Mainville, Hamilton, Bachand

Appeal from a verdict of acquittal. Allowed, with dissenting reasons; a new trial is ordered.

The prosecution appeals a judgment acquitting the respondent of a charge of sexual assault. The prosecution’s evidence concerned two incidents of sexual activity that took place within a few hours of each other, one in Magog (the only incident concerned in the appeal) and the other in Bonsecours. The victim, who had consumed alcohol, has no memory of this sexual activity,

The trial judge erred in law in his analysis of the victim’s capacity to consent to sexual activity. First, he appears to have considered the respondent’s testimony to be direct evidence of the victim’s capacity to consent to sexual activity and of the fact that she had indeed consented. However, the victim’s testimony is the only element that can constitute direct evidence of her state of mind when an assault was committed. An accused may testify on circumstantial facts likely to raise a reasonable doubt regarding the testimony of a victim who denies consenting to the sexual activity; the accused’s testimony is also admissible when, as in this case, the victim is not able to testify directly about her state of mind at the time the activity took place. However, this testimony will constitute nothing more than one piece of circumstantial evidence among others of the victim’s state of mind.

The judge committed another, much more significant error in finding that the victim’s testimony was of no use to him in his analysis of her state of mind during the sexual activity because she had no memory of it. The potential usefulness of the testimony of a victim who is unable to remember sexual activity is well established. In this case, the judge did not take into account any of the circumstantial facts related by the victim in his analysis of the consensual nature of the sexual activity. They are undeniably relevant, however, because several of them tend to contradict the respondent’s account of how the evening unfolded and of the victim’s state. Thus, the judge erred by not taking the victim’s testimony into account as a piece of circumstantial evidence. He also failed to take into account other relevant pieces of circumstantial evidence, including the victim’s incapacity when the sexual activity took place in Bonsecours and the respondent’s out-of-court statement, recorded by the victim, that tended to show that she was not capable of consenting to sexual activity.

These errors are not inconsequential, and the Court finds that a new trial, albeit one limited to the events in Magog, should be ordered under section 686(8) of the Criminal Code (R.S.C. 1985, c. C-46). Of course, the sexual activity in Magog and the sexual activity in Bonsecours were the subject of a single charge, and the general rule is that a new trial ordered after an acquittal is set aside is a full trial. However, the appellant waived its right to contest the judge’s conclusion that the respondent had not incurred criminal liability for the events in Bonsecours. Therefore, the holding of a full new trial would re‑open the debate on a question that has been definitively answered and could potentially lead to a violation of the respondent’s rights under section 11(h) of the Canadian Charter of Rights and Freedoms (R.S.C. 1985, App. II, No. 44, Schedule B, Part I). Finally, in light of R. v. Cowan (S.C. Can, 2021-11-05), 2021 SCC 45, SOQUIJ AZ-51806378, 2021EXP-2695, which dealt with a very different situation, a full new trial is not required.

Mainville J.A., for his part, finds that the trial judge considered all the evidence, including the circumstantial evidence, and concluded that he believed the respondent’s testimony. He is also of the view that an order for  a full new trial is not appropriate given the subject of the indictment in this case.  

Text of the decision: http://citoyens.soquij.qc.ca