Date: 20130710
Docket: T-1711-12
Citation: 2013
FC 770
Ottawa, Ontario,
July 10, 2013
PRESENT: The
Honourable Madam Justice Tremblay-Lamer
BETWEEN:
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JAMES DOUGLAS MACLEOD
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Applicant
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and
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THE ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision of the Commissioner of the
Royal Canadian Mounted Police (the “Commissioner”) pursuant to section 18.1 of
the Federal Courts Act, RSC 1985, c F-7 (the Federal Courts Act). In
this decision, the Commission upheld the conclusion of a Royal Canadian Mounted
Police adjudication board (the “Board”) that the applicant had engaged in
disgraceful conduct and that if he failed to resign from the Royal Canadian Mounted
Police (“RCMP”) within 14 days, he would be dismissed.
PROCEDURAL
HISTORY
[2]
On
February 1, 2006, the RCMP served notice of disciplinary proceedings on the
applicant. The notice set out one allegation of disgraceful conduct, contrary
to subsection 39(1) of the RCMP Code of Conduct (Part III of the Royal
Canadian Mounted Police Regulations, 1988, SOR/88-361) (the “Code of
Conduct”), on the grounds that the applicant had engaged in non-consensual
sexual relations with the complainant, thereby committing a sexual assault upon
her.
[3]
The
Board held the disciplinary hearing on October 20-24 and 27-28, 2008. The Board
concluded that the applicant had engaged in non-consensual sexual relations
with the complainant and that the allegation of disgraceful conduct was
established.
[4]
The
applicant appealed this decision to the Commissioner. Despite the
recommendation of the RCMP External Review Committee (ERC) that the decision be
overturned, the Commissioner upheld the Board’s decision.
FACTS
[5]
On
February 6, 2005, while off duty, the applicant attended a Super Bowl party at
a home in Maple Ridge, British Columbia, with a friend, Al Knuttila. The party
was hosted by a friend of Mr. Knuttila named Phil Weber.
[6]
The
complainant arrived at the party before the end of the football game.
She was a friend of Mr. Weber and an acquaintance of Mr. Knuttila. She met the
applicant for the first time at the party.
[7]
The
applicant, Mr. Weber, Mr. Knuttila and the complainant, as well as most of the
other party guests, consumed alcoholic drinks at the party. At one point during
the party, Mr. Knuttila brought the complainant a drink and asked her “How does
that Spanish Fly taste?” and “Has that Spanish Fly kicked in yet?”. The
complainant responded that as soon as it did, Mr. Knuttila would be the first
to know.
[8]
When
the football game ended at approximately 7:00 p.m., about nine people remained
at the party, including the applicant, Mr. Knuttila and the complainant. Around
9:30 p.m., Mr. Weber experienced a sudden onset of nausea and vomiting, and
then passed out.
[9]
Later
that night, the complainant, the applicant and Mr. Knuttila had sexual
relations. The complainant claims she did not consent to this sexual activity.
The applicant and Mr. Knuttila claim that she did consent to the sexual activity.
[10]
When
the applicant arrived home the following day, she researched date rape drugs on
the internet and formed the belief she had been drugged and sexually
assaulted. She called her doctor’s office and told them she had been assaulted
and believed a date rape drug had been given to her. They gave her an
appointment at the end of the day.
[11]
When
the applicant saw her doctor later that day, he told her that there should
still be sufficient time for her to go first thing the next morning to have
drug tests done.
[12]
The
complainant obtained a urine test the following morning. The only drug that was
detected was acetaminophen (Tylenol), which the complainant had taken on
February 7, 2005.
[13]
The
applicant was charged with sexual assault under the Criminal Code, RSC
1985, c C-46 (Criminal Code) on December 10, 2005. The criminal charges
were stayed.
DECISION OF THE
ADJUDICATION BOARD
[14]
At
the disciplinary hearing, the Board heard testimony from the complainant, the
applicant, Mr. Weber and Mr. Knuttila. Three other individuals who had attended
the Super Bowl party also testified, as well as a friend of the complainant and
a civilian member of the RCMP who was an expert in the field of forensic
toxicology.
[15]
The
only issue before the Board was whether or not the complainant had consented to
sexual relations with the applicant.
[16]
The
Board held that the complainant was a credible witness, despite inconsistencies
in her evidence. It found that some of the inconsistencies in her evidence may
have been due to the effect upon memory of the drug that was administered and
some may have been due to the passage of time and its effect on memory. In
contrast, the Board found that several inconsistencies in Mr. Knuttila’s story
were fatal to his credibility. As such, the applicant lost his one and only
source of support on the issue of consent.
[17]
The
Board also preferred Mr. Weber’s testimony that he had not merely passed out
from drinking, because he had not consumed enough alcohol for that to happen,
nor had he fallen asleep from exhaustion. It found that Mr. Weber had probably
been sufficiently anaesthetized that there was no way he was going to wake up
and that on a balance of probabilities, Mr. Knuttila and the applicant knew Mr.
Weber had been drugged, as the only way Mr. Knuttila and the applicant could
have carried out the sexual activity that occurred was that they knew there was
very little chance that Mr. Weber was going to wake up.
[18]
The
Board further held that mere consumption of alcohol could not account for the
complainant having lost consciousness or for the feelings of helplessness or
paralysis she said she experienced as she came in and out of consciousness on
the bed. The Board found that the applicant and Mr. Knuttila knew they would be
met with no resistance from the complainant.
[19]
Furthermore,
the Board determined that on a balance of probabilities, Mr. Knuttila knew that
the complainant and Mr. Weber had been drugged because of his comments earlier
in the evening to the complainant about “Spanish Fly”. The applicant knew that
the complainant had been drugged because Mr. Knuttila would have told him so.
There was no other satisfactory explanation for what happened to both the
complainant and Mr. Weber that night.
[20]
The
Board found that the single most cogent and convincing item of evidence on the
issue of consent was the tampon the complainant had inserted in her vagina,
prior to the party, to address spotting she was experiencing after a
colposcopy. The Board accepted the procedure would have resulted in some discomfort
or pain during sex and accepted the complainant’s explanation that she knew
about the discomfort because she had had the procedure done before. The Board
found it improbable that a woman experiencing the discomfort normally
associated with a colposcopy would choose to engage in sexual intercourse at
all, let alone in the vigorous fashion described by Mr. Knuttila and the
applicant in their testimony.
[21]
The
Board concluded that the allegation was established and that it was proven that
the sexual assault was facilitated by the administration of a drug.
[22]
The
Board directed the applicant to resign within 14 days, in default of which he
would be dismissed from the RCMP.
RECOMMENDATION
OF THE RCMP EXTERNAL REVIEW COMMITTEE
[23]
The
applicant appealed the decision of the Board to the Commissioner. Before
considering the appeal, the Commissioner had to refer the matter to the ERC, an
independent civilian body. The ERC reviewed the Board’s decision and issued a
non-binding recommendation to the Commissioner.
[24]
The
ERC found that the Board erred by stating that in general terms the complainant
was a credible witness and the applicant was not. In its opinion, both
witnesses had inconsistencies in their testimony, and the complainant’s
inconsistencies were more numerous and more significant than those of the
applicant. The Board was wrong to make blanket findings of credibility.
Instead, all the testimony had to be evaluated against context and
probabilities. The ERC noted that the Board made no specific finding with respect
to the credibility of Mr. Weber.
[25] The ERC was also of the
view that there was no clear and cogent evidence to support the Board’s finding
that on the basis of the complainant’s description of how she felt during the
sexual activity, there was no other satisfactory explanation other than she had
ingested a hallucinogenic-type drug without her knowledge. There was no
evidence regarding the alleged administering of the drug, the expert evidence
did not support the Board’s finding, the complainant’s evidence about her
symptoms was not clear and the related finding that Mr. Weber was also drugged
was not supported by the evidence either.
[26] As the Board’s finding
that it was more likely than not that the complainant and Mr. Weber had been
given a hallucinogenic-type drug without their knowledge coloured all of the
Board’s findings and conclusions, the ERC recommended that on the basis of this
error alone the Commissioner allow the appeal.
[27] In addition to allowing
the appeal, the ERC recommended that pursuant subsection 45.16(2) of the Royal
Canadian Mounted Police Act, RSC 1985, c R-10 (the “Act”), given the
passage of time and the fact that the factual record was sufficiently complete,
the Commissioner also make the finding that the Board should have made rather
than order a new hearing. The ERC recommended that the Commissioner find the
allegation of sexual assault was not established.
[28] If the Commissioner found
that it was more likely than not the complainant did not consent, the ERC recommended
that the Commissioner still find that the allegation of sexual assault had not
been established, as the ERC found that the applicant took reasonable steps to
ascertain whether or not the complainant was consenting to him being included
in the sexual activity that was already taking place and his belief that this
activity was consensual was not reckless.
DECISION OF THE
RCMP COMMISSIONER
[29] The Commissioner
disagreed with the ERC’s recommendations. He concluded that the Board did
not commit a palpable and overriding error in finding that the complainant did
not consent to the sexual relations, as it was unlikely that the complainant
would have engaged in sexual intercourse voluntarily in light of the discomfort
it would cause following the medical procedure she had recently undergone.
Furthermore, if the sexual relations had been consensual, the complainant would
have removed the tampon she was wearing due to spotting caused by the
procedure.
[30] Nor did the Commissioner
find any palpable or overriding error in the Board’s findings that the
complainant and Mr. Weber had been drugged. The Commissioner found it was
reasonable for the Board to find that Mr. Knuttila knew they had been drugged
because of his comments earlier in the evening about “Spanish Fly”. As for the
fact that no drugs were detected in the complainant’s urine, the expert witness
testified that this did not necessarily mean that no drugs were ingested, as a
low dose of drugs may have been eliminated in the 36 hours that had elapsed before
the sample was taken. Moreover, the expert witness testified that some of the
memory-related issues reported by the complainant were not consistent with what
would normally be the effects of the amount of alcohol she said she had
consumed. Thus, the Commissioner found it was open to the Board to find that
nothing else other than the administration of a drug could satisfactorily
account for what happened.
[31] The Commissioner did not
see a contradiction between the Board’s conclusion and the evidence of the
expert witness, as the latter did not exclude the possibility that the
complainant and Mr. Weber had been drugged.
[32] As for the Board’s
conclusion that the applicant knew that the complainant and Mr. Weber had
been drugged, the Commissioner found support for this finding in the
applicant’s testimony that he was unconcerned about Mr. Weber’s presence in the
bed and had no concerns about Mr. Weber waking up. The explanation offered by
Mr. Knuttila and the applicant for why they went into Mr. Weber’s bedroom was also
unbelievable. Further, the complainant and Mr. Weber had mixed drinks from the
same source and both experienced extreme symptoms.
[33] The Commissioner agreed
with the Board that the complainant was a credible witness, notwithstanding the
inconsistencies in her evidence. Some inconsistencies may have been due to the
memory effects of a drug or alcohol and others may be attributed to the passage
of many years between the incident and her testimony at the disciplinary
hearing.
[34] The Commissioner also
concluded that, even if the applicant was unaware that the complainant had been
drugged, the applicant did not have an honest but mistaken belief that she had
consented, because his behaviour was insufficient in terms of obtaining or ascertaining
her consent. He noted that the complainant had consumed alcohol, that she was
already engaging in sexual activity with Mr. Knuttila and that they were
in Mr. Weber’s bedroom uninvited, with Mr. Weber seemingly unconscious in the
bed next to them, while a party was going on in Mr. Weber’s house. The
Commissioner found that in the circumstances, the complainant’s response,
described by the applicant as looking at him, giving a soft nod, and smiling,
was too ambiguous to form the basis of an honest but mistaken belief in her
consent.
[35] As such, the Commissioner
dismissed the appeal.
ISSUES
[36] This application for
judicial review raises three issues:
- Did the
Commissioner err by accepting the Board’s finding that the complainant and
Mr. Weber had been drugged?
- Did the
Commissioner err by accepting the Board’s finding that the complainant was
credible?
- Did the
Commissioner err by concluding that the applicant did not have an honest
but mistaken belief that the complainant had consented?
LEGISLATIVE
SCHEME
[37] Under section 43 of the Royal
Canadian Mounted Police Act, RSC 1985, c R-10 (the Act), an appropriate
officer shall initiate a formal disciplinary hearing where it appears that a
member of the RCMP has contravened the Code of Conduct and the appropriate
officer is of the opinion that informal disciplinary action would not be
sufficient.
[38] After the appropriate
officer serves the member alleged to have contravened the Code of Conduct with
a written notice that includes the allegation or allegations, as well as
disclosure of evidence that is intended to be produced at the hearing. The
hearing is conducted by a three member adjudication board. Pursuant to
subsection 45.12(1) of the Act, after considering the evidence submitted at the
hearing, the adjudication board decides whether or not each allegation of
contravention of the Code of Conduct contained in the notice of the hearing is
established on a balance of probabilities. Where an allegation is established,
the board shall impose one or more of the sanctions set out in subsection
45.12(3) of the Act.
[39] A party may appeal the
Board’s finding of a contravention of the Code of Conduct or the sanction the
Board imposed to the Commissioner pursuant to subsection 45.14(1) of the Act.
Before the Commissioner considers an appeal under section 45.14, the
Commissioner must refer the case to the ERC. The ERC reviews the Board’s
decision and provides a recommendation to the Commissioner.
[40] On appeal, pursuant to
section 45.16, the Commissioner must consider the record of the hearing before
the Board, the statement of appeal, any written submissions, and the findings
or recommendations of the ERC. Under subsection 45.16(6), the Commissioner is
not bound to act on any findings or recommendations set out in the ERC report,
but if he does not, he shall include in his decision his reasons for not doing
so.
[41] In the recent case of Elhatton
v Canada (Attorney General), 2013 FC 71 at para 47 [Elhatton], my
colleague Mr. Justice Donald Rennie found that the Commissioner should not
intervene in credibility findings unless the trier of fact made a palpable or
overriding error or made findings of fact that were clearly wrong or
unsupported by the evidence.
[42] Pursuant to subsection
45.16(7) of the Act, a decision of the Commissioner is final and binding and is
subject only to judicial review under the Federal Courts Act.
STANDARD OF
REVIEW
[43] In the case at bar, the
standard for reviewing the Commissioner’s decision is that of reasonableness (Pizarro
v Canada (Attorney General), 2010 FC 20 at para 48 [Pizarro]; Elhatton,
above, at para 29).
[44] Reasonableness is
concerned mostly with the existence of justification, transparency and
intelligibility within the decision-making process (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47 [Dunsmuir]). In assessing whether a
decision is reasonable, the reviewing court may consider the evidence that was
before the decision-maker (Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 15).
[45] Although the Commissioner
is entitled to considerable deference under the reasonableness standard (Elhatton
at para 29), deference does not mean that the Court is subservient to the
Commissioner’s determinations. Rather, deference requires a respectful
attention to the reasons offered or which could be offered in support of a
decision (Dunsmuir at para 48).
[46] This Court is permitted
to intervene and grant relief under the threshold grounds set out under section
18.1 of the Federal Courts Act (Canada (Citizenship and Immigration) v Khosa,
2009 SCC 12 at para 36 [Khosa]). Paragraph 18.1(4)(d) provides that the
Federal Court may grant relief if it is satisfied that the decision-maker
“based its decision or order on an erroneous finding of fact that it made in a
perverse or capricious manner or without regard for the material before it”.
[47] In Khosa at para
46, the Supreme Court observed that paragraph 18.1(4)(d) of the Federal Courts
Act provides legislative precision to the reasonableness standard of review of factual
issues:
[46] More generally, it is clear from s. 18.1(4)(d)
that Parliament intended administrative fact finding to command a high degree
of deference. This is quite consistent with Dunsmuir. It provides legislative
precision to the reasonableness standard of review of factual issues in cases
falling under the Federal Courts Act.
ARGUMENTS AND
ANALYSIS
1. Did the
Commissioner err by accepting the Board’s finding that the complainant and Mr.
Weber had been drugged?
Applicant’s
arguments
[48] The applicant submits
that there was no evidence to support the Board’s conclusion that the
complainant had been drugged and that the Commissioner erred by upholding this
finding.
[49] The Board concluded that
drugs had been administered because there was “no other satisfactory
explanation for what happened to both Mr. Weber and [the complainant] that
night”. This finding rests on speculation and was based on nothing more than
the complainant’s description of how she felt and her belief that she had been
drugged. There was no evidence regarding any administration of a drug or the
presence of a drug at the party. The analysis of the complainant’s urine did
not indicate the presence of a drug. According to the expert evidence, the
urine test made it impossible to determine with any certainty if a drug was
involved.
[50] Moreover, the applicant
argues Mr. Knuttila’s evidence that he joked about “Spanish Fly” with the
complainant does not reasonably lead to an inference that he was aware of or
participated in administering a drug to the complainant. Such an inference is
not supported by the evidence. The expert stated that “Spanish Fly” is not a
reference to a drug, but a substance mythologized as an aphrodisiac.
[51] According to the
applicant, the Commissioner’s reliance on the fact that the complainant and Mr.
Weber received drinks from the same source cannot reasonably support his
finding that they were both drugged. There was no evidence Mr. Knuttila ever
provided drinks to Mr. Weber, nor any evidence that other guests that drank
from the blended drinks experienced any of the symptoms reported by Mr. Weber
or the complainant.
[52] Finally, and most
significantly for the applicant, the Board’s conclusion that drugs had been
administered to the complainant was contrary to the expert opinion, yet the
Board’s only reason for rejecting the expert evidence was that “nothing else
can satisfactorily account for what happened”. The ERC found this was an error
and brought this to the attention of the Commissioner, citing Pizarro,
above, at para 56.
[53] For his part, the
Commissioner concluded that because the test of the complainant’s urine did
not, in itself, rule out the possibility that the applicant had ingested a drug,
there was no contradiction between the Board’s conclusion and the expert’s
opinion. The applicant submits that this conclusion was made without regard to
the material before the Commissioner, as it was clear on the face of the record
that the Board had disregarded uncontradicted expert evidence that the
complainant’s symptoms could not be explained by oral ingestion of a drug.
[54] The applicant submits
that the absence of an explanation satisfactory to the Commissioner or the
Board for the complainant and Mr. Weber’s symptoms does not elevate the theory
that they were drugged from the realm of conjecture and speculation. Given the
significance of the finding that the complainant had been drugged to the issue
of consent, the applicant argues that the Commissioner’s decision should be
quashed.
Respondent’s
arguments
[55] The respondent submits
that while the Board’s finding that the complainant and Mr. Weber had both been
drugged was supported only in part by the expert’s evidence, the Commissioner
reasonably found that the Board’s conclusions regarding drug use were not
inconsistent with the expert’s opinion and did not constitute a palpable and
overriding error. In response to the applicant’s argument that a low does of
Ketamine would be inconsistent with the Board’s finding that a “sufficiently
large dose” of Ketamine had been administered, the respondent argues that there
is no inherent contradiction between a dose sufficiently large enough to affect
the complainant, a number which would likely be consistent with recreational
use, but not at levels where Ketamine is used as an anaesthetic.
[56] The respondent further
submits that Mr. Weber’s evidence respecting the amount of alcohol he had
consumed was inconsistent with his apparent complete blackout. Furthermore, the
expert evidence was that while vomiting was a “low frequency report”, that 3%
of users indicate issues with vomiting with Ketamine use. Therefore, the
association of vomiting and Ketamine use was unlikely but not impossible.
Analysis
[57] For the reasons below, I
am of the opinion that the Commissioner erred in upholding the Board’s finding
that the complainant and Mr. Weber had been drugged, as there was no clear and
cogent evidence to support this finding.
[58] First, as noted by the
ERC, and I agree, the expert evidence before the Board was that the sudden
onset of memory loss could not be rationalized with the oral ingestion of a
drug. The complainant testified at the hearing that before going to the bedroom
to check on Mr. Weber, she felt fine and did not feel drunk, dizzy, out of
control, or have any other warning signs before she experienced sudden memory
loss. The expert testified on the issue as follows:
In my opinion, if someone ingests a drug orally, and
certainly there are reports in the scientific literature, because of the slow
nature of absorption from the stomach to the – through the liver, finally
around the body up into the brain, the individual usually has some early signs
that things are changing for them. So they do have memory of certain earlier
experiences prior to the maximum effect of the drug.
The drug under consideration at this point in the
preliminary hearing was the drug Ketamine and there are reports in the
literature that individuals can determine that the drug is beginning to effect
them. They begin to feel tingling in the limbs, some numbness; they begin to
experience some sensory changes.
All of these things were absent in terms of the
evidence of [the complainant] and therefore in my opinion there were some
difficulty in – in rationalizing ingestion of a drug orally but not having any
signs and symptoms that something was going wrong until an obvious profound
effect; that is, the loss of consciousness or loss – complete loss of memory.
So in my opinion there were some concerns regarding
how those two (2) things can be rationalized, and in my opinion they cannot. I
would have expected someone to have some signs that a drug was ingested
involuntarily and some things were changing, particularly a hallucinogenic-type
drug such as Ketamine.
[59] In my view, it was
unreasonable for the Commissioner to find that there was no contradiction
between the Board’s conclusion and the expert’s opinion. The Commissioner
stated the following on the matter:
[106] I disagree with the ERC’s finding (at paras.
100-103 of the ERC report) that the Board erred by reaching a conclusion
contrary to the evidence of the expert witness without sufficient reasons,
thereby committing the error described in Pizarro. I do not see a contradiction
between the Board’s conclusion and the evidence of the expert witness. The
latter did not exclude the possibility that [Mr. Weber] and the Complainant had
been drugged. In fact, it was based on the symptoms they reported that she
focused her attention on the drug named Ketamine. The expert also noted that
just because no drug had been found in the Complainant’s urine sample did not
preclude that she may have ingested a drug.
[60] This conclusion was made
without regard to the material before the Commissioner, as it was clear on the
face of the record that the Board had disregarded uncontradicted expert
evidence that the complainant’s symptoms could not be explained by the oral
ingestion of a drug. The Board needed good reasons to make a finding that was
contradicted by the expert’s evidence (Pizarro, above, at para 56). The
Board’s reasoning that nothing else could satisfactorily account for what
happened does not meet the threshold of clear and cogent evidence that the
complainant had been drugged without her knowledge.
[61] Furthermore, the
Commissioner made a finding regarding the dosage given to the complainant that
was inconsistent with one of the Board’s findings on the issue. The
Commissioner held that the fact that no drugs were detected in the
complainant’s urine did not necessarily mean that no drugs were ingested,
because it was possible that a low dose of drugs was administered and that no
trace of the drugs remained in the 36 hours that had elapsed between the time
of the incident and the time the sample was taken. However, the Board found
that based on the complainant’s description of her symptoms, she had been
“violently affected” by being drugged and that a “sufficiently large dose of a
drug with both hallucinogenic and anaesthetic properties could have induced
this reaction”. As noted by the applicant, the Commissioner did not explain the
inconsistency between the Board’s conclusion that the complainant had a dose of
a drug large enough to explain her symptoms and the Commissioner’s finding that
the drug was not detected in the complainant’s urine 36 hours after it was
administered to her because it was a small dosage.
[62] Moreover, there was no
evidence regarding the alleged administration of a drug or the presence of a
drug at the party. It was unreasonable for the Commissioner to uphold the
Board’s finding that because Mr. Knuttila had joked about “Spanish Fly” with
the complainant, he knew that both the complainant and Mr. Weber had been
drugged. It was not open to the Board to suggest that a man planning to commit
a drug-facilitated sexual assault would broadcast that fact by making a joke
about “Spanish fly” in front of other party guests. Furthermore, the
complainant’s own recollection of the sexual activity involved actions that
someone could not do if they were paralyzed. For example, she stated that she
was on top of the applicant in a straddling position while the applicant and she
had vaginal sex.
[63] The Board essentially
found that the complainant had been drugged because any other
explanation for the sexual activity was implausible. However, the consideration
of plausibility is largely subjective and requires the decision-maker to refer
to relevant evidence which could refute their implausibility conclusions and explain
why such evidence does not do so (see Hassan v Canada (Minister of
Citizenship and Immigration), 2010 FC 1136 at para 13 citing Leung v
Canada (Minister of Employment and Citizenship), [1994] FCJ 774 at paras
14-16).
[64] Accordingly, I agree with
the applicant that the Board erred by starting with the conclusion that the
complainant was telling the truth, and based on this finding, held that she
must have been drugged. Rather, the Board should have first determined whether,
based on the evidence, it could be established that she had been drugged, and
in light of that evidence, determine whether her version of events was
plausible.
[65] Furthermore, as noted by
the ERC, the complainant admitted that the sexual activity would have looked
consensual to an onlooker, that the day after the incident, she had doubts
about whether she had consented or not to the activity, and except for the
hallucinogenic effects, her symptoms, including fragmented memory and loss of
inhibition, were consistent were the consumption of alcohol. Thus, even
if the complainant’s testimony was credible, there was no clear and cogent
evidence before the Board to support her theory that she had been given a drug
without her knowledge.
[66] Finally, it was entirely
speculative for the Commissioner to uphold the Board’s finding that the
applicant knew the complainant and Mr. Weber were drugged. The
Commissioner upheld the finding for the following reasons:
[107] As for the Board’s conclusion that the
[applicant] knew that [Mr. Weber] and the Complainant had been drugged, I find
support for this finding in the [applicant’s] testimony that he was unconcerned
about [Mr. Weber’s] presence in the bed and had no concerns about [Mr. Weber]
waking up. I also find the explanation offered by [Mr. Knutilla] and the
[applicant] for why they went into [Mr. Weber’s] bedroom unbelievable. Further,
I note that the Complainant and [Mr. Weber] had mixed drinks from the same
source and both experienced symptoms that were extreme, which corroborates the
Complainant’s evidence and lends support to the Board’s finding.
[67] This explanation is
insufficient. The Commissioner ignored the absence of any evidence to support
the Board’s finding that Mr. Knuttila had told the applicant that the
complainant had been drugged. Furthermore, the Commissioner does not
acknowledge the fact that Mr. Weber reported different symptoms than the
complainant. Mr. Weber said he had no hallucinogenic symptoms, but complained
of a sudden onset of nausea and vomiting, and then passed out. The expert
evidence was that it was difficult to determine with any certainty the basis
for Mr. Weber’s upset stomach, vomiting and “hungover” feelings. In fact, the
expert testified before the Board that nausea is not highly expected to be a symptom
of lower doses of Ketamine:
CROSS-EXAMINATION OF EXPERT WITNESS BY CHERI EKLUND,
REPRESENTATIVE OF CORPORAL MACLEOD : …And you would agree with me that nausea
is not a sign of an onset of the ingestation of Ketamine either?
EXPERT WITNESS: At higher doses people – or what
would be considered higher doses people have reported nausea and vomiting;
there are some reports that people experience that with Ketamine. But one (1)
of the reports I read indicated that about 3 percent of the users indicate issues
with vomiting, and so it’s a low frequency report. It’s not that it has never
happened but it’s certainly not highly expected with that drug in lower doses.
[68] The Commissioner’s
reliance on the fact that the complainant and Mr. Weber received drinks from
the same source cannot reasonably support his finding that they were both
drugged. The complainant’s evidence was that she received drinks from Mr.
Weber and Mr. Knuttila during the game, and from Mr. Weber after the game, who
had blended drinks for several guests in one batch. There was no evidence that
Mr. Knuttila ever provided drinks to Mr. Weber.
[69] The remaining testimony
of the applicant noted by the Commissioner at paragraph 107 of his decision,
which was that the applicant entered Mr. Weber’s bedroom looking for Mr.
Knuttila and participated in sexual activity with the complainant and Mr.
Knuttila despite the fact that Mr. Weber was seemingly unconscious in the bed
beside them, is not in itself clear and cogent evidence that the applicant knew
that the complainant and Mr. Weber were drugged.
[70] Thus, it was unreasonable
for the Commissioner to uphold the Board’s finding that the complainant and Mr.
Weber had been drugged. I agree with the applicant that given the significance
of the finding to the Commissioner’s decision as a whole, this error is crucial
and therefore is sufficient to quash the Commissioner’s decision. As such, it
is not necessary to address whether the Commissioner erred by upholding the
Board’s finding that the complainant was credible.
2. Did the
Commissioner err by concluding that the applicant did not have an honest but
mistaken belief that the complainant had consented?
[71] As this matter will be
remitted to the Commissioner for redetermination, I will give some direction to
the Commissioner regarding his conclusion that the applicant did not have an
honest but mistaken belief that the complainant had consented.
[72] The test for consent to
sexual activity under the Criminal Code was set out in R. v Ewanchuk,
[1999] 1 S.C.R. 330 [Ewanchuk].
[73] The first question in the
test for consent is whether subjectively, the complainant consented to the
sexual activity (Ewanchuk at para 26). This question is purely one of
credibility (Ewanchuk at paras 29 and 30). The second question is
whether the person accused of the sexual assault was reckless or wilfully blind
to a lack of consent on the part of the person touched (Ewanchuk at para
42).
[74] The Supreme Court
specified that the question was whether the complainant communicated consent to
engage in the sexual activity at issue:
46 In order to cloak the accused's actions in
moral innocence, the evidence must show that he believed that the complainant
communicated consent to engage in the sexual activity in question. A belief
by the accused that the complainant, in her own mind wanted him to touch her
but did not express that desire, is not a defence. The accused's speculation as
to what was going on in the complainant's mind provides no defence.
47 For the purposes of the mens rea
analysis, the question is whether the accused believed that he had obtained
consent. What matters is whether the accused believed that the complainant
effectively said “yes” through her words and/or actions. […]
[Emphasis added]
[75] Therefore, in the case at
bar, if the applicant believed that the complainant communicated consent to
engage in the sexual activity in question, he was not reckless or wilfully
blind to a lack of consent, and the allegation that the complainant had not
consented to the sexual activity is not established.
[76] The ERC brought this
issue to the attention of the Commissioner and found that the applicant took
reasonable steps to ascertain whether or not the complainant was consenting to
him being included in the sexual activity that was already taking place and his
belief that this activity was consensual, was not reckless. However, the
Commissioner found that in the circumstances, the complainant’s response,
described by the applicant as looking at him, giving a soft nod, and smiling,
was too ambiguous to form the basis of an honest but mistaken belief in her
consent. The Commissioner provided the following reasons for this finding:
[109] …Even if I were to accept that [the applicant]
was unaware that [the complainant] had been drugged, I would find his behaviour
when he approached the Complainant in the bedroom insufficient in terms of
obtaining or ascertaining her consent. In the circumstances of this case,
where: the Complainant had consumed alcohol; the Complainant was already
engaged in sexual activity with [Mr. Knuttila]; they were in [Mr. Weber’s]
bedroom uninvited, with [Mr. Weber] lying in the bed next to them, seemingly
unconscious, while a party was going on in his house; it was incumbent on
the [applicant] to go further than he did in order to unequivocally obtain the
Complainant’s consent. The latter’s response (described by the [applicant] as
looking at him, giving him a soft nod, and smiling) was too ambiguous in these
circumstances to form the basis of an honest but mistaken belief in consent.
[Emphasis added]
[77] In my view, this finding
is unreasonable. In the circumstances, a soft nod accompanied by smiling would
not have been ambiguous in terms of consenting to the applicant’s advances. As
for the circumstances themselves, clearly the complainant’s flirtatious
behaviour is not an indication in itself that she had consented to the sexual
activity. However, the behaviour is relevant to considering whether the
applicant honestly believed that the complainant had consented through her
actions, yet the Commissioner’s decision ignored the evidence on this issue
that was provided by other guests who were in attendance at the party.
[78] Furthermore, the
Commissioner failed to consider the evidence suggesting that the complainant
also exhibited consent to the sexual activity through her conduct. The
complainant testified that she remembered being on top of the applicant while
having vaginal sex with him and that the activity would have appeared
consensual. Although the complainant testified she could not tell the applicant
to stop because she could not speak and that she could not move the way she
wanted to, which was to get off, the complainant’s behaviour in this regard
seems to support the applicant’s position that he had an honest but mistaken
belief in consent. In my view, the Commissioner erred by failing to consider
this evidence in his analysis of the issue.
CONCLUSION
[79] For these reasons, the
application for judicial review is allowed with costs. The matter will be
referred back to the Commissioner for redetermination in accordance with these reasons.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. The
application for judicial review is allowed with costs; and
2. The
matter is referred back to the Commissioner for redetermination in accordance
with these reasons.
“Danièle
Tremblay-Lamer”
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