(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.

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.

(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).

(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written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

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

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

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code , chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code , chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Garciacruz, 2015 ONCA 27

DATE: 20150120

DOCKET: C57952

Simmons, Rouleau and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jose Alejandro Anaya Garciacruz

Appellant

Danielle Robitaille, for the appellant

Katie Doherty, for the respondent

Heard: September 18, 2014

On appeal from the conviction entered on June 28, 2013 and the sentence imposed on November 27, 2013 by Justice Lois B. Roberts of the Superior Court of Justice, sitting without a jury.

Rouleau J.A.:

[1] The appellant was convicted of one count of sexual assault. The key issue at trial was consent. The complainant had no memory of the time during which the assault took place. The trial judge did not accept the appellant’s evidence as to how the events unfolded including his testimony that the complainant was awake and consented to the sexual activity. The trial judge found that the complainant had fallen asleep, remained asleep and was, as a result, incapable of consenting to the sexual activity at the time that it occurred.

[2] The appellant argues that the verdict was unreasonable, the reasons supporting it were insufficient, and that the trial judge’s assessment of the evidence was flawed.

[3] For the reasons that follow, I would allow the appeal on the basis of insufficient reasons and order a new trial.

FACTS

(1) The meeting

[4] On February 11, 2011, shortly after moving into a new neighbourhood, the complainant took a walk looking for a nearby pilates or yoga studio. She met and struck up a conversation with a woman who turned out to be the appellant’s wife. As the two lived in the same area they walked home together and made plans to meet later that evening.

[5] Over the course of the next few days, the two women and the appellant met and shared food and drink on several occasions, becoming friends.

(2) The night of February 22, 2011

[6] On February 22, 2011, the appellant’s wife was out of town. Following a series of text messages exchanged between the complainant and the appellant, the complainant, with the knowledge that the appellant’s wife was away, invited herself to the appellant’s home. She did this despite her assertion at trial that she would never have “hung out” with a married man, meaning, presumably, that she would never spend time alone with a married man.

[7] The complainant arrived about 9:30 p.m. bringing with her some guacamole and about a quarter of a bottle of wine. Over the course of about an hour, the two talked, ate, and drank. The complainant, who was interested in buying a computer, also looked at a computer that the appellant was considering selling.

[8] Afterwards, the complainant left the appellant’s residence and walked to a local bar, where she met her cousin who was visiting from out of town. She arrived at approximately 10:30 p.m. Later that evening, the complainant texted the appellant, asking him to join them. The complainant claimed that she invited the appellant to come to the bar only after her cousin had insisted. According to the complainant, she did not actually want the appellant to come to the bar.

[9] The complainant was contradicted on this point both by the text messages entered into evidence and the evidence of her cousin. The text messages exchanged between the complainant and the appellant show that the complainant invited the appellant and followed-up regularly to check on the status of his arrival. The cousin’s evidence, which was accepted by the trial judge, was that he never participated in any discussion about the appellant joining them at the bar.

[10] Later in the evening, the appellant drove himself to the bar and met up with the complainant and her cousin.

[11] According to the complainant, she only consumed two to three glasses of wine and a couple of sips of gin and tonic over the course of the several hours she was at the bar. She did not consider herself to be drunk, but would not have been in a condition to drive. The cousin confirmed that neither he nor the complainant was drunk.

[12] When it came time to leave, the cousin planned to ask the bartender to call him a cab. At the suggestion of both the complainant and the appellant, however, he decided to go to the appellant’s house and call a cab from there. Although it would have been closer to go to the complainant’s apartment, which was only two or three blocks from the bar, the cousin explained that the complainant told him she did not want him to go there as it was a mess. The three then drove to the appellant’s house in the appellant’s car. They stopped en route at a bank machine so that the appellant could withdraw cash and then return to pay the bar bill.

[13] According to the cousin, when the three of them arrived at the appellant’s house, they sat around the computer in the appellant’s living room and looked up a cab number. After the cab was called he asked the appellant for a glass of water and then went to use the washroom. He was in the washroom for a minute or so, and when he returned to the living room area he observed that the complainant had dozed off on the couch. He then sat down next to the complainant and waited for the cab to arrive. When the cab arrived five minutes later, he nudged the complainant on her shoulder. She did not respond. He explained to the court that “he was not an expert in that area, but considered her to be sleeping.” He then said goodbye to her, but again she did not respond. He asked the appellant if the complainant was alright where she was, and when the appellant assured him that she was, he left.

[14] The complainant testified that she did not really remember anything that had happened after she left the bar. She could not explain why she suggested that the three of them go to the appellant’s home, or why she went in the appellant’s car. She lived only two or three blocks from the bar and would normally have gone straight home. She remembered leaving the bar without assistance and recalled that her cousin was with her, but did not remember getting into the appellant’s car. She had a vague recollection of stopping at a bank machine so that someone, she thought another bar patron, could withdraw money. After that, her memory of events was completely “black” until she woke up the next morning. None of this was apparent to her cousin or the appellant. According to her cousin, the complainant spoke and acted normally all evening up until she appeared to fall asleep on the couch.

[15] According to the appellant, after the cousin left, he and the complainant exchanged compliments, kissed, and after some foreplay agreed to have sex. Because of concern that they might be discovered by a student who roomed in the appellant’s house, the appellant said that they moved to the bedroom and had sex. Again because of the concern of being discovered by the student, the appellant explained that they got dressed shortly after having intercourse and agreed that they would both deny that anything had happened between them. As they were both tired, they then fell asleep.

(3) The morning of February 23, 2011

[16] The complainant testified that on the morning of February 23rd, she woke up, and for a moment, had no idea where she was. She quickly realized that she was lying in the appellant’s bed and he was lying beside her. She did not know how she had gotten there. She jumped up and asked “what am I doing here?” and according to her, the appellant responded that nothing had happened and pointed to the fact that they were both fully clothed.

[17] The appellant’s version was somewhat different, he testified that, upon waking up, the complainant said: “Oh my god, oh my god, I am not like this.” He denied having any conversation with the complainant that morning and, although the complainant’s outburst freaked him out for a second, he was tired and went back to sleep after the complainant left.

[18] After leaving, the complainant went straight home. On the way she realized that something was wrong with her underwear. When she got home, she removed her pants and discovered that her underwear was on the wrong way. The triangle portion of her thong underwear was on her hip, as opposed to at the front, and her legs were through the waist band.

[19] As the complainant had no memory of the events following her departure from the bar including how she ended up at the appellant’s home, she was unsure what to do. Later that day, she called a friend. The friend insisted that the complainant go to the hospital. Though she was reluctant to do so, she agreed and attended at the hospital with her friend.

[20] While waiting at the hospital, the two decided to call the appellant to see if he could shed some light on the situation. The complainant did not know if she was overreacting and hoped speaking to the appellant would give her some peace of mind. The complainant put the call on speaker phone so that her friend could hear the conversation. In the course of the conversation, the appellant explained that nothing had happened between them the previous night.

[21] The appellant provided a very different perspective on this conversation, which I will return to later in these reasons.

[22] In any event, the complainant did not accept the appellant’s denials and she called the police. A sex assault kit was administered to the complainant early on February 24th. This revealed the presence of semen from the vaginal swab taken from the complainant.

(4) The police investigation

[23] In the course of the police investigation, the appellant gave an unsworn statement to the police and provided a sample of his DNA. In his statement, the appellant said that no sexual contact had occurred that night. The complainant had simply fallen asleep on the couch and he had carried her to his bedroom and laid her down on the bed.

[24] When the DNA results revealed a match between the appellant’s DNA and the DNA recovered from the vaginal swab taken from the complainant, the appellant was arrested and charged with sexual assault.

(5) The appellant’s testimony at trial

[25] At trial, the appellant acknowledged having had sex with the complainant, but maintained that it was consensual. He admitted to having lied to police and to his wife. He explained that he had denied having had any sexual interaction with the complainant because the police officers told him that his statement would be videotaped. He was concerned that his wife would see the video and discover that he had slept with the complainant and had been unfaithful. The appellant described his state of mind as terrified. He was a landed immigrant who had been sponsored by his wife. He was concerned that if his wife discovered that he had been unfaithful “my life would end at that moment… my style of living, everything that I have been living here in Canada would be going to end.”

[26] When asked about the phone conversation he had with the complainant while she was waiting at the hospital, the appellant explained that in that conversation, he told the complainant that they had not had sex because this was consistent with the plan he and the complainant had formulated. That plan was to say that she had simply slept at the appellant’s home. When the complainant asked him what happened on the phone, he thought she was testing him to see if he would stick to the plan. He testified that he heard laughing, whispering, and giggling on the phone, like at a “pyjama-party.” He thought the complainant was playing games with him, so he told her what they had agreed on.

(6) The trial decision

[27] The trial judge rejected the appellant’s explanation of as to why, in the call the complainant made from the hospital, he told her that nothing had happened during the night she had stayed at his house. Specifically, the trial judge did not believe that the appellant and the complainant had agreed to pretend that nothing had occurred between them. The trial judge did not find the appellant to be credible, finding that his testimony was far too detailed and, although it was given through an interpreter, contained little passion. Overall, the trial judge found the appellant’s account of the events to be totally implausible. The trial judge also rejected the evidence of the appellant’s wife and one of their friends, both of whom had given evidence helpful to the defence.

[28] Instead, the trial judge accepted the complainant’s testimony that she did not remember what happened from the moment she left the bar until she woke up the next morning. The trial judge found that the complainant was not intoxicated that evening and specifically excluded alcohol as a possible cause of the complainant’s memory loss. No expert evidence was led at trial which might have provided an explanation for the complainant’s “blackout” state, or how a person might be expected to act while in that state.

[29] The trial judge acknowledged that the critical issue was consent. Given her rejection of the appellant’s testimony and her acceptance of the complainant’s evidence to the effect that she had no recollection of the sexual activity, the trial judge reasoned that the issue of consent could “only be determined on the basis of indirect or circumstantial evidence. Inferences about consent can properly be drawn from the complainant’s pre-existing attitudes.”

[30] The trial judge accepted the complainant’s evidence that she would not have consented to having intercourse with the appellant because she had no romantic or sexual attraction to him and it was contrary to her code of behaviour and her friendship with the appellant’s wife.

[31] The trial judge seems to have accepted much of the appellant’s description as to how the sexual activity must have transpired, including the fact that they had sexual relations while on their sides as well as face to face. This manner of having sexual intercourse was, in the trial judge’s view, less likely to wake the complainant.

[32] The trial judge then concluded that the complainant had been unable to consent as she had been asleep before and during the multi-position sexual assault.

[33] Nothing in the reasons explains how the complainant could, according to the cousin’s account, have appeared fully awake and functioning normally when they left the bar up until she fell asleep, and yet have no recollection of these events, the whole period being “black.”

[34] The trial judge seems to have relied on the complainant’s evidence as to her code of behaviour to reason that the complainant would not have consented to have sex with the appellant and must therefore have been asleep. The trial judge, however, did not deal with the evidence suggesting that the complainant’s conduct that evening was inconsistent with how she said she would act.

[35] After finding that the complainant remained asleep during the sexual assault, the trial judge said that, [w]hile the complainant had an admittedly poor memory, she was unmoved in her evidence that she would never have engaged in sexual intercourse with [the appellant].” The trial judge accordingly accepted the complainant’s evidence that she would not have consented to intercourse. She said, “I accept that the complainant would not have consented for the reasons she gave – namely, her lack of romantic or sexual attraction to [the appellant], her own code of behaviour, and her friendship with [the appellant’s wife].”

[36] It is not clear from the trial judge’s reasons whether these statements factored into her finding that the complainant remained asleep during the sexual activity. The Crown submits that they did not factor into the trial judge’s reasons for concluding that the complainant remained asleep during sexual activity. Either way, as noted, the trial judge did not deal with the evidence suggesting that the complainant’s conduct that evening was inconsistent with how she said she would act.

ISSUES

[37] The appellant’s principal attacks on the trial judge’s decision are that the reasons are inadequate and that the verdict is unreasonable. He maintains that the trial judge’s reasoning lacks logic and that the judge failed to advert to and either reject or resolve contradictory pieces of evidence. The appellant also argues that the trial judge’s assessment of the evidence was flawed and she erred in not considering honest but mistaken belief in consent.

ANALYSIS

(1) Position of the parties

[38] The conviction turned on the trial judge’s finding that the complainant was asleep and was therefore unable to consent. This was an inference drawn by the trial judge, as the complainant had no memory of what occurred that evening and thus could not give direct testimony about whether or not she had consented to have sex with the appellant.

[39] The appellant argues that the trial judge could only draw that inference if she rejected an equally possible inference, namely the inference that the complainant was awake when the sexual intercourse occurred, but was in the same unexplained blackout state she had been in earlier in the evening. The complainant’s lack of memory about any sexual activity could be explained either by her being asleep or by her being in the blackout state. The possibility that the complainant was in the blackout state could raise a reasonable doubt as to whether she consented to the sexual activity which occurred.

[40] In the appellant’s submission, the evidence established that, while the complainant was in that state, she acted in ways that were inconsistent with her testimony about how she believed she would have behaved. For example, she testified that on leaving the bar she would have walked the two or three blocks to her apartment, yet the uncontested evidence was that she urged her cousin to return with her to the appellant’s home and travelled there in the appellant’s car rather than walking. It is, therefore, quite possible that she had awoken in the blackout state after the cousin left and, while in that state, she may have consented to the sexual intercourse. Her inability to recall this activity would flow from the blackout state, rather than the fact that she was asleep.

[41] The trial judge never adverts to this possibility and her reasons do not explain why this other available inference should be rejected in favour of an inference of guilt. Further, the facts relied on by the trial judge for drawing the inference that the complainant was asleep when the sexual assault occurred are not inconsistent with the appellant’s alternate theory. In fact, they are largely consistent with it.

[42] The appellant further submits that, in support of the inference she drew, the trial judge relied on the complainant’s evidence as to her pre-existing attitudes. However, that evidence was accepted by the trial judge without resolving serious inconsistencies between what the complainant testified she would never do and what she was shown to have done that very evening.

[43] The Crown, for its part, submits that the verdict is reasonable and was supported by sufficiently detailed reasons. The trial judge’s finding that the complainant was asleep during the assault is amply supported by the evidence. Having found as a fact that the complainant was asleep, the trial judge did not have to explain why and how the complainant entered into this blackout state nor why she rejected the possibility that the complainant may have been awake but in this blackout state when the assault occurred.

[44] The Crown further argues that the trial judge did not rely on the complainant’s pre-existing attitude evidence to reach her decision. The reference in the reasons to this testimony played little if any role in the trial judge’s analysis of the central issue, the complainant’s capacity to consent.

(2) Overview

[45] For the reasons that follow, I would allow the appeal on the basis of insufficiency of reasons. Given the factual record of this case, the trial judge’s failure to consider and either reject or give effect to the alternate inference advanced by the appellant rendered her reasons deficient, and this deficiency is an error of law (R. v. Braich, 2002 SCC 27 at para. 30). The rejection of the alternate inference is a critical juncture in the road to conviction. In the absence of any reference and analysis of this alternative in the trial judge’s reasons, effective appellate review is foreclosed.

[46] I have divided my analysis into three parts. The first considers the trial judge’s failure to advert to or explain the period during which the complainant has no memory but, by all appearances, was functioning normally. The second deals with the facts relied on in the trial judge’s reasons supporting her inference that the complainant fell asleep and remained asleep throughout the multi-position sexual assault. In these two parts of my analysis, I assumed as the Crown suggested that, in making her finding that the complainant remained asleep during sexual activity, the trial judge did not rely on the complainant’s pre-existing attitude evidence. The third assumes that the trial judge relied on the complainant’s evidence regarding pre-existing attitudes in support of her conclusion that the Crown had met its burden of proving lack of consent beyond a reasonable doubt. In this third part, I explain that regardless of whether the trial judge relied on the pre-existing attitude evidence, the reasons remain deficient.

[47] In all three areas, the trial judge’s reasons do not provide a sufficient basis for this court to effectively review the reasoning process by which the trial judge rejected rational exculpatory inferences and arrived at a conviction. While the analysis that follows involves a detailed review of the trial judge’s reasons, I am conscious that the sufficiency of reasons is to be assessed contextually and by reading the reasons as a whole, together with the record (R. v. Sheppard, 2002 SCC 26 at paras. 28-33, 50). In my opinion, the problems with the trial judge’s reasons do not disappear when they are considered in context, nor are they alleviated when the reasons are read in concert with the record. As a result, I have concluded that the reasons are deficient when measured against the principles established by the Supreme Court in Sheppard, supra at para. 55.

(3) The failure to advert to or explain the complainant’s amnesia

[48] As noted earlier, the complainant testified that on the evening of the 22nd, everything seemed to go black after she took a couple of sips of gin and tonic at the bar. She had a vague recollection of taking someone to a bank machine, but did not recall walking to or taking the appellant’s car, and did not know why she did not just go home, since she lived only two or three blocks from the bar. She did not remember suggesting that she and her cousin should go with the appellant to the appellant’s house, did not remember going there, and remembers nothing that happened while at the appellant’s home, including arranging for her cousin’s taxi.

[49] The trial judge excluded intoxication as a cause for the blackout, finding that:

There is no evidence that the complainant was so intoxicated that she simply blacked out and while awake has no memory of what happened, as in R. v. J.R., for example. On the contrary, the complainant, [the appellant, and the cousin] all testified that the complainant was not that intoxicated. The complainant had more or less the same amount of alcohol to drink on all of the occasions that she was at [the appellant and his wife’s] house that week and did not black out.

[50] No explanation for the complainant’s blackout state was proffered at trial or in the trial judge’s reasons. After excluding intoxication as the cause, the trial judge then simply goes on in her reasons to accept the cousin’s evidence that the complainant fell asleep and conclude that she must have stayed asleep until the next morning.

[51] There is no further consideration or explanation of the complainant’s blackout or the amnesia suffered in the period between sitting at the bar drinking a gin and tonic and her falling asleep on the appellant’s couch.

[52] I do not view the trial judge’s reference to the complainant having “an admittedly poor memory” as constituting an explanation for the period of blackout or amnesia. There is simply no support for reaching such a conclusion on this record.

[53] Nothing in her reasons suggests that the trial judge ever considered the possibility that the complainant awoke after her cousin left the appellant’s home and, having awakened, remained in this unexplained state of blackout or amnesia.

[54] The Crown argues that, having found as a fact that the complainant fell asleep and never woke up, the trial judge did not have to explain the cause of the complainant’s blackout or amnesia and did not have to consider the possibility of the complainant waking up and still being in a state of blackout or amnesia. In the Crown’s submission, by making a positive finding that the complainant did not awaken, the trial judge must have excluded the possibility of the complainant having wakened and resumed her state of blackout or amnesia.

[55] I disagree. The trial judge’s reasons in support of her conclusion that the complainant was asleep throughout the relevant period give no indication that she considered the possibility that, when the sexual assault is said to have occurred, the complainant may have been awake but in her previous state of blackout or amnesia. As I will explain in the next section, the reasons she gave for concluding that she remained asleep are also consistent with the complainant being awake and in the unexplained blackout. The failure to adequately address and exclude this possibility and its potential impact on the Crown’s onus of proving that there was no consent is, in my view, an error.

[56] As Major J. explained in R. v. Esau (1997), 1997 CanLII 312 (SCC), 116 C.C.C. (3d) 289, at 296 (S.C.C.), “[t]he parties’ testimony is usually the most important evidence in sexual assault cases.” In Esau, the complainant in a sexual assault case had no memory of the relevant time and as a result of the complainant’s memory loss, Major J. noted that “[a]ny number of things may have happened during the period in which she had no memory” (ibid., at 297).

[57] The possibility that the complainant was awake and to all appearances functioning normally when the sexual assault is said to have occurred went to the very heart of consent, which was the only real issue at trial. In her unexplained blackout state, she may have been capable of consenting and, although she did consent, she would have no recollection of having done so, just as she has no recollection of what she did and said in the period after leaving the bar. I cannot simply assume, as the Crown contends, that this possibility was considered and rejected by the trial judge. In any event, some explanation for the rejection was required in the circumstances of this case.

(4) The trial judge’s finding that the complainant did not awaken

[58] The trial judge devotes a considerable portion of her reasons to explaining why she believed that the complainant remained asleep for the entire period following the cousin’s departure up until she remembers awakening at about 8 a.m. the following morning. The Crown’s factum contains a helpful summary of the trial judge’s reasons in support of this belief. There are 13 bullet points listed therein. The first four simply support the trial judge’s finding that the complainant had fallen asleep on the appellant’s couch shortly before the cousin left the appellant’s home. That finding is supported by the record and was not seriously challenged on appeal. The contentious issue is whether the complainant remained asleep.

[59] The remaining nine points listed in the Crown’s factum in support of that finding are as follows:

1) The complainant was tired. She testified that she had been up very early that day and was very tired. The trial judge found this understandable in light of the review of the week’s events in which the complainant had been out late several evenings, most nights consuming alcohol.

2) The complainant must have been asleep at some point because she woke up in the appellant’s bed at 8 a.m. the next morning, fully clothed and sleeping under the covers.

3) The complainant testified if she had fallen asleep, she would not have woken again because her days were long; she woke early and got tired at night.

4) The complainant’s lack of any recollection of having sex with the appellant is consistent with her being fast asleep when sex occurred.

5) The complainant had been drinking.

6) Several aspects of the manner in which the appellant testified he had sex with the complainant are consistent with the complainant being asleep when the sexual contact occurred (e.g. the appellant testified he took his time engaging in sex with the complainant; he described having sex with the complainant on their sides as well as face to face, as opposed to with the appellant on top of the complainant).

7) The fact that the appellant testified he had to help the complainant take her underwear and pants off makes sense if she was asleep.

8) The fact that the complainant’s underwear was put on incorrectly also indicates it was not the complainant who put them back on.

9) The appellant repeatedly told the complainant and told the police in his statement that the complainant fell asleep and he carried her to his bedroom because he was afraid she would not be safe on the couch.

[60] Although these points are made in support of the finding that the complainant must have been asleep, they do not refer to, consider or exclude the possibility that the complainant could have awakened and found herself in her state of blackout or amnesia. In fact, none of these points are of much assistance in excluding this as a possibility or likelihood. I turn now to an analysis of the nine points made by the trial judge.

[61] Points one and three simply indicate that the complainant was tired and needed sleep. There was no evidence that the complainant was an unusually sound sleeper. Her need for sleep does not obviate the possibility or even likelihood that she would have awakened before any sexual activity occurred. For example, she could have awakened when she was carried by the appellant to the bedroom.

[62] Point number two is a statement to the effect that the complainant slept at some point. This is not a contentious fact. It does not establish that she was asleep at the crucial time.

[63] In point number four, the trial judge is relying on the fact that the complainant had no recollection of having sex with the appellant to support her conclusion that the complainant must have been asleep. The fact that the complainant has no memory of having sex is not merely consistent with waking up into the same state of blackout or amnesia; it is arguably more consistent with being awake and in that state of blackout or amnesia than having remained asleep. The same could be said for point number six, where the trial judge says that the appellant’s description of the various positions in which he described having sex with the complainant is supportive of the conclusion the complainant was asleep. One would expect that having sex with an unintoxicated person, in a series of different positions (regardless of what those positions were), would give rise to the possibility, if not likelihood, that the person would awaken.

[64] Point number five is a reference to the complainant having been drinking. That she had been drinking is of marginal relevance when considering whether the complainant would have woken up. The quantity consumed, as noted by the trial judge, was moderate and was in keeping with the complainant’s consumption on previous occasions. The trial judge specifically found that the complainant was not intoxicated.

[65] Points seven and eight deal with how the appellant said he removed the complainant’s underwear and pants and the fact that the underwear was replaced incorrectly. It is undisputed that the underwear, as well as the leggings and socks were removed before the sexual intercourse occurred. It is also undisputed that the complainant was clothed when she woke up at 8 a.m. The only evidence as to how the clothing was removed and replaced was given by the appellant. The fact that the appellant helped removed the complainant’s underwear neither proves nor disproves that the complainant was asleep or awake. The same can be said for who might be responsible for the incorrect replacement of the underwear. Although one could view the incorrect placement of the complainant’s thong underwear as being moderately supportive of the proposition that the complainant did not put them on herself, it is largely speculative. On the other hand, there is little to explain how the complainant could have been undressed and then dressed by the appellant without having woken.

[66] Finally, point nine is of no assistance in resolving the critical issue. The issue is not whether the complainant had fallen asleep and was then carried to the bedroom, the issue is whether the complainant awoke, either when she was being carried or later, so as to be capable of consenting when the sexual activity took place.

[67] The Crown bore the burden of proving the lack of consent beyond a reasonable doubt. Although this list provides some support for the trial judge’s finding that the complainant remained asleep throughout, it does not – nor does it purport to – support a rejection of the alternative inference, namely that the complainant woke up, remained in her unexplained state of blackout or amnesia, and consented to the sexual intercourse. Taken as a whole, the nine points do not provide a solid basis for reaching one conclusion or the other. We simply do not know whether this possibility was considered by the trial judge and, if considered, why it was not accepted and did not raise a reasonable doubt.

[68] In order to infer guilt based on circumstantial evidence, the trier of fact must be “satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty” (R. v. Griffin, 2009 SCC 28 at para. 33). This is a high standard that requires that alternative explanations be excluded because “the mere existence of any rational, non-guilty inference is sufficient to raise a reasonable doubt” (ibid. at para. 34; see also R. v. Mars (2006), 2006 CanLII 3460 (ON CA), 205 C.C.C. (3d) 376 (Ont. C.A.), at para. 4).

(5) Reliance on the pre-existing attitude evidence

[69] In the absence of direct evidence on the issue of consent, a court can draw inferences from a complainant’s pre-existing attitudes and assumptions regarding the period during which she has no recollection. In appropriate cases, the court can conclude that the complainant must have been incapable of consenting at the time of the sexual interaction because, had she been capable of consenting, she clearly would have refused to consent. This type of inference would support the trial judge’s finding of that the complainant was asleep and incapable of consenting.

[70] As noted above, in her reasons, the trial judge stated that the complainant

was unmoved in her evidence that she would never have engaged in sexual intercourse with [the appellant]. Although she has no memory of having sexual intercourse with [the appellant] I accept that she would not have consented for the reasons that she gave – namely, her lack of romantic or sexual attraction to [the appellant], her own code of behaviour and her friendship with [the appellant’s wife].

[71] This finding comes after the trial judge concluded, beyond a reasonable doubt, that the complainant did not have the capacity to consent because she was asleep and did not wake at any time during the sexual interaction.

[72] Whether the finding regarding the complainant’s pre-existing attitudes factored into the trial judge’s conclusion that the complainant remained asleep is unclear. The Crown takes the position that because the trial judge had found as a fact that the complainant fell asleep while on the couch and stayed asleep until morning, “the evidence about what the complainant would have done, and the trial judge’s comments about it, played a minimal, if any, role in her analysis with the central issue in the case, the complainant’s capacity to consent. Consequently, her observations in this area had no consequence on the verdict in this case.”

[73] Regardless of whether the Crown is correct in its interpretation of the trial judge’s reasoning process, the reasons themselves remain deficient. As I explain below, both reliance and non-reliance on evidence of the complainant’s pre-existing attitudes is problematic.

[74] For the reasons outlined in the previous sections, I concluded that the trial judge’s reasons had to explain why she rejected the possibility that the complainant awoke in a state of blackout or amnesia and simply does not remember consenting. The list of thirteen points set out by the Crown did not provide a solid basis for rejecting this possibility and concluding beyond a reasonable doubt that there had been no consent. As a result, if the Crown is correct and the finding as to the complainant’s pre-existing attitude played no part in the trial judge’s reasoning, then the conviction must be set aside.

[75] Assuming, however, that the trial judge did take into account the complainant’s testimony as to her pre-existing attitudes, the appellant nonetheless maintains that it is of little assistance to the Crown. In the appellant’s submission, this finding by the trial judge is unreasonable and is of no assistance in excluding the possibility that the complainant was in the blackout state. The finding was made without adverting to or dealing with critical problems in the complainant’s evidence.

[76] I agree. In my view, the trial judge’s failure to advert to and deal with inconsistencies in the complainant’s testimony precludes meaningful appellate review, and was an error of law. As explained in R. v. Dinardo, 2008 SCC 24 at paras. 2, 23-31, even if it is open to a trial judge to reach a particular conclusion based on a complainant’s testimony, it is not open to the trial judge to do so without explaining how she reconciled serious problems with that testimony. The problems here fall into two categories.

[77] First, there was evidence which gave reason to doubt the complainant’s assertion that because of her code of behaviour, she would never have consented to intercourse with the appellant. The complainant testified that she “would never have hung out [alone] with a married man.” This assertion by the complainant was clearly contradicted by the facts of the case. It was the complainant who invited herself to the appellant’s house for wine and guacamole when she knew that the appellant’s wife was out of town. Not only was the complainant wrong in her evidence that she would never spend time alone with a married man, but she had done so that very day with the appellant, the husband of her friend.

[78] Second, without some explanation as to the cause and nature of the blackout condition, it is difficult to conclude, without more, that if she had been in the blackout state, the complainant’s “lack of romantic or sexual attraction to [the appellant], her own code of behaviour and her friendship with [the appellant’s wife]” would govern her actions.

[79] In fact, the events of the evening of February 22nd showed that the complainant was a terrible predictor of her own, even mundane, conduct that night while she was in the blackout state. The complainant testified that she:

1) would not have gone to the appellant’s house after the bar;

2) would not have taken her car or a cab from the bar, as she lived only two or three blocks from the bar and could have easily walked home;

3) would have gone straight home from the bar rather than going to the appellant’s house.

[80] When questioned about what she did during the period during which she had no memory, the complainant testified “I am not sure why I didn’t go home right after the [bar closed]. I live on [the same street].” She simply could not explain or understand why or how she ended up at the appellant’s home. In fact, her testimony about what she would have done that evening was largely contradicted by what she in fact did. The testimony of her cousin, which was accepted by the trial judge, has the complainant coming up with the idea of going to the appellant’s home, deciding to leave the bar by car rather than on foot, and deciding not to go home with her cousin after the bar because her apartment was too messy.

[81] On the facts of this case, the appellant’s predictions about how she would have behaved while in the blackout state were repeatedly contradicted by what she actually did. If the trial judge used the complainant’s hypothetical testimony about what she would or would not have done while in her blackout state to support her finding that the complainant was asleep, her reasons are inadequate because they fail to address and reconcile these inconsistencies.

CONCLUSION

[82] For these reasons, I would allow the appeal and set aside the conviction on the basis that the trial judge’s reasons were insufficient. The appellant asks that an acquittal should be substituted. Although the reasons are deficient, I am not satisfied that the evidence led at trial was incapable of supporting a conviction. A new trial is the normal result of a successful appeal on the basis of insufficient reasons (R. v. MacDonald, 2008 NSCA 53 at para. 25). Accordingly, I would order a new trial.

Released: (CWJ) JAN 20, 2015

“Paul Rouleau J.A.”

“I agree Janet Simmons J.A.”

“I agree C.W. Hourigan J.A.”