The Defence Toolkit – March 29, 2020

This week’s top three summaries: R v Ermineskin, 2020 ABPC 40, R v Brown, 2020 ABQB 166, and R v Robertson, 2020 ABQB 158.

R v Ermineskine (ABPC)

[February 26, 2020] Evidence - Courts Forcing Trial Acts of Identification  - 2020 ABPC 40 [The Honourable Judge D. DePoe]

AUTHOR’S NOTE: Here, the Crown applied to the court to force the accused to show his hands (which had half amputated fingers) to the complainant to attempt an identification in a robbery case.  Occasionally, applications like these come up in identification-focused cases.  They can manifest in some other ways like: forcing an accused to show his body tattoos, scars, or distinguishing features of their body or even getting an accused to move to a better location for him/her to be viewable to CCTV witnesses.  The analysis should be the same.  Judge DePoe provides a good persuasive opinion for other judges for follow in these circumstances to deny such use of their power to control the court's process. 

Pertinent Facts

Declining to Follow Cases that Allowed In-Court Forced Identification

[7]               The Crown relied on a number of cases to support their position. Perhaps the leading decision is R v Cyr, 6 CR (5th) 75, 1997 CanLII 1039 (BCSC). This was a summary conviction appeal by the Crown, following the acquittal of Cyr on one count of common assault, and three counts of failure to appear.

[8] The Crown in Cyr appealed the trial judge’s ruling that he did not have the power to order Cyr to remove a piece of his clothing, to permit a police witness to observe if he had certain tattoos on his upper body, as an aid to identification.

[9] The investigating officer had written in his notebook that the man he arrested had tattoos on his right arm and chest. The Crown asked the trial judge to order the accused remove his upper clothing, in court, to show his right arm and his chest to the constable, so that he might testify as to the similarity between any tattoos on the accused, and those he noted on the man he arrested. The trial judge refused the application.

[10] On appeal Mr. Justice Low held at paragraph 9:

The presiding judge has the discretion to make such an order and to draw an inference against the accused on the issue of identification if he fails to comply with the order.

[14] This case has been followed or referred to in other decisions, outside Alberta, including, R v Tammie, 2001 BCSC 366; R v Anderson, 2014 BCPC 71; R v Wilton,2012 SKQB 536, aff’d on other grounds 2016 SKCA 131.

[15] There are two Alberta decisions I am aware of which touch on this issue.

[16] The first is R v Laroche, 2015 ABPC 133.  Relying solely on Cyr, the court in that case ordered an accused at trial to roll up his sleeve for the purpose of comparing a tattoo which existed on the right arm of the accused, to that of a robber whose arm was depicted in a crime in progress video, taken during a convenience store robbery.

[17] The second is R v Hanoski, 2011 ABPC 246.This was an unusual situation, where an accused called evidence at a bail hearing, in the person of his father, in support of an alibi. A crime in progress video was played, and the father was asked to view it and comment on the identity of the person in it. The witness himself asked to have the accused roll up his sleeve, so that the accused arm tattoo could be compared with that of the man on the video. The court directed, without reference to any authority, that the accused roll up his sleeve so that his arm could be seen.

[18] In my respectful view, the Cyr decision overstates the discretion that a trial judge possesses, does not fully respect the Charter rights of an accused, and I decline to follow it. I also decline to follow the Laroche and Hanoski decisions, for the same reasons.

Why Those Decisions are Wrong in Law

[22] In R v MBP, [1994] 1 SCR 555 at 577-578, 1994 CanLII 125, Mr. Justice Lamer said this, about the overarching principle against self-incrimination:

Perhaps the single most important organizing principle in criminal law is the right of an accused not to be forced into assisting in his or her own prosecution: M. Hor, "The Privilege against Self-Incrimination and Fairness to the Accused", [1993] Singapore J. Legal Stud. 35, at p. 35; P. K. McWilliams, Canadian Criminal Evidence (3rd ed. 1988), at para. 1:10100.  This means, in effect, that an accused is under no obligation to respond until the state has succeeded in making out a prima facie case against him or her.  In other words, until the Crown establishes that there is a "case to meet", an accused is not compellable in a general sense (as opposed to the narrow, testimonial sense) and need not answer the allegations against him or her.

The broad protection afforded to accused persons is perhaps best described in terms of the overarching principle against self-incrimination, which is firmly rooted in the common law and is a fundamental principle of justice under s. 7 of the Canadian Charter of Rights and Freedoms.  As a majority of this Court suggested in Dubois v. The Queen, 1985 CanLII 10 (SCC), [1985] 2 S.C.R. 350, the presumption of innocence and the power imbalance between the state and the individual are at the root of this principle and the procedural and evidentiary protections to which it gives rise.

[23] The court made it clear that the privilege continues at trial. The defence has no obligation to assist the prosecution, and is entitled to assume a purely adversarial role.

[24] Further, an accused person on trial in Canada is entitled to stand mute should he choose to. He cannot be compelled to enter an election, or a plea, or to ask a question, make any legal submissions, or otherwise participate in his trial in any fashion.

[25] If an accused person cannot be lawfully compelled to say anything, or even participate in his trial, it is entirely illogical to me to suggest that he can be compelled, at trial, to expose a part of his body by order of the court at the request of the Crown. The court should not be placed in this position.

[26] It is my view that asking an accused to show his hands, or remove clothing to display tattoos, and the like, involves conscription of the accused, and as described in MBP makes him in an important way compellable. It has the effect of “forcing him into assisting in his or her own prosecution,” and therefore offends this broad, over-arching principle against self incrimination.

[27] Nor in my view should an adverse inference be drawn against an accused in such circumstances for failing to obey such an order.

[28] In R v Noble, [1997] 1 SCR 874, 1997 CanLII 388, the Supreme Court of Canada placed restrictions on a trial judge’s right to note and rely on the decision of an accused not to testify. The silence of an accused cannot be placed on the evidentiary scales by a trial judge. I see no logical difference between that position, and a failure or refusal of an accused to show a tattoo, or any other not readily or normally visible feature of his body. I would also note in this context, the British Columbia Court of Appeal has ruled that an adverse inference cannot be drawn against an accused for refusing to participate in a photo lineup. See R v Henry, 2010 BCCA 462. The reasoning is much the same.

[31] I would agree that there is a discretion vested in the trial judge to direct an accused person to comply with what may be described as the normal expectations of an accused appearing in court. Passive observation of an accused at trial has always been perfectly acceptable. In nearly all cases, the accused is, or can be required, to be present. He might be seen to move about in the courtroom, and a witness may view him where he sits in court. The accused would be expected to be attired in a normal manner. There is a difficult line to be drawn here, but in my view, it must be done with the rights of the accused, described herein, firmly in mind.

[37] I conclude that for these reasons a trial judge, in the ordinary course of events at trial, should not make such an order. Aside from avoiding a breach of an accused person’s Charter rights, it would serve to avoid the appearance of the court losing the appearance of impartiality and becoming involved to some degree in obtaining evidence from a presumptively innocent (and silent) accused.

[39] It is for these reasons the Crown application was denied.

R v Brown (ABQB) 

[March 5, 2020] Defence of Automatism - After Self-Induced Intoxication was Struck Down as Unconstitutional in Alberta - 2020 ABQB 166  [the Honourable Madam Justice M.H. Hollins] 

AUTHOR’S NOTE: Herein, Madam Justice Hollins provides an excellent overview of the defence of Automatism and provides it to the newly opened area of Self-Induced Intoxication. A good case can be made for such an accused as long as they do not have diagnosable substance abuse issues.  The removal of the continuous dangerousness aspect of such situations makes this defence particularly desirable.  The end result is not possible indeterminate detention under an NCR finding, but an outright acquittal. 

Justice DeWit's decision declaring s. 33.1 of the Criminal Code unconstitutional and immediately not in force is R v B, 2019 ABQB 770 [not on CanLii as of time of writing].

Pertinent Facts

[1] This case raises the rare defence of extreme intoxication akin to automatism.

[2] On the evening of January 12, 2018, the accused was at a small house party with friends, drinking alcohol and eating magic mushrooms. In the early morning hours and in frigid temperatures, he ran out of the house completely naked. His friends tried to find him but when they could not, they called the police. On their way, the police were re-routed to the scene of a nearby break and enter, the perpetrator of which turned out to be the accused.

[3] Janet Hamnett, a university professor who lived alone, was awoken by the sound of the glass in her sliding patio door being smashed to pieces. She thought perhaps the furnace had exploded but when she walked out of her bedroom to investigate, she was attacked. She fell to her knees and put her arms over her head and face. She could not see the person attacking her but described him as a huge presence who beat her repeatedly around her head and on her hands and forearms with some kind of hard object. When he ran up the stairs, Ms. Hamnett went into her bathroom and locked the door. There was blood on her head, face and arms. She wrapped her left arm in a towel and waited in the bathroom.

[4] Once it was quiet, Ms. Hamnett put on her robe and ran out through the smashed-out patio door to her neighbours, the Crones, who called police. After running out of Ms. Hamnett’s house, the accused was spotted by Michael Crone, who took photographs of the accused, still naked, attempting to get into a parked car in their cul de sac. When Mr. Crone approached him, the accused ran away again. He was gone by the time the police and EMS arrived and took Ms. Hamnett to the hospital. Her injuries included lacerations, a sprained wrist and a broken hand.

[5] From the Crones’ neighbourhood, the accused went to another residence almost another kilometre away and broke into this home as well. Mr. and Mrs. Varshney were in their bedroom on the second floor when the accused threw a statue through the glass in their front door window. When they heard the glass breaking, Mr. Varshney yelled “Who is there?”. No one responded to him, although he could hear someone yelling loudly downstairs. He and his wife called 9-1-1 and waited in their bedroom for the police.

[6] When the police arrived, they searched the Varshneys’ home. Following a trail of blood, they located the accused lying on the floor of a bathroom on the main floor. He followed the police directions to come out slowly and was compliant throughout his arrest.

The Law of Automatism

[9] Automatism describes unconscious, involuntary behaviour. It thus negatives the requirement that the actus reus or physical act be done voluntarily because the automaton does not control his actions. It also negatives the mens rea, as the automaton does not have knowledge of his acts, therefore lacks any intention to commit a crime.

[11] There are two types of automatism relevant to the criminal law; mental disorder automatism (previously called insane automatism) and non-mental disorder automatism (previously called non-insane automatism). The first is dealt with under s.16 of the Criminal Code. If accepted, a defence of mental disorder automatism will result in a verdict of not criminally responsible but the offender is detained pending review by a government board. On the other hand, a successful defence of non-mental disorder automatism results in an absolute acquittal.

[23] However, Dickson, J wrote an impassioned and comprehensive dissent in Leary which paved the way for the abolition of substituted mens rea many years later in R v Daviault, 1994 CanLII 61 (SCC), [1994] 3 SCR 63.

[24] In Daviault, the complainant was an older woman, partially paralyzed and confined to a wheelchair. One evening, she invited the husband of one of her friends to her residence. He brought a 40-ounce bottle of brandy, having already consumed 7-8 beers. The complainant drank part of a glass of brandy and fell asleep. When she awoke later, the accused sexually assaulted her. He testified that he had no recollection of the events. A medical expert testified that, given his historical alcohol use and his intake that night, the accused could have been suffering an episode of amnesia-automatism or blackout, in which state he would have had no awareness of his actions. The trial judge acquitted on the basis of a reasonable doubt about the accused’s intent to commit the offence given his extreme intoxication akin to automatism. The Quebec Court of Appeal overturned the conviction but the Supreme Court of Canada reversed that decision and ordered a new trial.

[26] However, the majority in Daviault would not abide the prospect of a criminal conviction in the absence of proof of the mental element of the offence, which was said to infringe ss.7 and 11(d) of the Charter of Rights and Freedoms. As Justice Cory explained:

In my view, the mental element of voluntariness is a fundamental aspect of the crime which cannot be taken away by a judicially developed policy. It simply cannot be automatically inferred that there would be an objective foresight that the consequences of voluntary intoxication would lead to the commission of the offence. It follows that it cannot be said that a reasonable person, let alone an accused who might be a young person inexperienced with alcohol, would expect that such intoxication would lead to either a state akin to automatism, or to the commission of a sexual assault. Nor is it likely that someone can really intend to get so intoxicated that they would reach a state of insanity or automatism; para.43.

[27] The majority confirmed that intoxication could serve as a defence in the rare circumstances of extreme intoxication akin to automatism, but only where the accused could establish the defence on the balance of probabilities through his own evidence and that of experts; para.63.

[28] Less than a year after Daviault abolished the concept of substituted mens rea, the federal government legislatively reinstated substituted mens rea for some offences....

[29] In the case before me, the accused challenged the constitutionality of s.33.1 of the Criminal Code, arguing that the defence of non-mental disorder automatism ought to be available to him on the charge of aggravated assault, not just on the break and enter charge. That application was heard and granted by my brother, Justice deWit; R v B, 2019 ABQB 770. He concluded that s.33.1 offends ss.7 and 11 of the Charter of Rights and Freedoms in a manner not justified by s.1 of the Charter, which echoes the reasoning of many other Canadian trial courts since s.33 was enacted. As a result of Justice deWit’s decision, it was open to this accused to present a defence of extreme intoxication akin to automatism in respect of both charges.

[30] The burden on the accused claiming non-mental disorder automatism was further refined in R v Stone, 1999 CanLII 688 (SCC), [1999] SCJ No. 27. In that case, the accused had informed his wife that he was travelling from Alberta to Vancouver to visit his children from his first marriage who still lived with his ex-wife. When his wife threatened to follow him there in her car, he acceded to her demands to ride along with him. On the journey, his wife was said to have relentlessly criticized, demeaned and taunted him with regards to their marriage, their sex life, his children and her infidelities.

[31] At some point, the accused stopped the car. He testified that he remembered hearing a “whooshing” sound but was otherwise unaware of what was happening. When he became aware of his surroundings again, he saw a knife in his hand and his wife slumped over in the vehicle. He had stabbed her 47 times in an allegedly dissociative state triggered by her “exceptionally cruel, psychologically sadistic and profoundly rejecting” comments to him throughout their trip.

[32]           Following on Daviault, Stone confirmed that the accused bore not just the evidentiary but the legal burden of showing his actions were involuntary; para.179. The rationale for requiring the accused to prove a defence, which is not typically required of any accused[1], may be found in the court’s apparent discomfort around the defence of non-mental disorder automatism illustrated in this passage:

An appropriate legal burden applicable to all cases involving claims of automatism must reflect the policy concerns which surround claims of automatism. The words of Schroeder JA in R v Szymusiak, 1972 CanLII 536 (ON CA), [1972] 3 OR 602 (Ont CA) at p.608 come to mind:

...a defence which in a true and proper case may be the only one open to an honest man, but it may just as readily be the last refuge of a scoundrel.

[33]           With Justice deWit’s ruling in this case declaring s.33.1 of the Criminal Code to be unconstitutional, the reasoning of Daviault and Stone governs the burden of proof on Mr. Brown. In order to be acquitted, he must prove on a balance of probabilities that he committed these offences involuntarily. To do so, it is said that he must provide expert psychiatric evidence. I am also to consider the evidence of other witnesses which may corroborate or contradict the plausibility of his claims of involuntariness.

Detailed Analysis of the Evidence and Application

[37] On the evening of January 12, 2018, about 8:00 p.m., the accused headed to his friend’s home to hang out with his buddies and relax. In addition to the host, Darnell, their friend Brendan was also there. They began drinking shortly after the accused arrived, beginning with Moscow Mules, a drink made with ginger beer and vodka. Darnell and the accused alternated making these drinks for the three of them and the accused estimated that he had approximately 6 - 7 of these over the course of the evening, along with a few beers.

[38] When he arrived, there was a sandwich bag full of dried magic mushrooms on the kitchen counter. The accused had consumed magic mushrooms on only one prior occasion, a couple of years earlier while houseboating. He said he had had a positive experience on that occasion and believed that magic mushrooms generally gave one a fuzzy but positive feeling. He said they began snacking on these magic mushrooms about 10:00 p.m. that evening, using a kitchen scale to measure out approximately ½ gram portions. He thought he consumed about 1 gram later that evening, after which he reports beginning to feel loose and a bit buzzed, although still in control.

[39] As the evening wore on, the accused continued to consume magic mushrooms but in smaller doses, ½ gram or less. Although the bag initially contained a total of 28 grams, or 1 ounce, there was no reliable evidence as to the amount consumed by the accused over the course of the night, nor frankly any reliable evidence as to the amount of alcohol consumed simultaneously.

[40] The two girlfriends of the other two males there arrived at about midnight, after which they continued drinking, playing games and listening to music. The accused testified that he remembered playing beer pong about 1:30 am and that he was “feeling the mushrooms a bit” and then “a lot”. He said he felt “wonky”, like he was “losing [his] grip on reality”. When pressed to describe this, he said he did not know where he was and thought he might have been blacking out a bit as he has no memories beyond playing beer pong. He testified that the next thing he remembers was waking up in the hospital and seeing a blurred vision of his girlfriend’s face and then waking up a second time in a jail cell.

[41] He has no memory of taking off his clothes at Darnell’s house, nor anything that followed that, including breaking into the Hamnett or Vashney residences or assaulting Ms. Hamnett, or his arrest. It was common ground that he knew none of the victims at all. Notwithstanding he remembers nothing, he believes the evidence presented that he committed the offences as described.

[45] Ms. Erickson said that she did notice as the night wore on that the accused was “not himself”, becoming quieter and more withdrawn. She said she thought he had actually gone to bed a couple of times but then would be back up again. As they were beginning the movie, about 3:45 a.m., she noticed him standing naked by the front door. He said nothing but opened the door and ran out. They opened the door and called out to the accused but he did not answer. After looking for him for about 10 or 15 minutes and having already called the police, they did spot him running. They called out to him but he ran away again, as we now know, to Ms. Hamnett’s home.

[46] Ms. Hamnett described being attacked physically by a “huge presence”. She was hit repeatedly around her head and then on her forearms, wrists and hands with a hard object later identified as a broken broom handle. She described the force applied as “massive” and said she was hit many times with no pausing between the blows. She said the accused was screaming, both during the attack and afterwards as he went upstairs in her home, but did not use any words.

[48] Michael Crone, Ms. Hamnett’s neighbour, testified that after he went outside towards Ms. Hamnett’s house and then turned to come back to his own house, he saw someone in the cul de sac at another’s neighbour’s car opposite to his house. His first thought was to yell at the person to stop them from breaking into the vehicle but when he realized the person was naked, he backed off. Rather than confronting the accused, he took photos of the accused trying to get into various vehicles in the cul de sac. Mr. Crone testified that it appeared that when the accused saw Mr. Crone, he ran away again headed west.

[49] Mr. Crone did say that he could see wetness on the accused’s back, although could not say whether that was sweat or if the accused had fallen in the snow. He did confirm that the accused was not wearing shoes. Between the fact that the accused was naked in such cold weather, had assaulted Ms. Hamnett and then proceeded to stay in the cul de sac trying to break into successive vehicles, Mr. Crone’s impression was that the accused was “whacked out” on some type of intoxicant.

[51] Ms. Varshney confirmed her husband’s account of the incident, including hearing the accused screaming from the front door although not using any words.

[52] We also heard testimony from a number of Calgary Police Service officers, all of whom described the accused as moving and speaking very slowly, appearing to be waking up or appearing to be confused.

Expert Evidence: Dr. Mark Yarema

[53] Dr. Mark Yarema is a physician and medical toxicologist. He is a clinical professor and adjunct professor in emergency medicine at both the University of Calgary and the University of Edmonton. He holds several fellowships and certificates in emergency medicine. He is the Chief of Alberta Health Services Section of Clinical Pharmacology and Toxicology.

[57] ....At toxic levels, however, magic mushrooms can induce delirium, including an altered level of consciousness, a lack of orientation and inability to focus or to employ judgment. A person may experience psychosis, including hallucinations or delusions.

[59] As Dr. Yarema reviewed medical literature put to him in cross-examination, he agreed that the majority of harms caused by people with hallucinogen toxic syndrome from magic mushrooms in particular were harms caused to themselves and not to others. There are reported cases of various injuries and even deaths from people jumping off of balconies or out of windows but no outright aggression directed to another person. However, Dr. Yarema testified that a person suffering from delusions and hallucinating could become aggressive if panicked.

[61] Although he could not say with certainty, he opined that the accused may have been suffering from delusions as a common effect of psilocybin intoxication. If in such a state of delirium, Dr. Yarema explained that the accused would have had no control over his actions and a highly altered level of consciousness. In typical patients, this will often manifest itself in groaning, inability to vocalize or respond to questions and a willingness to fight.

[62] Dr. Yarema’s review of the evidence at trial included the observations of others that the accused had lost touch with reality and was unresponsive to people trying to communicate with him, that he showed lack of judgment and disorientation by remaining outside naked in frigid temperatures, that he was “roaring” and incoherent. Consistent with the expected resolution of symptoms arising from hallucinogen toxic syndrome, he noted that the accused’s vital signs began to normalize by about 6:00 – 8:00 a.m. that morning as indicated in the medical records.

[63] Based on the evidence from trial, Dr. Yarema opined that the accused was in a state of automatism at the time of the alleged offences.

Expert Evidence: Dr. Thomas Dalby

[69] Dr. Dalby also conducted a personality assessment inventory of the accused, described as a rather broad-based and general assessment tool. The tool uses standard questions, the answers to which are used to provide a computer-generated report. Based on his interviews of the accused and others and on the personality assessment inventory, Dr. Dalby found no evidence of any mental disorder in the accused before or after the time of the offence.

[70] Further, based on the information he had regarding the accused’s behaviour at the time of the offence and the information regarding the consumption of psilocybin immediately beforehand, he concluded that the accused was in a state of short-term but acute delirium at the time. He described such a state as including the following indicia:

1. Not knowing where you are or who you are;
2. Being confused;
3. Not recognizing people whom you know;
4. Losing sense of time;
5. Inability to process or respond to information;
6. Inability to focus or to pay attention;
7. Deficiencies in motor and/or language functions;
8. Experiencing hallucinations and/or delusions;
9. Significant sensory disturbances;
10. Feelings of disorientation, anxiety and panic, including a heightened “fight or flight” response;
11. Increased heart rate, blood pressure and body temperature; and
12. Inability to retain memories of events during delirium.

[71] These indicia are consistent both with the criteria in the DSM-5 for psilocybin intoxication delirium acute hyperactivity and with the third-party observations of the accused on the morning of January 13, 2018.

[72] Dr. Dalby agreed with Crown counsel that there were no reported cases of a person suffering psilocybin intoxication and hurting someone else, as opposed to themselves. However, similar to Dr. Yarema, Dr. Dalby opined that it was reasonably foreseeable that a person who is disoriented and paranoid could become aggressive.

[73] Dr. Dalby’s conclusion was that the hallucinogenic psilocybin was the “clear causative factor” to explain the accused’s behaviour, despite accepting that no one could definitively say how much psilocybin the accused actually ingested. Similar to Dr. Yarema’s testimony, Dr. Dalby’s review of the medical literature on the effects of psilocybin consumption indicated that it is virtually impossible to regulate the potency of the psilocybin consumed from natural magic mushrooms.

[76] While no expert witness was able to give precise predictions of the interaction of psilocybin with alcohol, I accept the evidence of Dr. Yarema that the combination of two intoxicants which both inhibit judgment and impair one’s senses would worsen those effects. Therefore, the disparity of the accused’s self-reported consumption of alcohol, in my view, does not affect the medical opinion evidence of his condition at the time of the alleged offences.

[79] While I sympathize with the difficulty in confronting a defence of this nature, I do not agree with that characterization of the evidence. There are multiple sources, including the DSM5, the two expert witnesses at trial and a host of medical literature exhibited at trial which all describe the kinds of behaviour associated with drug-induced extreme intoxication and do so without reference to this case. When those descriptions are compared with the behaviours of the accused, we have an objective standard by which to assess his behaviour.

Conclusions on the Accused's State of Mind

[80] R v Stone made it clear that, to be successful in a plea of non-mental disorder automatism, an accused should present supporting expert psychiatric evidence. Mr. Brown has done so.

[81] The list of diagnostic criteria in the DSM-5 for substance intoxication delirium includes:

A. A disturbance in attention;

B. A short period of time over which the disturbance develops;

C. Disturbance in cognition (memory deficit, disorientation, language, perception);

D. No other pre-existing condition to explain the disturbances;

E. Evidence of substance intoxication.

[83] Stone also directs me to consider the corroborating evidence of bystanders....

[84] Mr. Brown testified himself that he began to feel “wonky” in the early morning hours of January 13, 2018 and that he has no memories or ability to describe what happened after that. While I appreciate that the nature of an automatism defence may logically minimize the value of the accused’s own evidence, I accept Mr. Brown’s testimony that he does not remember these events. I accept that, unlike virtually every other case involving a plea of non-mental disorder automatism, he did not know Ms. Hamnett or the Varshneys and had absolutely no motive to break into their homes or to hurt them.

[86] His family, friends and the medical history given to Dr. Dalby all indicate no history of mental illness, no recurrences of anything similar and thus no reason to believe that the source of this delirium was internal nor likely to recur.

[87] I therefore accept that Mr. Brown was suffering from extreme intoxication akin to automatism or what was described during the trial as a form of substance intoxication delirium. I accept that the cause of this was external, namely the ingestion of magic mushrooms or psilocybin. I also accept that there is no indication of any likelihood of recurrence, which would have required some evidence of a particular susceptibility of this accused to the effects of psilocybin along with some evidence of a pattern of substance abuse, none of which was presented.

[93] The law presumes that all persons, including Mr. Brown, are acting voluntarily. However, in the wake of Daviault and Stone, and the finding of Justice deWit on the constitutionality of s.33.1 of the Criminal Code, the law also says that an accused is able, upon a proper evidentiary foundation, to negative the presumed voluntariness of his actions on a balance of probabilities. In my opinion, Mr. Brown has done so.

[96] While the defence of automatism is said to be rarely available – and there may be solid policy reasons for that – there is no question in my mind that it is appropriately applied in this case.

[97] Acquittals shall be entered on both counts of the indictment.

R v Robertson (ABQB)

[March 3, 2020] – Sexual Assault - Credibility of the Complainant's Testimony Regarding Lack of Consent  – 2020 ABQB 158 [Madam Justice L. Bernette Ho]

AUTHOR’S NOTE: Some recent cases, including this one have come out to reinforce that a complaint's subsequent testimony about a lack of consent for sexual activity must still be weighed like all other testimony in a criminal court room. In other words, the unqualified belief of complainants of the #metoo movement has no place in such judicial assessments. Moreover, it has become more important to publicly state so due to that movement's capture of the public mood of the day to reinforce why the assessment of evidence in a courtroom must remain robust. Relaxing the assessment of testimony of complainants in sexual assault cases would cause the burden to shift in criminal trials and that must be resisted by all the parties in the justice system. 

Further, traumatic events may cause victims to fail to remember events clearly.  That is a fact of litigation in the area of sexual assault.  However, that fact alone does not mean their evidence should be judged less harshly than other witnesses. Proof beyond a reasonable doubt remains an exacting standard.

Pertinent Facts

[1] The Accused is charged with one count of sexual assault contrary to section 271 of the Criminal Code of Canada in relation to an incident that allegedly occurred on October 5, 2017. The Accused admitted that he put his fingers into the Complainant’s vagina that night. Relative to this act, the only issue before me is consent and the Accused has raised the defence of honest but mistaken belief.

[2] The Complainant has also alleged that the Accused performed oral sex without her consent on the same night.

The Complainant's Evidence

[4] The Complainant and the Accused had a conversation two days prior to the alleged sexual assault at which time she told the Accused that she did not wish to engage in any sexual activity “below the belt” and when the time came, she would be the one to initiate any such activity. She clarified this meant she did not want the Accused touching her vagina, her buttocks or anywhere near that area.

[6] The Complainant felt bad that she did not prepare anything for the Accused for his birthday so she decided to dress up for him. She wore her hair in pig tails and a red plaid skirt hidden underneath sweat pants. She testified that the Accused often gave her a hard time about always wearing jeans and joked about wanting to see her wear a skirt and put her hair in pig tails. She felt this was based on a racist joke or stereotype.

[9] At approximately 9 pm, the Accused told the Complainant that she had to leave because he wanted to meet friends. The Complainant left to meet some of her friends who were in a room two doors down from the Accused’s room.

[10] The Complainant was later contacted by the Accused. It was approximately 10:15 pm. The Complainant showed up at his room wearing the skirt from earlier that evening.

[12] The Complainant testified that despite her saying no, the Accused took off her underwear and started to touch her. In direct examination, the Complainant testified that she was on top of the Accused and that their position changed when the Accused started to touch her. She described that he went below her when things started to escalate, in the sense that he went lower on the bed while she remained in the pillow area, though she could not recall whether they were facing each other. She stated she was not on top of him when their activity started to escalate.

[13] The Accused then reportedly put his hand down her panties and started to touch her by putting his fingers inside her vagina. She did not know which hand the Accused used, nor how many fingers he used. She could only recall a lot of pain coming from her vagina. She thought that the Accused put his fingers in her vagina three to five times.

[14] She testified that she felt panicked and dizzy, and did not know what to do. She remembered trying to scream when his fingers were in her vagina because she was in a lot of pain, but she was not completely sure if she did or not. The Complainant acknowledged that she did not know what sounds she was actually making.

[11] The Complainant testified that they started talking and then “making out” on the Accused’s bed. Their activity escalated to taking off her shirt and bra. The Accused’s shirt was also removed at some point. The Accused asked the Complainant if he could go further and she replied no. The Complainant could not recall if the Accused said anything in response. She also told the Accused that she had her period and she did not want to do anything more. The Accused reportedly told her that he did not care.

[12] The Complainant testified that despite her saying no, the Accused took off her underwear and started to touch her. In direct examination, the Complainant testified that she was on top of the Accused and that their position changed when the Accused started to touch her. She described that he went below her when things started to escalate, in the sense that he went lower on the bed while she remained in the pillow area, though she could not recall whether they were facing each other. She stated she was not on top of him when their activity started to escalate.

[13] The Accused then reportedly put his hand down her panties and started to touch her by putting his fingers inside her vagina. She did not know which hand the Accused used, nor how many fingers he used. She could only recall a lot of pain coming from her vagina. She thought that the Accused put his fingers in her vagina three to five times.

[14] She testified that she felt panicked and dizzy, and did not know what to do. She remembered trying to scream when his fingers were in her vagina because she was in a lot of pain, but she was not completely sure if she did or not. The Complainant acknowledged that she did not know what sounds she was actually making.

[16] After the Accused finished digitally penetrating her, the Accused asked the Complainant if she was okay. The Complainant replied that she was in a lot of pain and was very frazzled and did not know what to do. She indicated that the Accused then proceeded with oral sex, and clarified that he used his tongue to lick her vagina. She could not recall if he inserted his tongue in her vagina because she was too numb and in too much pain at the time.

[19] The Complainant said that the Accused asked her to have intercourse or perform oral sex on him. He reportedly moved her hand towards his penis. The Complainant flinched and moved her hand away. At this point, the Accused reportedly pushed her and told her to leave his room if she did not want to do anything. She also recalled him saying that he wanted her to leave or he would rip her clothes off, which she took seriously until he told her that he was joking. The Complainant said she felt scared and remembered wanting to leave. She initially estimated that she left within five minutes, but later acknowledged during cross-examination that she remained in the Accused’s room almost an hour after the incident.

[20] The Complainant went back to her room and threw away all of her clothes before taking a shower. She then went to her friend’s room.

[21] The next day while in a class, the Complainant had a panic attack. A male friend noticed and took her to the campus wellness centre for assistance. After that, she went to the police who in turn referred her to the Sheldon Chumir Centre for evaluation by a physician with the Calgary Sexual Assault Response Team (CSART).

Testimony of the Accused

[23] The Accused confirmed that he met the Complainant during orientation week and they began dating. The Accused acknowledged that he and the Complainant did have a conversation about their relationship a few days prior to October 5, 2017 but denied that the Complainant said anything specific about activity “below the belt”. Rather, they agreed to proceed at a “slow pace”. He acknowledged that he told the police during his interview that they had agreed to proceed at “her pace”. At trial, he testified that these were, in his mind, one and the same.

[26] After meeting up with friends living on the basement level of residence, the Accused went to the campus bar. The Accused had 2 margaritas and danced with friends. He testified that he did not have more drinks because the drinks cost $11 each. He estimated staying at the bar for an hour and a half, which he later acknowledged was about an hour, before going back to hisroom. He remembered to contact the Complainant when he returned to his room to let her know he was back and she came to his room. This time she did not have the grey sweatpants on.

[28] According to the Accused, before he reached his hands down her pants, he asked the Complainant, “Are you okay with this?” The Complainant replied in the affirmative. During cross-examination, the Accused initially testified that the Complainant told him she was on her period and that the remark was made without context. He later indicated that the Complainant told him this as more of a “head’s up”. The Accused put his hands down the Complainant’s skirt, rubbed her vagina and then put his fingers in her vagina. The Accused asked the Complainant if she wanted to stop, and she said no.

[29] The Accused continued to kiss the Complainant and described her as moaning pleasurably. He handed the Complainant a pillow for her to moan into so that she would not feel embarrassed or intruded upon. He insisted he did this out of courtesy to the Complainant. He wanted to make sure that no one in residence heard the noise she was making through the thin walls. The Accused continued to rub the Complainant’s vagina while she moaned into the pillow. The sexual encounter lasted approximately 10 minutes.

[30] He denied performing oral sex on the Complainant because that would have been a “very different” act since she was on her period. He also denied asking the Complainant to have sex or perform oral sex on him, or attempt to have the Complainant touch his penis. In his view, all of those steps would have been inconsistent with a slow pace. He also denied saying that he was going to rip the Complainant’s clothes off or pushing her.

[31] The Accused testified that the two remained in bed talking for approximately an hour afterwards and near midnight, the Accused asked the Complainant to return to her room because he was tired. The Complainant apparently wanted to stay longer, but she ultimately left his room.

Assessment of the Evidence of the Accused

[54] The Court of Appeal recently clarified what was intended by the phrase, “not confident they can accept the Crown’s version of events” referenced in Ryon. At paragraph 18 of Achuil, the Court noted that “…it may be safer to revert to the wording proposed in R v Gray, 2012 ABCA 51 at para 42, specifically:

In that context, if the accused’s evidence denying complicity or guilt (or any other exculpatory evidence to that effect) is believed, or even if not believed still leaves the jury with a reasonable doubt that it may be true, then the jury is required to acquit. (Again subject to defences with additional elements such as an objective component).

[55] Thus, the W(D) instruction reinforces that the onus rests with the Crown throughout the trial to prove all elements of the offence beyond a reasonable doubt. Where there are two irreconcilable versions of the events the trier of fact does not bear the responsibility of resolving the broad factual question of what happened:  R v Avetysan, 2000 SCC 56 (CanLII), [2000] 2 SCR 745 at para 21.

Sexual Assault and the Defence of Consent

[56] In R v Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 SCR 330 (SCC) Justice Major, writing for the majority, comprehensively reviewed the elements of the offence of sexual assault....

[57] Later at paras 29 and 30, Major J wrote:

While the complainant’s testimony is the only source of direct evidence as to her state of mind, credibility must still be assessed by the trial judge, or jury, in light of all the evidence. It is open to the accused to claim that the complainant’s words and actions, before and during the incident, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place. If, however, as occurred in this case, the trial judge believes the complainant that she subjectively did not consent, the Crown has discharged its obligation to prove the absence of consent.

The complainant’s statement that she did not consent is a matter of credibility to be weighed in light of all the evidence including any ambiguous conduct. The question at this stage is purely one of credibility, and whether the totality of the complainant’s conduct is consistent with her claim of non-consent. The accused’s perception of the complainant’s state of mind is not relevant. That perception only arises when a defence of honest but mistaken belief in consent is raised in the mens rea stage of the inquiry.

[58] In R v JA, 2011 SCC 28 (CanLII), [2011] 2 SCR 440, the Supreme Court again dealt with consent as it related to sexual assault. The Chief Justice, writing for the majority, summarized the Court’s analysis of the actus reus from Ewanchuk at paras 45-47:....

Rather, the absence of consent is established if the complainant was not experiencing the state of mind of consent while the sexual activity was occurring.

The only relevant period of time for the complainant’s consent is while the touching is occurring: Ewanchuk, at para. 26. The complainant’s views towards the touching before or after are not directly relevant. An offence has not occurred if the complainant consents at the time but later changes her mind (absent grounds for vitiating consent). Conversely, the actus reus has been committed if the complainant was not consenting in her mind while the touching took place, even if she expressed her consent before or after the fact....

[59] With respect to the mens rea of sexual assault, I must consider the common law and section 273.1 and 273.2 of the Criminal Code. If an accused raises the defence of honest but mistaken belief in consent, there must be plausible evidence in order to give such defence an air of reality. Further, if the accused was reckless, willfully blind, or failed to take reasonable steps in the circumstances known to the accused at the time to ascertain that the complainant was consenting, the accused may not rely on honest but mistaken belief in consent. Silence, passivity and ambiguous conduct do not constitute consent from the perspective of the analysis of the mens rea of the accused: Ewanchuk at paras 51 and 52. For this reason, the Court in R v Barton, 2019 SCC 33 at para 92 described the defence more accurately as the “honest but mistaken belief in communicated consent” [emphasis in original].

After-the-Fact Conduction - Deletion of Text Messages by Accused

[66] During final argument, the Crown asked that I draw an inference against the Accused because of the actions he took to delete photos and messages from his phone, and in the case of the video of the Complainant, modify it and copy it back onto the smart phone. Specifically, I was asked to infer consciousness of guilt on the part of the Accused based on his after-the-fact conduct in regards to the issue of consent.

[67] The Supreme Court of Canada’s decision in R v Calnen, 2019 SCC 6 addresses the proper use of after-the-fact conduct evidence. While a fact finder may draw particular inferences from an accused’s words or action, there may be more than one available reasonable inference. In such case, it is up to the trier of fact to determine which inferences they accept and the weight to ascribe to those inferences: Calnen at para 112. In this respect, counsel and trial judges are directed to specifically define the issue, purpose and use for which the evidence is tendered and articulate the reasonable and rational inferences which might be drawn from it: Calnen at para 113.

[68] I am not prepared to draw the inference requested by the Crown based on the evidence outlined in the Statement of Admitted Facts for the following reasons.

[69] First, there is no evidence that the content of the text messages or photos deleted by the Accused, or the video that was modified and re-saved to the Accused’s smart phone, contained anything which could be construed as being inculpatory relative to the issue of consent. The Complainant testified during her direct examination that she received a text message from the Accused on October 6 asking her what she was up to. She did not reply before deleting that text message, as well as all messages from the Accused, on the advice of her friends. The content of the deleted text message is consistent with the Accused’s testimony.

[70] Second, during cross-examination, the Accused testified that he was not aware the Complainant had gone to the police and reported a sexual assault until October 12, being the day after that the deletions and modifications on the Accused’s smart phone occurred. As Crown counsel established during cross-examination, the Accused had no reason to believe when he went to the police on October 12 that his smart phone would be taken away. On that date, the Accused first learned of the Complainant’s allegation and that he was being charged.

Analysis of the Evidence

[After rejecting several aspects of the Accused's evidence...] [88] Even though I have rejected some of the Accused’s evidence, I am still left with his testimony that the Complainant said yes, and then said no when he asked her if she wanted him to stop. I am mindful that the Supreme Court of Canada noted in R v Lifchus, 1997 CanLII 319 (SCC), [1997] 3 SCR 320 that reasonable doubt does not mean that a charge must be proved to an absolute certainty, but more is required than proof that an accused is probably guilty. The burden of proof of beyond a reasonable doubt is a heavy one. After considering the Accused’s evidence within the context of all of the evidence before me, I am not satisfied beyond a reasonable doubt that the Complainant did not consent to the act of the Accused putting his fingers in her vagina. I also am not satisfied beyond a reasonable doubt that the Accused performed oral sex on the Complainant.

[89] The process of adjudication involves more than comparing the Accused and the Complainant’s version of events and as indicated in W(D), a trial is not a credibility contest. That said, I agree with defence counsel that there were a number of inconsistencies in the Complainant’s evidence.

[90] One area where the Complainant’s evidence was inconsistent was in relation to time. The Complainant initially testified that she attended the Accused’s room on the first occasion during the late afternoon, and returned to his room the second time around 8:30 pm. She later clarified that she first attended the Accused’s room between 8:30 and 9:00 pm and that she returned for the second time from 10:30 and 11:30. Despite Crown counsel taking the Complainant back to her police statement for the purposes of confirming timing, the Complainant shortly thereafter agreed with defence counsel during cross-examination that she remained in the Accused’s room until approximately 1:30 am. All of this must be considered in light of the Complainant finally acknowledging in cross-examination that she left the Accused’s room close to midnight at 11:53 pm.

[91] The Complainant also provided inconsistent testimony around the amount of time that she remained in the Accused’s room after the sexual activity. During her direct examination, the Complainant reported leaving the Accused’s room within five minutes after the Accused digitally penetrated her, performed oral sex, and demanded intercourse and oral sex. She testified that the Accused told her to leave or he would rip her clothes off, which she said he was jokingabout. However, during cross-examination, the Complainant acknowledged that she stayed in the Accused’s room for almost an hour after the sexual activity between herself and the Accused, talking with him. I expressly reject the myth or stereotype related to how a victim of sexual assault should react after an assault, but point to this difference in her evidence simply for the purpose of illustrating this inconsistency in her evidence.

[92] The Complainant also gave different accounts of her body position relative to what was happening between her and the Accused, and how the pillow was involved. During her direct examination, the Complainant first testified that the Accused took off her panties and started to touch her vagina. She also testified that she was no longer sitting on top of the Accused when the sexual activity between them started to escalate. The Accused had moved lower on the bed while she remained near the pillow area. She later testified that the Accused put his hand down her underwear and started to touch her, so the Complainant had a different recollection as to whether her panties were removed or not. Also, near the end of the Complainant’s direct examination, she stated that she was sitting on top of the Accused when he first put his fingers in her vagina causing her to scream out loud, which was different from her earlier testimony. It was at this point that the Accused allegedly pushed her head into a pillow. During cross-examination when asked about her body position, she testified that she was not exactly sure as to their body positions and what was happening, but remembered that the Accused had his fingers in her vagina and she had a pillow in front of her face. She also acknowledged during crossexamination that she told the police the Accused put a pillow in front of her face and she proceeded to voluntarily hold the pillow in front of her face so that no one would hear her. The Complainant was not sure if she actually screamed words or just muffled sounds.

[93] In my view, it is entirely plausible for a sexual assault victim to have difficulty recalling with precision the exact actions or positions during a traumatic event such as an assault. However, in assessing a witness’s testimony, I am required to apply the same standard of assessment to the evidence of the Complainant and Accused, always keeping in mind that the Crown bears the burden of proof. Thus, I am required to consider all of the internal inconsistencies in the Complainant’s evidence and consider how that impacts her credibility or the reliability of her evidence.  [Emphasis by P. Milczarek] [94] The British Columbia Court of Appeal wrote in R v RWB, [1993] BCJ No 758 at para 29:

While it is true that minor inconsistencies may not diminish the credibility of a witness unduly, a series of inconsistencies may become quite significant and cause the trier of fact to have a reasonable doubt about the reliability of the witness’ evidence. There is no rule as to when, in the face of inconsistency, such doubt may arise but at least the trier of fact should look to the totality of inconsistencies in order to assess whether the witness’ evidence is reliable.

[95] In this case, the totality of inconsistencies in the Complainant’s testimony contributes to my reasonable doubt. As I noted earlier, the burden of proof is a high one and maybe or probably guilty is not the standard in law. I conclude that I must acquit the Accused of the charge.