ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ

Nunavunmi Apiqhuidjutainut Uuktuffaarutit

Nunavut Court of Appeal
Cour d'appel du Nunavut

Citation: R v Nauya, 2021 NUCA 01

Date: 20210108
Docket: 18-18-12-CAP
Registry: Iqaluit

Between:

Her Majesty the Queen

Respondent

- and -

Lee Jordan Nauya

Appellant

Restriction on Publication
Identification Ban – See the Criminal Code, section 486.4.
By Court Order, information that may identify the complainant or the witness must
not be published, broadcast, or transmitted in any way.
NOTE: This judgment is intended to comply with the identification ban.

_______________________________________________________

The Court:
The Honourable Mr. Justice Thomas W. Wakeling
The Honourable Madam Justice Ritu Khullar
The Honourable Madam Justice Elizabeth Hughes
_______________________________________________________
 Memorandum of Judgment

Appeal from the Conviction by

The Honourable Mr. Justice E.D. Johnson
Dated the 30th day of May, 2018
Docket 18-14-139
 _______________________________________________________

Memorandum of Judgment
_______________________________________________________

The Court:

Background

[1] The appellant was convicted by a jury of sexual assault in May, 2018. Consent1 was the
primary issue for the jury as the Agreed Statement of Facts (ASF) entered at trial established sexual
intercourse between the appellant and the complainant.

[2] The uncontested evidence at trial was that the appellant and his cousin approached the
complainant while she was waiting for a friend. After some discussions, the three of them went to
an abandoned mine where they consumed alcohol and socialized. The complainant testified that at
some point she blacked out and could not remember anything else that happened until she woke
up in the hospital. The complainant also testified that before she blacked out she was fully dressed:
she was wearing her parka, mitts, toque and her clothes. She further testified she did not want to
have sex with the appellant.

[3] The ASF described the appellant carrying the complainant with her pants down around her
ankles along a street in Rankin Inlet, leaving her on the ground when a vehicle approached. The
driver of the vehicle found the complainant on the ground, mumbling and unable to get up. She

1
The Criminal Code at the time of trial stated:
273.1(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;

…

273.2 It is not a defence to a 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.
 Page: 2

was transported to the health centre, and then medevaced to a hospital in Winnipeg for
hypothermia.

[4] The appellant testified. He described that after drinking for an hour to an hour and a half
with the complainant and his cousin, he and the complainant began kissing. His cousin left the area
and the appellant then asked the complainant if she wanted to have sex, she said “yes”, and they
both took off their clothes and began to have sex on the ground. The appellant testified the
complainant did not “look like she was too drunk.” He also testified that after the “sex was
finished”, the complainant was unable to put on her pants and then she passed out on the ground.
He attempted to get her pants on her but was unable to do so. After that, he picked the complainant
up and carried her. His plan was to carry her home but when he saw the vehicle coming, he set the
complainant down on the ground and walked home.

[5] In cross examination, the appellant agreed that he was saying that within a half hour the
complainant went “from seeming totally sober to passing out drunk.”

[6] The Crown submitted to the jury that the appellant took advantage of an intoxicated and
unconscious complainant who could not and did not consent to sexual intercourse.

[7] The defence position was that the appellant’s evidence should be believed and that the jury
should find the sexual intercourse was consensual.

Grounds of Appeal

[8] The appellant raises three grounds of appeal:

1. The verdict was unreasonable;

2. The trial judge’s failure to instruct the jury on the mens rea for sexual assault
undermined the verdict; and

3. The trial judge erred by mischaracterizing the evidence of the complainant’s

consumption of alcohol in the charge to the jury.

Standard of Review

[9] The principles governing the review of a jury verdict are well-known and were recently set
out in R v RJM, 2019 ABCA 386 at para 14:

A jury verdict is unreasonable or cannot be supported by the evidence within the

meaning of s 686(1)(a)(i) of the Criminal Code if it is one that a properly instructed
jury acting judicially could not reasonably have rendered: R v Biniaris, 2000 SCC
15 at para 36; R v WH, 2013 SCC 22 at para 26; R v Villaroman, 2016 SCC 33 at
 Page: 3

para 55. The reviewing court must ask not only whether the verdict is supported by
evidence on the record, but also whether the [jury’s] conclusion conflicts with the
bulk of judicial experience: Biniaris at para 40; WH at para 28. The reviewing court
must show great deference to the jury’s assessment of witness credibility given the
advantage the jury has in seeing and hearing the witnesses’ evidence: WH at paras
30-34. Jur[ies] are entitled to accept all, some, or none of the evidence of each
witness; the mere presence of contradictory details is not sufficient to establish that
a jury verdict is unreasonable: WH at para 32 citing R v Francois, 1994 CanLII 52
(SCC), [1994] 2 SCR 827 at 837, 19 OR (3d) 322.

[10] Whether the trial judge has misdirected the jury or failed to provide an essential direction
to the jury is a question of law, subject to the correctness standard of review: R v JOL, 2020 ABCA
73 at para 14.

Analysis

[11] We begin our analysis with the second ground of appeal – that the trial judge failed to
instruct the jury on the mens rea for sexual assault, and this failure undermined the verdict.

[12] In R v Barton, 2019 SCC 33 at paras 87 to 90, the Supreme Court described the role of
consent vis a vis the elements of the offence:

A conviction for sexual assault, like any other true crime, requires that the Crown
prove beyond a reasonable doubt that the accused committed the actus reus and had
the necessary mens rea. A person commits the actus reus of sexual assault “if he
touches another person in a sexual way without her consent” (R. v. J.A., 2011 SCC
28, [2011] 2 S.C.R. 440, at para. 23). The mens rea consists of the “intention to
touch and knowing of, or being reckless of or wilfully blind to, a lack of consent
on the part of the person touched” (R. v. Ewanchuk, 1991 CanLII 711 (SCC), [1999]
1 S.C.R. 330, at para. 42). [emphasis added]

“Consent” is defined in s. 273.1(1) of the Code as “the voluntary agreement of the

complainant to engage in the sexual activity in question”… It is the “conscious
agreement of the complainant to engage in every sexual act in a particular
encounter” (J.A., at para. 31), and it must be freely given (see Ewanchuk, at para.
36). This consent must exist at the time the sexual activity in question occurs (J.A.,
at para. 34, citing Ewanchuk, at para. 26), and it can be revoked at any time (see
Code, s. 273.1(2)(e); J.A., at paras. 40 and 43). Further, as s. 273.1(1) makes clear,
“consent” is not considered in the abstract. Rather, it must be linked to the “sexual
activity in question”, which encompasses “the specific physical sex act”, “the
sexual nature of the activity”, and “the identity of the partner”, though it does not
include “conditions or qualities of the physical act, such as birth control measures
 Page: 4

or the presence of sexually transmitted diseases” (R. v. Hutchinson, 2014 SCC 19,
[2014] 1 S.C.R. 346, at paras. 55 and 57 (emphasis deleted)).
Consent is treated differently at each stage of the analysis. For purposes of the actus
reus, “consent” means “that the complainant in her mind wanted the sexual
touching to take place” (Ewanchuk, at para. 48). Thus, at this stage, the focus is
placed squarely on the complainant’s state of mind, and the accused’s perception
of that state of mind is irrelevant. Accordingly, if the complainant testifies that she
did not consent, and the trier of fact accepts this evidence, then there was no consent
– plain and simple (see Ewanchuk, at para. 31). At this point, the actus reus is
complete. The complainant need not express her lack of consent, or revocation of
consent, for the actus reus to be established (see J.A., at para. 37).

For purposes of the mens rea, and specifically for purposes of the defence of honest
but mistaken belief in communicated consent, “consent” means “that the
complainant had affirmatively communicated by words or conduct her agreement
to engage in [the] sexual activity with the accused” (Ewanchuk, at para. 49). Hence,
the focus at this stage shifts to the mental state of the accused, and the question
becomes whether the accused honestly believed “the complainant effectively said
‘yes’ through her words and/or actions” (ibid., at para. 47).

[13] The Canadian Judicial Council’s Model Jury Instructions set out the elements of the
offence of sexual assault based on R v Ewanchuk, [1999] 1 SCR 330, 1999 CanLII 711, R v JA,
2011 SCC 28, Barton, and other decisions of the Supreme Court as follows:

You must find (NOA – Name of accused) not guilty of sexual assault unless the
Crown has proved beyond a reasonable doubt that (NOA) is the person who
committed the offence on the date and in the place described in the
indictment. Specifically, the Crown must prove each of the following essential
elements of the offence beyond a reasonable doubt:

1. That (NOA) touched (NOC-Name of Complainant) directly or indirectly;

2. That the touching by (NOA) was intentional;

3. That the touching by (NOA) took place in circumstances of a sexual nature;

4. That (NOC) did not consent to the sexual activity in question; and
 Page: 5

5. That (NOA) knew [or was wilfully blind or reckless] that (NOC) did not consent
to the sexual activity in question.2

[14] The first four elements in the specimen instruction relate to the actus reus of the offence;
the fifth element relates to the mens rea.

[15] In this case, the trial judge instructed the jury that the Crown had to prove beyond a
reasonable doubt “four things” in order to find the appellant guilty of sexual assault. Those were:

1. That the appellant applied some force to the complainant;

2. That the physical force violated the complainant’s sexual integrity;

3. That it was the appellant who physically touched the complainant; and

4. That the complainant did not consent to the sexual activity.

[16] The jury was not advised specifically of the fifth element – the mens rea element.

[17] Rather, the trial judge advised the jury that the appellant admitted in his testimony to the
first three elements he set out. His jury instructions then focused on the issue of the complainant’s
lack of consent, including incapacity. In the course of these instructions on the actus reus of the
offence, the trial judge said: “The Crown must prove that [the appellant] knew that [the
complainant] did not consent.” This appears to refer to the mens rea. The trial judge then returned
to the issue of capacity – the actus reus, concluding with advising the jury that the Crown must
prove “each of these ingredients beyond a reasonable doubt.”

[18] At no point did the trial judge separately and clearly advise the jury that the Crown had to
prove the appellant knew that the complainant did not consent to the sexual activity in question –
the mens rea of the offence. Neither trial counsel raised any objection or concern to this omission.

[19] The position of the Crown on appeal is that this was not the issue on which the case turned.

[20] We are unable to agree with the Crown’s submission on the facts of this case, including
the appellant’s evidence. On the evidence before the jury, the jury had to decide two issues. First,
did the Crown establish beyond a reasonable doubt that the complainant was incapacitated and
therefore incapable of consenting to the sexual intercourse? Second, if the jury found the
complainant was incapable of consenting, it was still necessary for the Crown to establish beyond
a reasonable doubt that the appellant knew, was willfully blind, or reckless that the complainant

2
Canadian Judicial Council, Model Jury Instructions: Offences, s 271, online:
<https://www.nji-inm.ca/index.cfm/publications/model-jury-instructions/offences/sexual-
offences/offence-271-sexual-assault/> at p 138.
 Page: 6

was incapable of consenting due to her incapacity. The jury was never told this was an element of
the offence that the Crown had to establish beyond a reasonable doubt. This omission was a
significant error in law on the facts of this case. Therefore, this ground of appeal is allowed, the
conviction is set aside and a new trial is ordered.

[21] In light of our decision on the second ground of appeal, it is not necessary for us to address
the third ground of appeal. Further, we see no merit in the first ground.

Conclusion

[22] We allow the appeal, set aside the conviction and direct a new trial.

Appeal heard on September 15, 2020

Memorandum filed at Iqaluit, Nunavut

this day of January, 2021

Authorized to sign for: Wakeling J.A.

Authorized to sign for: Khullar J.A.

Hughes J.A.
 Page: 7

Appearances:

B. Flight
for the Respondent

E. Tache-Green
for the Appellant