Criminal Law - Sexual Assault, Criminal Law - Reasonable Doubt - Credibility, Criminal Law - Elements of the Offence
The trial judge, as directed by the Supreme Court in R v Ewanchuk, 1999 CanLII 711 (SCC), was required to determine whether the element of actus reus in a sexual assault allegation had been proven beyond a reasonable doubt, or stated differently, whether the crown had proven to the required criminal standard that the complainant subjectively believed she had not consented to the sexual act she described in her evidence. The complainant testified that she was under the influence of alcohol to the extent that she was blacking out on and off during what she described in her evidence as sexual intercourse and cunnilingus with the accused. The accused testified that the complainant had indicated she desired sexual intercourse by her advances to him, and by saying “I want you to fuck me.” The complainant admitted that she had no memory of the essential events leading to the sexual activity and testified that it was possible she may have consented to it, but she did not remember if she did. The only evidence about what happened was supplied by the complaint and the accused, they being the only persons present. The trial judge conducted a D.W. analysis of the evidence and considered the Criminal Code provisions relevant to the question of consent in sexual assault trials, including s.273.
HELD: The trial judge ruled that he had a reasonable doubt with respect to the essential question of the complainant’s lack of consent and found the accused not guilty. First, he turned his mind to the presumption of innocence, the reasonable doubt standard of proof, and its application to questions of credibility, which led him to review several case authorities in which the analysis in R v D.W., 1991 CanLII 93 (SCC) was applied, these being R v Ryon, 2019 ABCA 36, R v Levac, 2020 SKQB 171, and R v Panasiuk, 2019 SKQB 258. In instructing himself, the trial judge cautioned himself that credibility is not a contest between the accused and the complaint as to whose evidence is more believable, as such an approach ignores the fundamental principle of the presumption of innocence. A trier of fact must examine all the evidence at the trial to be satisfied with the guilt of the accused beyond a reasonable doubt. If he believes the accused’s evidence, he must acquit him; if he is in doubt as to whom to believe, he must acquit; if he does not have a reasonable doubt based on the accused’s evidence, he must then consider all the evidence to be satisfied with his guilt beyond a reasonable doubt. In this case, the trial judge needed to apply this analysis to the element of lack of capacity to consent. No evidence, including expert evidence, was called concerning the level of consciousness of a person in a blackout. The Crown failed to show the complainant was unconscious at the relevant time. The trial judge concluded based on the evidence presented as a whole that he had a reasonable doubt the complainant was in a state of unconsciousness or did not have an operating mind and so might have consented to the sexual activity described by the accused, there being no other evidence to raise a reasonable doubt that she did not consent.