


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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. Carson, 2018 ONCA 1001

DATE: 20181206

DOCKET: C63636

Doherty, Miller and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Carson

Appellant

Mark C. Halfyard, for the appellant

Jill Witkin, for the respondent

Heard and released orally: November 27, 2018

On appeal from the conviction entered on November 15,
    2016 by Justice Andrew J. Goodman of the Superior Court of Justice, sitting
    with a jury.

REASONS FOR DECISION

[1]

The appellant appeals from his conviction on a charge of sexual assault.

[2]

The complainant, the appellant and the appellants girlfriend went out
    for the evening. Everyone was drinking. They returned to the residence shared
    by the appellant and his girlfriend late that evening. The complainant and the
    appellant had both had a lot to drink. The complainant eventually went to bed
    by herself in the spare bedroom. She had her pants on when she fell asleep.

[3]

The complainant awoke early the next morning. She did not have her pants
    on and she felt wetness underneath her. The complainant spoke to her mother who
    recommended that she call the rape crisis centre. The complainant did so and,
    at the suggestion of the people at the crisis centre, she went to the hospital.
    The complainant underwent a complete sexual assault examination. The test
    results confirmed sexual activity.

[4]

Several months later, at the request of the police, the appellant voluntarily
    provided a DNA sample. A DNA comparison confirmed that the appellant had
    engaged in sexual activity with the complainant.

[5]

The complainant testified that she was asleep after she went to bed and
    had no recollection of having sex with the appellant. She was adamant that she
    would never have consented to having sex with her friends boyfriend.

[6]

The appellant accepted, in light of the forensic evidence, that he had
    sex with the complainant. He also had no recollection of the activity. He was
    equally adamant that he would not have had non-consensual intercourse with
    anybody.

[7]

There are three grounds of appeal.

1.       Did the Trial Judge Misdirect the Jury on the Requirement
    that the Appellant Had to Know that the Complainant was not Consenting to Sexual
    Intercourse?

[8]

The appellant submits that the trial judge failed to adequately define
    knowledge and failed to tell the jury that the Crown had to prove knowledge
    beyond a reasonable doubt. The trial judges instructions are found at pages
    555 and 556 of the transcript. He told the jury in plain, clear language that
    knowledge of the absence of consent was an essential element of the offence. He
    equated knowledge of the absence of consent with the awareness on the part of
    the appellant that the complainant was not consenting. He also specifically
    told the jury that the reasonable doubt obligation on the Crown applied to the
    question of knowledge of the absence of consent. In our view, the charge was accurate.

2.       Did the Trial Judge Err
    in his Instruction on Circumstantial Evidence?

[9]

The appellant submits that the evidence that the complainant did not
    consent to the sexual activity was circumstantial and that the instructions did
    not make it clear to the jury that the jury could convict only if satisfied
    that the inference that the complainant did not consent was the only available
    reasonable inference. Counsel also submits that the trial judge mischaracterized
    the evidence on the question of non-consent as mostly direct evidence.

[10]

We
    see no error in the instructions on circumstantial evidence. Nor in our view
    was the evidence that the complainant did not consent circumstantial. She
    testified that she was asleep when the sexual activity occurred. If the jury
    believed that evidence, the jury would, without drawing any further inference
    from that evidence, conclude that she had not consented to the sexual activity.
    A person who is asleep cannot consent to sexual activity:
R. v. J.A.
,
    2011 SCC 28. If the jury believed the complainant and concluded that she was
    asleep at the relevant time, it followed without the need to draw any inference
    that the complainant did not consent to the sexual activities.

[11]

Through
    cross-examination of the complainant, and in the appellants evidence, the
    defence put forward a different version of the events. The defence claimed that
    the complainant was awake and consented to the sexual activity, but could not
    recall the events in the morning because of alcohol induced memory loss. That
    position was open on the evidence, and was put to the jury by the trial judge. However,
    the defence contention that the complainant did consent but did not recall
    consenting, did not turn the complainants direct evidence that she was asleep into
    circumstantial evidence that she did not consent. The defence position simply
    presented its version of the relevant events for the jury to consider.

[12]

The
    Crowns case on the issue of the absence of consent rested largely on the
    complainants direct evidence that she was asleep and therefore incapable of
    consenting to the sexual activity. The jury instructions were adequate and in
    our view reveal no error in respect of the instruction on circumstantial
    evidence.

3.       Was the Verdict Unreasonable?

[13]

The
    evidence in this case was certainly unusual. Both the appellant and the
    complainant professed to have no recollection of the sexual encounter. The
    complainant denied that she would have agreed to sex with the appellant. The
    appellant denied he would have had non-consensual sex with anyone. The case
    turned very much on the credibility of these two witnesses and the application
    of the burden of proof to the credibility assessments made by the jury. If the
    jury believed the complainant that she was asleep when the sexual activity
    occurred, it could reasonably convict the appellant. In our view it was not unreasonable
    to believe the evidence of the complainant. The verdict is therefore not
    unreasonable.

[14]

The
    appeal is dismissed.

Doherty J.A.

B.W. Miller J.A.

Fairburn J.A.

