R. v. G.F., 2021 SCC 20 (38801)
“F and B were charged with sexually assaulting the 16‑year‑old complainant during a camping trip. The issue at trial was whether the complainant, who had consumed alcohol, had consented to the sexual activity with F and B. The complainant and F both testified and presented diametrically opposed versions of events; B did not testify. The Crown argued that the complainant’s evidence clearly established incapacity due to intoxication, and also that the complainant had not agreed to the sexual activity. F and B submitted that the complainant was not credible and that she had not been as intoxicated as she claimed, and that she had agreed to engage in the sexual activity. The trial judge accepted the complainant’s evidence and convicted F and B of sexual assault.
F and B appealed. The Court of Appeal rejected the argument that the verdict was unreasonable, concluding that the complainant’s evidence was not demonstrably incompatible with incapacity to consent. However, the Court of Appeal found that the trial judge failed to identify the relevant factors to consider when assessing whether intoxication deprived the complainant of her capacity to consent, and failed to consider the issue of consent first and separately from the issue of capacity. As a result, the Court of Appeal concluded that a new trial was necessary for both F and B.”
The SCC (8:1, with two judges writing joint concurring reasons, and one judge dissenting) allowed the appeal and restored the convictions.
Justice Karakatsanis wrote as follows (at paras. 1-5, 74-82, 102-103):
“Consent is the foundational principle upon which Canada’s sexual assault laws are based. For decades, this Court has recognized that “control over who touches one’s body, and how, lies at the core of human dignity and autonomy”: R. v. Ewanchuk, [1999] 1 S.C.R. 330, at para. 28. As such, the contours of consent are carefully delineated and jealously guarded. It is now indisputable that consent is a subjective state of mind, entirely personal to the complainant. There is no room for implied consent in Canada, and the range of mistaken beliefs an accused may lawfully hold about the complainant’s consent are tightly restricted by the Criminal Code, R.S.C. 1985, c. C-46 .
This appeal provides the Court with an opportunity to clarify the relationship between consent and the capacity to give consent. In my view, capacity and consent are inextricably joined. Subjective consent to sexual activity requires both that the complainant be capable of consenting and does, in fact, consent.
The respondents take a different view, and argue that incapacity is a vitiating factor that renders subjective consent of no force or effect. Accordingly, they argue that the trial judge erred by blending his assessments of consent and capacity and by failing to assess subjective consent first and separately from the capacity to consent.
I do not agree. Only if subjective consent exists, or if there is a reasonable doubt as to subjective consent, does a trier of fact need to go further and ask whether that consent is otherwise vitiated. Vitiation was not at issue in this case; the only live issue was whether the complainant subjectively consented. The Crown argued that subjective consent was absent for two reasons: the complainant was incapable of consenting and she did not agree to the sexual activity in question. The trial judge was under no obligation to evaluate these two issues separately or in any particular order.
Nor did the trial judge err by failing to review the jurisprudence on when intoxication results in incapacity to consent. In the Court of Appeal’s view, the trial judge’s reasons could be read as equating any degree of intoxication with incapacity to consent. Obviously, such an equation would be an error in law. However, in the context of this trial, no such reading was available. Given that the trial judge accepted the complainant’s testimony of her extreme intoxication, “any degree of intoxication” was not a live issue. This Court has consistently reiterated the importance of a functional and contextual reading of the trial judge’s reasons. The duty of the appellate court is to determine whether the aggrieved party understands what the trial judge decided and why, and whether the reasons permit appellate review. In this case, the trial judge’s reasons were sufficient to satisfy this purpose. I would also take this opportunity to discourage the technical search for error and to re-affirm the importance of approaching a trial judge’s reasons with sensitivity to the trial judge’s role and advantage in making findings of fact and credibility.
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Legal sufficiency requires that the aggrieved party be able to meaningfully exercise their right of appeal: Sheppard, at paras. 64-66. Lawyers must be able to discern the viability of an appeal and appellate courts must be able to determine whether an error has occurred: paras. 46 and 55. Legal sufficiency is highly context specific and must be assessed in light of the live issues at trial. A trial judge is under no obligation to expound on features of criminal law that are not controversial in the case before them. This stems from the presumption of correct application — the presumption that “the trial judge understands the basic principles of criminal law at issue in the trial”: R.E.M., at para. 45. As stated in R. v. Burns, [1994] 1 S.C.R. 656, at p. 664, “Trial judges are presumed to know the law with which they work day in and day out”: see also Sheppard, at para. 54. A functional and contextual reading must keep this presumption in mind. Trial judges are busy. They are not required to demonstrate their knowledge of basic criminal law principles.
Conversely, legal sufficiency may require more where the trial judge is called upon to settle a controversial point of law. In those cases, cursory reasons may obscure potential legal errors and not permit an appellate court to follow the trial judge’s chain of reasoning: Sheppard, at para. 40, citing R. v. McMaster, [1996] 1 S.C.R. 740, at paras. 25-27. While trial judges do not need to provide detailed maps for well-trod paths, more is required when they are called upon to chart new territory. However, if the legal basis of the decision can nonetheless be discerned from the record, in the context of the live issues at trial, then the reasons will be legally sufficient.
Despite this Court’s clear guidance in the 19 years since Sheppard to review reasons functionally and contextually, we continue to encounter appellate court decisions that scrutinize the text of trial reasons in a search for error, particularly in sexual assault cases, where safe convictions after fair trials are being overturned not on the basis of legal error but on the basis of parsing imperfect or summary expression on the part of the trial judge. Frequently, it is the findings of credibility that are challenged.
In three recent appeals as of right, this Court reinstated sexual assault convictions that were set aside on appeal, endorsing the reasons of a dissenting justice.
In R. v. Langan, 2020 SCC 33, rev’g 2019 BCCA 467, 383 C.C.C. (3d) 516, this Court adopted the dissenting reasons of Bauman C.J.B.C. that held that the trial judge’s ambiguous use of certain text messages did not demonstrate error on a functional and contextual reading. Bauman C.J.B.C. concluded that since there was a permissible basis on which to admit the text messages, “we should not speculate that the properly admitted evidence was improperly used, without clear indications to the contrary”: Langan (C.A.), at para. 103; see also para. 140.
To succeed on appeal, the appellant’s burden is to demonstrate either error or the frustration of appellate review: Sheppard, at para. 54. Neither are demonstrated by merely pointing to ambiguous aspects of the trial decision. Where all that can be said is a trial judge may or might have erred, the appellant has not discharged their burden to show actual error or the frustration of appellate review. Where ambiguities in a trial judge’s reasons are open to multiple interpretations, those that are consistent with the presumption of correct application must be preferred over those that suggest error: R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at paras. 10-12, citing R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at pp. 523-25. It is only where ambiguities, in the context of the record as a whole, render the path taken by the trial judge unintelligible that appellate review is frustrated: Sheppard, at para. 46. An appeal court must be rigorous in its assessment, looking to the problematic reasons in the context of the record as a whole and determining whether or not the trial judge erred or appellate review was frustrated. It is not enough to say that a trial judge’s reasons are ambiguous — the appeal court must determine the extent and significance of the ambiguity.
In R. v. Kishayinew, 2020 SCC 34, rev’g 2019 SKCA 127, 382 C.C.C. (3d) 560, and R. v. Slatter, 2020 SCC 36, rev’g 2019 ONCA 807, 148 O.R. (3d) 81, this Court adopted the reasons of a dissenting judge holding that the trial judge did not err in conflating credibility and reliability. In both cases, the trial judges accepted the complainants’ evidence and found them to be credible, even if their reliability findings were not explicit on the face of the reasons.
As Slatter demonstrates, a trial judge’s findings of credibility deserve particular deference. While the law requires some articulation of the reasons for those findings, it also recognizes that in our system of justice the trial judge is the fact finder and has the benefit of the intangible impact of conducting the trial. Sometimes, credibility findings are made simpler by, for example, objective, independent evidence. Corroborative evidence can support the finding of a lack of voluntary consent, but it is of course not required, nor always available. Frequently, particularly in a sexual assault case where the crime is often committed in private, there is little additional evidence, and articulating reasons for findings of credibility can be more challenging. Mindful of the presumption of innocence and the Crown’s burden to prove guilt beyond a reasonable doubt, a trial judge strives to explain why a complainant is found to be credible, or why the accused is found not to be credible, or why the evidence does not raise a reasonable doubt. But, as this Court stated in Gagnon, at para. 20:
- Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.
Credibility findings must also be assessed in light of the presumption of the correct application of the law, particularly regarding the relationship between reliability and credibility. The jurisprudence often stresses the distinction between reliability and credibility, equating reliability with the witness’ ability to observe, recall, and recount events accurately, and referring to credibility as the witness’ sincerity or honesty: see, e.g., R. v. H.C., 2009 ONCA 56, 244 O.A.C. 288, at para. 41. However, under a functional and contextual reading of trial reasons, appellate courts should consider not whether the trial judge specifically used the words “credibility” and “reliability” but whether the trial judge turned their mind to the relevant factors that go to the believability of the evidence in the factual context of the case, including truthfulness and accuracy concerns. A trial judge’s determination to accept or believe inculpatory witness evidence includes an implicit assessment of truthfulness or sincerity and accuracy or reliability: Vuradin, at para. 16. Often, the term “credibility” is used in this broader sense to mean the believability of the evidence and it necessarily includes both truthfulness and accuracy: McWilliams’ Canadian Criminal Evidence (5th ed. (loose-leaf)), vol. 3, at pp. 30‑1 and 30‑2. For example, Black’s Law Dictionary (11th ed. 2019), at p. 463, defines credibility as “[t]he quality that makes something (as a witness or some evidence) worthy of belief” and model jury instructions include both truthfulness and accuracy within “credibility” assessments: G. A. Ferguson and M. R. Dambrot, CRIMJI: Canadian Criminal Jury Instructions (4th ed. (loose‑leaf)). Provided trial judges turn their mind to these considerations, there is no requirement that they utter the word “reliable”.
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The trial judge’s reasons were not perfect. They did not have to be. The trial judge did not err in addressing consent and capacity together throughout his reasons. Capacity is a precondition to consent, and as such there was no need for the trial judge to consider capacity separately from or after the issue of factual consent. It was open to the trial judge to find that the complainant was both incapable of consenting and factually did not consent and convict the respondents on either or both routes.
Nor did the trial judge equate any degree of intoxication with incapacity. The trial judge explained what he found and why, and what he found was that the respondents committed a sexual assault upon the extremely intoxicated complainant, who was passed out when the assault commenced. Their convictions were safe and the trial judge made no error.”
Justices Brown and Rowe (in joint concurring reasons) wrote as follows (at paras. 105-107, 109-115, 124):
“There is much in the reasons of our colleague Justice Karakatsanis to endorse, including the result (at which we also arrive, but via a different path). We agree, for example, that capacity to consent should be understood as a precondition to consent under s. 273.1 of the Criminal Code, R.S.C. 1985, c. C-46 . We also agree that it is possible to find that a complainant lacked capacity to consent while being capable of withholding consent (see J. Benedet and I. Grant, “Hearing the Sexual Assault Complaints of Women with Mental Disabilities: Consent, Capacity, and Mistaken Belief” (2007), 52 McGill L.J. 243, at p. 270).
Subject to the observations we make below, we also accept much of our colleague’s recounting of the law regarding appellate review for sufficiency of reasons. What divides us, above all, is its application to the trial judge’s reasons in this case. In convicting the respondents on the basis of the complainant’s incapacity to consent, he explained neither the standard by which he decided incapacity, nor its application to these circumstances in which, significantly, the complainant’s evidence was not determinative of the issue. This was, in our respectful view, an error.
That said, the evidence that the complainant did not consent is overwhelming. We would therefore apply the curative proviso, allow the appeal and restore the respondents’ convictions.
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As our colleague Karakatsanis J. generally recounts, in the criminal justice system the mandate of an appellate court is to review trial decisions, and trial judges must provide reasons sufficient for this purpose. She cautions that appellate reviewers must not “finely parse” the judge’s reasons in a search for error, and laments “appellate court decisions that scrutinize the text of trial reasons” on “the basis of parsing imperfect or summary expression on the part of the trial judge” (paras. 69 and 76 (emphasis added)). It remains, however, the case ⸺ and we do not take our colleague as disagreeing ⸺ that an appellate reviewer’s role is not discharged by giving trial reasons for judgment a once‑over‑lightly perusal, but by reading and considering the trial judgment in order to assess whether, in light of the evidence and arguments at trial, it shows that the trial judge discerned and decided the live issues so as to permit meaningful appellate review (Sheppard, at para. 28; R.E.M., at para. 57). Seen in that light, abstract warnings about “parsing” and “scrutinizing” are not, in our respectful view, particularly helpful as concrete guidance to appellate reviewers. Rather, the degree of scrutiny that appellate courts should bring to bear follows from the purposes of that scrutiny, which is to ensure that the trial judge’s reasons are (as noted above) sufficient to explain the verdict to the accused, to provide public accountability and to permit effective appellate review.
A further problem is presented by our colleague’s statement that, despite this Court’s guidance in Sheppard, “we continue to encounter appellate court decisions that scrutinize the text of trial reasons in a search for error” where “safe convictions after fair trials are being overturned not on the basis of legal error but on the basis of parsing imperfect or summary expression on the part of the trial judge” (para. 76). Of course, safe convictions free from legal error should not be overturned. But, and with respect, this is an unhelpful observation, since it is not possible to conclude that convictions are “safe” or that trials were “fair” where the reasons are insufficient to permit appellate review. Our colleague’s critique assumes the conclusion. While a trial judge’s reasons need not be letter‑perfect, we do not consider scrutiny of a trial judge’s reasons to be inconsistent with this Court’s guidance in Sheppard. To the contrary, appellate courts are tasked with reviewing a trial judge’s reasons on appeal, and an appellant from a conviction has a statutorily granted right to have the trial verdict “properly scrutinized” (Sheppard, at para. 46 (emphasis in original)).
Similarly, while we accept that trial judges are presumed to know the law with which they regularly work and that they are not required to “expound on features of criminal law that are not controversial in the case before them” (Karakatsanis J.’s reasons, at para. 74), this does not obviate the importance of the appellate reviewer properly and carefully discharging its role. As this Court has noted, the presumption cited by our colleague “is of limited relevance”, since “it is the correctness of the decision in a particular case that the parties are entitled to have reviewed by the appellate court” (Sheppard, at para. 55, point 9). Meaning, the presumption that trial judges know the law does not negate the appellate reviewer’s duty to insist upon trial reasons for judgment that, read together with the record, show that the law was correctly applied in a particular case (Sheppard, at para. 55, points 2 and 9; R.E.M., at para. 47).
That said, our central point of departure arises from our colleague’s statement:
- Where all that can be said is a trial judge may or might have erred, the appellant has not discharged their burden to show actual error or the frustration of appellate review. Where ambiguities in a trial judge’s reasons are open to multiple interpretations, those that are consistent with the presumption of correct application must be preferred over those that suggest error. [para. 79]
Respectfully, this statement departs from settled precedent.
Accused persons and their lawyers have to make informed decisions about whether to appeal and on what grounds (R.E.M., at para. 11, point 3; Sheppard, at para. 24). They are, therefore, entitled to know not only that the trial judge was left with no reasonable doubt, but also why this was so (Dinardo, at para. 35, citing R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 21; R.E.M., at para. 17). As McLachlin C.J. said in R.E.M., at para. 37:
- The question is whether, viewing the reasons in their entire context, the foundations for the trial judge’s conclusions — the “why” for the verdict — are discernable.
Since the “why” for the verdict matters, it follows that, where a trial judge’s reasons remain obscure or uncertain when read in light of the record, the reasons are insufficient. For this reason, “where the appeal court considers itself unable to determine whether the decision is vitiated by error”, this Court’s answer in Sheppard was not to give the reasons a pass, but instead to hold them to be insufficient (para. 28). Significantly, in Sheppard this included circumstances where “there are conflicting theories for why the trial judge might have decided as he or she did, at least some of which would clearly constitute reversible error” (para. 46). Our colleague does not account for this.
It is therefore inaccurate to say, as our colleague says, that reasons are sufficient even where ambiguities therein leave open the possibility that the judge “may or might have erred”. Insufficiency arises precisely where an appellate court finds itself unable to determine whether a judge’s reasoning is tainted by error. Nor do we accept that the presumption that trial judges know the law can be used as a tool for holding reasons to be sufficient when the reasons are obscure or uncertain. Not only does this fail to fulfill the proper role of the appellate reviewer; it effectively leaves accused persons ignorant of the reasons for their conviction.
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The trial judge’s reasons are insufficient to allow appellate review of his finding that the complainant did not have the capacity to consent. In view of the overwhelming evidence that the complainant did not consent to the sexual activity in question, however, no verdict other than guilt was possible. We would allow the appeal and restore the convictions.”
Justice Côté (in dissent) wrote as follows (at paras. 125-126):
“I agree with the position taken by my colleagues Justices Brown and Rowe on the law regarding appellate review for sufficiency of reasons. Moreover, my colleagues would find that the trial judge erred in convicting the respondents on the basis of the complainant’s incapacity to consent without explaining both the standard by which he decided incapacity as well as its application to the complainant’s evidence. I agree, and I outline below a further error with respect to the trial judge’s conflation of consent and capacity.
However, I must depart from my colleagues with respect to their view that “a finding of incapacity was certainly available on th[e] evidence” (Brown and Rowe JJ.’s reasons, at para. 118) and that the convictions can therefore be saved by the curative proviso in s. 686(1) (b)(iii) of the Criminal Code, R.S.C. 1985, c. C‑46 . In my view, the trial judge’s errors were not harmless or trivial, nor do I think that the evidence is so overwhelming that the trier of fact would inevitably convict. Given that credibility was the central issue at trial and that I do not find the Crown’s case to be otherwise “staggering” (R. v. L.K.W. (1999), 126 O.A.C. 39, at para. 101), I do not believe that this is an appropriate case in which to apply the curative proviso. Therefore, I would dismiss the appeal and uphold the Court of Appeal’s order for a new trial.”