R. v. OWSTON, 2023 SKCA 101, AUGUST 31, 2023.

FACTS: The accused was convicted of the offence of sexual assault.  He appealed from conviction.  The Saskatchewan Court of Appeal indicated that this “appeal is about a complainant’s capacity to consent to sexual activity and the Crown’s burden to prove lack of capacity beyond a reasonable doubt”.

The circumstances involved, were described by the Court of Appeal in the following manner (at paragraphs 2 to 4):

Mitchell Owston was convicted after a trial by judge alone of sexually assaulting the complainant in November of 2017. Mr. Owston and the complainant, who were previously acquainted, met by chance at a local bar. Both were intoxicated, but the complainant was very intoxicated and by 11:00 p.m. the bar refused to serve her any more alcohol. About two and a half hours later, Mr. Owston and the complainant left the bar together in a taxi. The complainant testified that she had no memory of anything that happened from several hours prior to her leaving the bar to the time she woke up the next morning at Mr. Owston’s home. She did not remember socializing with Mr. Owston at the bar or leaving with him. Other witnesses who saw the complainant at the bar testified that she was obviously inebriated – she was slurring her words and had impaired motor skills. The last person who saw the complainant before she left the bar, other than Mr. Owston, was a bouncer, Randy Brandsgaard. He testified that he helped the complainant into a taxi at about 1:30 a.m., asking for and receiving her confirmation that she wanted Mr. Owston to accompany her. Mr. Owston testified that after he and the complainant left the bar, they went to his home and engaged in consensual sex.

Because the complainant had no memory of anything that had happened with Mr. Owston, she later messaged him to ask what had occurred. He told her that they had sexual intercourse without using a condom. Thereafter, the complainant reported to police that Mr. Owston had sexually assaulted her because she did not have the capacity to consent, had no memory of what had occurred and had no intention of having sex with Mr. Owston that night.

The trial judge convicted Mr. Owston of sexual assault. He found that evidence of the complainant’s state of intoxication while at the bar proved that she did not have capacity to consent to sexual activity with Mr. Owston later that night.

The Appeal:

The accused argued that “the trial judge misapplied the test for capacity to consent set out by the Supreme Court of Canada in R v G.F., 2021 SCC 20, 459 DLR (4th) 375 [G.F.]. He also asserts that…the conviction is unreasonable because a finding of incapacity is demonstrably incompatible with the evidence from trial that was not otherwise contradicted or rejected by the trial judge” (at paragraph 5).

HELD: The appeal was allowed, the conviction quashed, and an acquittal entered.

Capacity to Consent:

The Court of Appeal pointed out that a “sexual assault occurs when an individual is intentionally touched for a sexual purpose without their consent. Capacity is a precondition to consent…Canadian courts have often looked to evidence of memory, or physical or motor capacity, to indicate whether a complainant has capacity to consent.  However, in G.F., Karakatsanis J., writing for the majority, made it clear that evidence relating to a complainant’s memory, speech or motor skills is not determinative of whether capacity exists… In considering the test for capacity, the Supreme Court expressly adopted a test with a low threshold, initially set out by the Nova Scotia Court of Appeal in R v Al-Rawi, 2018 NSCA 10 at para 60, 359 CCC (3d) 237 [Al-Rawi]. There, the court held that capacity does not require an individual to have the cognitive ability to consider and understand the risks and consequences associated with the sexual activity in question. An operating mind does not need to be able to rationally reason to have capacity” (at paragraphs 16 to 18).

The Court of Appeal held that “while the trial judge initially stated the law correctly, he ultimately erred in its application. He did not simply advert to incoherent and irrational thinking as relevant evidence; he incorrectly introduced the elements of coherence and rationality into the test for capacity, leading him to conclude, at least in part, that the complainant did not have capacity because she was not capable of rational decision‑making” (at paragraph 20).

The Court of Appeal referred to the trial judge’s decision, in which he stated:

The evidence is overwhelming that [the complainant] had limited comprehension and her reasoning ability was seriously impaired. On the totality of the evidence, I find that she did not have capacity to consent to sexual activity with Mr. Owston. She was not capable of understanding she had a choice to refuse to participate in the sexual activity.

The Court of Appeal concluded that the trial judge erred in equating comprehension with capacity to consent (at paragraphs 21 to 23):

In these key paragraphs, the trial judge states the conclusion that the complainant “had some awareness of her surroundings, but she was incapable of coherent thought and rational decision making”. He then lists the evidence that proves “that conclusion”, which he describes as “overwhelming [evidence] that [the complainant] had limited comprehension and her reasoning ability was seriously impaired” (at paras 127 and 128). He then equates or conflates this with the incapacity to understand she had a choice to refuse to participate in the sexual activity. That constituted error.

Capacity to consent to sexual activity does not require an individual to be able to make rational, logical or reasonable decisions. There is a low threshold to demonstrate capacity in this context, requiring only proof of an understanding of one’s surroundings, the fact that an activity is sexual, the identity of one’s sexual partner(s) and that one can exercise the choice to refuse to participate in the sexual activity.

For these reasons, it is our opinion that the trial judge erred in law by failing to properly apply the law respecting capacity to consent.

I Would Not Have Consented:

The complainant testified that had she had “expected to be picked up by a man she had been dating for several months. She testified that there was ‘no scenario’ in which she would have gone home and had sex with Mr. Owston, and that she would not have had sex with Mr. Owston or anyone else without a condom” (at paragraph 44).

The Court of Appeal indicated that “[e]vidence that could support a complainant’s testimony that they would not have consented depends on the facts…the importance of evidence that could be found to increase the probative value of a complainant’s assertion that they would not have consented reflects the principle that a trial judge must consider all the evidence when deciding if the Crown has proven guilt beyond a reasonable doubt” (at paragraphs 48 and 50).

The Court of Appeal suggested that the issue in this case was “whether the trial judge could reasonably have been satisfied that the only reasonable inference that could be drawn from the evidence as to the complainant’s consumption of alcohol and her actions before she left the bar with Ms. Owston, together with her testimony that she would not have had sex without a condom, was that the complainant lacked the capacity to consent at the time she had intercourse with Mr. Owston” (at paragraph 51).

The Court of Appeal held that the “complainant’s propensity evidence that she would not have had sex with Mr. Owston without a condom adds nothing of significance to this analysis. There was, for example, no evidence that the complainant considered Mr. Owston to be repulsive or, leaving aside her general assertion that she would not have had sex with anyone without a condom, that he could not have been an acceptable sexual partner. She did not seek to avoid him. To the contrary, she chose to be in his company for an extended period despite the intervention of her friend, and ultimately, to voluntarily leave with him…For these reasons, it is our respectful opinion that the trial judge could not reasonably have been satisfied that the only reasonable inference that could be drawn from the evidence was that the complainant lacked capacity when the sexual activity occurred. As such, the finding of guilt on that basis was unreasonable as it could not be supported by the evidence. It must be quashed” (at paragraphs 54 to 56).

Conclusion:

The Court of Appeal concluded that “the evidence at trial was not capable of supporting the trial judge’s finding respecting capacity. There is also no issue respecting whether a finding of guilt based on a lack of consent, as opposed to a lack of capacity to consent, could be supported by the evidence because the Crown has conceded that it did not prove lack of consent at trial. As a result, an acquittal must be entered” (at paragraph 59).