A trial court that acquitted the man failed to consider all the available evidence, the SCC said
A man who was acquitted by a Quebec trial court of sexually assaulting a woman he previously dated must have his case retried, the Supreme Court of Canada affirmed Friday in a 5-4 decision, concluding that the trial court had erred in its analysis by not considering all available evidence.
Frédéric Rioux was charged with sexual assault in 2020, roughly a year after he met the complainant, a woman he had previously dated, for a picnic. The complainant had ended the relationship, but the two remained friends.
According to the complainant in R. v. Rioux, after drinking a mixed-gin drink prepared by Rioux, she entered a state of “blackout” and only had brief flashes of memory of what occurred afterwards. She had previously only had a single glass of wine, and later believed that the second drink was drugged. Rioux said they then had sex at the park where they were picnicking and later again at his apartment.
The next morning, Rioux woke the complainant to drive her back to her car. He denied having drugged her drink. She then contacted a friend and her mother and drove to a hospital to undergo a medical evaluation. However, hospital staff informed her that GHB – a common date-rape drug – could not be detected after its effects have worn off. Months later, the complainant reported Rioux to the police.
To establish that sexual assault occurred under Canadian law, the accused’s intent and actions must be proven beyond a reasonable doubt. Proving that the latter occurred includes establishing that a person did not consent to sexual activity. The Criminal Code defines consent as a voluntary agreement, which can be revoked at any time.
Rioux was acquitted at trial. The court found that the Crown failed to establish that the complainant did not consent to sex with Rioux. Regarding the sexual activity at Rioux’s home, the trial judge concluded that the complainant lacked the capacity to consent because she was intoxicated. However, the judge accepted Rioux’s argument that he genuinely believed the complainant consented and had the capacity to do so.
A majority at the Quebec Court of Appeal disagreed. The appellate court found that the trial judge treated the evidence before him incorrectly, improperly using Rioux’s testimony as direct evidence of the complainant’s consent. The appellate court also found that the trial judge failed to consider a large body of circumstantial evidence about what occurred at the park.
It set aside the acquittal and ordered a new trial, focused only on the sexual activity at the park.
Writing for the majority, Justice Sheilah Martin dismissed Rioux’s challenge of the Quebec Court of Appeal order. Martin said that for a person to consent to sexual activity, they must both be mentally capable of giving meaningful consent and, in fact, provide consent.
The justice further clarified that only a complainant can provide direct evidence – which is based on their personal observations – that they consented to sexual activity; the accused cannot provide this type of evidence for the purpose of establishing actus reus. However, other types of evidence, such as surrounding clues, can also be used to help determine whether consent was given or the capacity to consent was present.
Martin said the trial judge was wrong to believe that the complainant needed to provide direct evidence of her lack of consent at the park, which she was unable to do due to her memory loss. The trial judge also erred by not considering other evidence to determine whether she consented to Rioux.
“His legal conclusions on these matters should have been based on the totality of the relevant, admissible, credible and reliable evidence over the full time, including the complainant’s evidence about her state of mind and physical state before, during and after any sexual activity that took place, as well as any other relevant temporally connected circumstantial evidence,” Martin wrote.
“The trial judge’s narrow focus on the need for direct evidence of non-consent in fact or incapacity, and the separate but compounding failure to consider all relevant circumstantial evidence – both before and after the sexual activity, and in both locations – meant that the trial judge did not consider the totality of the evidence on issues central to guilt or innocence,” Martin wrote.
“Doing so is an error of law, as evidence must be considered as a whole.”
Martin found that the trial judge’s finding that the complainant was capable of consent at the park, but lacked the capacity to consent at Rioux’s home hours later, was inconsistent. She noted that the complainant only consumed intoxicating substances – the wine and the mixed-gin drink – before the sexual activity at the park, and reported feeling like she’d lost her memory and control of her body after she had the second drink. The complainant stayed in this state until the next morning.
“Given the facts, the finding of incapacity at the time of the second sexual act is relevant circumstantial evidence to her capacity at the time of the first,” Martin said.
The justice added that “applying correct legal principles, the trial judge was required to consider all admissible evidence as a whole, which would have required him to consider any impact of his finding of incapacity later in the evening on his findings about the complainant’s physical and mental state in the park, and vice versa.
“Instead, he incorrectly proceeded on the basis that the only evidence available about the complainant’s state of mind at the time of the sexual acts was the uncontradicted testimony of the appellant.”
Chief Justice Richard Wagner and Justices Suzanne Côté, Malcolm Rowe, and Mary Moreau dissented, writing that they would have allowed Rioux’s appeal and restored his acquittal. They found that the evidence accepted by the trial judge left a reasonable doubt as to what occurred between Rioux and the complainant.
Noting that appellate courts can only intervene when a lower court commits errors of law, the justices said that the trial court neither made any mistakes in applying the legal principles related to sexual assault nor failed to consider all the evidence.
“On the basis of a contextual and functional reading of the reasons, it can be said that the trial judge did not fail to consider all of the evidence,” the dissent read. “The pieces of circumstantial evidence were all dealt with. When read in context and as a whole, in light of the live issues, the reasons contain no error of law that justifies intervention.”
The dissent added, “The majority are intruding into questions of fact in respect of which an appellate court is required to show deference.”
In a statement to Canadian Lawyer on Friday, a spokesperson for the Directeur des poursuites criminelles et pénales du Québec said, “The prosecution welcomes the Supreme Court’s ruling in R. v. Rioux., which makes it clear that the testimony of a sexual assault victim cannot be disregarded merely because she has no recollection of an assault that occurred while she was incapacitated.
“We hope this decision will encourage other victims to come forward, even if their memories are not crystal clear.”
Counsel for Rioux did not immediately provide a comment.
