and asked her whether it was okay for Mr.

Owston to be in the taxi with her, to which she gave a definitive response: “No, it’s okay. It’s fine. He knows where we’re going” ( Trial Decision at para 85). [ 34 ] Other than acknowledging this last statement that the complainant made to Mr. Brandsgaard, the trial judge did not reference any of this evidence when he found that the complainant’s change of mind about going home was a fact that suggested she was confused and did not have capacity to consent. In our respectful view, there was other evidence from Mr.

Brandsgaard, which the trial judge needed to explore but did not, that provided additional context to explain the complainant’s decision to leave with Mr. Owston. There was also evidence from Mr. Brandsgaard that suggested that by the end of the evening at the bar, his concerns about the complainant’s safety were largely alleviated. [ 35 ] The trial judge’s failure to explore these aspects of Mr. Brandsgaard’s evidence reveals a deficient consideration of the evidence relevant to a material issue.

While the trial judge was not required to consider each and every item of evidence, the conclusions he drew from select portions of Mr. Brandsgaard’s evidence, while ignoring other portions, played a key

part in his conclusion that the complainant did not have capacity. To repeat, the trial judge did not grapple with the portions of Mr. Brandsgaard’s testimony that suggested the complainant was making decisions, was oriented and was aware of who she was with. He did not consider evidence from Mr. Brandsgaard that the complainant made a conscious decision to leave with Mr. Owston at the end of the evening. By not considering the whole of Mr. Brandsgaard’s testimony, the trial judge overlooked the fact that, while Mr.

Brandsgaard had observed that the complainant was very intoxicated and gave his opinion that she was not capable of making decisions, he had also indicated that he had observed the complainant making a number of decisions throughout the evening, including at the time she left the bar with Mr. Owston – a very significant aspect of the evidence of her capacity. This was, after all, the evidence as to her capacity at the closest point in time to the alleged sexual assault, three hours after the complainant had last been served alcohol. [ 36 ] Thus, the trial judge’s misapprehension of this portion of Mr.

Brandsgaard’s evidence was material to his conclusion that the complainant lacked the capacity to consent – the key issue at trial – and was central to his reasoning. As such, this error of law – like that as to the test for capacity to consent – requires that the guilty verdict be set aside. C. The verdict is unreasonable [ 37 ] Mr. Owston also contends that the trial judge’s verdict is unreasonable because it cannot be supported by the evidence.

The reasonableness of a verdict is also a question of law, reviewable on a correctness standard: R v Biniaris , 2000 SCC 15 at para 27 , [2000] 1 SCR 381 [ Biniaris ]. [ 38 ] The Supreme Court recently revisited the bases upon which a trial judge’s verdict may be found to be unreasonable, stating as follows in R v Brunelle , 2022 SCC 5 , 412 CCC (3d) 489: [7] When a verdict is reached by a judge sitting alone, there are two bases on which a court of appeal may be justified in intervening because the verdict is unreasonable: (1) where the verdict cannot be supported by the evidence; or (2) where the verdict is vitiated by illogical or irrational reasoning ( R. v.

Beaudry , 2007 SCC 5 , [2007] 1 S.C.R. 190; R. v. Sinclair , 2011 SCC 40 , [2011] 3 S.C.R. 3). [ 39 ] A verdict is unreasonable where no properly instructed judge or jury could reasonably have rendered it. It can also be unreasonable where, in a judge-alone trial, the judge draws an inference or makes a finding of fact that is plainly contradicted by the evidence, or is demonstrably incompatible with evidence that is not otherwise contradicted or rejected by the judge: R v Beaudry , 2007 SCC 5 , [2007] 1 SCR 190; and R v R.P ., 2012 SCC 22 at para 9 , [2012] 1 SCR 746.

A verdict based on credibility assessments is not unreasonable unless it cannot be supported by any reasonable view of the evidence: R v W.H. , 2013 SCC 22 , [2013] 2 SCR 180. [ 40 ] A court of appeal must not merely substitute its view for that of the trier of fact but, in considering the reasonableness of a verdict, it is entitled to review, analyze and weigh the evidence, within the limits of appellate disadvantage: Biniaris at para 36 .

With the greatest respect, having considered the evidence in this manner, it is our view that the verdict is unreasonable because the evidence cannot support the trial judge’s finding that the complainant lacked the capacity to consent. Our reasons for that conclusion follow. [ 41 ] The trial judge correctly approached the question of capacity to consent on the basis that the question was whether the complainant had that capacity at the time the sexual activity occurred . However, there was no direct evidence of the complainant’s state at that time. The trial judge rejected Mr.

Owston’s evidence in its entirety, other than his evidence that the sexual activity happened at about 2:00 a.m., and that the complainant “passed out” afterward ( Trial Decision at para 92). The complainant had no memory of the sexual activity and there were no other witnesses to it. Thus, any conclusion respecting the complainant’s capacity at the time the sexual activity took place had to be inferred from circumstantial evidence, which related primarily to her consumption of alcohol and interactions with other witnesses earlier in the evening. [ 42 ] The circumstantial evidence came from the complainant, Ms.

Schatz, Mr. Reid, and Mr. Brandsgaard. The trial judge accepted the whole of the testimony of these witnesses, including Mr. Reid, who said he did not remember the night well. The key evidence from these witnesses was as follows: (

a) The complainant was 23 years old on the night in question and weighed between 120 and 130 pounds. Before going to the bar,

she had six beer and smoked some marijuana beginning at about 7:00 p.m. She arrived at the bar with Ms. Schatz and her boyfriend at about 9:30 or 10:00 p.m. The complainant described her state at that time as “good, little on the drunker side but still functional”. (

b) The complainant may have had about four drinks more at the bar, although Mr. Brandsgaard observed her having her last drink at about 10:30 p.m. (

c) The complainant’s last clear memory was having a shot at the bar, served by the bartender. After that, her memory was “choppy”. She had no memory of anything that occurred from about 10:30 p.m. to 7:00 a.m. the next day, which she described as “an eight-hour memory loss”. She testified that her memory of the evening has never returned. (

d) Ms. Schatz observed that by between 9:45 p.m. and 10:15 p.m., the complainant seemed suddenly intoxicated and was slurring her words when she spoke. (

e) At about 10:30 p.m., Ms. Schatz saw the complainant talking and flirting with Mr. Owston. When Ms. Schatz tried to get the complainant to stop socializing with Mr. Owston, the complainant “made it very clear” to Ms. Schatz that “she wasn’t ready to walk away”. (

f) The complainant had no memory of socializing with Mr. Owston at the bar, other than initially seeing him there. She also had no memory of Ms. Schatz trying to get her to stop socializing with Mr. Owston. (

g) Ms. Schatz testified that while the complainant was intoxicated and slurring her words, she was nevertheless “fine” the last time Ms. Schatz saw her. (

h) Ms. Schatz left the bar between 11:00 and 11:30 p.m. The complainant did not respond to her text messages at that time. Ms. Schatz later received text messages from the complainant that were hard to make out, some of which were sent from Mr. Reid’s phone. (

i) Mr. Reid had a limited memory of the night and had also been inebriated. However, he recalled that when he spoke with the complainant, she was intoxicated, slurring her words, and walking in an unbalanced way. Mr. Reid testified that the complainant was not behaving “normally”, that her eyes were unfocused, and she repetitively asked him where Ms. Schatz was. He tried unsuccessfully to assist the complainant to contact Ms. Schatz because she was having difficulty using her own phone due to her level of intoxication. (

j) While Mr. Reid observed that the complainant was more inebriated than he had seen her before, he agreed that she understood and was able to respond to what he said to her. He had “no concerns” when he left her in the bar to continue his evening with other friends. (

k) Mr. Brandsgaard said that the complainant was very intoxicated and that he “cut her off” from being served alcohol at 11:00 p.m. Thereafter, he observed that the complainant’s speech was slurred, she was walking in an unbalanced manner, she needed assistance to put on her coat, she seemed oblivious to the cold weather, and she was having difficulty operating her phone, including that she was talking on her phone when it had not been dialled. However, Mr. Brandsgaard also determined that the complainant was sufficiently “manageable” that it was not necessary to make her leave the bar. (

l) At about midnight, Mr. Brandsgaard tried to convince the complainant to go home in a taxi, but she refused to do so, telling him that she did not have the money for a taxi and that she was waiting for her male friend to pick her up. Mr. Brandsgaard offered to pay for her taxi, but she still refused to take one. Mr. Brandsgaard agreed she could stay at the bar. (

m) Mr. Brandsgaard checked in with the complainant over the course of the night and she confirmed she was fine when asked. He offered her water to drink several times, which she sometimes accepted and sometimes declined. (

n) Mr. Brandsgaard’s last interaction with the complainant was at about 1:30 a.m., when she left the bar. He testified that he assisted the complainant to get into a taxi by holding her arm. Mr. Owston got into the other side of the taxi, which prompted Mr. Brandsgaard to ask the complainant if that was okay. She confirmed that it was. Mr. Brandsgaard’s testimony on this point was: A -- and I just kind of, like, Are you sure it’s okay? Like we made sure that we questioned her knowing that this other individual was in a cab. She said, No, it’s okay, it’s fine, he knows where I’m going.

At that, I was like, Okay, it’s out of my hands now, so it’s up to you. If you want him to go with you, fine. … (

o) While Mr. Brandsgaard offered his opinion that the complainant was too intoxicated to make choices for herself, in cross- examination he agreed that he had observed her making choices throughout the night: Q I recall you saying today that you thought she was way too intoxicated to make choices for herself. Do you recall saying that? A Yes. Q You agree, though, that throughout the course of the night, she makes choices about staying or leaving the bar? A Yes. Q She makes choices about calling someone or deciding not to call someone? A Trying to call someone, yes.

Q She makes choices about drinking water or not drinking water? A Yes Q And at the end of the night, she makes choices about where she’s going and with whom she’s going. A Yes.

[43] The evidence from these witnesses suggests that the complainant was intoxicated. It also suggests that she was responsive andoriented. In addition, Ms. Schatz’s and Mr. Brandsgaard’s last interactions with the complainant, at about 10:30 p.m. and 1:30 a.m.respectively, demonstrate that the complainant was able to, and did, make decisions about being in Mr. Owston’s company. Shecommunicated those decisions clearly to Ms. Schatz and Mr. Brandsgaard. Security video from the bar also confirmed that, includingshowing her linking arms with Mr.

Owston and walking through the bar. [44] There was one other aspect of the evidence that is relevant in this context. The complainant had been dropped off at the bar andhad expected to be picked up by a man she had been dating for several months. She testified that there was “no scenario” in which shewould have gone home and had sex with Mr. Owston, and that she would not have had sex with Mr. Owston or anyone else without acondom.

In R v Al-Rawi, 2018 NSCA 10, 359 CCC (3d) 237, Beveridge J.A. made this point: [70] Where a complainant testifies that she has no memory of the sexual activity in question, the Crown routinely asks: “Would youhave consented?” Despite the potential to discount the typically negative response as speculation, the answer is usually received intoevidence, and depending on the reasons, may or may not have a bearing on the determination if consent or capacity to consent were absent(see for example: R. v.

J.R. [(2006), (ON SC), 40 CR (6th) 97, aff’d 2008 ONCA 200, 59 CR (6th) 158, leave toappeal to SCC denied, /39174]; R. v. B.S.B., [2008 BCSC 917, aff’d 2009 BCCA 520, 71 CR (6th) 306]; R. v. Olutu,[2016 SKCA 84, 338 CCC (3d) 321, aff’d 2017 SCC 11, [2017] 1 SCR 168]; R. v. Meikle, [2011 ONSC 650, 84 CR (6th) 172] at para. 45;R. v. Tariq, 2016 ONCJ 614 , [2016 ONSC 614, 343 CCC (3d) 87] at para. 70; R. v. Esau, [ (SCC), [1997] 2SCR 777] at paras. 4 and 91; R. v. Kontzamanis, [2011 BCCA 184] at para. 31).

For unknown reasons, this question was not put to thecomplainant. [45] Justice Rouleau made the same point in relation to capacity to consent R v Garciacruz, 2015 ONCA 27, 320 CCC (3d) 414[Garciacruz]: [69] In the absence of direct evidence on the issue of consent, a court can draw inferences from a complainant’s pre-existing attitudesand assumptions regarding the period during which she has no recollection.

In appropriate cases, the court can conclude that thecomplainant must have been incapable of consenting at the time of the sexual interaction because, had she been capable of consenting, sheclearly would have refused to consent.

This type of inference would support the trial judge’s finding of that the complainant was asleepand incapable of consenting. [46] In R v Olotu, 2016 SKCA 84, 338 CCC (3d) 321, aff’d 2017 SCC 11, [2017] 1 SCR 168, Jackson J.A. accepted this principle,but added an important cautionary note, commenting as follows: [58] … In a case where the complainant lacks memory of the event, the complainant’s testimony that she would never have agreed tosexual intercourse must be handled with care for the very reason Mr. Olotu articulates in this case. Such evidence can shift the burden ofproof.

It is evidence that is difficult for an accused to refute or overcome because countervailing evidence directed to determining whetherthe complainant would have engaged in the sexual act will usually be inadmissible. [47] In Olotu, Jackson J.A. found that the complainant’s statement that she would not have engaged in anal intercourse was “amplysupported by other evidence” (at para 60), including her reaction to having learned it had taken place, the content of text messagesbetween the complainant and the accused, evidence that she was in significant pain and was bruised, and aspects of Mr.

Olotu’s evidence.In her dissent (but not on this point), Ryan-Froslie J.A. also stressed the importance of other evidence that could support a complainant’sevidence that they would not have consented to the sexual activity at issue, as follows: [105] … In determining the complainant did not consent to anal sex, the trial judge relied heavily on both the complainant’s statementthat she would never engage in anal sex and text messages exchanged between the complainant and the appellant the day after their sexualencounter.

In my opinion, while that is circumstantial evidence, something more would be required to justify a finding that thecomplainant did not consent to anal sex at the time it had occurred. … [48] Evidence that could support a complainant’s testimony that they would not have consented depends on the facts. In R v Le Goff,2022 ONSC 609, Presser J. offered the following comments in relation to this issue: [175] Courts have entertained evidence from a complainant that she “would not have” consented as circumstantial evidence of capacityand of actual consent on numerous occasions: Garciacruz, at paras. 30, 69–70; J.

R., at paras. 25–28; Tariq, at paras. 69–70; R. v.Kontzamanis, 2011 BCCA 184, at para 31. The weight assigned to this circumstantial evidence, and the strength of the inferences thatwill be drawn from it, often depend on: • whether there is other evidence supporting the complainant’s testimony about what she would not do: see, for example, [R v Mugabo,2019 ONSC 4308], at para 75; R. v. Carpov, 2018 ONSC 6650, at para. 90; R. v.

Olotu, 2016 SKCA 84, at paras. 59–60, aff’d 2017 SCC11; • whether there was evidence of the complainant’s actions that contradicted her testimony about what she would not do: see, for example,Garciacruz, at paras. 77, 80–81; [R v Meikle, 2011 ONSC 650, 84 CR (6th) 172], at para. 43; and • whether the complainant had specific and compelling reasons for which she said she would not have consented or whether her evidencethat she would not have consented depended on her general attitudes, character, or personal code of conduct: see, for example, J.R., atparas. 31–35. [49] By way of example, in R v Diakite, 2023 MBCA 42, 88 CR (7th) 35, the complainant’s evidence that they did not want to havesex because she was a virgin, was found to be properly admissible, as it provided an explanation for her state of mind.

In R v Kontzamanis,2011 BCCA 184, the court noted that the 18-year-old complainant testified that she thought the accused was 50 years old, that he wasdirty, unbathed, unfit and impolite, and repulsed her. That, among other things, buttressed what the Kirkpatrick J.A. described as “herunequivocal evidence that, under no circumstances, would she have consented to sex with the appellant at any time” (at para 31, emphasisin original).

In R v J.R. (2006), (ON SC), 40 CR (6th) 97, aff’d 2008 ONCA 200, 59 CR (6th) 158, leave to appeal toSCC denied, /39174, the complainant gave several reasons for why she would not have consented, including that the

sexual activity occurred only a few days after having an abortion and she had been told by her doctor to refrain from sexual intercourse forat least two weeks, she would not have had sex with anyone but her partner, she would not have sex with a person of a different race, andshe would not have consented to unprotected sex. [50] This emphasis on the importance of evidence that could be found to increase the probative value of a complainant’s assertionthat they would not have consented reflects the principle that a trial judge must consider all the evidence when deciding if the Crown hasproven guilt beyond a reasonable doubt (see, for example, R v Morin, (SCC), [1988] 2 SCR 345 at 379).

It also accordswith the requirement that, as Cromwell J. wrote in R v Villaroman, 2016 SCC 33 at para 55, [2016] 1 SCR 1000, “[w]here the Crown'scase depends on circumstantial evidence, the question becomes whether the trier of fact, acting judicially, could reasonably be satisfiedthat the accused's guilt was the only reasonable conclusion available on the totality of the evidence”.

This test reflects the criminalstandard of proof; that is, “[i]f there are reasonable inferences other than guilt, the Crown's evidence does not meet the standard of proofbeyond a reasonable doubt” (at para 35). [51] In order to answer this question, trial judges must “consider ‘other plausible theor[ies]’ and ‘other reasonable possibilities’which are inconsistent with guilt”, being theories or reasonable possibilities “based on logic and experience applied to the evidence or theabsence of evidence, not on speculation” (Villaroman at para 37).

While “the line between a ‘plausible theory’ and ‘speculation’ is notalways easy to draw … the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, isreasonably capable of supporting an inference other than that the accused is guilty” (at para 38).

The standard of review that applies whena verdict based on circumstantial evidence is challenged as being unreasonable is that described in R v Power, 2022 SKCA 24, [2022] 10WWR 263; that is, “the question for an appellate court is whether the trier of fact, acting judicially, could reasonably have been satisfiedthat the guilt of the accused was the only reasonable conclusion available on the evidence taken as a whole” (at para 75. See also:Villaroman at para 55; R v Groshok, 2019 SKCA 39 at para 40; and R v Murillo, 2023 SKCA 78 at paras 25 and 26).

The question in thiscase, accordingly, is whether the trial judge could reasonably have been satisfied that the only reasonable inference that could be drawnfrom the evidence as to the complainant’s consumption of alcohol and her actions before she left the bar with Ms. Owston, together withher testimony that she would not have had sex without a condom, was that the complainant lacked the capacity to consent at the time shehad intercourse with Mr. Owston. [52] In our respectful view, the trial judge could not reasonably have been satisfied that was the only reasonable conclusion aboutthe complainant’s capacity.

While the complainant was obviously inebriated at the bar, Mr. Brandsgaard described her as “manageable”.His evidence, like that of Mr. Reid and Ms. Schatz, suggests that her level of intoxication was not entirely debilitating. While her speechand motor skills were impaired, and she had difficulty texting and using her phone, there was also evidence that the complainant wasresponsive to conversation, knew where she was and with whom she was socializing. As well, the evidence demonstrates that she mademultiple simple decisions throughout the evening; including declining Mr.

Brandsgaard’s offer of a taxi ride home on several occasions(even when a paid ride was offered); alternatively accepting and declining Mr. Brandsgaard’s offers of water; and telling Ms. Schatz thatshe wanted to keep socializing with Mr. Owston despite Ms. Schatz raising concerns about the complainant’s boyfriend. [53] It is particularly striking that Mr. Brandsgaard’s final interaction with the complainant when she left the bar consisted of hertelling him directly that she understood Mr. Owston was with her in the taxi, that she was fine with him being there, and that he knewwhere they were going.

This was direct evidence that, at the time she left the bar, the complainant knew where she was and who she waswith, and that she was capable of making a choice. That evidence is, together with the other evidence accepted by the trial judge,circumstantial evidence that would support the reasonable inference that both when she left the bar and when she and Mr. Owston hadintercourse, she was capable of understanding the physical act; that the act was sexual in nature; who Mr.

Owston was; and that she hadthe choice to refuse to participate in the sexual activity. [54] The complainant’s propensity evidence that she would not have had sex with Mr. Owston without a condom adds nothing ofsignificance to this analysis. There was, for example, no evidence that the complainant considered Mr. Owston to be repulsive or, leavingaside her general assertion that she would not have had sex with anyone without a condom, that he could not have been an acceptablesexual partner. She did not seek to avoid him.

To the contrary, she chose to be in his company for an extended period despite theintervention of her friend, and ultimately, to voluntarily leave with him. [55] Further, and importantly, she was intoxicated, and as courts have repeatedly recognized, intoxication can lead people to dothings and make choices that they would not have made if they were sober. In Garciacruz, for example, the complainant, who had beendrinking, testified that she had little memory of the events leading to the alleged sexual assault.

Justice Rouleau dealt with her evidencethat she would not have had consensual sex with the accused as follows: [77] First, there was evidence which gave reason to doubt the complainant’s assertion that because of her code of behaviour, she wouldnever have consented to intercourse with the appellant. The complainant testified that she “would never have hung out [alone] with amarried man.” This assertion by the complainant was clearly contradicted by the facts of the case.

It was the complainant who invitedherself to the appellant’s house for wine and guacamole when she knew that the appellant’s wife was out of town.

Not only was thecomplainant wrong in her evidence that she would never spend time alone with a married man, but she had done so that very day with theappellant, the husband of her friend. [78] Second, without some explanation as to the cause and nature of the blackout condition, it is difficult to conclude, without more,that if she had been in the blackout state, the complainant’s “lack of romantic or sexual attraction to [the appellant], her own code ofbehaviour and her friendship with [the appellant’s wife]” would govern her actions. [56] For these reasons, it is our respectful opinion that the trial judge could not reasonably have been satisfied that the onlyreasonable inference that could be drawn from the evidence was that the complainant lacked capacity when the sexual activity occurred.As such, the finding of guilt on that basis was unreasonable as it could not be supported by the evidence.

It must be quashed. V. REMEDY [57] When a verdict is set aside because it cannot be supported by the evidence, an appellate court must quash the conviction and

may direct an acquittal or order a new trial: Criminal Code s. 686(1)(a)(

i) and s. 686(2). A verdict of acquittal should be directed, ratherthan a new trial ordered, when there is no legally admissible evidence upon which a properly instructed trier of fact could reasonably haveconvicted.

See: R v S.(P.L.), (SCC), [1991] 1 SCR 909; R v Karuranga, 2021 SKCA 90 at para 37, 488 CRR (2d) 317; Rv Keepness, 2007 SKCA 42 at paras 9–10, 293 Sask R 77; R v MacNeil, 2009 NSCA 46 at paras 16–17, 244 CCC (3d) 88 [MacNeil]. [58] In MacNeil, the Nova Scotia Court of Appeal discussed when an acquittal should be entered, rather than ordering a new trial.The court affirmed that when there was no admissible evidence at trial that could have reasonably proven an essential element of theoffence, it is fundamentally unjust to order a new trial rather than entering an acquittal because, after having failed to prove the accused’sguilt, the Crown should not have another opportunity to convict.

The court noted: [16] This court has adopted the general test relied on by the Crown in several cases. In R. v. D.C.S. (2000), 184 N.S.R. (2d) 299, 2000NSCA 61, this court states: [46] In their text, The Conduct of an Appeal, Butterworths 1993, the late Justice John Sopinka and Mr. Mark A. Gelowitz, indicate at p.116, that the discretion given the court of appeal pursuant to s. 686(2) should be exercised as follows: “... In circumstances in which the admissible evidence was such that a properly instructed trier of fact could reasonably have convicted theaccused, it is appropriate to order a new trial.

Where, however, the court of appeal concludes that there was no evidence upon which aproperly instructed trier of fact could have convicted, the appropriate course is to direct a verdict of acquittal.” [17] This general test has been adopted in many cases, see for example: R. v. Pittiman, 2006 SCC 9, [2006] 1 S.C.R. 381, ¶14; R. v.Schneider (2004), 228 N.S.R. (2d) 344, 2004 NSCA 151; R. v. Reid & Stratton, 2003 NSCA 104, at ¶94; R. v. Schoenthal, [2007] S.J. No.387, 2007 SKCA 80, ¶’s 25 to 28; R. v. Keepness (2007), 293 Sask. R. 77, 2007 SKCA 42; R. v. Morin (1997), (QCCA), 5 C.R. (5th) 331; Thorne v.

R. (2004), 279 N.B.R. (2d) 92, 2004 NBCA 102; R. v. Wood, [2006] A.J. No. 1457, 2006 ABCA 343, ¶’s40 and 41; R. v. Sobus, [2005] B.C.J. No. 774, 2005 BCSC 526,¶’s 4 and 5. [59] For the reasons we have explained, the evidence at trial was not capable of supporting the trial judge’s finding respectingcapacity. There is also no issue respecting whether a finding of guilt based on a lack of consent, as opposed to a lack of capacity toconsent, could be supported by the evidence because the Crown has conceded that it did not prove lack of consent at trial. As a result, anacquittal must be entered. VI.

CONCLUSION [60] The appeal is allowed, the conviction quashed, and an acquittal entered. “Schwann J.A.” Schwann J.A. “Barrington-Foote J.A.” Barrington-Foote J.A. “McCreary J.A” McCreary J.A.