R v Demong, 2023 SKCA 109

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in accordance with s. 486.4(1) of the Criminal Code directing that any information identifying the complainant shall not be published.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: CACR3643 Citation: R v Demong , 2023 SKCA 109 Date: 2023-09-14 Between: Claude Demong Appellant And His Majesty the King Respondent Before: Richards C.J.S., Schwann and Barrington-Foote JJ.A.

Disposition: Appeal allowed Written reasons by: The Court On appeal from: Provincial Court (Sask), North Battleford Appeal heard: June 7, 2023 Counsel: Elise von Holwede for the Appellant Grace Hession David for the Respondent The Court I. INTRODUCTION [ 1 ] On October 18, 2022, Claude Demong was found guilty following trial by a Provincial Court judge of sexual assault pursuant to s. 271 of the Criminal Code . He has appealed his conviction pursuant to s. 675(1) (

a) of the Criminal Code . [ 2 ] Mr. Demong, who called no evidence and did not testify at trial, did not deny that he had intercourse with the complainant. Rather, the issue was whether the complainant consented or had the capacity to consent. The complainant – who was impaired by drugs and alcohol at the time – testified that she could recall only a very brief and ambiguous interchange with Mr. Demong that may have occurred at or about the time of their sexual encounter. The Crown’s case accordingly depended on circumstantial evidence, and the question to be decided by the trial judge was whether Mr.

Demong’s guilt “was the only reasonable conclusion available on the totality of the evidence”: R v Villaroman , 2016 SCC 33 at para 55 , [2016] 1 SCR 1000 [ Villaroman ]. [ 3 ] The trial judge concluded that the complainant did not consent. He did not deal with capacity to consent. The key to his decision was the complainant’s evidence that she would never have consented to having sex with Mr. Demong, as he was involved in an intimate relationship with her mother at the time.

Circumstantial evidence of that kind is common when the complainant has little or no memory of an alleged sexual assault. [ 4 ] With respect, we have concluded that the trial judge erred by failing to correctly apply the Villaroman test and that, as a result, Mr. Demong’s conviction must be set aside and a new trial ordered. Our reasons for that conclusion follow. II. BACKGROUND [ 5 ] The events that led to the charges against Mr. Demong occurred on the afternoon of May 27, 2018. The complainant’s mother had invited Mr. Demong to her and the complainant’s home for drinks. Mr.

Demong arrived at approximately 12:45 p.m. The complainant recalled that she consumed two shots of vodka, a taste from a bottle of spiced rum that had been brought by Mr. Demong, and possibly a part of a cooler. It was her evidence that she began to experience a bad headache, and that she felt weak, heavy-limbed, dizzy, like vomiting, and “blackout drunk”. She described her level of intoxication as being nine on a scale of ten but although she was not certain, she thought that her ability to carry on a conversation was “somewhat decent”.

She agreed that there were gaps in her memory of the period when she was impaired and that she did not recall “the whole fluid scenario”. [ 6 ] The complainant testified that she and her mother were on the porch and that she told her mother she was not feeling well and was going to lie down. She said she went to the bathroom, took Advil for her headache and to calm her stomach. It was her evidence that she proceeded to her room and went to bed fully clothed and that the next thing she recalled was waking up with her bottom garments gone.

She put on sweatpants and went to the living room, lay down on the couch, and “passed out” until her brother and sisters returned home. She remembered observing that Mr. Demong’s blue bag was on the floor when she went to the living room, but that everything else was normal. [ 7 ] The complainant testified that she recalled an event that occurred when she was in bed, as follows:

A I do faintly remember seeing (INDISCERNIBLE) Claude over top of me and hearing the sound of running water. [ 8 ] She was later asked and answered the following questions about this memory: Q And one last question, I hate to take you back to this, but, when you remember Claude being overtop of you, was he saying anything? A My -- my memory says yes, but I’m not 100 percent sure. Because I remember hearing his voice, but when I -- when I remembered him -- his face overtop of me, his lips stopped moving -- Q M-hm. A -- but I just remember hearing his voice.

And it went somewhere along the lines of, Don’t worry, your mom is passed out, like, you can make sounds. [ 9 ] When the complainant was cross-examined about this memory, she affirmed that she was quite certain it was Mr. Demong’s face but that she did not know what was going on at the time. She also said this: Q Okay. Now, I know today, you -- you said you couldn’t remember if you spoke and you didn’t think you were able to move; is that right? A Yes. Q But I think we’ve -- we’ve gone over this again a lot, you just don’t know, right? A Just can’t remember it, yeah.

Q Can’t remember if you were or were not able to move? A Yeah. [ 10 ] The complainant was also asked and answered the following questions: Q -- Claude? Did you agree to have sex with Claude? A No Q Did you initiate sex with Claude? A No. Q At the time that you remember him being over top of you, did you understand at that time that you could say no? A No. [ 11 ] It was the complainant’s evidence that when she woke up on the couch at 5:00 or 5:30 p.m. she was significantly less impaired. Shortly after, she started to feel what she described as a cramped and burning sensation between her legs and did not know why.

She went to the hospital, where she was examined to determine if she had been sexually assaulted. A vaginal swab was taken that was ultimately found to contain Mr. Demong’s DNA. Her blood test disclosed the presence of a metabolite of Clonazepam, a drug that was present in the house as it was prescribed to her mother. The complainant did not know how she came to have that metabolite in her system. [ 12 ] Angela Filbert, a civilian member of the RCMP, was qualified to give expert evidence as to the effects of alcohol and drugs.

She testified that Clonazepam is a central nervous system depressant with side effects that include, among other things, dizziness, sedation, and impaired motor coordination, speech and memory. Those side effects can be exacerbated when it is taken with alcohol. Ms. Filbert explained that in a state of amnesia, which is a common side effect of Clonazepam, an individual could be walking or talking, but later would have no memory of doing so.

She agreed that there may be some fragmentary memory recall or none at all and that this is common if Clonazepam is ingested with alcohol. [ 13 ] As noted above, the complainant also gave what proved to be crucial evidence that she would not have consented to having sex with Mr. Demong. She said that was never a thought in her mind. She also offered the following explanation as to why she would not have done so: Q Okay. And my last question, you -- on cross it was established you told the police you found the age difference gross between you and Claude, he’s -- he’s basically your parents’ age.

And you also said that consent wouldn’t be a conscious answer; how do you know that? A I would not consciously agree to having sex with Claude, that’s -- was never a thought in my mind. So, I believe subconsciously, that would still not be a thought. Q And is there any specific reasoning -- or, reasons, why you would -- you would not do that? A The main thing is because he was with -- not dating, but I’m pretty sure he was having sexual relations with my mother, so, that was a really big no on my part as well.

And that’s why I had no issue with him coming over was because he was pursuing my mom, so I had no thoughts in my mind, no doubts or anything; he was there for my mom, I was just there, kind of, as company. [ 14 ] The complainant also testified that she found the idea of having sex with Mr. Demong was “gross” because he was close in age

to her mother and father. She said that at the time she thought he was in his mid-30’s. III. THE TRIAL JUDGMENT [15] The trial judge delivered his oral decision on October 18, 2022. He began by reviewing the complainant’s testimony.

He madethe following important findings in the course of that review: Even on the possibility of [the complainant] being erroneous about taking Advil or going to her own bedroom alone or with someone else,are in and of themselves not evidence, but suggestions of a speculative nature, given her candid testimony about experiencing somefragmented memories. … As for the suggestion in cross-examination that [the complainant] agreed to have sex with Mr. Demong is not something she couldremember, is in and of itself not evidence.

The trier of fact must take this into consideration in the totality of the evidence that’s submitted. On this regard, I accept the Crown’s argument on this issue. Without more evidence, it’s speculative on its own, and there being no otherevidence to corroborate or support the notion of subjective consent being granted by [the complainant] to have sex with Mr. Demong butforgetting about it, is a necessary consideration to weigh in the totality of the evidence.

However, I find it’s absent any factual or evidentiary foundation as it does go to the heart of consent, as defence counsel has argued in itssubmissions and argument in its case authorities. See R. v. Esau (SCC), 1997, 116 CCC (3d) 289 at 296, and R. v.Garciacruz, 2015 ONCA 27. I accept [the complainant’s] testimony on this point in exam in-chief and in cross-examination when she says the words to the effect thatshe would not consciously have agreed to have sex with Claude, or subconsciously -- Mr. Demong, that is. He was having sexual relationswith her mother so that is why she would not have sex with him.

She had no issue with him coming over because he was her mom’s suitor. [16] The trial judge next summarized the evidence of the complainant’s mother, finding that much of her mother’s evidence “doesnot touch upon the elements of the offence or proof of them”. He then reviewed Ms. Filbert’s testimony, which he adopted. His keyfindings in that respect included the following: So what we learned is that clonazepam is really a calming effect. It reduces excitability in the brain, the central nervous system.Clonazepam can also impair your judgment and your ability to assess risk.

It can stay it’s half life as we understand from the able cross-examination of Ms. von Holwede is a four day half life. It does -- but the metabolite could have a longer half-life than the actual drugclonazepam. … Clonazepam and alcohol have the ability to impact the formation of memories, the type and degree of memory loss, and this varies as wellbetween people. Memory loss tends to be higher when a lot of alcohol is consumed in a short period of time. Amnesia is also a form of the memory impairment.

Memory impairment and amnesia are also side effects of clonazepam, we learned.And amnesia disrupts your ability or one’s ability to recall information. You could possibly be walking around in an awake state, in aconscious state, talking, appearing normal to others, but you don’t have the ability to recall it. Or conversations. And the amnesia and memory impairment side effects are more likely to occur when clonazepam is ingested along with alcohol. A person’s memory of an event could return when prompted, but it’s also possible a person will never recall the memories that they’ve --that they have at all.

And an inability to recall a memory does not mean that they were unconscious or passed out, is what we learned fromthis expert on examination in-chief and cross examination. [17] Having concluded this review, the trial judge turned to the elements of the offence, noting that, among other things, there hadbeen an admission by counsel for Mr. Demong of “sexual contact activity” with the complainant. He stated that he “accepted her evidencethat she did not consent” and for that reason, he did not need to make a finding as to capacity to consent.

He rejected the defence assertionthat there may have been collusion that affected the testimony of either the complainant or her mother. His reasons ended with thefollowing statement: Much has also been placed in defence’s argument as to the fragmented memory and the nature of which [the complainant] made herobservations. I’ve taken that into account and indicated that I find, based on the thorough vigorous cross-examination, that [thecomplainant] maintained that she did not grant consent to engage in sexual intercourse with Mr. Claude Demong. And she would not havedone so for the reason that she provided.

In particular, I refer to the actual words to the effect that she used in that regard. That having been said, I’m entering a guilty verdict. IV. ANALYSIS A. The trial judge erred by failing to properly apply Villaroman [18] When dealing with a case where the Crown’s case is based on circumstantial evidence, Villaroman requires a trial judge to askwhether the guilt of the accused is the only reasonable conclusion available on the evidence as a whole. In R v Learning, 2019 SKCA 5,

Caldwell J.A. summarized the approach to be employed in cases involving circumstantial evidence as follows: [24] Importantly, the Court in R v Villaroman had earlier commented on the reasoning process in cases of circumstantial evidence,noting: (a) “The inferences that may be drawn from [an] observation must be considered in light of all of the evidence and the absence ofevidence, assessed logically, and in light of human experience and common sense” (at para 30). (b) “In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts” (at para 35). (c) “The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it.

If there arereasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt” (at para 35). (d) “[A] reasonable doubt, or theory alternative to guilt, is not rendered ‘speculative’ by the mere fact that it arises from a lack of evidence.As stated by this Court in [R v Lifchus, (SCC), [1997] 3 SCR 320], a reasonable doubt ‘is a doubt based on reason andcommon sense which must be logically based upon the evidence or lack of evidence’: para. 30 (emphasis added). A certain gap in theevidence may result in inferences other than guilt.

But those inferences must be reasonable given the evidence and the absence ofevidence, assessed logically, and in light of human experience and common sense” (at para 36). (e) “When assessing circumstantial evidence, the trier of fact should consider ‘other plausible theor[ies]’ and ‘other reasonablepossibilities’ which are inconsistent with guilt” (at para 37). (f) “[T]he Crown thus may need to negative these reasonable possibilities, but certainly does not need to ‘negative every possibleconjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused’. …‘[O]ther plausibletheories’ or ‘other reasonable possibilities’ must be based on logic and experience applied to the evidence or the absence of evidence, noton speculation” (at para 37; emphasis in original).

Drawing on all of this, the Court said (at para 38) that the “basic question” in such cases is “whether the circumstantial evidence, viewedlogically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.” [19] The central issue in this case is whether the trial judge followed this approach. In our view, he did not. [20] There was scant direct evidence as to whether the complainant consented to having intercourse with Mr. Demong. She claimedto remember only a “couple of seconds” from the time she went to bed until she woke up and went to the couch.

She said she recalledseeing Mr. Demong’s face over top of her and the sound of rushing water, and that it was very dark. She testified that she did not knowwhat was happening or whether there was sex going on. She also said this: Q Were you able to speak? A No. Q And why is that? A I -- I honestly, I don’t recall. I don’t think -- I think I, kind of, just woke up for that couple seconds and then passed right back outbecause I don’t have any recollection of trying to speak or why I couldn’t speak? Q How about -- were you able to move?

A No. [21] The complainant’s proclivity evidence that she would not have consented to intercourse – which the Crown referred to on thisappeal as “the one outstanding piece of evidence in this trial” – is certainly relevant and was more than a statement of her general attitudes.She explained her reasons, being her reaction to the difference in their ages and Mr. Demong’s relationship with her mother.

It was thatevidence which led the trial judge to conclude that she did not consent. [22] There was, however, also the complainant’s evidence that she was highly intoxicated, and the toxicology evidence thatindicated she had ingested Clonazepam within four days of having her blood tested. The complainant testified that she was relieved by thatevidence, as it explained the way she felt and her loss of memory. That supports the conclusion that she ingested the Clonazepam beforehaving sex with Mr. Demong, as the trial judge appears to have found. [23] Further, there was Ms.

Filbert’s evidence that Clonazepam can impair judgment and the ability to assess risk, and can result inmemory impairment and amnesia, with the consequence that, as the trial judge commented in his reasons, “[y]ou could possibly bewalking around in an awake state, in a conscious state, talking, appearing normal to others, but you don’t have the ability to recall it”. Ms.Filbert also said that these effects on memory and judgment can be exacerbated by the consumption of alcohol and Clonazepam together.As the trial judge also noted, Ms.

Filbert confirmed that a person’s inability to recall as a result of impairment of this kind does not meanthat they were unconscious or passed out. [24] Courts have repeatedly recognized that intoxication can lead people to do things and make choices they would not have made ifthey were sober. Expert evidence to that effect, while it may be helpful, is often unnecessary. In R v Garciacruz, 2015 ONCA 27, 320CCC (3d) 414, for example, the complainant, who had been drinking, testified that she had little memory of the events leading to thealleged sexual assault.

Justice Rouleau dealt with her evidence that 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 invited

herself 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. [25] This analysis echoes Major J.’s observation in R v Esau, (SCC), [1997] 2 SCR 777, that, in the circumstancesof that case, “[a]ny number of things may have happened during the period in which [the complainant] had no memory” (at para 19).

Seealso R v Meikle, 2011 ONSC 650 at paras 41–​45, 84 CR (6th) 172. [26] As a consequence, there was another inference that should have been considered by the trial judge. Even if the complainantwould not have consented to having sex with Mr. Demong if she had been sober or, for that matter, had been less impaired, she may haveconsented because she was intoxicated.

The trial judge not only failed to grapple with this possibility as required by Villaroman but cameperilously close to expressly reversing the burden of proof on this point, reasoning as follows: As for the suggestion in cross-examination that [the complainant] agreed to have sex with Mr. Demong is not something she couldremember, is in and of itself not evidence. The trier of fact must take this into consideration in the totality of the evidence that’s submitted. On this regard, I accept the Crown’s argument on this issue.

Without more evidence, it’s speculative on its own, and there being no otherevidence to corroborate or support the notion of subjective consent being granted by [the complainant] to have sex with Mr. Demong butforgetting about it, is a necessary consideration to weigh in the totality of the evidence. However, I find it’s absent any factual or evidentiary foundation as it does go to the heart of consent, as defence counsel has argued in itssubmissions and argument in its case authorities. See R. v.

Esau (SCC), 1997, 116 CCC (3d) 289 at 296, and R. v.Garciacruz, 2015 ONCA 27. (Emphasis added) [27] With respect, this reasoning is contrary to the direction in Villaroman. It would not have been speculation to consider thepossibility that the complainant consented, just as it was not speculation to consider if she did not. As Cromwell J. said in Villaroman, theinferences that may be drawn from circumstantial evidence “must be considered in light of all of the evidence and the absence ofevidence, assessed logically, and in light of human experience and common sense” (at para 30).

As he also explained: [35] …In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts: R. v. Khela,2009 SCC 4, [2009] 1 S.C.R. 104 (S.C.C.) at para. 58; see also R. v. Pryce, 2014 BCCA 370, 361 B.C.A.C. 301 (B.C. C.A.) , atpara. 10; R. v. Bui, 2014 ONCA 614, 14 C.R. (7th) 149 (Ont. C.A.), at para. 28. Requiring proven facts to support explanations other thanguilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessedby considering all of the evidence.

The issue with respect to circumstantial evidence is the range of reasonable inferences that can bedrawn from it. If there are reasonable inferences other than guilt, the Crown's evidence does not meet the standard of proof beyond areasonable doubt. [28] Here, there was no direct evidence as to the issue of consent. There was an absence of evidence as a result of the complainant’sintoxication. Although the complainant said she did not consent, the Crown concedes that this referred to the period before she went tobed, not when she was in bed.

The complainant could not give direct evidence of whether she subjectively consented when the intercoursetook place, as she did not claim to remember what she was thinking, including during the few seconds that she recalled. To the contrary,she readily admitted that her memory of that incident was not only unclear but limited to the few details she described. She acknowledgedthat she did not know what she was doing at the time, including whether she was conversing with Mr. Demong or touching him. Indeed,she did not claim to remember having had sex with Mr.

Demong at all, and, if so, whether she had signified her consent, as follows: Q So, you also agree that there is some possibility of things happening in that -- in that period of blackout that you just don’t rememberand can’t say for certain? A Yes. Q And you agreeing to have sex with Claude could be something, you just don’t remember? A It could be, but it wouldn’t be a conscious answer to the question, yes. Q You just don’t know though, right? A No. [29] Accordingly, the trial judge was obliged to engage with the possibility that the plaintiff consented to the sexual activity.

Hefailed to do so in the manner required by Villaroman, thereby committing an error of law. B. Remedy [30] Where, as here, an appeal from conviction is allowed pursuant to s. 686(1)(

a) of the Criminal Code, an appellate court maydirect a verdict of acquittal to be entered or order a new trial. A verdict of acquittal should be directed, rather than a new trial ordered,when there is no legally admissible evidence upon which a properly instructed trier of fact could reasonably convict. See: R v S.(P.L.), (SCC), [1991] 1 SCR 909; R v Karuranga, 2021 SKCA 90 at para 37; R v Keepness, 2007 SKCA 42 at paras 9–10, 293Sask R 77; R v MacNeil, 2009 NSCA 46 at paras 16–17, 244 CCC (3d) 88. Mr. Demong contends that he should be acquitted, as there

were not only material errors of law, but the verdict was unreasonable, as it was not unreasonable to conclude that a lack of consent was the only reasonable conclusion. [ 31 ] In our view, we need not decide whether the verdict was unreasonable in this way. The reason that is so is because the Crown advanced two theories in the court below– that the complainant did not consent or that the complainant did not have the capacity to consent. The trial judge did not decide whether the complainant lacked capacity.

This means that the proper remedy depends on whether he could have been reasonably satisfied that the only reasonable conclusion was that the complainant either did not consent or that she lacked the capacity to consent. [ 32 ] The circumstantial evidence that was relevant to the issue of consent is also relevant to the issue of capacity to consent. However, it is arguable that the complainant’s evidence that she had what the trial judge described as a “faint memory” of seeing Mr.

Demong on top of her and hearing him tell her she could make noise is more significant in relation to capacity, as the complainant also testified that she was unable to speak or move. Further, she said that she did not know she could say no.

This evidence is relevant to the test for capacity to consent adopted by the Supreme Court of Canada in R v G.F ., 2021 SCC 20 , 459 DLR (4th) 375, which is as follows: [57] In sum, for a complainant to be capable of providing subjective consent to sexual activity, they must be capable of understanding four 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. [ 33 ] The trial judge referred to the complainant’s evidence about this elusive memory.

However, he did not confirm the extent to which he did or did not accept it. Having concluded that the complainant’s evidence that she would not have consented proved a lack of consent, he decided he did not need to do so. Nor did he address its reliability. The reason reliability was at issue is obvious. The complainant described herself as having been “past drunk” and her memory was clearly and admittedly impaired. She testified that when she reported this brief memory to the police she was “not 100 percent sure” what Mr. Demong said to her.

She agreed that these were partial memories, and that she did not remember if she had a conversation with him or was touching him at the time. Although she said she could not move, she also acknowledged that she could not remember if she could move, or whether she had signified her consent to having sex. [ 34 ] The fact that the trial judge did not deal with reliability is significant not only in relation to the complainant’s memory of hearing and seeing Mr. Demong, but the other evidence that was relevant to her capacity to consent.

The complainant reported that she felt like she had been hit by a bus before she retired to her bedroom. However, she also recalled being able to carry on a conversation with her mother shortly before she made a decision to go to the bathroom, take an Advil to relieve her headache, and go to bed. She was clear that she took Advil and lay down. She was able to recall the state she was in and what she observed when she woke up. [ 35 ] All of this evidence had to be considered, as did Ms.

Filbert’s evidence, in deciding whether the evidence was capable of supporting the conclusion that the complainant did not have the capacity to consent. The trial judge did not consider this issue or make the necessary findings of fact. An appellate court is obliged, within the limits of the appellate disadvantage, to “re-examine and to some extent reweigh and consider the effect of the evidence” in light of the applicable criminal standard of proof when deciding whether a verdict is unreasonable, ( Villaroman , at para 55 ).

We are not satisfied, based on that limited reweighing, that it would have been unreasonable for the trial judge to have found that the complainant lacked the capacity to consent. For that reason, the correct remedy is to set aside the conviction based on the error of law in applying Villaroman and order a new trial. The judge conducting the new trial will want to have regard for the Court’s recent decision in R v Owston , 2023 SKCA 101 , which, among other things, addresses the correct approach to proclivity evidence. V. CONCLUSION [ 36 ] In the result, we would set aside Mr.

Demong’s conviction and order a new trial. “Richards C.J.S.” Richards C.J.S. “Schwann J.A.” Schwann J.A. “Barrington-Foote J.A.” Barrington-Foote J.A.