J. 2000 SKQB 572 Q.B.C. A.D. 1999 No. 50 J.C.P.A. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF PRINCE ALBERT BETWEEN: HER MAJESTY THE QUEEN B. J. T. J.E. Syrnick for the Crown E.B. Stephens for the accused JUDGMENT BAYNTON J. December 11, 2000 The Nature of the Case [1] The accused is charged with sexual assault pursuant to s. 271 of the Criminal Code. The unique aspect of this case is that although the DNA evidence establishes that the accused had sexual intercourse with the complainant, neither the accused nor the complainant, due to their respective self-induced states of intoxication, have any memory of the sexual intercourse that took place between them. This is the second case that have heard this year that involves gross intoxication on the part of not only the accused but the complainant as well. Such cases are becoming more numerous and pose problems for the court that are not encountered in most sexual assault cases that are heard. will outline these problems and review the special provisions in the Criminal Code that apply to such cases. [2] Judges and juries determine the facts of any given case from the raw material (i.e. the evidence) that is presented by the witnesses who are called to testify. The accuracy of this fact finding determination depends on the quality of this testimonial evidence. The finder of fact assesses the quality of the evidence by means of two-fold process. The first step involves determination of the credibility of witness. Obviously if the witness is lying, his or her evidence is false and is of no value. The second step is the determination of the reliability of the evidence of the witness. Even an honest witness may be mistaken about what he or she saw or heard. The trier of fact must assess the capacity of the witness to accurately recall and relate what he or she honestly believes was seen or heard. [3] It is difficult and sometimes dangerous for the trier of fact to place much reliance on the evidence of witnesses, including complainants and accused persons, who come into court and testify about events that occurred before, during or immediately after period of time during which they were in drunken condition. Even if they are honest witnesses, the reliability of their evidence is suspect. This is so because the consumption of quantity of alcohol or drugs that is sufficient to cause person to become intoxicated, detrimentally affects and distorts not only his or her current perception of events but as well his or her subsequent recall of those events. At extreme levels of intoxication, such as in the case before me, the person is left with no recall whatsoever of those events. Obviously such person does not make reliable witness, even if that person is honest and truthful, because he or she can only speculate about those events. [4] In sexual assault cases, the self-induced gross intoxication of the complainant and the accused before, during and immediately after the alleged assault, poses an even greater evidentiary challenge to the court. How reliable is the complainant’s denial of consent where the complainant has no memory of the occurrence? Likewise, how reliable is the accused’s assertion of consent, or honest belief in consent, where the accused has no memory of the occurrence? [5] Such cases also raise unique legal issues including s. 33.1 of the Criminal Code that was enacted by Parliament in response to R. v. Daviault (1994), 1994 CanLII 61 (SCC), 33 C.R. (4th) 165 and s. 273.1(2)(b) of the Criminal Code which provides that there can be no consent if the complainant is incapable of consenting. [6] The following are the facts that have determined as best as can from the unreliable evidence that heard during the trial. The complainant is the sister of the accused’s spouse. The accused, his spouse and the complainant are all from the small northern community of B[…]. They came to Prince Albert to attend seminar and, along with several other relatives, were staying overnight during the week in question at the home of second sister of the complainant. Everyone at the home, except for the children, were engaged in an extended drinking binge that involved alcohol and drugs. Each of the adults either became intoxicated or were already intoxicated on the evening before the complainant and the accused had sexual intercourse. Both the complainant and the accused were grossly intoxicated. [7] The testimony given by the adult witnesses was confused and muddled as to the sequence of events on the morning in question and the previous evening. This was so because their memories and recollections were substantially and detrimentally affected by the significant quantities of alcohol that they consumed during that period of time. An agreed statement of facts was filed at trial in which the accused admitted that his semen was present on the vaginal swab taken from the complainant. This dispensed with the necessity for the Crown to call DNA evidence to establish this fact. There is accordingly no dispute that the accused and the complainant had sexual intercourse on the morning in question or the previous evening. find as fact, for the reasons given later, that it took place sometime between 10:00 a.m. and 11:00 a.m. on the day in question. [8] The sister who owns the house testified that she too had been drinking all evening and was intoxicated by the time she left the group the next morning to go to her bedroom to sleep. She noticed that the complainant had already passed out and was lying on the sofa in the living room. She recalls that the accused remained in the dining room sitting and drinking at the table with several other relatives, some of whose names she could not remember. Nor could she remember the hour of the morning when she left to go to bed. She says she got up for few minutes later that morning to get some juice and observed that everyone was still drinking at the dining room table. She said she saw the complainant at the table as well. Her recollection of the complainant’s whereabouts at this time is obviously faulty and inconsistent with previous statements given by her. It is also inconsistent with the evidence of her 11-year old son. [9] She says that shortly after she returned to her bedroom, her son got up and went into the living room. He returned almost immediately and told her what he had observed there. She got up again and went into the living room where she observed the accused and the complainant lying on the floor by the sofa. The accused was doing up his pants. She noticed that the complainant’s pants were unbuttoned and that she was passed out. She was not able to arouse the complainant. She concluded that the accused had raped the complainant and she told him to leave the house. She was finally able to arouse the complainant couple of hours later. She went with her to the police and to the hospital where the vaginal swab was obtained. It was analyzed and was found to have the same DNA as that of the accused. [10] The evidence of her son was that he got up sometime between 10:00 a.m. and 11:00 a.m. and went into the living room. He saw the accused lying on the floor behind the complainant who was passed out. The accused’s pants were partially down and he was either awake or had just wakened up. [11] The complainant has no recollection of the sexual intercourse or of anything else that occurred that morning until her sister was able to arouse her. Nor did she have any recollection of the events of the previous evening prior to her passing out except for recollection of drinking at the house in the company of the accused and several others. She says that she never consented to having sexual intercourse with the accused and felt hurt that he took advantage of her. [12] The accused testified that he had been on binge all week. All the adults at the house also began drinking alcohol and smoking drugs the day before the alleged assault. The last thing he remembers is sitting around the dining room table drinking with his relatives. He has no recollection of what occurred thereafter until he was awakened by his sister-in-law and accused of raping the complainant. He has no recollection of how he or the complainant got on the floor or of the sexual intercourse that took place between them. [13] It is difficult to understand how person who was so grossly intoxicated could be capable of having sexual intercourse that involved penetrating the complainant and ejaculating semen into her vagina. It is also difficult to understand how such person could be capable of getting up and walking out of the house unattended. But no evidence was tendered at the trial that is inconsistent with the testimony of the accused. Nor was there anything in the evidence of the witnesses who were called by the Crown that was inconsistent with the accused’s evidence as to the state of his intoxication. As well, according to the expert evidence tendered by the defence, grossly intoxicated person is capable of engaging in sexual intercourse. [14] The expert witness called by the defence was qualified to give opinion evidence on how individuals behave while blacked out or passed out from the consumption of copious amounts of alcohol, and on the effect such states of intoxication have on consciousness and memory. The expert was not psychiatrist and was not qualified to give evidence on the physiological aspects of these states of intoxication. He testified that in his opinion it was possible for two people who had passed out after consuming large amounts of alcohol to engage in sexual intercourse while in that state and to awaken later without any recollection of the event. [15] He also testified that “blackout” is state of amnesia in which person can appear to function normally but have no recollection of events that occurred before, during or shortly after that time. “passout” is loss of consciousness. In such states person can carry on reasonably intelligent conversation and yet have no recollection of it. Each state can be experienced concurrently and person can pass in and out of these respective states. No rebuttal expert evidence was called by the Crown. [16] have reasonable doubt whether the accused was as intoxicated as he claims he was. But on the basis of all the evidence adduced and the peculiar circumstances of this case, am satisfied on balance of probabilities that his extreme level of self-induced intoxication rendered him incapable of making conscious decision to have sexual intercourse with the complainant with or without her consent. also find as fact that the complainant did nothing to suggest to the accused that she would consent to having sexual intercourse with him. On the basis of the accused’s own evidence, find that he was incapable of considering the issue of the complainant’s consent. He accordingly did not have mistaken belief, or any reasonable grounds for such belief, that the complainant had consented to having sexual intercourse with him. [17] It is within this factual context that the culpability of the accused must be considered. He raises three potential defences. The first is that the Crown has failed to prove beyond reasonable doubt that the complainant did not consent to have sexual intercourse with him. The accused maintains that the complainant cannot remember anything for considerable period of time before, during and after the sexual intercourse. How then can she know whether or not she consented? Can the court rely on her bare denial which, because she has no memory, is in effect an assumption by her? [18] previously addressed this issue in part during the trial when dismissed the nonsuit application brought by the defence at the close of the Crown’s case. denied the nonsuit application because there was evidence, independent of the complainant’s testimony, from which the only reasonable inference to be drawn was that she did not consent. It is clear from the testimony of the 11-year old son, that the sexual intercourse took place long after the complainant passed out. After that time she was incapable of giving consent. Nor was there any evidence that before she passed out she did anything whatsoever that might suggest to the accused that she would consent to have sexual intercourse with him. Her assertion, although inherently unreliable due to her lack of any memory or recall of events that occurred before, during and after the alleged assault, was consistent with all the other evidence that accepted. [19] My decision on this issue would likely have been different if the only “evidence” of lack of consent was the unsupported and inherently unreliable assertion of the complainant. Such an assertion is more of the nature of an assumption than fact. This is so because the complainant has no direct knowledge or recollection of what she actually did before, during or after the alleged assault. Without such knowledge, she can do no more than speculate or assume what she likely did on that previous occasion. As well, her assumption of what she likely did was made after the fact and at time when her state of mind was less influenced by alcohol than when the conduct complained of took place. The expert called by the defence testified that the consumption of significant quantities of alcohol diminishes inhibitions. The issue of whether or not she in fact consented must be determined by considering her state of mind at the time of the alleged assault, not at the time of the morning after the night before so to speak. [20] But the threshold for successful nonsuit application is significantly lower than the threshold for proof of guilt beyond reasonable doubt and must reconsider this issue taking into account the evidence subsequently adduced by the defence. This additional evidence changes nothing respecting this issue. If anything it strengthens the Crown’s case. The accused testified in effect that he didn’t even think about having sexual intercourse with the complainant nor did he know why he had done so. He never considered the issue of her consent or lack of it. [21] Sections 273.1(1) and (2)(b) of the Criminal Code are relevant to this issue but are not determinative of it. They read as follows: 273.1(1) —Subject to subsection (2) and subsection 265(3), “consent” means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question. (2) —No consent is obtained, for the purposes of sections 271, 272, and 273, where (b) the complainant is incapable of consenting to the activity. [22] These provisions simply legislate well-established principle of law that “consent” by person who is incapable of giving it, is of no effect. They obviously do not create new principle of law to the effect that consent by complainant who is capable of giving it, is retroactively revoked if the complainant subsequently becomes incapable of giving it. The presence or lack of consent, although determined at trial, is considered from the perspective of the period of time during which the conduct complained of took place. For this reason it is not relevant that the complainant may have subsequently “withdrawn” any consent given prior to or during that period of time. [23] The second defence raised by the accused as an alternate position, is that the accused honestly believed he had the consent of the complainant to have sexual intercourse with him. reject this submission on the basis that there is no evidence in this case to give this aspect of the defence an air of reality. Sections 265(4) and 273.2 of the Criminal Code provide as follows: 265.(4) —Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief. 273.2 —It is not defence to charge under section 271, 272, or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where (a) the accused’s belief arose from the accused’s (i) self-induced intoxication, or (ii) recklessness or wilful blindness; or (b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting. [24] Counsel submitted two cases to me in connection with this issue in which both the complainant and the accused were intoxicated. In the first, R. v. Esau, 1997 CanLII 312 (SCC), [1997] S.C.R. 777, the Supreme Court of Canada upheld the N.W.T.C.A. in ordering new trial on the basis that the trial judge failed to charge the jury to consider the issue of honest but mistaken belief in consent. The court held that the fact the complainant was intoxicated does not preclude this particular defence from being raised. But the facts in that case are very different from those in the case before me. There the accused testified that the complainant had voluntarily engaged in sexual conduct with him. Here there is no evidence that the complainant did anything to suggest to the accused that she would consent to engaging in any form of sexual conduct with him. Nor did the accused allege that he honestly but mistakenly believed she was consenting. His evidence is simply that he has no recollection of the sexual intercourse nor explanation of how it could have taken place. [25] The second case is R. v. Osvath (1996), 1996 CanLII 10220 (ON CA), 46 C.R. (4th) 124 (Ont. C.A.) in which the court allowed an appeal from conviction and ordered new trial. It did so on the basis that the trial judge did not adequately consider the defence of honest but mistaken belief in consent by concluding that the accused acted with wilful blindness. Again the facts of that case are quite different than those in the case before me as again, the accused testified that the complainant had voluntarily engaged in sexual conduct with him. am satisfied beyond reasonable doubt that the accused had no honest but mistaken belief that the complainant consented to having sexual intercourse with him. All he can allege is that the complainant must have consented or he would not have engaged in sexual intercourse with her. What was said previously about the complainant’s assertion can be said of the accused’s assertion. It is not evidence but merely speculative assumption. [26] The third defence raised by the accused is “extreme drunkenness”. He contends that at the time the sexual intercourse took place, he was so intoxicated that he was not in conscious state and was incapable of forming any intent to have sexual intercourse with the complainant without her consent. This defence arises from the Daviault case, supra. The defence of “extreme drunkenness” is distinguished from the defence of automatism in that it applies even though the automatic state arises from self- induced intoxication. This defence triggered the legislative response found in s. 33.1 of the Criminal Code. It reads as follows: 33.1(1) —It is not defence to an offence referred to in subsection (3) that the accused, by reason of self-induced intoxication, lacked the general intent or the voluntariness required to commit the offence, where the accused departed markedly from the standard of care as described in subsection (2). (2) —For the purposes of this section, person departs markedly from the standard of reasonable care generally recognized in Canadian society and is thereby criminally at fault where the person, while in state of self-induced intoxication that renders the person unaware of, or incapable of consciously controlling, their behaviour, voluntarily or involuntarily interferes or threatens to interfere with the bodily integrity of another person. (3) —This section applies in respect of an offence under this Act or any other Act of Parliament that includes as an element an assault or any other interference or threat of interference by person with the bodily integrity of another person. [27] As yet, there is not much jurisprudence that interprets this legislative provision. Although the constitutionality of the provision was not raised in the case before me, it has been held in at least two recent cases that it violates the Charter and is not saved by s. 1. R. v. Brenton, 1999 CanLII 13930 (NWT SC), [2000] W.W.R. 269 (N.W.T.S.C.) and R. v. Dunn, [1999] O.J. No. 5452 (Q.L.) (Ontario Superior Court of Justice). [28] On the other hand, two cases have held that even though it violates the Charter it is saved by s. 1. R. v. Vickberg (1998), 1998 CanLII 15068 (BC SC), 16 C.R. (5th) 164 (B.C.S.C.) and R. v. Decaire (September 11, 1998 unreported) (Ont. Ct. of Justice Gen. Div.), upheld on appeal, [1999] O.J. No. 4794 (Q.L.) (Ont. C.A.). [29] Two decisions of the Court of Appeal in Ontario and British Columbia relied on the constitutional validity of s. 33.1. In R. v. Martin, [1999] O.J. No. 5066, the Ontario Court of Appeal held that the trial judge erred in law in failing to charge the jury in accordance with s. 33.1 of the Criminal Code. The court stated that this section would have made it clear to the jury that self‑induced intoxication was not available as defence to the respondent accused. The British Columbia Court of Appeal in R. v. Frechette (1999), 1999 BCCA 46 (CanLII), 132 C.C.C. (3d) 1, noted that s. 33.1 now limits the availability of the “extreme drunkenness” defence. [30] It should also be borne in mind that there was strong dissent in Daviault, supra, to the effect that those who render themselves incapable of knowing what they are doing through the voluntary consumption of alcohol or drugs possess sufficiently blameworthy state of mind that their imprisonment does not offend the principle of fundamental justice which prohibits the imprisonment of the innocent. While as general rule an act must be the voluntary act of an accused in order for the actus reus to exist, the rules of fundamental justice are satisfied by showing that the drunken state was attained through the accused’s own blameworthy conduct. [31] Subsection (1) of s. 33.1 in effect provides that the lack of general intent or voluntariness (which is usually an integral element of any criminal offence) is not defence to an assault type of charge described in ss. (3) if two conditions are established. The first is that the lack of general intent or voluntariness resulted from self-induced intoxication. The second is that the accused departed markedly from the standard of reasonable care generally recognized in Canadian society as described in ss. (2). [32] The first condition is self-explanatory and would be satisfied in almost every conceivable case of intoxication that arose from drinking alcohol as beverage or abusing drugs. It would not be satisfied in the rare case in which the ingestion of alcohol or drugs was involuntary, such as by means of spiked drink or forced injection. [33] could find no case that analyses the second condition that I’ll refer to as the “marked departure” condition described in ss. (2). This condition is satisfied if three sub-conditions are met: i. the accused interferes or threatens to interfere with the bodily integrity of another person, (whether voluntarily or not) ii. while being in state of self-induced intoxication iii. that renders him or her unaware of or incapable of consciously controlling his or her behaviour. [34] Conduct that satisfies these conditions is deemed to constitute marked departure from the standard of care generally recognized in Canadian society. Such conduct itself constitutes criminal culpability. It is similar to recklessness, well-established principle of criminal law which also constitutes criminal culpability. It is not defence to crime that the accused had no intention to actually harm another if the accused does something that he or she knows or should know will likely harm the other and yet goes ahead and does it anyway. Criminal culpability in such cases is not dependent on the wilful intention to cause the harm, but on the wilful intention to engage in conduct that incurs the risk of harm without caring whether or not the harm ensues. [35] In summary, s. 33.1 in effect provides that the act of becoming voluntarily intoxicated to the extent of being incapable of controlling one’s behaviour, constitutes criminal culpability sufficient to found criminal liability for offences committed against the bodily integrity of others. Whether the accused had lost consciousness by the time he assaulted the other, or whether his acts in assaulting the other were involuntary acts, are of no consequence insofar as the issue of criminal liability is concerned. The public outcry and the Parliamentary response to the Daviault case (as termed by Romilly J. in R. v. Poslowsky, [1997] B.C.J. No. 2585 (Q.L.)) strongly indicate that such provision is not only consistent with the objectives of the Charter but is justifiable and essential in free and democratic society. [36] Some of the cases have cited contain detailed analysis of the constitutional issues raised by s. 33.1. These issues are also reviewed and discussed by Kent Roach in Criminal Law, 2d ed. (Toronto: Irwin Law, 2000), c. “Intoxication”. With respect am of the view that the article and some of the cases confuse the issue of criminal culpability with the issue of punishment in suggesting that s. 33.1 may not survive the proportionality test in s. justification analysis. In my view, the court has broad discretion to differentiate in sentences imposed for offences that were deliberately committed and those that were committed involuntarily because of self-induced intoxication. [37] In similar vein, the court also has discretion to differentiate in sentences imposed for offences committed against sober victims who have acted responsibly and those committed against intoxicated victims who have acted irresponsibly. In case like the one before me, it is obvious that no sexual assault would have taken place if the complainant had taken some responsibility for maintaining her own bodily integrity by refraining from becoming so grossly intoxicated by alcohol and drugs that, in the words of s. 33.1, rendered her unaware of or incapable of consciously controlling her behaviour. Although she had the right to get drunk and pass out, her conduct is no more responsible than that of person who exercises his right to walk along highway at night in dark clothing. [38] As indicated in Daviault, supra, and in R. v. Tom (1998), 1998 CanLII 5340 (BC CA), 129 C.C.C. (3d) 540 (B.C.C.A.), the defence of “extreme intoxication” is successful in the rarest of cases. The accused must adduce quantitative evidence of alcohol consumption and expert evidence (usually from psychiatrist or psychologist) to establish on balance of probabilities that at the time of the commission of the offence he or she was in state akin to automatism such as that discussed in R. v. Parks (1992), 1992 CanLII 78 (SCC), 75 C.C.C. (3d) 287 (S.C.C.) and R. v. Stone, 1999 CanLII 688 (SCC), [1999] S.C.R. 290. These last two cases dealt only with automatism that did not arise from self-induced intoxication but they define the states and different kinds of automatism. [39] In my view, the case before me is one of those rare cases in which the accused has established the Daviault “extreme intoxication” defence on balance of probabilities. Were it not for s. 33.1 that does away with this defence in sexual assault cases, I would have acquitted him. Conclusion [40] The accused is guilty as charged. invite sentencing submissions from counsel.
The accused was charged with sexual assault under s.271 of the Criminal Code. Although the DNA evidence established he had sexual intercourse with the complainant, neither had any memory of it due to their self-induced states of intoxication. Defences raised were consent, an honest but mistaken belief that she gave her consent, and extreme drunkenness such that he was so intoxicated that he was not in a conscious state and was incapable of forming any intent to have sexual intercourse without consent. HELD: The accused was found guilty.  1)Although the defence of 'extreme intoxication' is successful in the rarest of cases, the accused established the Daviault 'extreme intoxication' on a balance of probabilities. He would have been acquitted had it not been for s.33.1 which does away with this defence in sexual assault cases.  2)The court was satisfied on a balance of probabilities that his extreme level of self-induced intoxication rendered him incapable of making a conscious decision to have sexual intercourse with the complainant with or without her consent. The court was satisfied that the complainant had not done anything to suggest that she would consent. The accused was incapable of considering the issue of consent and accordingly did not have a mistaken belief or reasonable grounds for such a belief. It was clear from the testimony of an 11 year old that the intercourse took place long after the complainant passed out. She was incapable of giving consent after that time. Her assertion of lack of consent was inherently unreliable due to her lack of any memory of events that occurred before, during and after the alleged assault and would have been more in the nature of an assumption than a fact, but was found to be consistent with all the other evidence. It was not relevant that she may have withdrawn consent. 3)There was no evidence to give his second defence (that he honestly believed he had her consent) an air of reality. His assertion that she must have consented or he would not have done it was speculative assumption, not evidence. 4)Section 33.1 provides that the act of becoming voluntarily intoxicated to the extent of being incapable of controlling one's behaviour constitutes criminal culpability sufficient to found criminal liability for offences committed against the bodily integrity of others. The public outcry and Parliamentary response to Daviault strongly indicate that s.33.1 is not only consistent with the objectives of the Charter but is justifiable and essential in a free and democratic society. Of four recent cases that held Criminal Code s.33.1 violates the Charter, two held it was saved by s.1 while two held it was not saved by s.1 of the Charter. 5)Section 33.1(1) provides the lack of general intent or voluntariness is not a defence to an assault charge described in ss.(3)if it resulted from self-induced intoxication or the accused departed markedly from the standard of reasonable care generally recognized in Canadian society. The three sub-conditions described in ss.(2) concerning marked departure constitute criminal culpability similar to recklessness. Criminal culpability is not dependent on wilful intention to cause harm but on the wilful intention to engage in conduct that incurs the risk of harm without caring whether or not harm ensues. 6)The strong dissent in Daviault indicated those who render themselves incapable of knowing what they are doing through voluntary consumption of alcohol or drugs possess a sufficiently blameworthy state of mind that their imprisonment does not offend the principle of fundamental justice which prohibits the imprisonment of the innocent. The court has broad discretion to differentiate in sentences imposed for offences that were deliberately committed and those that were committed involuntarily because of self-induced intoxication.