Adultery, Alcohol & Consent: The ONCA Overturns Sexual Assault Conviction in R v Garciacruz
In R v Garciacruz, 2015 ONCA 27, the Ontario Court of Appeal (“ONCA”) overturned a conviction for sexual assault. Akin to many cases, this one came down to consent and a conflict between the complainant and the appellant’s version of events. The trial judge made certain inferences that allowed her to hold that no consent was provided. At the ONCA, Justice Rouleau ordered a new trial, ruling that the trial judge’s reasons were insufficient as they failed to rule out other possibilities plausibly supportable by the same inferences.
In February of 2011, the appellant’s wife was out of town and the complainant went over to the appellant’s home. After this, the complainant went to a bar to meet her cousin who was visiting town. The evidence indicates that the complainant later invited the appellant to the bar over text message. The complainant had been drinking at the bar, but the cousin’s testimony indicated that both he and the appellant were not drunk.
Upon leaving the bar, the cousin wanted to call a cab, but the appellant and the complainant decided to go to the appellant’s house before doing so. While the complainant’s place was closer, the complainant told her cousin her place was a mess. After getting to the appellant’s house, a cab was called, but when it arrived the complainant was asleep. The cousin tried to wake the complainant to no avail and left in the cab.
The complainant testified that she did not recall anything after the bar, until the next morning. As such, she could not explain why she went into the appellant’s car or to his place as she usually would have just went home. The appellant and the cousin were not aware that the complainant was in this state.
The complainant testified that she woke up in the appellant’s bed the next morning confused as to what happened, went home, and eventually had a sexual assault kit administered at a hospital. The appellant testified that they had a consensual sexual encounter that they both wanted to keep a secret, which is why he denied the encounter in a phone call the appellant’s friend overheard at the hospital.
Throughout the trial the appellant claimed the encounter was consensual. All in all, the lynchpin to the trial judge’s finding of no consent were inferences that allowed her to conclude that the complainant must have been asleep and therefore could not have consented.
The appellant brought an appeal to the Court of Appeal, arguing that the trial judge’s verdict was unreasonable.
Justice Rouleau provided his analysis as to why the trial judge’s reasons were insufficient in three parts. Before giving his reasons for allowing this appeal, he states, “the problems with the trial judge’s reasons do not disappear when they are considered in context, nor are they alleviated when the reasons are read in concert with the record.”
I) The Explanation for the Complainant’s Amnesia
Justice Rouleau holds that the trial judge’s reasons did not adequately address the possible reasons the complainant could have been in a “blackout state” during the evening. While in this state, the complainant did not recall events such as going to a bank machine after the bar, riding in the appellant’s car, and later going to the appellant’s place.
The trial judge excludes intoxication as a reason for the appellant’s state and simply accepts the cousin’s evidence that the complainant fell asleep and presumes that she must have remained asleep. It is this assumption that allows the trial judge to find that no consent could have been given. However, Justice Rouleau finds this presumption problematic and as he writes: “I do not view the trial judge’s reference to the complainant having ‘an admittedly poor memory’ as constituting an explanation for the period of blackout or amnesia. There is simply no support for reaching such a conclusion on this record.” This failure to explain the complainant’s blackout state is also problematic for the reasons below.
II) The Finding that the Complainant Remained Asleep
Further, the trial judge’s reasons were deficient as they failed to contemplate the possibility that the complainant woke up after the cousin left but remained in this blackout state. Justice Rouleau holds:
“The possibility that the complainant was awake and to all appearances functioning normally when the sexual assault is said to have occurred went to the very heart of consent, which was the only real issue at trial. In her unexplained blackout state, she may have been capable of consenting and, although she did consent, she would have no recollection of having done so, just as she has no recollection of what she did and said in the period after leaving the bar.”
After reviewing the reasons the trial judge used to support the finding that the complainant was asleep, Justice Rouleau was unconvinced that this point was proved beyond a reasonable doubt. For instance, the trial judge held that the complainant must have remained sleeping as “she would not have woken again because her days were long” and “the complainant had been drinking.” As Justice Rouleau states, these points do not “support a rejection of the alternative inference, namely that the complainant woke up, remained in her unexplained state of blackout or amnesia, and consented to the sexual intercourse.”
Overall, the reasons do not meet the standard that inferences of guilt based on circumstantial evidence must be “satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty” (R v Griffin,  2 SCR 42, para 33).
III) Pre-Existing Attitude Evidence
Finally, it is not clear if the complainant’s pre-existing attitude evidence was taken into account. In some cases, these statements can be used to make an inference that the complainant would not have consented at the period where they had no recollection.
In either case, Justice Rouleau finds that the trial judge’s reasons remain inadequate as she failed to deal with problems associated with the complainant’s testimony. For instance, Justice Rouleau held that the complainant’s statement that she “would never hang out with a married man” was problematic as she did so before going to the bar. Additionally, she also stated that she would not have normally gone to the appellant’s house after the bar and would usually just walk home, but this is not what happened. These are two other examples Justice Rouleau uses to show that, “on the facts of this case, the appellant’s predictions about how she would have behaved while in the blackout state were repeatedly contradicted by what she actually did.”
The appellant’s conviction was overturned and a new trial ordered. In my view, this case affirms the comprehensiveness of the reasons that must be given to support a conviction, especially in the context of conflicting evidence and a situation where inferences must be made to infer guilt.
The standard that the Crown prove all offences beyond a reasonable doubt must be upheld and in this factual scenario, Justice Rouleau identifies alternative plausible scenarios that may or may not have occurred with the same inferences made by the trial judge. Without reasons that dispel these alternatives, this conviction could not stand.
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