[August 10, 2023] Misapprehension of Evidence by Failing to Consider Evidence on a Material Issue - Sexual Assault and Contrary Evidence of Some Consent [Reasons by Tholl J.A. with Leurer and McCreary JJ.A. concurring]
AUTHOR’S NOTE: It is important to note that consent law in sexual assault is clear that broad advance consent is not possible and consent for one act does not mean consent for another. However, when a complainant testifies to a state of events that involve no consensual acts and there is other evidence that suggests at least some consensual acts, a judge is obligated to reconcile that evidence with their conclusions on the case. It is easy to come to firm conclusions if you ignore evidence to the contrary. The law requires the judge to grapple with all contrary evidence even if the rest of the evidence convinces them of guilt. Here, a conviction was overturned even though it was possible to sustain it on evidence of the complainant because the judge failed to account for a 3rd party's evidence of consensual kissing before the sexual assault; any consent was contrary to the complainant's account, though possible due to her intoxication.
 J.G. was convicted of sexually assaulting K.C.: R v J.G., 2022 SKQB 110 [Trial Decision]. He appeals his conviction, asserting that the trial judge erred by ignoring or failing to appreciate relevant evidence, failing to recognize the significance of inconsistencies in K.C.’s evidence, applying a different level of scrutiny to his evidence as compared to that of K.C., and rendering an unreasonable verdict.
 K.C. was 15 years old at the time of the events. J.G. was 21 years old. On approximately May 2, 2017, after sharing a mickey of vodka, K.C. and a friend went to a bar, despite being underage. There, they interacted with J.G. and some other people. K.C. and J.G. had never met before that evening. K.C. had one drink at the bar and played some pool before the group left, bought some alcohol, and went to a house to continue socializing. At the end of the evening, J.G. had vaginal and anal intercourse with K.C. on a couch in the basement. K.C. reported the incident to the police, and J.G. was charged with sexual assault (s. 271 of the Criminal Code) and sexual interference (s. 151 of the Criminal Code).
 J.G. admitted to having sexual intercourse with K.C. but asserted that it was consensual and that he believed she was 19 years old.
III. TRIAL DECISION
 …The relevant material evidence was the fact that J.G. and K.C. did not know each other, K.C. testified that J.G. did not know her age, and J.G. testified that he believed K.C. was 19 because he met her in the bar. Applying s. 150.1(4), R v W.G., 2021 ONCA 578, 405 CCC (3d) 162, leave to appeal to SCC refused 2022 CanLII 21664, and Carbone, the trial judge found that the Crown had not proven beyond a reasonable doubt that J.G. did not take all reasonable steps to ascertain K.C.’s age or that J.G. believed that she was underage or that he was wilfully blind or reckless regarding her underage status. This aspect of the Trial Decision is not challenged by the Crown in this appeal.
 … he found that the Crown had not proven beyond a reasonable doubt that K.C. was incapacitated by alcohol to the point that she did not have the capacity to consent. This finding is also not challenged by the Crown on appeal.
 Lastly, the trial judge turned to the issue of whether the Crown had proven beyond a reasonable doubt that K.C. had not consented to the sexual activity with J.G….
… Neither party takes issue with the trial judge’s recitation of the applicable law.
 … He further concluded that K.C. did not communicate her consent and that J.G. did not have an honest but mistaken belief in communicated consent.
 The grounds of appeal raised by J.G. are set out in his factum:
A. The learned Trial judge failed to appreciate relevant evidence which raised a reasonable doubt as to the guilt of the appellant and more particularly disregarded or failed to consider evidence which would’ve directed to the issue of innocence.
 A misapprehension of evidence or a “failure by a trial judge to consider evidence relevant to the ultimate issue is an error of law” (R v Necroche, 2018 SKCA 24 at para 38). As discussed by Doherty J.A. in R v Morrissey (1995), 80 OAC 161 (CA), a “misapprehension of the evidence may refer to a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to evidence” (emphasis added, at para 83). Justice Doherty further noted that “[w]here a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction then ... the accused’s conviction is not based exclusively on the evidence and is not a ‘true’ verdict” (at para 93). Later, in the same paragraph, he added the following: “If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice. This is so even if the evidence, as actually adduced at trial, was capable of supporting a conviction”.
 In R v Lohrer, 2004 SCC 80 at paras 1–3,  3 SCR 732, Binnie J., speaking for a unanimous Supreme Court, agreed with Doherty J.A.’s observations. He also emphasized that Morrissey “describes a stringent standard” and that the misapprehension of evidence “must go to the substance rather than to the detail” (at para 4):…
 In this case, J.G. asserts that the trial judge ignored crucial testimony from J.S. pertaining to whether K.C. had consented to sexual intercourse and had communicated that consent. As I earlier noted, J.S. lived at the house where the incident occurred. On the night in question, J.S., who was sober during the events, was socializing with the people who had come to her house from the bar, including K.C. and J.G. Around midnight, she asked the four members of the group who were in her bedroom with her – K.C., K.C.’s friend, J.G., and R.P. – to leave the room because she had school the next morning and wanted to sleep. The four persons went to an adjacent room, which had a couch and a bed. At some later point, J.S. came out of her bedroom. She testified that she observed the following:
Q Okay. And can you tell me about that?
A I turned on the light and [R.P.] and [K.C.’s friend] were making out and so were
[J.G] and [K.C.].
Q Black leather. How -- and -- and so did you interrupt them?
A I just -- I didn’t mean to. I turned on the light and saw what [was] happening and
turned it off and went back to my room and blast the music.
Q Okay. Did anyone react when you turned the light on?
A [R.P.] and [K.C.’s friend] stopped, but [J.G.] and [K.C.] kept making out.
Q They kept making out? A M-hm.
Q And that’s when you turn on a light and -- and, if I’m not mistaken, [K.C. and J.G.] were making noises that associated with sex --
Q Yeah. You could hear them? And when you turned on a light, you’re saying [R.P.] and [K.C.’s friend] reacted, but [K.C.] and [J.G.] just kept --
A Kept --
Q -- kept --
A -- making out. Yeah.
Q All right. And as I -- and I just want to make this clear, you said: (as read)
[K.C.] was on top of him and he was -- she was kissing him. A Yes.
 K.C. testified regarding the portions of the incident that coincided in time with what J.S. observed and in response to her recorded police interview: [Statement to police (8 May 2017) – video-recorded statement tendered under s. 715.1 of the Criminal Code]
Q: …What position were you in, what position was he in, during the intercourse?
A: I’m pretty sure he was sitting down and on the couch and like he had me like on like top of him, with like my knees to the side and, and like all I remember is like him constantly telling me to Shh, cause I’m pretty sure I was crying and kinda screaming and I’m pretty sure he like he had like my mouth on his shoulder and like just whispering in my ear telling me to Shh like Stop you gotta be quiet.
Q: Okay so once he took his clothes off then what happened?
A: That’s when he got on top of me and I was laying on that couch.
A: But like he came on top of me and then he like grabbed my legs and like wrapped
them around him, but like that couch was broken and so I don’t, and so I think that’s when he like grabbed me and he sat down and put me on top of him.
Q: Okay, and then that’s when, is that when you got into the position where your knees were off?
Q: Were you knees off to, one on each side like you’re straddling him ... A: Yeah.
Q: ... or are both knees on one side, or do you remember? A: It was like both my knees on each side of him.
Q: Okay, okay. So at that point is that when he ... A: Yeah.
Q: ... Started having sex with you? A: Yeah.
[Cross-examination responses at trial]
Q Okay. Now, I’m also going to talk -- [J.S.] -- I’ll just come right out and say it, [J.S.] says she saw you and [J.G.] making out. You were kissing him, you were on top of him, you were making out in the same room, they’re on the bed, and yeah, like -- and then, I just -- she went back to her room after seeing you and [J.G.]. What do you say to that?
A That I don’t recall, and I don’t think there’s any consent of a 15 year old who is under the influence.
Q M-hm. Okay. I -- I agree. But would you agree with me that it looks like there might have been consent, whether or not you were 15?
A There is no consent with someone who is under the influence.
Q All right. And then, the next memory, you are -- actually have is basically being on top of [J.G.]. Okay, he was sitting on the couch, and you were on top of him; correct?
A Yes. Yeah.
Q And you have no idea how that happened? A No.
Q Okay. And I’ll go over -- I know I’ve asked you this before, but as you know, I want to confront you with what other people have said, and one of them of course is [J.S.], and she has given a statement which says, [K.C.] was on top of him kissing, making out with [J.G.]. Could that have happened?
A It could.
Q Could it? Are you saying, yes? A Yeah, that could have happened.
Q And then she says, she turned on the light, and [R.P.] and [your friend] stopped, but [you] and [J.G.] just continued making out. That also could have happened?
A I don’t recall that.
 The trial judge found as follows regarding the sexual activity (Trial Decision):
 I accept that J.G. undressed her and placed her on top of him, with her legs straddling him and that he later pushed her on her back and had vaginal and anal intercourse with her. I accept that J.G. placed her in a position where she was bent over backwards over the side of the couch and I accept that she felt pain in her vagina and anus. I accept her testimony that he “hurt me a lot”. I also accept that she did not know who J.G. was at that time and that she felt “grossed out”.
 J.G. argues that the trial judge, in reaching these conclusions, overlooked or ignored J.S.’s evidence regarding what she saw when she left her bedroom. He submits that J.S.’s observations contradicted portions of K.C.’s testimony, supported his description of consensual sexual relations, and were directly relevant to consent. J.G. contends that the trial judge erred by failing to take this evidence into account when determining whether the Crown had proven an absence of consent beyond a reasonable doubt.
 In the Trial Decision, J.S.’s testimony of what she observed when she left her bedroom is not mentioned in either the summary of the evidence or in the analysis. In closing argument, defence counsel repeatedly pressed the significance of J.S.’s evidence to the issue of consent. Despite its importance having been highlighted during submissions at trial, the only reference the trial judge made to J.S.’s evidence is to the fact that K.C. went into J.S.’s bedroom after the sexual activity was over and was crying: see paragraphs 113, 116, and 117 of the Trial Decision.
 Here, I find that the trial judge did not simply fail to record J.S.’s observations. There is nothing in the Trial Decision – read piece by piece or read as a whole – that provides any indication that he considered J.S.’s testimony on what she observed when she exited her bedroom when he made his finding that the Crown had proven the absence of consent beyond a reasonable doubt. Instead, the trial judge overlooked this portion of J.S.’s testimony. The question is whether this omission matters. In my view it does.
 It is beyond doubt that K.C. being on top of J.G., kissing him, and “making out” with him does not demonstrate that she consented to sexual intercourse. If that were the extent of J.S.’s testimony, a new trial would not be justified. However, J.S.’s testimony, vague and imperfect as it was, might be interpreted as evidence, based on J.S.’s observation, that K.C. was actively participating in consensual sexual activity with J.G. at the point when J.S. left her bedroom and turned on the light in the adjacent room. But the trial judge did not take that aspect of her evidence into account at all.
 I find that J.S.’s testimony was material because it spoke to the issue of whether the portions of the sexual activity she observed were consensual. This is relevant not only to the conduct that J.S. observed, but also because it could support J.G.’s description of an ongoing sexual encounter between J.G. and K.C. of increasing intensity: all of which, on his telling, was consensual. Accordingly, although the conduct that J.S. observed was brief, and preceded the other sexual activity, J.S.’s observations were material and had to be accounted for by the trial judge in his fact- finding.
 As noted above, the trial judge only mentioned the testimony of J.S. in three paragraphs of the Trial Decision: paragraphs 113, 116, and 117. It is evident that the trial judge’s reference to her testimony was, however, only to those parts of her testimony that corroborated K.C.’s testimony that she had been upset the morning after the alleged assault took place. Most materially, the trial judge appears to have concluded that J.G.’s trial counsel had conceded that J.S.’s evidence was of almost inconsequential value. I base this upon the trial judge’s statement that he “note[d] that J.G. fairly acknowledges that the evidence of J.S. provided a ‘slight bit of corroboration’ to the testimony of K.C.” (at para 113).
 However, if the trial judge was intending in this statement to encompass all of J.S.’s testimony, I am satisfied that he misunderstood the position taken by J.G.’s trial counsel….
 When read in context, it is my view that J.G.’s trial counsel was conceding that J.S.’s evidence that K.C. had been crying was corroborative of that aspect of the Crown’s case that relied on K.C.’s actions after the sexual activity. He was not conceding that the events that J.S. had observed outside her bedroom were only slightly corroborative of his client’s position that the complainant had consented to the full range of sexual activity that had occurred.
 The failure by the trial judge to account for this part of J.S.’s testimony does not end matters. As previously discussed, not every failure by a trial judge to address evidence justifies appellate intervention. Rather, the evidence must go to the substance of an essential aspect of the trial judge’s decision. In this case, given the relevance of J.S’s testimony to the assessment of the credibility of J.G.’s account, and to the key issue of K.C.’s consent to the entirety of the sexual activity, the error in the matter at hand was significant, and a new trial is required.
 I wish to be clear that I am not making a finding regarding how J.S.’s observations affect the assessment of the other evidence in this matter. That is a determination to be made at a subsequent trial. This judgment simply determines that it was an error for the trial judge to have overlooked or failed to address the portion of J.S.’s testimony where she described what she had seen when she exited her bedroom.
 The appeal is allowed. The conviction is set aside, and a new trial is ordered.