



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: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    shall not be published in any document or broadcast or transmitted in any way.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. G.F., 2019 ONCA 493

DATE: 20190614

DOCKET: C65125 & C65126

Watt, Pardu and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

G.F. and R.B.

Appellants

Eva Taché-Green and Richard Posner, for the appellants

Philippe G. Cowle, for the respondent

Heard: May 1, 2019

On appeal from the convictions entered by Justice Edward
    J. Koke of the Superior Court of Justice on June 9, 2016, with reasons reported
    at 2016 ONSC 3465 and from the sentences imposed on September 6, 2017, with
    reasons reported at 2017 ONSC 5203.

Pardu J.A.:

[1]

The appellants were convicted of sexual assault.
    The complainant, referred to as C.R., was 16 years old at the time of the
    incident. The complainant and her family attended a camping trip with the
    appellants. One night, the complainant slept in the appellants trailer. She was
    intoxicated from drinking. She testified that she woke up to one of the
    appellants pulling down her pants and that both appellants engaged her in
    sexual activity. The appellants maintained that the complainant consented to
    the sexual activity.

[2]

The appellants raise numerous grounds of appeal.
    I am satisfied that the appeal must be allowed on two grounds. First, the trial
    judge did not identify the relevant factors to be considered when assessing
    whether the complainant had the capacity to consent to sexual activity. His
    reasons may be read as equating any degree of impairment by alcohol with
    incapacity; this is an error of law. Secondly, the trial judge failed to, first
    and separately, consider the issue of consent, apart from the issue of
    capacity; this is also an error of law. While the convictions could have been
    sustained on the basis that the complainant did not consent to the sexual
    activity regardless of her capacity, the reasons of the trial judge do not make
    it clear that he made a finding in that regard, or whether his statement that
    she did not consent dealt only with the invalidity of any consent because of
    the effects of alcohol.

A.

Summary of the evidence

[3]

On the Canada Day long weekend in 2013, C.R. accompanied her mother,
    stepfather and her seven-year-old brother on a camping trip. Four of her
    mothers co-workers also attended, including the appellants, who were common
    law spouses.

[4]

The group arrived at the campground on Friday, June 28. The appellants
    set up a hardtop camper trailer, the sides of which were made of canvas. Two
    beds extended from each end of the trailer. The appellants slept in the trailer.
    The appellants and the other members of the group used the trailer to store
    food, snacks, alcohol and other drinks. C.R. and her family slept in a tent
    about 20 feet from the trailer.

[5]

On the Sunday night, C.R. and her younger brother planned to sleep in
    the trailer with the appellants. C.R. said her parents and the appellants
    agreed to this arrangement; the appellant G.F. said there was no such
    agreement. That night, while sitting around the fire, C.R. testified that G.F.
    gave her shots of a liqueur; she also consumed some beer. C.R. began to feel
    nauseous and dizzy, and decided to lie down in the trailer. She had been in the
    sun all day. C.R. said her brother was in the trailer playing games with her on
    her iPhone for some time, but then he left. C.R. said G.F. entered the trailer
    and gave her more alcohol  shots of peach vodka. C.R. estimates that G.F. gave
    her between 8 and 10 shots in total. She then vomited with some of her vomit
    spilling onto the mattress cover, leaving a basketball-sized stain. At some
    point, the appellant R.B. entered the trailer to clean up and offered the complainant
    a plastic bag if she continued to vomit. Eventually, C.R. passed out or fell
    asleep.

[6]

C.R. testified that she woke up when she felt her pants being pulled
    down. She heard G.F. tell R.B. to perform oral sex on C.R. R.B. did so. G.F.
    then moved the complainants hips toward him and began vaginal intercourse. He
    pushed the complainants face into R.B.s vagina and instructed her to perform
    oral sex on R.B. C.R. testified she was scared, in shock, and did not know what
    was going on at that point. C.R. testified that she was so intoxicated that she
    had no control of herself, and said she kept blacking out and going in and out
    of it. Asked whether, at the time, she felt that she could make a choice about
    whether or not to have sex, she answered: No.

[7]

C.R. testified that she said the word stop a few times, and was crying
    and groaning, to which G.F. responded, be quiet, your parents are gonna hear
    you. She did not call out for help, testifying that she was confused and
    scared to do anything such as scream or yell while the sexual assault was
    occurring. She last remembers G.F. and R.B. having sex together before she
    passed out.

[8]

She next recalls waking up in the morning, lying naked next to R.B. The
    complainant said her breasts were tender and her vagina was swollen. She could
    not find her shirt or her iPhone. She left the trailer.

[9]

On her way home that Monday morning, C.R. covered herself in a blanket
    and was quiet. That evening, C.R. text messaged her aunt, from her mothers
    phone, saying she needed to talk and it was really bad. Later that evening, she
    told her aunt about what had happened between her and the appellants. The aunt
    told her husband. They then informed C.R.s parents.

[10]

The
    appellants consider themselves swingers. G.F.s evidence was that he and the
    complainants mother had a flirtatious relationship and there was a sexually
    charged atmosphere on the camping trip. He said that he, R.B., and the
    complainants mother planned to have a threesome while on the trip that weekend
    and the complainant knew this. G.F. testified that he touched the complainants
    mothers breasts while on a dirt bike ride with her.

[11]

G.F.
    agrees he saw C.R. with a beer but says he was only responsible for providing
    her two half-ounce shots of alcohol by the fire and nothing more. G.F. said R.B.
    advised him that C.R. vomited in the trailer. He said he informed C.R.s mother
    about this but she was not overly concerned. When he entered the trailer, he
    asked C.R. how she felt and she responded she was a lot better now. He said
    he then went fishing.

[12]

G.F.
    said he returned to the trailer at 3:15 a.m., surprised to find C.R. in bed under
    a blanket with R.B. He said he was interested in engaging in sexual activity
    with R.B., and hinted at C.R. to leave. He testified that C.R. said she liked
    them and wanted to remain in the trailer. He asked the two if they had kissed,
    and to his surprise, R.B. and C.R. began to kiss. G.F. was uncertain as to
    whether he was welcome to participate in the sexual activity, so he rubbed
    C.R.s thigh over the blanket and she responded by removing the blanket to let
    him touch her bare thigh. The three of them then participated in what he
    described as consensual oral and vaginal sex. Throughout the sexual encounter, G.F.
    said he asked C.R. repeatedly if she was okay with engaging in sex with them,
    and she assured him she was. He said C.R. was coherent and alert throughout.

B.

The trial
    judges decision

[13]

All
    parties agree that G.F. and R.B. engaged in sexual relations with C.R. The
    trial judge concluded that C.R. did not validly consent to the sexual activity.
    The trial judge was of the view that the main issue in the trial was one of
    credibility. Both C.R. and G.F. testified at trial.

[14]

The
    trial judge found that C.R.s testimony was consistent and provided in a straightforward
    fashion: at para. 53. He was impressed that her evidence was consistent with
    other accounts of the Sunday night incident which she provided on different
    occasions at trial:

at para. 53. The trial judge, at para. 53,
    highlighted several examples of evidence, which he said supported C.R.s
    account, including the following:

·

There were few, if any, inconsistencies between C.R.s evidence
    at the preliminary hearing and her testimony at trial.

·

C.R.s evidence was consistent with her police statement and the
    information she gave to her aunt.

·

C.R.s evidence was also consistent with the injuries noted by
    the nurse who examined her after the assault; C.R.s evidence was that the
    appellants sucked and licked her breasts and had vaginal intercourse with her.

·

C.R.s evidence about the amount of alcohol she consumed was
    consistent with the presence of a basketball-sized stain of vomit on the
    mattress cover, and her evidence that she felt nauseous and was so impaired by
    alcohol consumption that it did not occur to her to call out for help during
    the assault.

·

C.R.s testimony that she had no romantic interest in the
    appellants is consistent with the fact that they were more than twice her age,
    her parents friends, and virtual strangers.

·

The fact that C.R. left the trailer in the morning without her
    iPhone is consistent with her evidence that she woke up in a state of confusion
    and was anxious to leave the trailer.

·

C.R.s parents evidence that she was unusually quiet on the
    drive home is consistent with C.R.s evidence that she was still hungover and
    in a state of shock and confusion.

·

C.R.s decision to talk to her aunt about the incident the day
    after the alleged sexual assault is consistent with the behaviour of someone
    who has undergone a traumatic incident and requires guidance from an adult.
    Further, this decision is inconsistent with someone who has voluntarily engaged
    in sexual activity.

·

C.R. explained she did not immediately report the incident in the
    morning because she was afraid it would result in a physical confrontation
    between her stepfather and the appellants. This fear was supported by evidence
    at trial that C.R.s stepfather punched a fence multiple times after learning
    about the incident.

·

C.R.s fears that she might be pregnant or might have contracted a
    sexually transmitted infection support her evidence that she did not plan to
    engage in sex with the appellants.

[15]

In
    contrast, the trial judge, at para. 54, found G.F.s evidence to be riddled
    with inconsistencies, including:

·

G.F.s denial about his sexual interest in C.R. is contradicted
    by his zoomed in video recording of C.R. when the top half of her bathing suit
    came off; telling C.R.s mother he thought C.R. was cute and would revisit
    his relationship with her when she turned 18; his sexual comments toward and
    about C.R.; asking C.R. in the trailer if she had kissed R.B. yet; and engaging
    in a discussion with C.R. about her love life.

·

G.F.s denial that he was in a state of heightened sexual arousal
    throughout the weekend is contradicted by evidence of comments he made caught
    on his video camera.

·

G.F.s denial of an agreement for C.R. and her brother to sleep
    in the trailer on Sunday night is contradicted by the fact that C.R. retreated
    to the trailer when she began to feel nauseous and remained in the trailer
    after she vomited. G.F.s denial of this arrangement is also inconsistent with the
    complainants mothers evidence.

·

G.F.s evidence that he repeatedly asked C.R. if she was okay
    with engaging in sex with him and R.B. is inconsistent with his evidence that
    C.R. voluntarily engaged in sex with them. He would not have required
    assurances if C.R. had willingly consented to the sexual activity.

·

G.F.s evidence that he had a lengthy conversation with C.R.
    while on the dirt bike is inconsistent with the fact that this was a very brief
    ride on a noisy motorcycle with no stops.

·

G.F.s testimony that the complainants mother was anticipating a
    three-way sexual relationship that weekend was not supported by any other
    evidence and is inconsistent with the fact that the stepfather accompanied the
    mother for the weekend with her two children. G.F. was trying to normalize the
    activities in which he engaged with C.R. on Sunday night.

·

G.F.s general assertion that he does not lie was contradicted by
    the aunts husbands evidence, who asked G.F. what happened to his niece. G.F. initially
    denied any sexual activity but eventually admitted he engaged in sex with C.R.

·

G.F. admitted he did not wear a condom and that there was no
    prior discussion about the risk of C.R. contracting sexually transmitted
    infection or becoming pregnant. Given C.R.s concerns, it is difficult to
    accept that C.R. consented to sex with these risks present.

·

G.F. agreed that C.R. had vomited yet maintained that she still
    wanted to have sex. This runs contrary to the obvious inference to draw that
    when someone vomits, that person is unwell, likely not interested in sex, and
    not in the best condition to make decisions.

[16]

The
    trial judge also rejected various other arguments and defences raised by the
    appellants at trial.

[17]

The
    appellants pointed to a toxicology report which detected no alcohol in C.R.s
    blood or urine about 24 hours after the incident. The Center for Forensic
    Sciences (the CFS) was given two scenarios to determine what C.R.s blood
    alcohol concentration would be at the time of the taking of blood samples: (1)
    10 shots of liquor and one bottle of beer between 10 p.m. and 3 a.m., and (2) 8
    shots of liquor and one beer between 10 p.m. and 3 a.m. For scenario (1), the
    projected blood alcohol concentration would be 0 to 160 mg of alcohol in 100 ml
    of blood when C.R.s blood was tested. For scenario (2), the projected blood
    alcohol concentration would be 0 to 80 mg of alcohol in 100 ml of blood. The
    calculations assumed full or total absorption of all the alcohol consumed. The
    CFS noted that if an individual vomits shortly after consuming alcohol, the
    alcohol consumed would likely be expelled from the stomach and not absorbed
    into the bloodstream.

[18]

The
    trial judge found that the significance of the toxicology finding was
    questionable given that the samples were collected almost 24 hours after the
    events transpired and given the CFSs view on the effect of vomiting shortly
    after consumption:

at para. 63. Accordingly, the trial judge found
    that the absence of alcohol revealed by the toxicology report did not assist
    the defence in its argument that C.R.s ability to consent to sexual activity
    was not impaired by alcohol: at para.  64.

[19]

In
    dealing with concerns about C.R.s failure to report the incident immediately,
    the trial judge held that delayed disclosure of improper sexual conduct is not
    uncommon, especially in circumstances where it involves children or adolescents:

at para. 62. The trial judge was reluctant to impose adult expectations on
    C.R. when assessing her conduct the morning following the incident: at para. 62.

[20]

The
    trial judge did not consider that C.R.s evidence was undermined because she
    did not call for help during the incident:

at para. 69.

[21]

The
    accused did not raise a defence of honest but mistaken belief in communicated consent
    during closing submissions, likely because of the dramatically different
    accounts of what happened on the part of the complainant, and the accused G.F.

[22]

The
    trial judge concluded that the appellants forced C.R. into having
    non-consensual sex: at para. 71. He then noted that s. 273.1(2)(b) of the
Criminal
    Code
, R.S.C., 1985, c. C-46,
indicates that no consent is obtained where the complainant is incapable of
    consenting to the activity, such as when a complainant is intoxicated:

at
    para. 72. He found both appellants guilty.

C.

Analysis

(1)

Appellants argument
    that the verdict was unreasonable

[23]

The
    appellants submit that the coherence of the complainants narrative of the
    events belies the suggestion that she was so impaired as to lack capacity to
    consent to sexual relations. In their view, the totality of the evidence at
    trial, particularly C.R.s testimonial evidence, could not reasonably support such
    a finding of incapacity. The appellants also point to evidence of C.R.s
    alcohol consumption and toxicology evidence to support this argument. They
    submit that the verdict was unreasonable in the sense described in
R. v.
    Sinclair
, 2011 SCC 40,
[2011] 3 S.C.R. 3, Fish J., dissenting but not on this point, at para 21:

A verdict is likewise unreasonable
    where the judge draws an inference or makes a finding of fact essential to the verdict
    if that inference or finding of fact is demonstrably incompatible with
    evidence that is neither contradicted by other evidence nor rejected by the
    trial judge (
Beaudry
, at para 79,
per
Binnie J.). Here, an
    essential inference that appears compatible with the evidence from which it is
    drawn implodes on contextual scrutiny. This is so where a trial judge infers
    from
some
of the available evidence that an accused had the requisite
    intent to obstruct justice and this inference is supportable on the evidence
    relied upon but is not supportable on consideration of other evidence that has
    been neither contradicted by other evidence nor rejected by the trial judge.
    Here, too, a verdict of guilt would lack legitimacy and would properlybe
    treated as unreasonable (
ibid
.). [Citations in original.][Emphasis
    in original.]

[24]

The
    appellants submit that a new trial is required because the trial judge did not
    deal with the evidence suggesting a lesser degree of intoxication.

[25]

I
    do not agree that the nature of the account given by the complainant in itself
    is demonstrably incompatible with incapacity to consent to sexual relations, or
    that the trial judge failed to consider this evidence. The complainants
    intermittent awareness, her waking from sleep to find sexual acts performed
    upon her, her saying no, and her own description of her condition could allow a
    reasonable trier to conclude beyond a reasonable doubt that she did not consent
    to the sexual activity or that she was incapable of consenting to the activity.

[26]

Complete
    unconsciousness and absence of memory are not the only conditions which
    establish incapacity. Varying degrees of awareness, memory, and ability to
    articulate what happened have supported findings of incapacity: see
R. v. Tariq
, 2016 ONCJ
    614, 343 C.C.C. (3d) 87, at paras. 5, 116, 120-121, 124;
R. v. Daigle
(1998), 127
    C.C.C. (3d) 130 (Que. C.A.), at pp. 133,137, affd [1998] 1 S.C.R. 1220;
R. v. Bell
,
2007 ONCA 320, 223 O.A.C.
    243, at paras. 7, 44-46, 48, leave to appeal refused, [2007] S.C.C.A. No. 351
;
R. v. Wobbes
, 2008 ONCA
    567, 235 C.C.C. (3d) 561, at paras. 12, 15, 24;
R. v. L.G.,
2007 ONCA 654,
228 C.C.C.
    (3d) 194, at paras. 23-24, 94-99.


[27]

I
    would not conclude that the testimony the complainant gave about her incapacity
    was plainly contradicted by other evidence or that it was incompatible with
    evidence not otherwise contradicted or rejected by the trial judge: see
R.
    v. R.P
., 2012 SCC 22, [2012] 1 S.C.R. 746, at para. 9.

(2)

Analytical approach
    to consent and capacity

[28]

While
    I am not of the view that the trial judge erred in reaching a verdict that was
    unreasonable on the basis that the complainants coherent narrative was
    incompatible with incapacity on her part, I am of the view that the trial judge
    did err in his analysis of consent and capacity. The trial judge failed to
    consider the issue of consent separately from the issue of capacity, and
    further, did not apply the jurisprudence discussing the level of intoxication
    which could result in a finding of incapacity. Before analyzing the trial
    judges errors in detail, I will first review the concepts of consent and
    capacity, in the context of sexual activity, and will then proceed to
    articulate the correct approach for analysis when both consent and capacity are
    potentially in issue.

[29]

While
    this is not the precise argument advanced by the appellants, the issues related
    to consent and capacity were central to the arguments made on appeal by both
    the appellants and the Crown. As noted in
R v. Mian
, 2014 SCC 54,
    [2014] 2 S.C.R. 689, at para. 33, issues that are rooted in or are components
    of an existing issue are not new issues for the purposes of appellate
    review.

(a)

What is consent?

[30]

Subsection
    273.1(1) of the
Criminal Code
,
as it was at the relevant time, provides that consent means the voluntary
    agreement of the complainant to engage in the sexual activity in question. Subsections
    273.1(2)(b) and (d) provide that no consent is obtained where the complainant
    is incapable of consenting to the activity or where the complainant expresses
    by words or conduct, a lack of agreement to engage in the activity. Subsection
    273.1(3) provides that nothing in s. 273.1(2) shall be construed as limiting
    the circumstances in which no consent is obtained.

[31]

In
R v
.
Ewanchuk
, [1999] 1 S.C.R. 330, at para. 25, the Supreme
    Court delineated the elements of the
actus reus
of sexual assault:

The
actus
    reus
of sexual assault is established by the proof of three
    elements: (i) touching, (ii) the sexual nature of the contact, and (iii) the
    absence of consent. The first two of these elements are objective. It is
    sufficient for the Crown to prove that the accuseds actions were voluntary.
    The sexual nature of the assault is determined objectively; the Crown need not
    prove that the accused had any
mens rea
with
    respect to the sexual nature of his or her behaviour.

[32]

Further,
    in
R. v. Ewanchuk
, at paras. 26-27, the court held that the absence of
    consent is a subjective matter and determined by reference to the complainants
    subjective internal state of mind towards the touching at the time it occurred.

[33]

In
R. v. J.A.,
2011 SCC 28, [2011] 2
    S.C.R. 440, at para. 31,

McLachlin
C.J. concluded that the relevant statutory provisions of the
Criminal Code
suggest that Parliament saw consent as the conscious agreement of the
    complainant to engage in every sexual act in a particular encounter. Consent
    means voluntary agreement as to the touching, its sexual nature and the
    identity of the partner:
R. v. Hutchinson
, 2014 SCC 19, [2014] 1
    S.C.R. 346, at para. 5. The court indicated that in this context, given the
Criminal
    Code
provisions pertaining to incapacity that Parliament intended consent
    to mean the conscious consent of an operating mind:
J.A
., at para. 36.

(b)

When is a complainant
    incapable of consenting to sexual contact?

[34]

What
    then are the characteristics of a conscious consent of an operating mind at the
    time the sexual activity occurs?

[35]

As
    noted in Janine Benedet, The Sexual Assault of Intoxicated Women, (2010) 22
    Can. J. Women & L. 435, at p. 442:

Turning first to incapacity, there are numerous cases in which
    courts find a complainant incapable of consent due to intoxication, but in
    almost all of these cases the complainant is also asleep or unconscious when
    the sexual assault begins. Where the complainant is not unconscious, but merely
    drunk or high, courts have struggled to articulate a threshold for incapacity
    short of total non-responsiveness.

[36]

An
    unconscious or sleeping person is incapable of consenting to sexual activity. On
    the other hand, capacity for considered evaluation of the collateral risks and
    consequences of sexual activity sets the bar too high for capacity to consent
    to sexual relations.

[37]

In
R. v. Al-Rawi
, 2018 NSCA 10, 359 C.C.C. (3d) 237, Beveridge J.A.
    discussed elements of capacity to consent to sexual relations established by
    the jurisprudence, at paras. 60-61, 66-67, and I adopt that summary, subject to
    the caveat that, in light of the varieties of human conditions which may raise
    issues of incapacity, it may not describe all of the circumstances in which a
    complainant could be found to lack an operating mind:

[60]
This begs the question: what constitutes an
    operating mind? Comatose, insensate or unconsciousness cannot qualify. Major
    J., in
R. v Esau
,
supra
,

reflected
    that being unconscious due to intoxication is not the only state capable of
    removing a complainants capacity to consent (para. 24). Mere awareness of the
    activity is also insufficient to ground capacity where the trial judge accepted
    that the complainant was out of control and not able to say no due to the
    involuntary ingestion of drugs (
R. v. Daigle
(1997), 127 C.C.C. (3d) 130 (Que. C.A.), affd [1998] 1 S.C.R. 1220).

[
61
] On the other hand,
    requiring the cognitive ability necessary to weigh the risks and consequences
    of agreeing to engage in the sexual activity goes too far.

[
66
] Therefore, a complainant
    lacks the requisite capacity to consent if the Crown establishes beyond a
    reasonable doubt that, for whatever reason, the complainant did not have an
    operating mind capable of:

1. appreciating the nature and quality of the
    sexual activity; or

2. knowing the identity of the person or
    persons wishing to engage in the sexual activity; or

3. understanding she could agree or decline to
    engage in, or to continue, the sexual activity.

[
67
]
    In cases where consent and capacity to consent are live issues, the trial judge
    must determine if it has been established beyond a reasonable doubt that the
    complainant did not consent, or lacked the capacity to consent. As detailed
    above, these inquiries are entirely subjective. [Citations in original.]

[38]

Here,
    I agree with the submissions of the Crown on appeal that while mere proof of
    drunkenness, loss of inhibitions, regret for a bad decision or some memory loss
    do not of themselves negate capacity for consent, some physical actions such as
    walking a short distance, making a phone call, speaking, and some awareness of
    or resistance to sexual activity do not necessarily preclude a finding of
    incapacity. I also agree that some memory of the events is not necessarily
    inconsistent with incapacity:
R v. C.P
., 2017 ONCJ 277, at paras. 69-70,
    affd 2019 ONCA 85, leave to appeal to S.C.C. requested, 38546 (March 11, 2019);
Tariq
, at paras. 5, 116, 120-121, 124;
Daigle,
at pp. 133,
    137;
Bell
, at paras. 7, 44-46, 48;
Wobbes
, at paras. 12, 15,
    24;
L.G
., at paras. 23-24, 94-99;
R v.

Merritt
,
    [2004] O.J. No. 1295 (Ont. Sup. Ct.), at paras.
56-59;
R v. Powers
, 1999 CanLII 7332 (Ont. C.A.),
    at paras. 2, 7;
R v. Dixon
, 2018 ONCA 949, at paras.
3, 17-18;
R v. Crespo
,
    2016 ONCA 454, 132 O.R. (3d) 287, at paras. 5, 9. As the case law demonstrates,
    the trier of fact must consider all the evidence to make the factual
    determination of the complainants capacity at the relevant time. Issues of
    incapacity can arise in a multitude of circumstances, including sleep,
    intoxication, illness, and intellectual disability.

[39]

I
    observe that s. 273.1 of the
Criminal Code
was amended effective
    December 13, 2018
[1]
.
    It now provides as follows:

(1)
Subject
    to subsection (2) and subsection 265(3),
consent

means,
    for the purposes of sections 271, 272 and 273, the voluntary agreement of the
    complainant to engage in the sexual activity in question.

(1.1)

Consent
    must be present at the time the sexual activity in question takes place.

(1.2)

The
    question of whether no consent is obtained under subsection 265(3) or
    subsection (2) or (3) is a question of law.

(2) For the purpose of subsection (1), no consent is obtained
    if

(a)
the
    agreement is expressed by the words or conduct of a person other than the
    complainant;

(a.1)
the
    complainant is unconscious;

(b)
the
    complainant is incapable of consenting to the activity for any reason other
    than the one referred to in paragraph (a.1);

(c)
the
    accused induces the complainant to engage in the activity by abusing a position
    of trust, power or authority;

(d)
the
    complainant expresses, by words or conduct, a lack of agreement to engage in
    the activity; or

(e)
the
    complainant, having consented to engage in sexual activity, expresses, by words
    or conduct, a lack of agreement to continue to engage in the activity.

(3)
Nothing
    in subsection (2) shall be construed as limiting the circumstances in which no
    consent is obtained.

[40]

The
    section now specifies that no consent is obtained where the complainant is
    unconscious or where the complainant is incapable of consenting to the activity
    for any reason other than unconsciousness. This indicates that incapacity may
    arise from conditions short of unconsciousness.

(c)

Where both consent
    and capacity are potentially in issue

[41]

How
    then should a trial judge approach the evidence when dealing with potential
    issues of both consent and capacity to consent? He or she should first consider
    whether the Crown has proven beyond a reasonable doubt that the complainant did
    not consent to sexual contact. If the complainant did not consent, then there
    is no ostensible consent which is vitiated by lack of capacity. This two-step
    process was described in
R. v. Hutchinson
, at para. 4:

The
Criminal Code

sets out a two-step process for analyzing consent to sexual activity.
    The first step is to determine whether the evidence establishes that there was
    no voluntary agreement of the complainant to engage in the sexual activity in
    question under s. 273.1(1). If the complainant consented, or her conduct
    raises a reasonable doubt about the lack of consent, the second step is to
    consider whether there are any circumstances that may vitiate her apparent
    consent. Section 265(3) defines a series of conditions under which the law
    deems an absence of consent, notwithstanding the complainants ostensible
    consent or participation:
Ewanchuk
, at para. 36. Section 273.1(2) also
    lists conditions under which no consent is obtained. For example, no consent is
    obtained in circumstances of coercion (s. 265(3)
(a)
and
(b))
, fraud (s. 265(3)
(c)
), or abuse of trust or authority (ss. 265(3)
(d)
and 273.1(2)
(c)
).

[42]

Where the Crown proves beyond a reasonable doubt that the complainant
    did not affirmatively and subjectively consent to sexual contact, this absence
    of a subjective mental state may establish the requisite
actus reus
and there need not always be a further inquiry as to capacity.

[43]

To repeat, the absence of consent is subjective and determined by reference
    to the complainants subjective internal state of mind towards the touching at
    the time it occurred:
Ewanchuk
, at paras. 25-26.

[44]

In
Ewanchuk
, the court held that a lack of verbal resistance is not
    implied consent and that a belief that silence, passivity or ambiguous
    conduct constitutes consent is a mistake of law and provides no defence to an
    accused asserting reasonable belief in consent: at paras. 31, 51; see also
R
    v. Barton
, 2019 SCC 33, at para. 82.

[45]

For
    the purposes of establishing the
actus reus
there is no third option;
    either the complainant consented or he or she did not:
Ewanchuk
, at
    para. 31. As indicated in
R. v. J.A
., at para. 37, [t]he complainant
    is not required to
express
her lack of consent or her revocation of
    consent for the
actus reus
to be established (emphasis in original).

[46]

Further
    support for the notion that where non-consent is proven, there need not be an
    inquiry into capacity is found in
Ewanchuk
.
The court referred to s. 265(3) of the
Criminal Code
which provided that no consent is obtained where the complainant submits or
    does not resist by reason of the application of force, threats or the fear of
    application of force, fraud or the exercise of authority, and observed, at
    para. 40:

Section 265(3) identifies an
    additional set of circumstances in which the accuseds conduct will be
    culpable. The trial judge
only
has to consult s. 265(3) in those cases
    where the complainant has actually chosen to participate in sexual activity, or
    her ambiguous conduct or submission has given rise to doubt as to the absence
    of consent. If, as in this case, the complainants testimony establishes the
    absence of consent beyond a reasonable doubt, the
actus reus
analysis
    is complete, and the trial judge should have turned his attention to the
    accuseds perception of the encounter and the question of whether the accused
    possessed the requisite
mens rea
. [Emphasis added.]

[47]

Support
    for this two-step approach is also found in academic commentary on capacity and
    consent: Janine Benedet & Isabel Grant, 
Hearing the Sexual Assault
    Complaints of Women with Mental Disabilities: Consent, Capacity, and Mistaken
    Belief (2007) 52:2 McGill L.J. 243.
The authors, at p. 270, suggest
    that an inquiry as to capacity to consent should not be necessary where the
    Crown has proven non-consent:

A finding of incapacity leads
    inevitably to a finding of nonconsent because the complainant is unable to
    provide a legally valid consent. Yet the precise relationship between capacity
    and consent is complex. It might appear logical to say that capacity should be
    addressed prior to consent because capacity is a prerequisite to consent. Thus,
    one could argue that a woman who is incapable of giving consent is also incapable
    of withholding consent.

We believe, however, that the
    level of understanding required to give meaningful consent to sexual activity
    may be higher than that which is required to withhold it. In other words, we
    believe it is possible for a woman to be incapable of giving consent in a
    particular situation, and yet be capable of withholding it. For example, a
    woman could know that she doesn't want any physical contact with the man in
    question, even if she does not understand the sexual nature of the activity or
    its potential consequences.
Because of the serious implications of finding
    someone incapable of consenting, we suggest that where there is evidence of
    nonconsent, that evidence should be looked at before considering capacity.
[Emphasis
    added.]

[48]

It
    is difficult to apply the idea of capacity to an absence of a subjective state
    of mind. Recall that the Crown need not prove that the complainant made a
    conscious decision to refuse sexual contact, for which an operating mind might
    be required:
J.A
., at para. 37. Rather, the Crown is required to prove
    the absence of consent by reference to the complainants subjective internal
    state of mind:
Ewanchuk
, at paras. 25-27. Where it is proven that the
    complainant did not affirmatively consent to sexual touching, it may serve no
    purpose to inquire further to assess whether, had he or she consented, he or she
    would have had the capacity to do so, although in some cases a trier may elect
    to make alternative findings. In any case, the analysis should not be blurred
    between the two separate issues, consent and capacity to consent.
[2]
Further, where potential incapacity relates to non-transient conditions,
    avoiding unnecessary inquiries as to capacity where non-consent is proven is
    more respectful of a complainants autonomy and privacy.

[49]

This
    is not to say that the factual circumstances of, for example, intoxication may
    not be relevant to both whether there was subjective consent and to incapacity
    to consent. In the present case, for example, the Crown argued that the complainants
    profuse vomiting made it unlikely she would have consented to sexual contact.
    The same vomiting, was relevant to the degree of consumption of alcohol and the
    effect it may have had on her capacity to consent.

(d)

Application to the
    trial judges reasons

[50]

In
    light of the aforementioned principles, I turn now to the reasons of the trial
    judge with two questions in mind. Did the trial judge properly address the
    separate issues of consent and capacity to consent, and more specifically, did
    the trial judge err by failing to consider the degree of the complainants
    impairment by alcohol?

[51]

The
    difficulty with the trial judges reasons for conviction are that he failed to
    assess whether the degree of impairment by alcohol was such that the
    complainant was incapable of consenting to sexual activity. The trial judge was
    led to this position in part by the submissions of the Crown suggesting that he
    did not have to explore the degree of intoxication versus sobriety:

Mr. Scharger: So your Honour
    doesnt really have to, in the Crowns submission, delve into degrees of
    intoxication versus sobriety, at least, insofar as, as it applies to applying
    273.1. Rather, in the Crowns submission, youre presented with a starker
    choice, of either accepting C.s evidence, which was that she was quite
    intoxicated  in the Crowns submission, if you accept her evidence, its, its
    pretty much a given that 273.1 will apply on the basis that she was incapable.
    On the other hand, the other stark choice youve been given is F. telling the
    court that she was as sober as when she appeared her in court. So by that
    assessment of things, if you do conclude that thats the case, then 273.1 would
    have no application whatsoever. So I just thought Id mention that, Your
    Honour, in terms of framing the legal analysis in this case.

THE COURT: So youre saying its
    more an issue of credibility?

Mr. Scharger: Very much so, as, as
    opposed to assessing [the] degree of how drunk or not drunk she was.

THE COURT: I dont see a big
    difference in your position, in that respect, from that of the position thats
    been set out by the defence. Its, its, its, its a case of credibility.

Mr. Scharger: Yes, sir.

The CROWN: She was either too
    impaired, or she wasnt.

Mr. Scharger: Agreed.

[52]

The
    trial Crown did argue in his submissions that the complainant would not have
    consented to sexual contact with the appellants for a variety of reasons such
    as the difference in age, the fact she hardly knew them and the fact that they
    were her mothers friends. However, he did not invite the trial judge to
    convict on the ground that the complainant did not in fact consent to sexual
    contact, separate and apart from the issue of whether or not the complainant
    had the capacity to consent.

[53]

This
    blending of the issues as to whether the complainant consented, and whether any
    consent was vitiated by a lack of capacity is mirrored in the trial judges
    reasons for judgment, at paras. 51-52, 71-73:

[51] The main issue in this case is
    one of credibility. The parties agree that G.F. and R.B. engaged in sexual
    relations with 16yearold C.R. If I find beyond a reasonable doubt that C. was
    unable to provide her consent to this sexual activity because she was impaired by
    alcohol consumption and that G.F. and R.B. knew or should have known that she
    was unable to give her consent, then they are guilty of the charges against
    them. If I find that C.s ability to give consent was not impaired by alcohol
    consumption and that she freely gave her consent, then the two accused persons
    are not guilty.

[52] I have considered the evidence
    and the submissions of counsel, and after doing so I have concluded that C.R.
    did not consent to the sexual activity, and that G.F. and R.B. are guilty of
    the offence of Sexual Assault.



[71] R.B. did not testify. I find G.F.s
    evidence to be unbelievable.It does not leave me with reasonable doubt as to
    his or R.B.s guilt, and in my view, the balance of the evidence at trial
    convincingly supports the conclusion that F. and B. forced C. into having
    non-consensual sex.

[72] Section 273.1(2)(b) of the
    Criminal Code indicates that no consent is obtained when the complainant is
    incapable of consenting to the activity. This applies in instances where a
    complainant is intoxicated.

[73] Accordingly I find the two
    accused guilty of sexual assault as charged.

[54]

The
    manner in which the reasons are structured leaves me uncertain as to whether
    the trial judge considered the issue of consent separately from the issue of
    capacity. It is clear that the trial judge did not engage the two-step
    analytical process I have articulated in these reasons, by first evaluating
    whether the complainant did not consent and then turning, if necessary, to whether
    or not the complainant had the capacity to consent. He also did not apply the
    jurisprudence discussing the level of intoxication which could result in a
    finding of incapacity, if it were necessary to go to that step. His statement
    that no consent is obtained where a complainant is intoxicated suggests that in
    his view, any level of intoxication was sufficient to vitiate consent. It is
    not clear that this belief did not constitute the basis for his statement that
    there was no consent.

[55]

Although
    the trial judge states, at para. 52, that he concluded that C.R. did not
    consent to the sexual activity and, at para. 71, that the balance of the
    evidence at trial convincingly supports the conclusion that G.F. and R.B.
    forced C.R. into having non-consensual sex, the convictions cannot be upheld
    on such a basis. First, as discussed above, the trial Crown did not invite the
    trial judge to convict on this basis. Second, the vague statement from the
    trial judge that the balance of the evidence at trial supports such a finding
    is not a sufficient basis to ground a conviction; it is not clear the trial judge
    was making a finding that the convictions could be sustained on the basis that
    the complainant did not consent, regardless of her capacity.

D.

DISPOSITION

[56]

In
    view of these errors, I would set aside the convictions and order a new trial.
    It is not necessary to consider the other arguments raised by the appellants.

Released: June 14, 2019

G. Pardu J.A.

I agree David Watt
    J.A.

I agree I.V.B.
    Nordheimer J.A.





[1]

An Act to amend the Criminal Code and the Department of
    Justice Act and to make consequential amendments to another Act
, S.C. 2018, c. 29, s. 19.



[2]
In
R v. Jensen
(1996), 106
    C.C.C. (3d) 430, this court held that findings of incapacity to consent and of
    non-consent were mutually exclusive, however this analysis has been overtaken
    by
Ewanchuk
.


