[September 25, 2023] Sexual Assault: Blackout and other Effects of Intoxication [Richards C.J.S., Schwann and Barrington-Foote JJ.A. concurring]
AUTHOR’S NOTE: This is another case from the SKCA reinforcing that a complainant's memory blackout does not signify incapacity for consent to sexual intercourse. A lack of recollection of the period of sexual intercourse signifies a lack of evidence. The Crown has to prove beyond a reasonable doubt that the complainant did not consent at the time of the incident. When this involves examination of the evidence with a lack of memory by the complainant, the Villaroman test applies and the Crown must prove that the guilt of the accused is the only reasonable conclusion. In considering this, the court must consider that intoxication can lead people to do things and make choices they would not have made if they were sober.
 On October 18, 2022, Claude Demong was found guilty following trial by a Provincial Court judge of sexual assault pursuant to s. 271 of the Criminal Code. He has appealed his conviction pursuant to s. 675(1)(a) of the Criminal Code.
 Mr. Demong, who called no evidence and did not testify at trial, did not deny that he had intercourse with the complainant. Rather, the issue was whether the complainant consented or had the capacity to consent. The complainant – who was impaired by drugs and alcohol at the time – testified that she could recall only a very brief and ambiguous interchange with Mr. Demong that may have occurred at or about the time of their sexual encounter. The Crown’s case accordingly depended on circumstantial evidence, and the question to be decided by the trial judge was whether Mr. Demong’s guilt “was the only reasonable conclusion available on the totality of the evidence”: R v Villaroman, 2016 SCC 33 at para 55,  1 SCR 1000 [Villaroman].
 The trial judge concluded that the complainant did not consent. He did not deal with capacity to consent. The key to his decision was the complainant’s evidence that she would never have consented to having sex with Mr. Demong, as he was involved in an intimate relationship with her mother at the time. Circumstantial evidence of that kind is common when the complainant has little or no memory of an alleged sexual assault.
 With respect, we have concluded that the trial judge erred by failing to correctly apply the Villaroman test and that, as a result, Mr. Demong’s conviction must be set aside and a new trial ordered. Our reasons for that conclusion follow.
 The events that led to the charges against Mr. Demong occurred on the afternoon of May 27, 2018. The complainant’s mother had invited Mr. Demong to her and the complainant’s home for drinks. Mr. Demong arrived at approximately 12:45 p.m. The complainant recalled that she consumed two shots of vodka, a taste from a bottle of spiced rum that had been brought by Mr. Demong, and possibly a part of a cooler. It was her evidence that she began to experience a bad headache, and that she felt weak, heavy-limbed, dizzy, like vomiting, and “blackout drunk”. She described her level of intoxication as being nine on a scale of ten but although she was not certain, she thought that her ability to carry on a conversation was “somewhat decent”. She agreed that there were gaps in her memory of the period when she was impaired and that she did not recall “the whole fluid scenario”.
 The complainant testified that she and her mother were on the porch and that she told her mother she was not feeling well and was going to lie down. She said she went to the bathroom, took Advil for her headache and to calm her stomach. It was her evidence that she proceeded to her room and went to bed fully clothed and that the next thing she recalled was waking up with her bottom garments gone. She put on sweatpants and went to the living room, lay down on the couch, and “passed out” until her brother and sisters returned home….
 The complainant testified that she recalled an event that occurred when she was in bed, as follows:
A I do faintly remember seeing (INDISCERNIBLE) Claude over top of me and hearing the sound of running water.
A -- but I just remember hearing his voice. And it went somewhere along the lines of, Don’t worry, your mom is passed out, like, you can make sounds.
 When the complainant was cross-examined about this memory, she affirmed that she was quite certain it was Mr. Demong’s face but that she did not know what was going on at the time. She also said this:
Q Okay. Now, I know today, you -- you said you couldn’t remember if you spoke and you didn’t think you were able to move; is that right?
Q But I think we’ve -- we’ve gone over this again a lot, you just don’t know, right?
A Just can’t remember it, yeah.
Q Can’t remember if you were or were not able to move?
 It was the complainant’s evidence that when she woke up on the couch at 5:00 or 5:30 p.m. she was significantly less impaired. Shortly after, she started to feel what she described as a cramped and burning sensation between her legs and did not know why. She went to the hospital, where she was examined to determine if she had been sexually assaulted. A vaginal swab was taken that was ultimately found to contain Mr. Demong’s DNA. Her blood test disclosed the presence of a metabolite of Clonazepam, a drug that was present in the house as it was prescribed to her mother. The complainant did not know how she came to have that metabolite in her system.
 Angela Filbert, a civilian member of the RCMP, was qualified to give expert evidence as to the effects of alcohol and drugs. She testified that Clonazepam is a central nervous system depressant with side effects that include, among other things, dizziness, sedation, and impaired motor coordination, speech and memory. Those side effects can be exacerbated when it is taken with alcohol. Ms. Filbert explained that in a state of amnesia, which is a common side effect of Clonazepam, an individual could be walking or talking, but later would have no memory of doing so. She agreed that there may be some fragmentary memory recall or none at all and that this is common if Clonazepam is ingested with alcohol.
 As noted above, the complainant also gave what proved to be crucial evidence that she would not have consented to having sex with Mr. Demong. She said that was never a thought in her mind. She also offered the following explanation as to why she would not have done so:
Q Okay. And my last question, you -- on cross it was established you told the police you found the age difference gross between you and Claude, he’s -- he’s basically your parents’ age. And you also said that consent wouldn’t be a conscious answer; how do you know that?
A I would not consciously agree to having sex with Claude, that’s -- was never a thought in my mind. So, I believe subconsciously, that would still not be a thought.
Q And is there any specific reasoning -- or, reasons, why you would -- you would not do that?
A The main thing is because he was with -- not dating, but I’m pretty sure he was having sexual relations with my mother, so, that was a really big no on my part as well. And that’s why I had no issue with him coming over was because he was pursuing my mom, so I had no thoughts in my mind, no doubts or anything; he was there for my mom, I was just there, kind of, as company.
 The complainant also testified that she found the idea of having sex with Mr. Demong was “gross” because he was close in age to her mother and father. She said that at the time she thought he was in his mid-30’s.
A. The trial judge erred by failing to properly apply Villaroman
 When dealing with a case where the Crown’s case is based on circumstantial evidence, Villaroman requires a trial judge to ask whether the guilt of the accused is the only reasonable conclusion available on the evidence as a whole. In R v Learning, 2019 SKCA 5, Caldwell J.A. summarized the approach to be employed in cases involving circumstantial evidence as follows:
 Importantly, the Court in R v Villaroman had earlier commented on the reasoning process in cases of circumstantial evidence, noting:
(a) “The inferences that may be drawn from [an] observation must be considered in light of all of the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense” (at para 30).
(b) “In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts” (at para 35).
(c) “The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt” (at para 35).
(d) “[A] reasonable doubt, or theory alternative to guilt, is not rendered ‘speculative’ by the mere fact that it arises from a lack of evidence. As stated by this Court in [R v Lifchus,  3 SCR 320], a reasonable doubt ‘is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence’: para. 30 (emphasis added). A certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense” (at para 36).
(e) “When assessing circumstantial evidence, the trier of fact should consider ‘other plausible theor[ies]’ and ‘other reasonable possibilities’ which are inconsistent with guilt” (at para 37).
(f) “[T]he Crown thus may need to negative these reasonable possibilities, but certainly does not need to ‘negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused’. …‘[O]ther plausible theories’ or ‘other reasonable possibilities’ must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation” (at para 37; emphasis in original). Drawing on all of this, the Court said (at para 38) that the “basic question” in such cases is “whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.”
 The central issue in this case is whether the trial judge followed this approach. In our view, he did not.
 There was scant direct evidence as to whether the complainant consented to having intercourse with Mr. Demong. She claimed to remember only a “couple of seconds” from the time she went to bed until she woke up and went to the couch. She said she recalled seeing Mr. Demong’s face over top of her and the sound of rushing water, and that it was very dark. She testified that she did not know what was happening or whether there was sex going on. She also said this:
Q Were you able to speak?
Q And why is that?
A I -- I honestly, I don’t recall. I don’t think -- I think I, kind of, just woke up for that couple seconds and then passed right back out because I don’t have any recollection of trying to speak or why I couldn’t speak?
Q How about -- were you able to move?
 The complainant’s proclivity evidence that she would not have consented to intercourse – which the Crown referred to on this appeal as “the one outstanding piece of evidence in this trial” – is certainly relevant and was more than a statement of her general attitudes. She explained her reasons, being her reaction to the difference in their ages and Mr. Demong’s relationship with her mother. It was that evidence which led the trial judge to conclude that she did not consent.
 There was, however, also the complainant’s evidence that she was highly intoxicated, and the toxicology evidence that indicated she had ingested Clonazepam within four days of having her blood tested. The complainant testified that she was relieved by that evidence, as it explained the way she felt and her loss of memory. That supports the conclusion that she ingested the Clonazepam before having sex with Mr. Demong, as the trial judge appears to have found.
 Further, there was Ms. Filbert’s evidence that Clonazepam can impair judgment and the ability to assess risk, and can result in memory impairment and amnesia, with the consequence that, as the trial judge commented in his reasons, “[y]ou could possibly be walking around in an awake state, in a conscious state, talking, appearing normal to others, but you don’t have the ability to recall it”. Ms. Filbert also said that these effects on memory and judgment can be exacerbated by the consumption of alcohol and Clonazepam together. As the trial judge also noted, Ms. Filbert confirmed that a person’s inability to recall as a result of impairment of this kind does not mean that they were unconscious or passed out.
 Courts have repeatedly recognized that intoxication can lead people to do things and make choices they would not have made if they were sober. Expert evidence to that effect, while it may be helpful, is often unnecessary. In R v Garciacruz, 2015 ONCA 27, 320 CCC (3d) 414, for example, the complainant, who had been drinking, testified that she had little memory of the events leading to the alleged sexual assault. Justice Rouleau dealt with her evidence that she would not have had consensual sex with the accused as follows:
 First, there was evidence which gave reason to doubt the complainant's assertion that because of her code of behaviour, she would never have consented to intercourse with the appellant. The complainant testified that she “would never have hung out [alone] with a married man.” This assertion by the complainant was clearly contradicted by the facts of the case. It was the complainant who invited herself to the appellant’s house for wine and guacamole when she knew that the appellant's wife was out of town. Not only was the complainant wrong in her evidence that she would never spend time alone with a married man, but she had done so that very day with the appellant, the husband of her friend.
 Second, without some explanation as to the cause and nature of the blackout condition, it is difficult to conclude, without more, that if she had been in the blackout state, the complainant’s “lack of romantic or sexual attraction to [the appellant], her own code of behaviour and her friendship with [the appellant’s wife]” would govern her actions. [PJM Emphasis]
 This analysis echoes Major J.’s observation in R v Esau,  2 SCR 777, that, in the circumstances of that case, “[a]ny number of things may have happened during the period in which [the complainant] had no memory” (at para 19). See also R v Meikle, 2011 ONSC 650 at paras 41–45, 84 CR (6th) 172.
 As a consequence, there was another inference that should have been considered by the trial judge. Even if the complainant would not have consented to having sex with Mr. Demong if she had been sober or, for that matter, had been less impaired, she may have consented because she was intoxicated. The trial judge not only failed to grapple with this possibility as required by Villaroman but came perilously close to expressly reversing the burden of proof on this point, reasoning as follows:
As for the suggestion in cross-examination that [the complainant] agreed to have sex with Mr. Demong is not something she could remember, is in and of itself not evidence. The trier of fact must take this into consideration in the totality of the evidence that’s submitted.
On this regard, I accept the Crown’s argument on this issue. Without more evidence, it’s speculative on its own, and there being no other evidence to corroborate or support the notion of subjective consent being granted by [the complainant] to have sex with Mr. Demong but forgetting about it, is a necessary consideration to weigh in the totality of the evidence. However, I find it’s absent any factual or evidentiary foundation as it does go to the heart of consent, as defence counsel has argued in its submissions and argument in its case authorities. See R. v. Esau 1997, 116 CCC (3d) 289 at 296, and R. v. Garciacruz, 2015 ONCA 27.
 With respect, this reasoning is contrary to the direction in Villaroman. It would not have been speculation to consider the possibility that the complainant consented, just as it was not speculation to consider if she did not. As Cromwell J. said in Villaroman, the inferences that may be drawn from circumstantial evidence “must be considered in light of all of the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense” (at para 30). As he also explained:
 …In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts: R. v. Khela, 2009 SCC 4,  1 S.C.R. 104 (S.C.C.) at para. 58; see also R. v. Pryce, 2014 BCCA 370, 361 B.C.A.C. 301 (B.C. C.A.) , at para. 10; R. v. Bui, 2014 ONCA 614, 14 C.R. (7th) 149 (Ont. C.A.), at para. 28. Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown's evidence does not meet the standard of proof beyond a reasonable doubt.
 Here, there was no direct evidence as to the issue of consent. There was an absence of evidence as a result of the complainant’s intoxication. Although the complainant said she did not consent, the Crown concedes that this referred to the period before she went to bed, not when she was in bed. The complainant could not give direct evidence of whether she subjectively consented when the intercourse took place, as she did not claim to remember what she was thinking, including during the few seconds that she recalled. To the contrary, she readily admitted that her memory of that incident was not only unclear but limited to the few details she described… [PJM Emphasis]
 Accordingly, the trial judge was obliged to engage with the possibility that the plaintiff consented to the sexual activity. He failed to do so in the manner required by Villaroman, thereby committing an error of law.
 In the result, we would set aside Mr. Demong’s conviction and order a new trial.