The Defence Toolkit – December 12, 2020

This week’s top three summaries: R v Hughes, 2020 NUCA 15: officially-induced error, R v Smithen-Davis, 2020 ONCA 759: re-opening #appeal after decision, and R v SW, 2020 NSSC 349: #reliability of non-consent to #sex

R v Hughes, 2020 NUCA 15

[November 26, 2020] Officially-induced Error [Reasons by Mr. Justice Jack Watson]

AUTHOR’S NOTE: Rarely argued and even more rarely successful, the defence of officially-induced error gets some exercise in this judgement from the Nunavut Court of Appeal. The main thrust of the case was an error by a CSO supervisor as to the end date of a conditional sentence order upon which the accused relied and then was charged with breaching. The official's error was understandable given the laboured history of the CSO and the consequent changes to the end date. Nonetheless, his understandable error enured to the benefit of the accused in this case. The case provides a useful overview of the defence and an application that is plausibly useful for the future - complex sentencing makes for mistakes by supervisors and probation officers. 

For the law nerds out there, the case also discussed a deep dive into jurisdictional issues not actually argued by the parties - this is best saved for those truly interested and summarised below.  

Overview

[1] The appellant challenges the decision of Bychok J of the Nunavut Court of Justice dated September 12, 2019 which found, after a hearing on August 23, 2019, that the appellant had, on July 23, 2019, breached the conditions of a conditional sentence order. That order had originally been made for a duration of 9 months dating from its imposition on October 23, 2018. But, as described below, the duration of the order was extended due to intervening events.

[2] On September 12, 2019, having found the breach of the order, Bychok J terminated the conditional sentence order and directed that the appellant was to serve what was (at that time) the remainder of the conditional sentence in custody. The decision on breach, the rejection of reasonable excuse, the termination of the order and the committal to imprisonment were all done pursuant to s 742.6(9) of the Criminal Code.

Facts of the Underlying CSO Offence

[30] The original 9-month conditional sentence order was made in relation to two convictions being: (1) a conviction for an offence under s 270(1)(a) of the Criminal Code (assaulting a peace officer in the execution of his duty) and (2) a conviction under s 129(a) of the Criminal Code (resisting two peace officers in the execution of their duties). Those offences were both said to have occurred on May 4, 2018.

[31] To fully understand what is involved here, it is helpful to start the narrative back at the original imposition of the conditional sentence order on October 23, 2018. The order was imposed by Cooper J of the Nunavut Court of Justice following a trial. The count of assaulting a peace officer related to a guard at a police station in Arctic Bay. The young guard, Scott Kilukishak, then 22, and 5’ 2” tall, was looking after two prisoners on May 4, 2018, when he heard a vehicle drive up. He thought it was the RCMP officers coming back from a town patrol. He then heard knocking at the door. When he opened the door, the appellant came in the building and into the kitchen area asking the guard if his wife or girlfriend CU was there. She was, in fact, in the cell area. The appellant was drunk.

[32] When guard Kulikishak told the appellant that he should not be in there, the appellant started punching at him and tried to get past him. The youthful guard chose not to punch back. He moved to “just lift him out, throw him out the door and close the door on him” suffering a torn shirt in the process in part because the appellant was holding onto a railing. The guard then called his superior Cpl Yves LaPierre. The young guard was outmatched in size by the appellant but he testified that his adrenaline had kicked in as he got scared.

[33] Cpl LaPierre and Cst Byer had gone to make a turn about the community. They had earlier lodged CU because she had been found outside intoxicated with an infant and yelling at a residence about being locked out. The appellant was inside the residence No 57 talking back. After lack of success in getting her to go to her mother’s residence in light of the cold weather – during which conversation with CU became somewhat irate and abusive to the officers –- the officers took the baby to the other residence and decided to house CU for the night. Accordingly, CU was there when the appellant arrived. When they returned after the second tour, the officers found the young guard was upset, showing signs of being roughed up. He reported to them about what happened.

The Sentence

[36] In mathematical terms, the 9-month conditional sentence order then imposed, if service thereof had been uneventful, could have been expected to expire on or before July 22, 2019. Before that happened, however, the appellant entered guilty pleas to further counts of uttering threats and resisting arrest before Bychok J and he was sentenced on December 20, 2018 for those offences.

[38] For those offences of November 27, 2018, Crown counsel proposed a total term of 90 days imprisonment for those counts [AB 85/4-12] and also proposed that Bychok J impose a 3-month ‘collapse’ of part of the conditional sentence order running from November 27 to “a date in February 2019” [AB 85/6-9]. Crown counsel went on that after the ‘collapse’ period, the appellant would then commence to “serve a total of 90 days on the new charges” and the “CSO would, of course, be suspended during the time being served pursuant to Section 742.7 of the Criminal Code” [AB 85/1214].

[39] Based upon this arithmetic – and without expressly referring to whether s 6 of the Prisons and Reformatories Act, RSC 1985 c P-20 would apply to the new offence sentences – Crown counsel anticipated that at the end of these periods, “Mr Hughes would be released back with approximately five months left to serve on the Conditional Sentence Order in the community” [AB 85/12-16]. Crown counsel did not venture a specific calculation of to what date the rest of the conditional sentence order would then run.

[43] Bychok J heard further from the appellant in person. He then went along with the joint submission, suspending the conditional sentence order for 90 days, commencing November 27, 2018 (provided for under s 742.6(10)(b) of the Criminal Code) and with a further 66 days suspension (allowable under s 742.6(9)(c)(i) of the Code). I assume that the parties and Bychok J proceeded on the basis that s 6 of the Prison and Reformatories Act did not apply to that period under s 742.6(13) of the Code. Bychok J then imposed 45 days consecutive on the two new counts for a total of 90 days to which s 6 of the Prison and Reformatories Act would seem, at least to me, to apply. No one mentioned that statutory topic.

[44] Counsel and Bychok J then said that what would be left on the conditional sentence order was “approximately five months” [AB 96/3-9]. No one told the appellant what that meant. It is not plain that any of them had pulled out a calculator, nor were they asked to do so.

[45] Attempting rough math now, it would seem that the suspension of the conditional sentence would have run to around February 26, 2019, and the prison term to around April 26, 2019. If there then were something less than 5 months left on the conditional sentence order it would seem to expire on or before September 28, 2019. There’s the rub that led to the problem here. As noted below, the supervising Community Corrections Officer later told the appellant in July, 2019, that the conditional sentence order would expire on July 22, 2019.

The Breach Hearing and Results

[46] The next stage of the relevant chronology is reflected in an agreed statement of facts, which was presented in relation to fresh allegations of breach of the conditional sentence order that came before Bychok J again on August 15, 2019. The originating document in connection with that breach proceeding was a “Breach Report” signed by the assigned Community Corrections Officer Sipuraq Allurut and was dated July 24, 2019.

[50] A conversion of a conditional sentence order to actual imprisonment directly affects liberty under s 7 of the Charter: compare Tran v Canada, 2017 SCC 50 at paras 25 to 34, [2017] 2 SCR 289. It follows, therefore, that identifiable and long accepted principles of fundamental justice (comparable to listed headings in s 11 of the Charter) such as fair notice appropriate to the context would apply. I do not offer a definition of what the ‘fair notice’ must be. I only say that the appellant was entitled to rely on the Breach Report as specifying the allegations, subject, as said, to an amendment thereof which is itself fair taking place during the process.

[54] Crown counsel in oral submissions to Bychok J summarized the agreed facts as including that:

due to confusion regarding the termination date thereof, that Mr Hughes was informed by his officer, Ms Allurut, that the conditional sentence order would be complete on July 22nd, that on July 24th members of the RCMP responded – I’m reading here directly—to reports of an altercation at House 213 in Arctic Bay and upon entering they found that the accused was intoxicated and involved in an altercation with his brother, in breach of two conditions of his conditional sentence order, condition one and condition two. I will speak briefly to condition three if you have the allegation before you. Condition three deals with a specific situation in which it was obviously the intention of the Court to keep Mr Hughes away from alcohol, and if he was somewhere that there was alcohol, he was to go to House 213, the house of his mother, to avoid being, I would imagine, in the presence of alcohol. He was found at House 213 so the Crown is not alleging that there was a breach of that. I believe there was alcohol at that residence at that time. That would put him in the impossible position of having to be at the place where the alcohol was in breach. It becomes a circular nonentity. So only condition one and condition two of the conditional sentence order, according to the allegation of breach, could possibly be made out.” [AB 98/21-99/14].

[55] The reference to conditions 2 and 3 in those remarks plainly refers to alleged breaches of means conditions 8 and 9, being the second and third allegations in the Breach Report. The Agreed Statement of Facts specifically said that both on July 23, 2019, and on July 24, 2019, “the accused verily believed he was no longer bound by a CSO” [E-6 paras 5-6]. In other words, there can no doubt that the appellant must have relied on what he was told by the official charged with the responsibility of supervising his compliance with the conditional sentence order – the community corrections officer – that the order was over. Bychok J said that the agreed facts were not precise on this point but he ultimately inferred that the appellant’s belief was based on reliance on what the community corrections officer said to him [AB 141/18-142/3].

[57] On the facts in this case, the discussion about the extension of the conditional sentence order was months earlier than what the supervising officer said and it was not unambiguously informative to a person in the position of this appellant. That said, it is just possible that in a different case the subject offender might get or even seek mixed signals from authorities and then might opportunistically choose to read those tea leaves in the most advantageous way for himself. Such a state of mind would not, arguably, be supportable as excused mistake of law in relation to the breach / excuse decision on the reasonable belief element regardless of the origin of the putative belief: compare R v Suter, 2018 SCC 34 at paras 64-65, [2018] 2 SCR 496. That would be like giving yourself legal advice which is certainly no better than if your lawyer gives it to you. In light of s 19 of the Criminal Code, that excuse is not strong: compare R v Eizenga, 2011 ONCA 113 at para 79, 270 CCC (3d) 168. More on this under the heading Discussion below.

[64] More important to this appeal is something else that Bychok J drew from the submission of Crown counsel, namely the idea that in order to meet the officially induced error defence, the appellant had to show that his conduct in the allegations would have excused the keep the peace condition, assuming the appellant knew that condition was still in effect.

[65] Bychok J put it this way: ...

There is only one reasonable inference available to the Court on the Agreed Statement of Facts and the evidence of Constable Byers, that this offender did not pause to consider the legal consequences of his desired course of action. Had he considered his situation, he would have known that he would not be exempt from potential criminal charges because his supervisor said his order had expired....

No one under any circumstances has authority to exempt another person from respecting the laws of the land, whether inadvertently or not. Had the offender paused long enough to consider his situation, he would have realized this fact.

The Law: Mistake of Law, and Mixed Fact and Law

[102] Both of these forms of mistake are covered in the circumstances of this case by the proposed defence of officially induced error which the Crown concedes is applicable here. Counsel below and here invoked and analyzed the cumulative set of rules set out in Jorgensen.

36  In summary, officially induced error of law functions as an excuse rather than a full defence. It can only be raised after the Crown has proven all elements of the offence. In order for an accused to rely on this excuse, she must show, after establishing she made an error of law, that she considered her legal position, consulted an appropriate official, obtained reasonable advice and relied on that advice in her actions. Accordingly, none of the four justifications for the rule that ignorance of the law does not excuse which Stuart outlined is undermined by this defence. There is no evidentiary problem. The accused, who is the only one capable of bringing this evidence, is solely responsible for it. Ignorance of the law is not encouraged because informing oneself about the law is a necessary element of the excuse. Each person is not a law unto himself because this excuse does not affect culpability. Ignorance of the law remains blameworthy in and of itself. In these specific instances, however, the blame is, in a sense, shared with the state official who gave the erroneous advice.

The defence of officially induced error of law is intended to protect a diligent person who first questions a government authority about the interpretation of legislation so as to be sure to comply with it and then is prosecuted by the same government for acting in accordance with the interpretation the authority gave him or her.

26  After his analysis of the case law, Lamer C.J. defined the constituent elements of the defence and the conditions under which it will be available. In his view, the accused must prove six elements:

(1)  that an error of law or of mixed law and fact was made;

(2) that the person who committed the act considered the legal consequences of his or her actions;

(3)  that the advice obtained came from an appropriate official;

(4)  that the advice was reasonable;

(5)  that the advice was erroneous; and

(6)  that the person relied on the advice in committing the act.

(Jorgensen, at paras. 28-35).

Application

[112] As to whether the defence of officially induced error applies in the case at bar, the appellant’s second ground of appeal contends that the fact that the appellant was (innocently) misled as to the completion date for the conditional sentence order in July, 2019, he was entitled to assume that what he did would not violate the conditional sentence. This ground has substance. In what follows I do not consider it necessary to preciously track all the 6 criteria in Jorgensen because the facts here speak for themselves. I will just hit the highlights.

[113] As noted, the erroneous legal advice to the appellant emanated from the very official with authority to file Breach Reports (and the very official who did so). It was perfectly understandable that the appellant would think that such person would know whether the order is in existence or not. It would be a different and more difficult question to decide whether any advice from that person about what might constitute a breach of the order could be relied upon. But this is not a case about interpretation of the order or any limits of its conditions.

[116] Accordingly, the advice given was that the order would not be transgressed against because it is over. This is not a misconception about the extent of the order nor did this advice purport to distinguish between what might or might not be considered a breach of the order. It was advice that the order would not exist. The advice did not tell him how to behave in the future.

[128] But as such, the inference was effectively made by Bychok J that the appellant did consider at least whether the conditional sentence order continued to govern his personal conduct from that date forward, and the answer was negative. It does not seem to me that in these circumstances the defence was obliged to prove on a balance of probabilities that the appellant engaged in a Platonic subdivision of possibilities as to what his future conduct might be that might offend the order or the law more generally, depending on what the conduct might be at the material time.

[130] On the face of this record, the finding was that the appellant considered when the order ended and reasonably believed that he could carry on with his life without it. The fact that he continued his life unwisely and even (perhaps) criminally did not change that situation of belief. The fact that he may have committed crimes in carrying on his life after he believed the conditional sentence was over could not retroactively destroy his earlier (and continuing) belief that the conditional sentence was over. And that belief was the product of officially induced error of law.

[131] It follows that both counsel submissions are correct on the common point that the finding by Bychok J of breach of the conditional sentence order keep peace condition without reasonable excuse was erroneous. The appellant had a reasonable excuse within the meaning of s 742.6(9) of the Code to believe he would not breach the conditional sentence order, and that belief was built upon officially induced error of law. This is not a case where the appellant was gainsaying the conditions or limits on his conduct under an existing order.

[132] The appeal is allowed and the finding of breach / excuse as I have described it herein is quashed.

R v Smithen-Davis, 2020 ONCA 759

[December 1, 2020] Court of Appeal Jurisdiction to Reconsider its own Decisions [Reasons by Watt J.A., with Simmons and Miller JJ.A concurring]

AUTHOR’S NOTE: In a very unusual appeal, the Court here was asked to reconsider its already presumably final decision issued in a matter.  The only thing not completed was the formal order of judgement that parties usually become most interested in (in Criminal matters) when a matter might be getting appealed to the Supreme Court of Canada. Thus there can be a varying window during with the Court has decided, written, and even published its reasons and yet there is no formal order of judgement. According to the ONCA, if you have something new to offer during this window, you may be permitted to do it in the right circumstances.

Background

[1] Three men invaded a home. The home was occupied by its owners, a married couple, and their two small sleeping children.

[2] The invasion did not go as planned. The invaders encountered resistance. One died. The other two fled. Left at the scene were a pair of gloves and a pair of shoes. DNA testing of the gloves and shoes led to two arrests.

[3] Haldane Smithen-Davis (the respondent) and Jason Hamilton were each charged with a single count of break and enter with intent arising out of the home invasion. After a joint trial before a judge of the Ontario Court of Justice, each was convicted and sentenced to imprisonment for a term of nine years. Each appealed conviction and sentence.

[4] About a year ago, after hearing argument on the merits, this panel dismissed both appeals.

[5] The appellant has applied to the same panel to re-open his appeal against conviction. He proposes to adduce evidence that, if believed, denies his participation in the home invasion of which he stands convicted.

[6] By this application, the Crown asks us to quash the respondent's application. The Crown says that we have no jurisdiction to re-open an appeal which has been heard and decided on the merits, or if we have any jurisdiction to do so, we should not exercise it in favour of the respondent in this case.

The Offence

[10] During the invasion, the male homeowner resisted the three intruders. During the struggle, he shot one of the intruders who subsequently died of his wounds. The other two intruders fled. One left behind a pair of gloves, the other, a pair of white shoes.

[11] None of the occupants of the home could identify either of the fleeing intruders.

The Case Against the Accused

[12] The case for the Crown at trial consisted of several strands of circumstantial evidence. There were BlackBerry Messenger messages to support the inference that the respondent was involved in the planning of the home invasion in association with others including the man who was shot by the homeowner. The respondent's DNA was found on a pair of gloves located outside the residence where the home invasion occurred. Shortly after the offence, the respondent left Canada on a flight to the U.K. At Canada's request, he was extradited to Canada to face trial with his co-accused, Hamilton.

[13] Neither the respondent nor Hamilton testified or called a defence at trial.

Application to Re-Open

[17] On April 27, 2020 counsel for the respondent filed an application to re-open his appeal against conviction. If permitted to re-open the appeal, the respondent will seek to have new evidence of his innocence admitted. The proposed evidence consists of affidavits from the respondent and the co-accused Hamilton. Each asserts that the respondent is innocent of the offence of which he has been convicted.

[18] The application to re-open the appeal from conviction is grounded on the principle that the court is not functus officio since the final order dismissing the appeal has not been issued. It follows that the court has the authority to re-open the appeal and should exercise it in these circumstances to prevent a miscarriage of justice.

Is the Court of Appeal Functus Officio? - The Principles of Law

[26] The parties occupy common ground that this Court has jurisdiction to permit re-opening of an appeal. They disagree about the scope of that jurisdiction; whether it extends to appeals heard and decided on the merits, and if it does, when that jurisdiction ends. Upon delivery of reasons for the decision? Or only when the formal order recording the disposition is entered?

[27] As a matter of first principle, appellate rights, procedures on appeal, and jurisdiction of appellate courts are wholly creatures of statute. From this principle, it follows that, if a power to re-open appeals exists, it must be anchored in some statutory authority, whether expressly stated or arising by necessary implication: Kourtessis v. M.N.R., 1993 CanLII 137 (SCC), [1993] 2 S.C.R. 53, at pp. 69-70; R. v. H. (E.F.); R. v. Rhingo(1997), 1997 CanLII 418 (ON CA), 115 C.C.C. (3d) 89 (Ont. C.A.), at pp. 95-96, leave to appeal refused, [1997] S.C.C.A. No. 256.

[31] In H. (E.F.); Rhingo, two unrelated parties sought to have their appeals re-opened. Each appeal had been argued on the merits and decided. Formal orders dismissing each appeal had been issued. This court concluded that the jurisdiction to re-open an appeal was limited to appeals that had not been heard on their merits. The jurisdiction did not extend to permit re-opening of appeals that had been heard and decided on the merits: H. (E.F.); Rhingo, at pp. 106-107.

[32] In a footnote, the court in H. (E.F.); Rhingo, appears to accept that a court is not functus officio when it delivers its reasons for decision, but only when the order recording the court’s disposition has been entered: H. (E.F.); Rhingo, at footnote 10, p. 106. In other words, for the purpose of determining whether a court is functus officio, there is a difference between giving reasons for decision and entering the formal order reflecting the disposition of the appeal: R. v. Hummel, 2003 YKCA 4, 175 CCC (3d) 1 at para. 11, leave to appeal refused, [2002] S.C.C.A. No. 434.

[33] In courts that have considered the issue, the prevailing view is that the defining event for the purposes of the application of the doctrine of functus officio is the entry of the order disposing of the appeal not the giving or release of reasons for the decision: Hummel, at para. 11; H. (E.F.); Rhingo, footnote 10 at p. 106; R. v. Chudley, 2015 BCCA 391, 125 W.C.B. (2d) 129 at para. 9; R. v. Villeda, 2010 ABCA 410, 44 Alta. L.R. (5th) 300 at para. 7; R. v. Moura (2003), 2003 CanLII 46485 (ON CA), 172 C.C.C. (3d) 340 (Ont. C.A.), at para. 20.

[34] Where an appellate court hears an appeal on its merits and issues reasons for its dismissal of that appeal, but does not issue a formal order recording that dismissal, the court is not functus officio. Thus, functus officio does not erect a bar to re-opening. The authorities support the existence of a discretion in those circumstances to permit re-opening: Hummel, at paras. 3, 14-15; Chudley, at para. 7; R. v. Chow, 2003 BCCA 248, 57 W.C.B. (2d) 297 at para. 10; R. v. Blaker (1983), 1983 CanLII 308 (BC CA), 6 C.C.C. (3d) 385 (B.C. C.A.), at p. 387. See also, R. v. Adams, 1995 CanLII 56 (SCC), [1995] 4 S.C.R. 707, at para. 29.

[35] The circumstances in which a court may exercise its authority to permit re-opening are closely circumscribed. The core question is whether the applicant has established a clear and compelling case that a miscarriage of justice will likely occur absent re-opening. This requires a searching evaluation of the importance of the issues the applicant seeks to raise on the re-opening: Chow, at para. 11; Villeda, at para. 11.

[36] Among the relevant factors a court might consider in deciding whether to permit re-opening of an appeal previously argued and decided on the merits are:

i.     the principle of finality;

ii.   the interests of justice including finality and the risk of a miscarriage of justice;

iii.   whether the applicant has established a clear and compelling case to justify a re-opening;

iv.  whether, in hearing and deciding the appeal on the merits, the court overlooked or misapprehended the evidence or an argument advanced by counsel; andv.   whether the error alleged concerns a significant aspect of the case.See, Hummel, at para. 24; Chow, at paras. 9, 11.

i.     the appeal has been argued and decided on the merits;

ii.   the court has issued reasons for its decision; and

iii.   a formal order has been entered or issued recording the disposition of the appeal.

This principle is consistent with the Ontario cases of H. (E.F.); Rhingo; Moura; R. v. Dennis (2005), 2005 CanLII 44168 (ON CA), 208 O.A.C. 8 (C.A.); and R. v. Perkins, 2017 ONCA 152, 347 C.C.C. (3d) 58.

[38 ]What remains less clear in this province is whether, absent a formal order recording the disposition of an appeal, the court has jurisdiction to permit re-opening where the appeal has been argued and decided on the merits.

Application of the Principles

[41] Consistent with this fundamental principle that a court is not functus until a formal judgment has been drawn up and entered, courts in other provinces and territories have held that a court of appeal has authority to permit re-opening of an appeal heard and decided on the merits until the formal order has been issued: Hummel, at paras. 3, 15; Chow, at paras. 10-11; Villeda, at paras. 6-8. The source of the authority to re-open is the inherent jurisdiction of the court, even a statutory court like a court of appeal, to control its own process and to prevent an injustice: Hummel, at para. 14.

[45] In the result, I am satisfied that the jurisdiction to permit re-opening an appeal heard and determined on the merits remains until the order reflecting the disposition has been entered. In other words, the jurisdiction remains until the court is functus officio.

Ground #2: The “interests of justice” Test

[46] The Crown advances an alternative argument in support of its motion to quash the application to re-open the hearing. This submission focuses on the interests of justice which, the Crown says, warrant the order it seeks.

[48] If permitted to pursue his application, the respondent seeks to introduce the evidence of his former co-accused Hamilton, together with his own evidence. The essence of the proposed evidence is that the respondent was not present at the scene of the home invasion and did not participate in it. Hamilton acknowledges that he was in the immediate vicinity of the home but says that he did not enter it or participate in what occurred inside.

The Decision to Permit Re-Opening

[56] The re-opening decision requires consideration of all the circumstances. Two competing principles are at work. The need for finality in criminal litigation favours a restrictive approach. Prevention of potential miscarriages of justice, on the other hand, supports a more expansive approach: Hummel, at para. 17. The “interests of justice” includes both the interest of the accused in having their guilt adjudicated on the basis of all the available evidence, and that of the state in the integrity of the criminal justice process including its finality and order: R. v. M. (P.S.) (1992), 1992 CanLII 2785 (ON CA), 77 C.C.C. (3d) 402 (Ont. C.A.), at p. 411; R. v. Manasseri, 2016 ONCA 703, 132 O.R. (3d) 401 at para. 200, leave to appeal refused, [2016] S.C.C.A. No. 513.

[57] The “interests of justice" standard to permit re-opening of an appeal heard and determined on its merits requires a case-specific examination of all the circumstances. An all-inclusive list of relevant factors eludes composition, but among those a court might consider are these:

i.     the principle of finality;

ii.   the risk of a miscarriage of justice;

iii.   the cogency of the case for re-opening;

iv.  the nature of the error or omission alleged to require re-opening; and

v.   the significance of the error to the disposition of the appeal.

See, Hummel, at para. 24; Chow, at para. 9.

The Admissibility of Fresh Evidence

i.     admissibility;

ii.   cogency; and

iii.   due diligence.

See, Truscott (Re), 2007 ONCA 575, 225 C.C.C. (3d) 321, at para. 92; Manasseri, at para. 203.

[59] Admissibility and cogency are conditions precedent which a proponent must meet before the proposed new evidence may be received. The new evidence must be admissible under the governing rules of evidence. To satisfy the cogency requirement, the new evidence must be:

i.     relevant, in that it bears upon a decisive or potentially decisive issue at trial;

ii.   credible, in that it is reasonably capable of belief; and

iii.   probative, such that if believed, it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

See, Truscott, at para. 99; Manasseri, at para. 205.

[60] Due diligence is not a precondition to the reception of new evidence tendered on appeal. Rather, it exists to ensure finality and order. It only enters the analysis when the admissibility and cogency conditions have been satisfied. The due diligence inquiry requires the court to consider why the evidence was not adduced at trial. It yields where its rigid application might lead to a miscarriage of justice but remains an important factor in the totality of the circumstances in each case: R. v. Hay, 2013 SCC 61, [2013] 3 S.C.R. 694, at para. 64; Manasseri, at paras. 206, 219-222.

The Principles Applied

[62] As I have already concluded, the respondent's application for re-opening is not barred by the application of the doctrine of functus officio. This court has the authority to permit the appeal previously heard, determined, and dismissed to be re-opened if it is in the interests of justice to do so. In this case, whether re-opening may be permitted, for all practical purposes, depends upon whether the court decides to receive the new evidence the respondent tenders for admission.

[63] In principle, it should be open to the opposing party to quash an application to re-open an appeal heard, decided, and dismissed on the merits where the application to re-open has no reasonable prospect of success. A similar authority exists at the trial level. For example, where the presiding judge may dismiss any pre-trial or other application on the basis of the materials filed, without further hearing or inquiry, if satisfied that there is no reasonable prospect that the application could succeed. See, r. 34.02 of the Criminal Proceedings Rules of the Superior Court of Justice.

[68] To succeed in quashing the respondent's application to re-open the appeal, the Crown must be able to establish on the record, as it currently exists, that the application to re-open has no reasonable prospect of success. On this issue, the Crown fails, as it did in advancing a similar argument in R. v. Forcillo, 2018 ONCA 402, 141 O.R. (3d) 752, leave to appeal refused, [2018] S.C.C.A. No. 258.

[69] For these reasons, I would dismiss this application. The application for a reopening of the appeal is not barred by the doctrine of functus officio. Nor is quashing it in the interests of justice on the ground that it lacks any reasonable prospect of success.

[70] The application to re-open the respondent's appeal may proceed in accordance with the schedule to be set by an appeal management judge.

R v SW, 2020 NSSC 349

[December 7, 2020] Sexual Assault - Reliability of Claimed Non-Consent [Justice Jamie Campbell]

AUTHOR’S NOTE: A full read through this decision gives the impression that justices dealing with sexual assault matters in the present condition of the criminal law are tiptoeing through a minefield. The reasons of Justice Campbell spend as much time talking about things judges cannot consider as about things that were actually considered to arrive at the decision. While the law bars many things that previously provided defences (for the most part fairly) it does not bar the consideration of the reliability of a complainant's claimed non-consent.  Here that claim fell apart on the evidence of the complainant who claimed that just before the alleged assault, she fell into and broke a closet door which was then fixed by the accused.  The evidence on this point suggested the door had been broken before this date and was never fixed. The complainant's recollection of this was provably wrong and so cast doubt on her ability to accurately relate what her internal state during the sexual act in question actually was. 

Overview

[2] S.W. has been charged with sexual assault. The complainant was in a relationship with him over a period of about 2 years. She says that on September 23, 2017 he had sexual contact with her to which she had not consented. As is almost always the case when that happens, the only two people present were the accused and the complainant. She says that she did not consent. He says that she did consent.

Evidence

[3] The issue in this trial is whether the complainant subjectively consented to sexual intercourse. The focus is on a few moments on the night of September 23, 2017. But context usually matters. And context, in the context of sexual assault, is a fraught issue. In this case there has been a decision about the admissibility of some evidence that relates to the prior sexual activity of the complainant. R. v. S.W. 2020 NSSC 320. There is evidence that the complainant and the accused had been involved in a two year long intimate relationship. That context is important, in order to make sense of the rest of the evidence, but it cannot be used to infer that the complainant was more likely to have consented to sexual intercourse on the night of September 23, 2017.

[6] They went into the bedroom and smoked some marijuana. That was a regular activity for them. They both became intoxicated. The complainant said that when the accused left the room she fell into a set of closet doors and knocked them over. She said that she took a video of that to share with her friends. She said that when the accused came back, he fixed the doors. The accused said that nothing of that kind happened. There would be no reason for her to be in the area where the closet doors were kept. Those doors had come off the hinges years before and remained stored in his closet. His mother confirmed that the doors had been broken years ago and were not on hinges in September 2017.

[7] The complainant and the accused both said that they were lying on the bed. While they used different words to describe the activity, they both said that they were becoming increasingly intimate. The accused had his fingers in the complainant’s vagina. She said that she consented to that.

[9] The complainant said that she was quite impaired and tired. She said that she told the accused that she did not want to have sexual intercourse that evening but that he rolled her onto her stomach and proceeded to have vaginal intercourse with her. She said that he did not ejaculate inside her but did so on her buttocks.

[10] The accused said that he rubbed his penis on the complainant’s vagina and had intercourse with her. He said that at no point did she say that she did not want to continue. He said that the two sometimes “talked dirty” to each other and at one point when she said she was tired, he said “shut the fuck up”. He said to her that she was “taking it”. He said that he asked if he could ejaculate inside her and she said no. She rolled onto her front and he had intercourse with her from behind until he ejaculated on her buttocks. He said that he wanted her to roll onto her stomach so he could “finish” more quickly.

[11] The accused and the complainant spent the night together and the complainant left the next morning. The accused said that they had a friendly breakfast with his mother. The complainant texted a friend, who was the friend with whom she had made plans for the night before and asked to see her urgently. She told the friend what had happened, and the friend suggested to her that she believed that the complainant had been “raped”. The accused and the complainant continued to have contact with each other over the following months though it was not much after November 2017.

[12] The complainant borrowed $900 from the accused in the fall of 2017 to deal with an emergency car repair and it was repaid on January 1, 2018.

[13] The complainant went to the police in April 2018. The accused said that was after the complainant found out that a few years before he had been experimenting with what he called “recreational drugs” and had got some of her friends in trouble as a result. An Information was sworn on May 28, 2018. The complainant went to the police in June 2018 and asked to have the charges dropped. She signed a statement before a police officer indicating that she was instructing the RCMP to terminate the sexual assault investigation of the accused and requested that they withdraw the charges that were before the court. The Information was stayed on July 11, 2018. On October 24, 2018, the Crown provided Notice of Recommencement and the case was set down for election and plea in November 2018.

Subjective Consent

[17] Clearly the fact that the complainant and the accused were in an intimate relationship is relevant to show how they came to be together on the evening of September 23, 2017. It cannot be used to infer that the complainant was more likely to have consented to sexual contact. The fact that the complainant consented to certain sexual contact does not permit the inference to be made that she must have consented to the continuation of that contact or its progression to more intimate contact. The fact that the complainant remained in the home with the accused into the morning of September 24, 2017 cannot be used to infer that she consented to the kind of sexual contact that took place. The fact that the accused and the complainant continued to have some level of contact after that date does not permit the inference that she was more likely to have consented to the sexual contact. The fact that the complainant did not report the matter to the police until some months had passed does not support the inference that she was more likely to have consented. The fact that the complainant seems to have changed her mind about proceeding and asked to have the charges stayed is not evidence that would logically support the inference that she was more likely to have consented to sexual contact on the evening of September 23, 2017.

[18] The fact that the complainant spoke to her friend the next day about the incident does not admit the inference that sexual contact was without her consent.

[19] What matters is whether the Crown has proven beyond a reasonable doubt that the complainant subjectively, at the moment of sexual contact, did not consent to that contact. In this case, she gave direct evidence about that.

[20] The defence of honest but mistaken belief in communicated consent does not apply in this situation. The accused and the complainant were involved in consensual intimate sexual contact. The complainant said that she withdrew her consent. The accused did not say that the complainant communicated her consent specifically with respect to sexual intercourse. The issue, again, is whether the complainant subjectively consented to that form of sexual contact.

Reasonable Doubt

[24] The Crown does not have to prove that the complainant uttered the word “no”, or words to that effect. The Crown must establish the state of mind of the complainant in the moment. The issue is not what the accused thought but what the complainant thought. Consent cannot be implied. It must be actual. But the Crown must prove the absence of that consent. That is certainly not to say that consent is in some way presumed. The Crown however must establish that the complainant did not consent.

[25] The accused and the complainant provided versions of events that took place that evening that are, for the most part, the same. The were both impaired by marijuana. There is no dispute about the consensual nature of intimate sexual contact that took place before sexual intercourse. The complainant said that she did not consent to intercourse and expressed that in words. The accused says that the complainant continued to consent. He says that at no point did she say that her consent was withdrawn.

[26] The question is whether there is a reasonable doubt as to the complainant’s state of mind when sexual intercourse took place. The evidence of her state of mind is her testimony at trial, that on September 23, 2017, she did not consent. The legal issue is not whether she honestly and in good faith believed when she testified that she had not consented to sexual intercourse. It is not whether it is most likely that she did not consent. It is not whether in the time after the sexual contact she determined that she must not have consented. It is whether there is a reasonable doubt, from evidence or the absence of evidence, as to the complainant’s state of mind at the time the sexual contact took place.

[27] The Crown has argued that the words spoken by the accused, including “shut the fuck up” and referring to the complainant as “taking it” suggest that something was likely said by the complainant to indicate that she wanted to stop. That supports the complainant’s version of events, that she said that she did not want to have intercourse. Why, otherwise, would he have said those things?

[28] The accused testified that the complainant did not say that he should stop. She said that she was tired. He provided an explanation by saying that he was engaging in “dirty talk”.

[29] The complainant and the accused were both high. The complainant said that she was quite high or very high. Her memory and her perception were to some extent impaired by the drug. There was no suggestion by the Crown that there was any evidence to support the contention that she was not capable of consenting to sexual activity. While her memory of surrounding events was clouded by her condition, she says that her memory of the moment at which she said she did not consent was very clear.

[31] The complainant gave evidence about knocking over some closet doors. She was specific in saying that she had broken them, and that the accused came into the bedroom and fixed them. That is not consistent with the other evidence. The accused’s mother said that the doors had been broken for years. The accused said that he had not come in to fix the doors because they were off the hinges and there were no hinges there with which to fix them. The Crown argued that this too was a collateral issue.

[32] The accused said that the complainant specifically told him that she did not want to have oral sex and he accepted that. The complainant could not remember that but supposed that it was possible that it had been said. The accused said that he accepted her refusal of the oral sex and that would support his evidence that if the complainant had told him that she did not want to have sexual intercourse he would have stopped. But the issue is not about the absence of spoken words, but of subjective consent.

[33] The complainant said that she could not remember telling the accused not to “come inside” her. He specifically remembered her saying that. Both gave evidence that he ejaculated on her buttocks.

[34] It is rare that a perfect recollection of events that took place years before is possible and even rarer when it is offered, that it is a sign of reliability on the part of the person purporting to have perfect recall. People may recall some details and forget others while still having a firm and accurate recollection of the important features of what happened. That is particularly so for something that is highly significant and known to be significant at the time. It is also true though that intoxicants of various kinds affect both judgement and perception.

[35] Sexual assault cases are often about a person’s state of mind in a precise and intensely private moment. The focus is on that moment. The clarity of evidence about that moment is critical.

[36] The complainant’s recollection of events was not merely imperfect, as would be expected. People forget the details. What is of more concern is the evidence that the complainant seems to have unintentionally constructed in her mind an incident, close in time to the sexual contact that forms the subject matter of the charge, that is not consistent with the other evidence. She gave some detail about falling into doors and said that she had recorded the incident because she thought it was funny. She gave evidence about how the accused came into the room and fixed the closet door. The door had already been broken and appears to have remained broken for years before and after 2017. It offers some evidence that can be used to infer the extent of her impairment. The complainant’s evidence confirms that she was impaired to a significant degree and that her recollection of the time surrounding the sexual contact was not reliable. [Highlight by Author]

[37] The Crown must be able to prove beyond a reasonable doubt that the complainant did not subjectively consent at the time of the sexual contact. That relies on the ability of the complainant to reliably relate her own state of mind at exactly that time. There is often not much that the accused can say about the state of mind of another person. The complainant’s evidence is vitally important. When she says that she did not consent at the time, that evidence must be sufficiently reliable to form the foundation for the conviction on a criminal offence. It must be clear that the state of mind being reported was the state of mind of the complainant at the time and not a later conclusion reached by the complainant of what she believes must have been, should have been, or most likely was her state of mind at the time.

[38] In this case the complainant’s recollection of events was not sufficiently reliable to meet the level of establishing guilt beyond a reasonable doubt. I find the accused not guilty.