



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. A.M., 2022 ONCA 154

DATE: 20220223

DOCKET: C69973

van Rensburg, Nordheimer and
    George JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

A.M.

Respondent

Andrew Hotke, for the appellant

Wayne Cunningham, for the respondent

Heard: February 4, 2022 by video
    conference

On appeal from the judgment of Justice
    Kathleen E. Cullin of the Superior Court of Justice, dated May 13, 2021, with
    reasons reported at 2021 ONSC 3515, allowing an appeal from the conviction
    entered by Justice Vanessa V. Christie of the Ontario Court of Justice, dated May
    13, 2019.

Nordheimer J.A.:

[1]

The Crown appeals, with leave, from the judgment
    of the summary conviction appeal judge, who allowed an appeal and set aside a conviction
    on a single count of sexual assault. For the following reasons, I would allow
    the appeal, set aside the judgment below and restore the conviction.

A.

Background

[2]

The complainant was 22 years old at the time of
    the offence. She testified that the respondent, who was 54 years old at the time
    of the offence, was a close friend of her family and like an uncle to her. He
    attended her familys Christmas dinners and would speak to and visit her
    parents regularly. She first met him when she was 15 or 16 years old.

[3]

The complainant explained that on December 19,
    2017, she agreed to go to the respondents home to listen to music and help him
    decorate his Christmas tree for an upcoming Christmas party. The respondent
    picked her up around 1:30 p.m. They made a couple of stops on the way to his
    home, including at the LCBO where the respondent purchased vodka and rum. They
    arrived at the respondents home around 2:30 p.m. Soon after their arrival, the
    respondent began mixing drinks for the two of them. The complainant had not
    consumed any alcohol or drugs before arriving at the respondents home, save
    for a painkiller she had taken earlier that afternoon for her back pain.

[4]

The respondent continued to mix drinks for them
    throughout the evening. The complainant believed she had between six and eight
    drinks in total. She was not aware of how much alcohol was put in her drinks.
    She felt buzzed but  nothing out of the ordinary. Two visitors stopped in
    for short visits but largely the respondent and the complainant were alone. The
    complainant remembered these visitors stopping in, and remembered decorating
    the tree, listening to music and having drinks, but at some point, her memory
    of the evening stops. At trial, she could not say with precision when the gap
    began. She believed it was likely around 10 p.m. What she could recall
    distinctly, however, was her next memory, which was waking up from sleep around
    1:00 or 1:30 a.m. to find herself face down on the respondents bed, her pants
    and underwear removed, and the respondent touching her vagina with his mouth and
    fingers. He said to her that she was beautiful. The complainant was shocked and
    scared. She lay still for a moment, unsure what to do, then she moved his hand
    away, told him to stop, and got up.

[5]

After she got up, the complainant gathered her
    clothes from the floor and went to the bathroom to put them on. Then she went
    to the kitchen and collected her jacket and bag. The respondent asked her if
    she was mad at him, and she said that she was. He asked her to wait and said he
    would call a taxi, but she refused and left. She immediately called a friend and
    made her way to the friends house on foot. The friend convinced her to call
    her mother to tell her what had happened. The police were contacted. After
    attending the police station, the complainant was taken to Sudbury Hospital for
    the administration of a sexual assault kit.

[6]

The Crown called a forensic scientist from the
    Centre of Forensic Sciences to give expert opinion evidence about the presence
    of alcohol and drugs found in the complainants blood and urine samples taken
    the morning of December 20, 2017. With respect to alcohol, the expert testified
    that alcohol was detected in the complainants blood at a concentration of 59
    milligrams of alcohol in 100 millilitres of blood, and in her urine at a
    concentration of 92 milligrams of alcohol in 100 millilitres of blood. The
    expert was asked to calculate, based on these figures, what the estimated blood
    alcohol concentration (BAC) would have been at the time of the offence, between
    10 p.m. and 1:30 a.m. The expert testified that the complainants BAC would
    have been between 119 and 249 milligrams of alcohol in 100 millilitres of
    blood.

[7]

The expert provided a description of the
    possible effects of a BAC of 59 milligrams of alcohol in 100 millilitres of
    blood, and the possible effects of the projected BAC range at the time of the
    offence of 119-249 milligrams of alcohol per 100 millilitres of blood. She said
    that a BAC of 59 per 100 could have minimal effects, depending on tolerance. However,
    a BAC of between 119 and 249 per 100 could have dramatic effects. Effects at
    the lower end of the range could include slurred speech, motor incoordination,
    increased sociability and talkativeness. Toward the higher end of the range,
    effects would become more and more dramatic, including significant instability
    in ones ability to walk, vomiting, nausea and even unconsciousness. Again, a
    persons tolerance would have a bearing on the effects. A person with low
    tolerance could experience such dramatic effects at a lower BAC.

[8]

The complainant testified that she was an
    experienced drinker. While she said that she was not a heavy drinker, she also
    said that it was not unusual for her to have eight to ten drinks. The
    complainant also acknowledged that she had blacked out a handful of times since
    she turned 19 years old, and that these black outs came over her abruptly.

[9]

The expert also provided an opinion on the three
    substances that were detected in the complainants urine: codeine glucuronide,
    morphine metabolite and acetaminophen. The expert described the effects of
    these substances and offered the opinion that the effects of alcohol can be
    increased by codeine and/or morphine, leading to increased sedation, increased
    drowsiness, motor skill impairment and possible memory impairment.

[10]

The Crown also filed biology reports from the
    Centre of Forensic Sciences. The reports established overwhelmingly that the
    respondents DNA was found on the complainants genitals after the assault.

B.

The decisions below

(1)

The Trial

[11]

The trial judge acknowledged that the critical
    issue was consent. Sexual contact was admitted, and the DNA evidence left [n]o
    question that sexual activity occurred. On the issue of consent, the trial
    judge concluded, based on the whole of the evidence, that the complainant was
    both unable to consent to the sexual activity that occurred and did not in fact
    consent to the sexual activity that occurred.

[12]

The trial judge referred to certain principles
    that she drew from the decision of
R. v. J.R.
(2006), 40 C.R. (6th) 97
    (Ont. S.C.), affd 2008 ONCA 200, 59 C.R. (6th) 158, leave to appeal refused, [2008]
    S.C.C.A. No. 189 (
Daigle
), and [2008] S.C.C.A. No. 231 (
Roberts
).
    The trial judge went on to address the concepts of blacking out and passing
    out. The trial judge noted that while people often use the terms as being
    synonymous, they are not. She said:

Passing out is a deep state of sleep or
    unconsciousness, whereas a blackout is a conscious person, a somewhat conscious
    person who may still be doing and saying things, but afterwards have no memory.

[13]

The trial judge concluded that the complainant was
    unable to and did not consent to the sexual activity that occurred. The trial
    judge gave a number of reasons for that conclusion which largely turned on her
    review of the evidence. The trial judge also found that the complainant was an
    extremely credible witness. The trial judge ultimately concluded that the
    complainant was unconscious when the sexual activity occurred. She appeared to
    find some additional support for this conclusion from the fact that the
    respondent had asked the complainant, before she left his home, whether she was
    mad at him. The trial judge found that this indicated that the respondent knew
    that the complainant had not consented to the sexual activity.

(2)

The Summary Conviction Appeal

[14]

On appeal by the respondent, the summary
    conviction appeal judge (SCAJ) set aside the conviction and ordered a new
    trial. In reaching her conclusion, the SCAJ was critical of the trial judges
    reasons. In particular, the SCAJ said that the trial judge had failed to
    address, in her reasons, (i) when the complainant became unconscious and (ii)
    whether the complainant consented to the sexual activity before she became
    unconscious.

[15]

The SCAJ said that it was impossible to know with
    certainty what happened on the night in question. She said that it was possible
    that the respondent took liberties with the complainant while she was
    unconscious, but it was also possible that the complainant had consented to the
    sexual activity while she was blacked out and conscious. The SCAJ said that the
    trial judge had failed to grapple with both possibilities.

[16]

The SCAJ further criticized the trial judge for
    her failure to address the expert evidence of the toxicologist. The SCAJ said,
    at para. 36:

In short, the record disclosed no reliable lay
    witness evidence and no expert evidence establishing the complainants level of
    alcohol consumption or level of intoxication at any point during the evening.
    There was no foundation upon which to establish when or whether the complainant
    was rendered unconscious. There was no foundation upon which to establish the
    absence of consent or the [respondent]s knowledge of the absence of consent.
    If the trial judge observed a pathway in the evidence to reach these
    conclusions, she did not disclose it in her reasons.

[17]

The SCAJ then referred to this courts decision
    in
R. v. Garciacruz
, 2015 ONCA 27, 320 C.C.C. (3d) 414, and said that
    the trial judges reasons did not meet the functional needs of reasons for
    decision.

[18]

The SCAJ returned to the trial judges failure
    to mention the evidence of the toxicologist. She was especially critical of the
    trial judges failure to address the experts evidence that an experienced
    drinker may have demonstrated no visible effects of intoxication.

[19]

Having made that remark, the SCAJ then
    criticized Crown counsel for failing to provide the toxicologist with information
    that might have permitted the toxicologist to render a conclusive opinion. The
    SCAJ said, at para. 44:

The Crowns failure to fully arm their expert
    and the court with the facts suggests that those facts may not have supported
    the Crowns theory regarding the complainants capacity to consent or the [respondent]s
    knowledge of any lack of capacity.

[20]

The SCAJ continued on this point at para. 45:

Given the complainants memory lapse and the
    absence of other witnesses, evidence of the complainants level and appearance
    of intoxication between 10:00 p.m. and 1:30 a.m. was critical to understanding
    her capacity to consent, the [respondent]s knowledge regarding her capacity to
    consent, and the likelihood of her loss of consciousness due to alcohol
    consumption.

[21]

Finally, the SCAJ dealt with the issue of
    post-offence conduct, that is, the fact that the respondent had asked the
    complainant whether she was mad at him. The SCAJ said, at para. 50:

The trial judges perfunctory conclusion that
    the [respondent]s inquiry about whether the complainant was mad demonstrated
    his knowledge of her lack of consent flies in the face of all appellate court
    guidance about the treatment of post-effect conduct evidence.

[22]

The SCAJ found that this evidence was equivocal
    and did not demonstrate actions inconsistent with that of an innocent person.

[23]

The SCAJ concluded that the trial judges
    errors of law were fatal to her decision to convict. She allowed the appeal
    and ordered a new trial.

C.

Analysis

[24]

The appellant raises four grounds of appeal:

1)

Did the SCAJ err in finding the trial judges
    reasons insufficient?

2)

Did the SCAJ err in finding the trial judge had
    erred by failing to address perceived deficiencies in the expert evidence?

3)

Did the SCAJ err in holding that there was a
    basis for the trial judge to draw an adverse inference against the Crown for
    failing to elicit certain evidence from the complainant that was deemed by the SCAJ
    to be necessary to evaluate the expert evidence?

4)

Did the SCAJ err in finding that the trial judge
    had erred by not giving a reasoned explanation for her use of the post-offence
    conduct evidence?

[25]

In my view, there is merit to at least the first
    three of these grounds of appeal. I will deal with each of them in turn.

(1)

Sufficiency
    of reasons

[26]

In my view, the SCAJ was unduly critical of the
    trial judges reasons. This was largely a fact driven case. The trial judge
    reviewed the facts and reached certain conclusions regarding them. She also
    explained the reasons for her conclusions. The trial judges reasons permitted
    appellate review, as is evident from the review undertaken by the SCAJ. While
    there may be opposing views on the conclusions reached by the trial judge, that
    fact does not render the reasons insufficient. In approaching the trial judges
    reasons as she did, the SCAJ committed the error in appellate review described
    in
R. v G.F.
, 2021 SCC 20, 459 D.L.R. (4th) 375, at para. 76, that is,
    a search for error arrived at by parsing imperfect or summary expression on the
    part of the trial judge.

[27]

One of the particular criticisms of the trial
    judges reasons offered by the SCAJ is her failure to mention the evidence of
    the toxicologist. I make two points in response to that criticism. First, a
    trial judge is not required to refer to every piece of evidence that is
    presented. This basic principle applies equally to expert evidence as it does
    to factual evidence. The evidence of the toxicologist was not definitive on the
    issue of consent, nor could it have been. It was up to the trial judge to
    decide whether it provided assistance to her. Because the expert evidence was
    not definitive, I can understand why the trial judge did not mention it. Second,
    I would note, on this point, that the trial judge said, at the outset of
    her reasons, that she had considered the totality of the evidence in coming
    to her conclusion. There is no reason, on the record, to conclude that she did
    not do so.

(2)

Deficiencies in the expert evidence

[28]

The SCAJ appears to be critical of the expert
    evidence, and Crown counsels presentation of it, on the basis that it did not
    provide a definitive explanation. I reject that criticism. Experts are often
    unable to provide definitive opinions or explanations because those definitive
    opinions require established facts and, as is often the case in a criminal
    prosecution, those facts are not established at the time when the expert
    renders their opinion.

[29]

The SCAJ is also wrong to criticize the trial
    judge for accepting the toxicologists most dire estimation of the
    complainants state of mind at the time of the incident. The trial judge did
    no such thing. I would also note that the SCAJs finding on this point is
    entirely inconsistent with the SCAJs criticism that the trial judge failed to
    refer to the evidence of the toxicologist.

[30]

The toxicologists evidence would have provided
    some support for the complainants account, including the reliability of her
    evidence that she lost consciousness and awoke to find the respondent
    performing sexual acts on her. To the degree that the trial judge may have
    found the toxicologists evidence of assistance to her in assessing the
    complainants evidence, she was entitled to rely on it in reaching her conclusions.
    However, as I have already mentioned, the trial judge was not required to rely
    on this evidence nor, if she did, was she required to enunciate the details of
    that reliance. The fact of the matter is that the expert evidence did not stand
    in the way of the conclusions that the trial judge reached. In fact, it
    provided some support for the complainants evidence that she had passed out as
    a result of her consumption of alcohol provided at the hands of the respondent.
    Had the expert evidence presented an obstacle to that conclusion, it would then
    have been necessary for the trial judge to explain why that evidence did not
    preclude her conclusions. That is not what occurred in this case, however.

[31]

I would add, on this point, that this case is
    entirely different from what was dealt with in
Garciacruz
. In that
    case, there were inconsistencies in the complainants evidence that the trial
    judge had not addressed or explained. There were no such inconsistencies here.
    Indeed, as I have noted, the trial judge found the complainant to be an
    extremely credible witness. The trial judge was entitled to accept the
    complainants evidence and to reach the conclusion that she did on the issue of
    consent.

(3)

Availability of an adverse inference

[32]

The SCAJ found that Crown counsel had failed to arm
    their expert and the court with certain facts. She went on to suggest that
    those facts may not have supported the Crowns theory regarding the
    complainants capacity to consent or the respondents knowledge of any lack of
    capacity. The SCAJ then said it would have been appropriate for the trial judge
    to draw an adverse inference against the Crown arising from its failure to
    elicit those facts.

[33]

The SCAJs conclusion on this point is
    unprecedented and it is wrong in law. It unnecessarily extends the principles
    underlying the law on when it is appropriate to draw an adverse inference. That
    extension, in this case, also treads heavily on prosecutorial discretion. Neither
    side has produced a single case where an adverse inference was properly drawn
    from the failure of a party to provide certain facts to an expert. Rather, the
    failure of an expert to be provided with relevant facts, or the failure of an
    expert to consider relevant facts, are normally matters that go to the
    reliability of the expert opinion and the weight to be given to it: see, e.g.,
R. v.
    Gibson
, 2021 ONCA 530, 157 O.R. (3d) 597, at para. 203. The failure of an
    expert to advert to certain facts is very often fodder for effective
    cross-examination of the experts opinion.

[34]

Two principles relating to adverse inferences
    are important. First, the drawing of adverse inferences is to be approached
    with great caution:
R. v. Zehr
(1980), 54 C.C.C. 2d 65 (Ont. C.A.), at
    p. 68. Second, an adverse inference normally arises from either a failure to
    call a material witness or a failure to produce material evidence:
R. v.
    Ellis
, 2013 ONCA 9, 113 O.R. (3d) 641, at para. 45. The SCAJ does not
    appear to have considered or applied either of these principles before rendering
    her criticism of Crown counsel and of the trial judge.

[35]

I would also observe, on this point, that there
    are problems with the three deficiencies that the SCAJ identified in the
    information that she says was not given to the toxicologist. Those deficiencies
    were identified by the SCAJ as: (i) when or whether the complainant consumed
    any substances containing codeine or morphine in the 12 to 48 hours prior to
    her urine sample; (ii) whether the complainant consumed any substances containing
    codeine or morphine with a frequency that would have caused her to develop a
    tolerance to them; and (iii) how often the complainant consumed alcohol and how
    much she typically consumed.

[36]

The first two of these asserted deficiencies
    deal with any consumption of codeine or morphine. That was not the central
    issue in this case. The central issue was the consumption of alcohol. In any
    event, Crown counsel did ask the complainant about her consumption of drugs,
    both prescription and non‑prescription, during the complainants examination
    in chief. That information was before the court and, indeed, the toxicologist
    was asked about it. The third alleged deficiency dealt with alcohol but,
    contrary to the findings of the SCAJ, that evidence was also before the court.
    As noted in para. 8 above, the complainant gave evidence of her drinking habits
    during the course of her cross-examination. If either party wished to put that
    evidence to the expert, they could have. And, of course, if there was other
    evidence that the respondent considered relevant to the evaluation of the
    toxicologists evidence, he had full opportunity to elicit it.

[37]

A further concern with the SCAJs reasoning, on
    this point, is that it unfairly criticizes Crown counsel for the manner in
    which she decided to present her case. The Supreme Court has directed that courts
    should be careful before they attempt to second-guess the prosecutors
    motives when he or she makes a decision:
R. v. Power
, [1994] 1 S.C.R.
    601, at p. 616. Indeed, in this case, the SCAJ goes so far as to suggest that what
    she thought was missing evidence would, if it had been provided to the expert, have
    led to a different opinion, one that would have been contrary to the Crowns
    position and might have possibly undermined the complainants evidence.

[38]

There is no basis for such an assertion. While,
    contrary to the SCAJs conclusion, there was evidence on each of these three
    points, even if more evidence had been adduced  and it is hard to see how much
    more such evidence could have been adduced  there is no basis for finding that
    it would have impacted on the experts opinion. It must be kept in mind, in
    considering this issue, that there were at least three hours (10:00 p.m. to
    1:00 a.m.) during which there was no evidence of what had occurred. Only two
    people could have provided that evidence directly. One was the complainant, who
    had no memory of that time, and the other was the respondent, who did not give
    evidence as he was fully entitled not to do.

[39]

Given that gap in the evidence, the expert was
    never going to be in a position to provide a definitive opinion because the
    expert could not know what had happened during those three hours. The SCAJs
    finding that evidence of the complainants level, and appearance, of
    intoxication during these three hours was critical to understanding her
    capacity to consent ignores the reality that the evidence was unobtainable. It
    is also decidedly unfair to use the absence of that evidence as a justification
    for finding that there was a gaping hole in the trial judges reasons.

(4)

Post-offence conduct

[40]

As was observed by this court in
R. v. Hall
,
    2010 ONCA 724, 263 C.C.C. (3d) 5, at para. 131, leave to appeal refused, [2010]
    S.C.C.A. No. 499: the problem with post-offence conduct evidence is that it is
    often at best equivocal. I accept that the question by the respondent to the
    complainant as to whether she was mad at him is equivocal on the question of
    consent. I do not accept the appellants position that the content of the question,
    and the fact that the respondent asked this question in the context that he did,
    can only reasonably support the inference that he knew that the complainant had
    not consented to the sexual activity. It is equally possible that the
    respondent was confused as to why the complainant had suddenly stopped what might
    have been consensual sexual activity and he wanted to know the reason.

[41]

However, the trial judges use of this
    post-offence conduct is not fatal in this case for at least two reasons. One is
    that it forms a very small part of the trial judges analysis. Indeed, it
    appears to be almost an
obiter
comment. It is addressed at the very
    end of her reasons where she simply says that the respondents question demonstrates
    to this court that he knew she was not conscious. The other reason is that
    this was a judge-alone trial. The concerns about the potential misuse of
    post-offence conduct evidence are greatly reduced from what they would be in a
    jury case: see
R. v. S.B.1
,

2018 ONCA 807, 143 O.R. (3d) 81,
    at paras. 118-120.

[42]

I would add that the trial judges handling of
    this evidence did not warrant the degree of criticism that was levelled by the
    SCAJ. In particular, it was unfair to say that the trial judges mentioning of
    the evidence flies in the face of all appellate court guidance. It does not.

(5)

Summary

[43]

The SCAJ did not take the proper approach to
    appellate review of the trial judges reasons. Rather, it is clear that the
    SCAJ decided to retry the case and to substitute her view of the evidence, and
    its cogency, for that of the trial judge. That is not the appellate role. Nor
    is it the appellate role to go on a hunt for error:
R. v. G.F.
, at
    para. 69.

[44]

The SCAJ herself fell into error in her analysis
    by not considering the principles enunciated in
R. v. J.A.
, 2011 SCC
    28, [2011] 2 S.C.R. 440. In considering the issue of consent in that case,
    the court made the following point, at para. 66, which is particularly apt to
    the facts of this case:

The definition of consent for sexual assault
    requires the complainant to provide actual active consent throughout every
    phase of the sexual activity.
It is not possible for an unconscious person
    to satisfy this requirement, even if she expresses her consent in advance.
Any sexual activity with an individual who is incapable of consciously
    evaluating whether she is consenting is therefore not consensual within the
    meaning of the
Criminal Code
. [Emphasis added.]

[45]

The respondent acknowledges that there is a
    period of at least three hours during which there is no evidence of what was
    occurring between the complainant and the respondent, especially on the issue
    of consent. Even if one was prepared to accept that the complainant initially
    consented to the sexual activity, but does not remember because she had
    blacked out, it is readily apparent that, at some later point, she became
    unconscious. The fact that she woke up, as the trial judge accepted, leaves
    no doubt about that fact.

[46]

The trial judge was entitled, on the evidence,
    to conclude that the complainant awoke from her unconscious state to find the
    respondent engaging in sexual activity with her. The trial judge was therefore
    also entitled to conclude that the Crown had proved an absence of consent at
    that time and in the time period immediately prior to that happening. On the
    principle established by
J.A.
, there could not be consent, given that
    the complainant was unconscious. The respondent must have known of that, as the
    trial judge found. A finding of guilt properly followed from those findings.

[47]

The SCAJ erred in setting aside the conviction.

D.

Conclusion

[48]

I would allow
    the appeal, set aside the judgment below, and reinstate the conviction and the
    sentence imposed on the respondent. If appropriate arrangements cannot be made
    for the surrender of the respondent, a warrant for his arrest may issue.

Released: February 23, 2022 K.M.v.R.

I.V.B.
    Nordheimer J.A.

I agree. K. van
    Rensburg J.A.

I agree. J.
    George J.A.


