



WARNING

The President of the panel
    hearing this appeal directs that the following should be attached to the file:

An order restricting
    publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or
    (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
    sections of
the Criminal Code
provide:

486.4(1)       Subject
    to subsection (2), the presiding judge or justice may make an order directing
    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in
    proceedings in respect of

(a)     any of the
    following offences;

(i)      an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED: S.C.
    2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences being dealt
    with in the same proceeding, at least one of which is an offence referred to in
    paragraph (a).

(2)     In proceedings
    in respect of the offences referred to in paragraph (1)(a) or (b), the
    presiding judge or justice shall

(a)     at the first
    reasonable opportunity, inform any witness under the age of eighteen years and
    the victim of the right to make an application for the order; and

(b)     on application
    made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to
    subsection (2.2), in proceedings in respect of an offence other than an offence
    referred to in subsection (1), if the victim is under the age of 18 years, the
    presiding judge or justice may make an order directing that any information
    that could identify the victim shall not be published in any document or
    broadcast or transmitted in any way.

(2.2) In proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible,
    inform the victim of their right to make an application for the order; and

(b) on application of
    the victim or the prosecutor, make the order.

(3)     In proceedings
    in respect of an offence under section 163.1, a judge or justice shall make an
    order directing that any information that could identify a witness who is under
    the age of eighteen years, or any person who is the subject of a
    representation, written material or a recording that constitutes child
    pornography within the meaning of that section, shall not be published in any
    document or broadcast or transmitted in any way.

(4)     An order made
    under this section does not apply in respect of the disclosure of information
    in the course of the administration of justice when it is not the purpose of
    the disclosure to make the information known in the community. 2005, c. 32, s.
    15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25,
    ss. 22, 48; 2015, c. 13, s. 18.

486.6(1)       Every
    person who fails to comply with an order made under subsection 486.4(1), (2) or
    (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2)      For greater certainty, an order
    referred to in subsection (1) applies to prohibit, in relation to proceedings
    taken against any person who fails to comply with the order, the publication in
    any document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity
    is protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. I.A.D., 2021 ONCA 110

DATE: 20210222

DOCKET: C67840

Fairburn A.C.J.O., Juriansz and Huscroft
    JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

I.A.D.

Respondent

Dena Bonnet, for the appellant

Sean May, for the respondent

Heard: February 9, 2021 by
    video conference

On appeal from the acquittals entered by
    Justice Julie Bourgeois of the Ontario Court of Justice on December 4, 2019.

REASONS FOR DECISION

Overview

[1]

The respondent was charged with one count each of
    sexual assault and sexual interference. There were two main questions at trial:
    (a) did the appellant prove beyond a reasonable doubt that the complainant did
    not consent to the sexual activity; and, if so, (b) did the respondent have an
    honest but mistaken belief in communicated consent?

[2]

The trial judge answered the first question in
    the affirmative, concluding that the complainant did not consent to the sexual
    activity in question.

[3]

The trial judge then went on to consider the
    second question, whether the respondent had an honest but mistaken belief in
    communicated consent at the time that the sexual activity took place. On this
    point, the trial judge concluded that she could not reject his defence of
    honest but mistaken belief in communicated consent and, therefore, entered
    acquittals on both counts.

[4]

The appellant appeals to this court on the basis
    that the trial judge erred in her analytical approach to the defence of honest
    but mistaken belief in communicated consent. Specifically, the appellant argues
    that the trial judge failed to consider a statutory prerequisite to the
    availability of that defence, which is the need for the respondent to have
    taken reasonable steps in ascertaining the complainants consent:
Criminal
    Code
, R.S.C. 1985, c. C-46, s. 273.2(b). The absence of any reasoning on
    this point is said to lead to inadequate reasons that do not give full effect
    to the relevant provisions of the
Criminal Code
: see
R. v. Gagnon
,
    2018 CMAC 1, 427 D.L.R. (4th) 430, at paras. 36, 44-45, affd 2018 SCC 41,
[2018] 3 S.C.R. 3
. Hence, such a failure to
    consider s. 273.2(b) of the
Criminal Code

is a reversible error.
    We agree. Therefore, we allow the appeal, set aside the acquittals, and order a
    new trial on both counts.

Brief Factual Background

[5]

The complainant was 15 and the respondent was 18
    at the time of the alleged offences. They knew one another because the
    complainant would sometimes buy cannabis from the respondent.

[6]

The complainant appears to have been
    experiencing difficult life circumstances in and around the time of the alleged
    offences. She had moved away from her parental home and was living at a
    friends place in the months preceding the alleged offences. One evening, she
    decided to go out with the respondent and two of his friends. The police
    stopped the group at around 2:47 a.m. The complainant testified that she was
    asked by the respondent to take a Xanax pill so that the police would not catch
    the respondent in possession of the pill. As it was dark at the time, the
    complainant was unsure as to whether it was a full-sized pill. At this time, the
    police arrested one of the friends for breach of probation.

[7]

Eventually, the complainant and the respondent
    ended up at the home of the remaining friend. The three individuals were all in
    the basement of that home together. The friend soon fell asleep in his bed.
    While the complainant and respondent were initially on two separate couches, the
    respondent motioned to her to come to the larger couch where he was laying down
    with the only blanket in the room. She was cold and decided to accompany him on
    that couch.

[8]

From here, the complainants and the
    respondents evidence diverged at trial. The complainant acknowledged that she initially
    moved close to him and rubbed against him. He was aroused. She said that the
    respondent started to digitally penetrate her. He pulled her pants down. She
    attempted to get off of the couch, but she tripped. The respondent pulled her
    back onto the couch, held her closer to him, and then, as she put it, He
    started having sex with me and I said no. When she realized he was not going
    to stop, she said that we should put a condom on and he told me that that was
    childish of me, and then he continued until he was done and then he rolled over
    and that was that. The complainant said that the respondent withdrew his penis
    just prior to ejaculation, leaving ejaculate on and around her vagina.

[9]

The respondent testified that it was the
    complainant who initiated the sexual contact. According to the respondent, he
    got aroused when the complainant started rubbing against him. He testified that
    he asked her if she wanted to fuck, and she said yes, do you have a condom?
    His evidence on this point was as follows:

I asked her if she wanted to fuck, and she
    says yes, do you have a condom? And so I said no, those are for children. I was
    trying to blow off the fact that I didnt really have a condom on me and we
    were  so just the bum grinding still keeps happening and I end up start
    pulling down the right side of her leggings, and she ends up lifting the left
    side of her hip to get down the left side of her pants with me to help.



[S]he had to sit up and like perk her hip up,
    and then pull down the left side to help me get it down. They were leggings, so
    they were quite tight. And  yeah so just after that we had sex, it didnt last
    very long[.]

[10]

When asked what his understanding was with
    respect to whether the complainant was consenting to this sexual activity, the
    respondent answered: For the most part, I knew she said yes. However, she
    never made it, she never said no, she never showed me that she didnt want any
    sex or anything, she said yes and continued giving me signs that like there was
     this is okay. On the issue of the condom, the respondent acknowledged the
    following later in his evidence:

[S]he never told me no were not having sex if
    you dont have a condom. She said yes  yes do you have a condom, I said no,
    those are for children and we continued to fool around on the couch.

The Trial Judges Failure to Address
    Reasonable Steps

[11]

The trial judge correctly resolved the issue of
    the absence of the complainants consent for the purposes of the
actus reus

of the offences. Here, the trial judge adverted to the need to focus upon
    the complainants subjective state of mind. Ultimately, the trial judge
    concluded that she was satisfied beyond a reasonable doubt that the complainant
    did not consent to the sexual activity.

[12]

The trial judge then moved on to consider the only
    other triable issue: This leaves the final question, is there an air of
    reality to the defence of honest but mistaken belief in communicated consent,
    and if so, does it raise a reasonable doubt? Unfortunately, the trial judges
    reasons are wanting in relation to this issue.

[13]

Section 273.2 of the
Criminal Code
places important limits on the defence of honest but mistaken belief in
    communicated consent, including s. 273.2(b), which states 
[
i
]
t is not a defence where the accused did not take reasonable
    steps, in the circumstances known to the accused at the time, to ascertain that
    the complainant was consenting. As Moldaver J. held in
R. v. Barton
,

2019 SCC 33, 376 C.C.C. (3d) 1, at para. 104, s. 273.2(b) imposes a
precondition
to the defence of honest but mistaken
    belief in communicated consent  no reasonable steps, no defence (emphasis
    added).

[14]

There are both objective and subjective
    dimensions to this defence. The accused must take steps that are objectively
    reasonable in the circumstances, and the reasonableness of the steps must be
    considered in light of the circumstances known to the accused at the time:
Barton
,

at para. 104.

[15]

We agree with the appellant that this case required
    a clear inquiry into the reasonable steps potentially taken by the respondent.
    This is particularly true given both the complainant and respondents clear
    evidence that she asked for a condom, yet the sexual intercourse ensued without
    one. Even taking the respondents evidence at its highest, this is a
    circumstance that was known to him at the time that the intercourse commenced,
    yet he did not inquire of the complainant whether she wished to proceed without
    a condom. Instead, he chose to rely upon what he perceived from the
    complainants actions, as described by him: the continued physical grinding by
    the complainant; the movement of her hip; and her assistance with pulling down
    one side of her pants.

[16]

The trial judges reasons are entirely silent as
    to whether the respondent took any objectively reasonable steps in light of the
    circumstances known to him at the time. Instead, the trial judge reviewed the
    evidence, made conclusions about what she could not reject, and then satisfied
    herself that it was impossible to reject the defence of honest but mistaken
    belief in communicated consent. The trial judges reasoning can be summarized
    as follows:

(i)  She could not reject the respondents evidence that he asked
    the complainant if she wanted to fuck or the complainants evidence that she
    asked if he had a condom.

(ii)  She was not convinced by his evidence that [the complainant]
    actually said the word yes, but could not reject the respondents evidence
    that when he tried to brush off the fact that he did not have a condom, the
    complainant continued to rub against his penis and perked her hip up and
    pulled the right side of her pants.

[17]

On this basis, the trial judge concluded:

It is impossible to reject his evidence that
    he honestly but mistakenly believed she was communicating her consent by her
    actions of rubbing against his penis, and then assisting him in the removal of
    her pants. I certainly accept his evidence that this only lasted a minute or
    two, and that it was bad sex.



[I]n the end, given the totality of the
    evidence, one cannot reject his defence of honest but mistaken belief in
    communicated consent.

[18]

We cannot accept the respondents position that
    the reasonable steps inquiry is implicit in the trial judges reasoning set out
    above. To the contrary, the reasoning seems to focus exclusively upon why the
    respondent could be said to have honestly but mistakenly believed the
    complainant to be consenting. In our view, the trial judges reasons do not
    explicitly or implicitly address the prerequisite of reasonable steps.

[19]

The reasonable steps inquiry is a fact-specific
    one. Clearly, those steps cannot arise from the complainants silence,
    passivity, or ambiguous conduct:
R. v. Ewanchuk
,
[1999] 1 S.C.R. 330,

at para. 51;
Barton
,

at para. 107. Whether the
    complainant perked her hip or not, or helped with pulling down one side of
    her pants or not, is at best ambiguous conduct, particularly ambiguous as to
    what the complainant may or may not have been consenting to. This is especially
    true given the trial judges finding of fact that the complainant asked if he
    had a condom. In the circumstances of this case, failing to specifically address
    the prerequisite of reasonable steps, constitutes a reversible error.

The Remedy

[20]

The appellant asks us to allow the appeal and,
    pursuant to s. 686(4)(b)(ii) of the
Criminal Code
, enter convictions
    on both counts. While we agree that the acquittals must be set aside, we
    decline to enter convictions.

[21]

Although the appellants position has much
    force, the trial judges reasons are insufficiently clear to permit this court
    to confidently enter convictions. Among other issues, the reasons for judgment
    lack clarity on factual findings and are devoid of credibility assessments. For
    instance, it appears that the trial judge concluded that the
actus reus

of the sexual assault was made out, not because she believed the
    complainant, but because of the respondents evidence, where he testified that
    for the most part he knew she said yes. Indeed, nowhere in the reasons does
    the trial judge articulate credibility findings with respect to either the complainant
    or respondent.

[22]

The combined absence of clear credibility and
    factual findings deprives this court of the type of clarity required when
    determining whether the respondent is, in fact, guilty. This task is better
    left to a new trial judge, who will be best positioned to make all requisite
    credibility and factual findings.

Disposition

[23]

The appeal is allowed, the acquittals are set
    aside, and a new trial is ordered on both counts.

Fairburn
    A.C.J.O.

R.G.
    Juriansz J.A.

Grant
    Huscroft J.A.


