



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. Dixon, 2018 ONCA 949

DATE: 20181126

DOCKET: C61975

Sharpe, Hourigan and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sascha Jermaine Dixon

Appellant

William Luke, for the appellant

Andrew Cappell, for the respondent

Heard: November 22, 2018

On appeal from the conviction entered by Justice Beth A.
    Allen of the Superior Court of Justice sitting without a jury on September 25,
    2015.

REASONS FOR DECISION

A.

Overview

[1]

The appellant was convicted of sexually assaulting the
    complainant following a party at the home of mutual friends. At trial, he did
    not dispute that he had sexual intercourse with the complainant during the
    evening in question, but testified that the encounter was consensual. On
    appeal, he submits that the trial judge erred in her consideration of: the
    complainants capacity to consent, a toxicology report, DNA evidence, and his
    criminal record. We do not give effect to any of these grounds of appeal and,
    accordingly, dismiss the appeal.

B.

Facts

[2]

On December 15, 2012, the complainant attended a
    Christmas party hosted by her female friend, S.J. The appellant, who had known
    the complainant for over ten years, also attended the party.  It is uncontested
    that the appellant was drinking vodka and smoked marihuana during that evening,
    although his level of intoxication was the subject of conflicting evidence at
    trial. The testimony of the complainant and the appellant contrasts sharply
    regarding the nature of their interactions that evening.

[3]

According to the complainant, at some point that
    evening she made her way to S.J.s bedroom and laid down fully clothed beside
    S.J. She testified that she did so because she was feeling dizzy and sick as a
    consequence of her alcohol consumption. She fell asleep almost immediately but
    was awoken after being slapped on her bottom. Her evidence was that she did not
    see who slapped her and did not turn around to see who it was because she could
    barely keep her eyes open. The complainant testified that she did not know what
    was happening and felt like she was going in and out of consciousness. She says
    that she has no recollection of physical contact with the appellant. However,
    she did remember feeling that she was swaying, like she was being pushed and
    pulled.

[4]

The complainant further testified that the next thing
    she remembered was S.J. and her partner, M.A., waking her up and screaming at
    her to get out of their apartment. She says that she felt very drunk and
    disorientated. M.A. threw the complainants pants and underwear at her and
    escorted the complainant out of the apartment. She asked S.J. and M.A. for cab
    fare. M.A. threw her a $5 bill and she threw it back. The complainant remembers
    meeting the appellant in the corridor and next remembers being in the
    appellants car in the front passenger seat. According to the complainant, she
    looked over and saw the appellant sitting in the drivers seat masturbating.

[5]

The complainants next memory was waking up on her
    living room floor at 6:30 p.m. that evening. She was surprised to discover that
    she was not wearing any underwear and that a tampon she had put in the night
    before was gone. She became concerned about what had happened the previous
    evening and called S.J. to enquire about what had transpired. S.J. told the
    complainant that she had sex with the appellant. The complainant later attended
    at the Rouge Valley Hospital because she did not know if the tampon was still
    inside of her.  Eventually she went to Scarborough Grace Hospital to complete a
    sexual assault kit, which revealed the appellants DNA inside her.

[6]

The testimony of the appellant is at odds with the evidence of the complainant
    in most material respects. He testified that sometime after 3:30 a.m., as the party
    was starting to wind down, he saw the complainant in the hallway between the
    master bedroom and washroom. He says that she gestured for him to come over and
    speak to her and that she did not seem intoxicated. After a brief conversation,
    the complainant grabbed the appellants hand and led him into the bedroom,
    where he believes she took off her pants. The appellants evidence is that the
    complainant led him to the bed and pulled him on top of her. He was still
    wearing his clothes at the time. According to the appellant, he started
    stimulating the complainants genitals with his hands.

[7]

The appellant testified that about a minute later, S.J. woke up and was
    very angry. She left the room and came back with M.A. The appellant went to
    wash his hands in the bathroom and could hear screaming among the complainant, S.J.,
    and M.A. The complainant then joined him in the bathroom and told him that she
    did not have a way home. The appellant testified that he offered her a ride and
    the complainant accepted and told him to wait for her outside of the apartment.
    A short time later, the complainant exited the apartment and he walked her to
    his minivan. He testified that this occurred at approximately 6:30 to 7:00 a.m.
    The appellants evidence was that at this point he was very sober and the
    complainant seemed fine. He said that the complainant drank more vodka and they
    then engaged in consensual intercourse in the minivan. Afterwards, he drove her
    home.

[8]

S.J. testified at trial that she was awoken to sound of moaning and she
    observed the appellant, whose pants were pulled down, on top of the complainant,
    who was wearing a shirt but no pants or underwear. She says that she screamed,
    What the fuck? and went to get M.A. in the living room. The appellant went
    into the bathroom and the complainant followed him in there. S.J. believes that
    it was about 5:30 to 6:00 a.m. at this point. She says that she was very upset
    and that she and M.A. kicked out everyone who was still in the apartment. Later
    when cleaning her bedroom, S.J. discovered a used tampon under her bed.

[9]

S.J. next heard from the complainant at about 12:30 p.m. that day. She
    testified that the complainant seemed confused and out of it. S.J. explained
    to the complainant that she had sex in her bed with the appellant. At about 8
    p.m. that evening the complainant called again; she was crying and seemed
    groggy.

[10]

M.A.
    also testified. He gave evidence that around 4 a.m. S.J. started a commotion
    and he went to the bedroom. He was told by S.J. that she had woken up to the
    appellant and complainant in their bed.  The appellant came out of bedroom with
    his clothes on and went into the bathroom. The complainant followed shortly
    thereafter in a t-shirt and panties. M.A. confirmed the complainants testimony
    about tossing her a $5 bill and having it thrown back at him. He also said that
    she retrieved her vodka bottle before leaving the apartment.

C.

Decision of the Trial Judge

[11]

The
    trial judge began her analysis by making credibility findings about the
    witnesses. She found the complainant to be a credible witness and concluded
    that the defence did not make meaningful inroads into her credibility. S.J. was
    also found to be credible.  The trial judge provided detailed reasons why she
    found the appellant and M.A. not to be credible. She preferred the evidence of
    the complainant and S.J. regarding the complainants level of intoxication over
    the evidence of the appellant and M.A., finding that the latter witnesses
    downplayed her level of intoxication.

[12]

After
    commenting on the credibility of the witnesses, the trial judge found that the Crown
    had proved beyond a reasonable doubt that the complainant was sexually
    assaulted by the appellant when he engaged in non-consensual intercourse with
    her in S.J.s bedroom. With respect to the issue of consent, she accepted the
    testimony of the complainant and S.J. that the complainant was very intoxicated
    and noted that this evidence was supported by a toxicology report on the
    complainants blood alcohol level tendered by the Crown. The trial judge made a
    specific finding that the complainant had no capacity to consent to sexual
    activity.

[13]

In
    support of her finding that the appellant sexually assaulted the complainant in
    S.J.s bedroom, the trial judge relied on, among other things, the evidence of
    S.J. that she saw the appellant on top of the complainant in her bed with his
    pants down and her pants off, the presence of the used tampon, the discrepancy
    between the evidence of S.J. and the appellant regarding whether his pants were
    down, and inconsistencies in the appellants testimony regarding the timing of
    when he left the bedroom and when he arrived at his minivan.

[14]

The
    trial judge went on to consider the issue of what occurred in the appellants
    minivan. She concluded that there was no evidence of the complainants
    conscious agreement to engage in any sexual activity in the vehicle.

D.

Issues

[15]

The
    appellant submits that the trial judge erred in:

(a) Applying the incorrect
    test regarding consent;

(b) In her use of the
    toxicology report;

(c) In her use of the
    DNA evidence; and

(d) In her use of the
    appellants criminal record.

[16]

These
    arguments are considered in turn below.

E.

Analysis

(1)

Consent

[17]

The
    appellant submits that the trial judge erred by failing to advert to the law of
    capacity to consent and the inferences that can be drawn with respect to the
    complainants capacity to consent. Specifically, he argues that intoxication is
    only indicative of a lack of capacity to consent if the complainant, by reason
    of her intoxication, could not understand the sexual nature of the act or
    realize that she could decline to participate. He points to the complainants purposive
    behaviour after she left the bedroom, including asking for a ride, throwing the
    $5 bill at M.A., and retrieving her vodka bottle, along with her willingness to
    let the appellant drive her home, as raising a reasonable doubt about whether
    she was incapable of consent moments earlier in the bedroom.

[18]

In
    considering this submission, we note that the defence theory at trial was not
    that the complainant consented to sexual intercourse while in the bedroom, but
    that the intercourse took place later in the appellants minivan. We also note
    the trial judges finding that the complainant was intoxicated to the point
    where she went into a deep sleep, faded in and out of consciousness, and did
    not know what was happening to her. Given this finding, it would have been
    impossible for her to consent to sexual activity:
R. v. J.A.
, 2011 SCC
    28, [2011] 2 S.C.R. 440, at para 66. We see no error in the trial judges
    conclusion that the complainant was incapable of consenting to sexual activity.

(2)

Toxicology Report

[19]

The
    trial judge made reference to the toxicology report tendered by the Crown in
    support of her conclusion that the complainant was too intoxicated to consent to
    sexual activity. That report indicates that between 1:00 a.m. and 7:30 a.m. on
    the date of the offence, the complainants blood alcohol level ranged between a
    minimum of 177mg/100ml and a maximum of 512mg/100ml of blood.

[20]

In
    addition to noting the broad range of blood alcohol levels in the report, the
    appellant submits that the trial judge failed to consider that the
    complainants alcohol levels would have been impacted by the vodka she consumed
    while in the minivan. He argues that when the post-offence drinking is factored
    in, the complainants blood alcohol level would have been lower at the time of
    the offence. The appellants position is that this was a misapprehension of
    evidence by the trial judge entitling him to a new trial.

[21]

In
    our view, when the trial judges reasons are read as a whole, her finding
    regarding the complainants level of intoxication is based primarily on her
    acceptance of the evidence of the complainant and S.J. on this issue. The
    toxicology report was merely referenced as being supportive of and consistent
    with that evidence. Further, we are not satisfied that the trial judge
    misapprehended that the blood alcohol levels in the toxicology report would
    have included post-offence alcohol consumption.

(3)

DNA Evidence

[22]

The
    trial judge relied on the presence of the appellants DNA inside the
    complainant in finding that the appellant had non-consensual intercourse with
    the complainant in the bedroom. The appellant submits that this was an error
    because the trial judge also found that the appellant and the complainant
    engaged in intercourse in the minivan. He argues that the DNA evidence might
    have resulted solely from intercourse in the minivan.

[23]

We
    do not read the trial judges reasons as making a finding that the complainant
    and the appellant engaged in intercourse while in the minivan. The trial judge
    was obliged to consider this scenario as it was the centrepiece of the
    appellants defence. A fair reading of her reasons makes clear that the trial
    judge had grave doubts about the appellants evidence in this regard. However,
    even accepting his evidence for the purpose of her analysis, she rejected the
    idea that the complainant was capable of consenting to sexual activity while in
    the minivan.

(4)

Criminal Record

[24]

In
    the section of her reasons dealing with the appellants credibility, the trial
    judge makes reference to his criminal record. The appellant properly concedes
    that his criminal record can be used by the trial judge to assess his
    credibility. However, he argues that there is nothing in the reasons stating
    what use the trial judge made of the criminal record and that she failed to caution
    herself not to use the record for an improper purpose, such as propensity
    reasoning.

[25]

The
    manner in which the evidence was elicited at trial is troubling. The trial
    Crown started this area of his cross-examination by asking the appellant if he
    was a violent person. He then proceeded to go beyond the criminal record itself
    to ask questions about the circumstances of the offences. Crown counsel on
    appeal conceded that the questioning was improper and that if this were a jury
    trial, this cross-examination would be very problematic.

[26]

Despite
    these concerns, we would not give effect to this ground of appeal. The trial
    judge is presumed to know that an accuseds criminal record cannot be used as
    evidence of his propensity to commit the crimes with which he was charged. While
    it would have been preferable if the trial judge included a specific caution in
    her reasons that she could not use the evidence for a prohibited purpose, such
    a caution is not absolutely necessary. Further, there is nothing in the reasons
    to suggest that the trial judge used the appellants criminal record for an
    improper purpose. The fact that it was referenced in the section dealing with
    her analysis of the appellants credibility logically supports the conclusion
    that it was properly used.

F.

Disposition

[27]

The
    appeal is dismissed for the foregoing reasons.

Robert
    J. Sharpe J.A.

C.W.
    Hourigan J.A.

G.T.
    Trotter J.A.


