R. v. MacLeod

R. v. MacLeod Court Supreme Court Date 2023-04-14 Citation 2023 NSSC 119 Docket Sydney, No. 50214 Judge/Registrar/Adjudicator Coady, Kevin (Honourable Justice) (SC) Document Type Decision Decision Content SUPREME COURT OF Nova Scotia Citation: R. v. MacLeod, 2023 NSSC 119 Date: 20230414 Docket: Sydney, No. 50214 Registry: Sydney Between: His Majesty the King v. John Robert MacLeod TRIAL DECISION Judge: The Honourable Justice Kevin Coady Heard: February 1 – 3, 2023, in Sydney, Nova Scotia Decision: April 14, 2023 Counsel: Lisa MacPhee, Crown Counsel Darlene MacRury, Defendant Counsel By the Court: Background [1] Mr. MacLeod is charged on a one count indictment alleging that he did commit a sexual assault on P.O., contrary to section 271 of the Criminal Code of Canada. This offence is alleged to have been committed at Glace Bay, Nova Scotia between August 8, 2020 and August 9, 2020. Mr. MacLeod was 56 years old at the time. P.O. was an adult female. The evidence included an incident of alleged sexual intercourse. The critical issue in this trial is consent. [2] The first exhibit was an Agreed Statement of Facts as follows: 1. John Robert MacLeod (Bobby) born June 23, 1964, is the accused person in this matter. He is charged that he between August 8, 2020 and August 9, 2020 at or near Glace Bay, Nova Scotia did commit a sexual assault on P.O., contrary to Section 271 of the Criminal Code of Canada. 2. Bobby MacLeod is maintaining his innocence and is expected to plead not guilty to the offences outlined on the Indictment when he is arraigned. The matter is scheduled for trial commencing January 31, 2023. 3. Saturday August 8, 2020 P.O. was at home with her fiancé T.B. and her children V.N. (Age 16) and P.N. (Age 13). Each of her children had a friend over. They had a bon fire in the back yard of their home in Glace Bay, Nova Scotia. 4. At approximately 7 pm their neighbor John Robert MacLeod (Bobby) came over to visit at the fire with T.B. and P.O.. They were all drinking alcohol. Bobby was drinking beer and smoking marijuana. T.B. and P.O. were drinking vodka and juice. P.O. had approximately 6 drinks. 5. P.O. told police she was at about an 8 on a scale of 1-10 of intoxication. The children were in and out of the house throughout the evening. 6. Late in the evening T.B. went inside and he ended up falling asleep on the couch. P.O. and Bobby remained outside at the bon fire. 7. Right around midnight while alone at the fire, sexual activity took place. Bobby and P.O. were laying on the ground near the firepit in P.O.’s back yard. P.N. came out looking for his mother and saw Bobby on top of P.O.. He yelled for Bobby to get off his mother. Bobby got up and ran out of the yard. V.N. called 911. 8. Cst. Burrows with the Cape Breton Regional Police Service the residence at 12:10 am August 9, 2020. When he arrived all 4-youth present, were hysterical and trying to all speak at once. Cst. Burrows attempted to speak to P.O. in private but noticed she was very intoxicated. He observed she had poor balance, a strong smell of alcoholic beverage emitting from her breath, and glossy blood shot eyes. He had to help her walk to the police vehicle, she was difficult to understand. She was able to indicate to Cst. Burrow that it was Bobby from next door she was making a complaint about. 9. Police took P.O. to the Cape Breton Regional Hospital where she was examined by a Sexual Assault Nurse Examiner. 10. P.O. had dirt and marks on her arms and legs and an abrasion on the big toe of her right foot which was bleeding, red and had dirt in the injured area. She had a mud print consisting of 4 greyish lines on her outer upper left arm, a scuff mark on her left elbow with dirt smudges, smudged dirt on her knees. 11. John Robert MacLeod was located and arrested at his home, 91 Third St., Glace Bay, Nova Scotia at approximately 4pm August 9, 2020. He was cooperative with police, he provided a statement, and he was released through the JP Center that evening. These facts provide a solid background for all witnesses in this trial. Sergeant Geoff MacLeod [3] Sergeant MacLeod is a 32 year veteran of the Cape Breton Regional Police. On August 9, 2020 he was working in forensics. He arrived at the scene of the alleged sexual assault at 12:10 a.m. He photographed the home and the area around the firepit. He testified the area was “very dark” and that there was no exterior lighting. Also the firepit was completely extinguished. Christena Sanford [4] Ms. Sanford is a SANE nurse who was called to the hospital at 2:30 a.m. on August 9, 2020. She found the complainant asleep. She examined the complainant and took photos of possible injuries. She testified the only injury was an abrasion to the complainant’s big toe. She did not attribute any of her observations to be the result of a sexual assault. She stated she had no concern about alcohol affecting informed consent and that intoxication was “never an issue”. The Complainant P.O. [5] The complainant lived at the subject home with her partner and two teenage children. Back yard firepits were common in the neighborhood. On the evening of August 8, 2020 P.O. and her family were sitting around the pit where the adults were drinking alcohol. The accused (Bobby) joined them at 7:30 p.m. bringing a bag of beers. P.O. testified she started drinking at 6:30 p.m. and over the evening she consumed seven free poured glasses of vodka. She cannot remember taking her last drink. She testified that at some point the children went in the house. Apparently, P.O.’s partner went into the house at some point and fell asleep on a couch. P.O. and Bobby were left at the pit. [6] P.O. described the alleged sexual assault in the following terms. She and Bobby were talking and drinking around the pit. She said she remembered waking close to the fire while on the ground. She testified “I don’t know what happened”. She stated she woke up and he was on top of her. She said she pushed him away saying, “no, no”. She testified, “he had his penis in me”. She further testified that when she looked up her son was standing over them with a light. She stated that Bobby got off her and ran towards his home. She testified she had no memory after that. [7] P.O. testified she woke up at the hospital with a nurse but has no idea how she got there. Her next memory was waking up at home at some unknown time the following morning. On cross-examination, she acknowledged having seven glasses of vodka was a common weekend occurrence. She testified she drank less during the week. [8] As to the physical acts, P.O. testified, “I remember bits and pieces.” She denied initiating acts of kissing, fondling and sexual intercourse with Bobby. She was not able to provide a foundation for her denials. When asked if it all was spontaneous, she replied she “would not do that”. [9] On cross-examination she acknowledged the following inconsistencies between her police statement and her trial testimony: • She did not tell the police that she resisted Bobby pushing him away with her hands. • She told the police that Bobby was on top of her for 5 minutes when her son came out of the house. • She told the police she said no when her son came out of the house. It was apparent to this Court that P.O.’s recollection of events was either affected by alcohol or an intention to appear intoxicated. [10] It is also noteworthy that when police took a statement from P.O. at 1:02 a.m. on August 9, 2020, they utilized a cautioned KGB statement. I find this factor troubling as it is not common practice to caution a sexual assault complainant prior to taking a statement. The evidence did not disclose a reason for this approach. V.N. [11] V.N. is the daughter of P.O. and she was 16 years old in 2020. One of the Crown’s first questions was if she knew why she was in Court. Her immediate reply was because her mom was raped by Bobby. [12] V.N. testified that she was in the house with her brother and two friends. She stated she saw her mom on the ground and Bobby was on top of her. She went back in the house. She said she gave her brother her phone flashlight and they went looking for their mom. She testified she did not go beyond the back steps into the house. Her brother went out into the yard and she heard him scream. She testified the two friends followed her brother outside into the back yard. These two witnesses were not called to testify. V.N. called 911. P.N. [13] P.N. is the son of P.O. and was 13 years old in 2020. When the Crown asked him why he was in court he replied, “what happened to my mom, she got raped”. He stated he and the other children were hanging out upstairs and he knew his mother was in the backyard. He testified he went downstairs but could see nothing. He got a flashlight and went out into the backyard. He said he saw Bobby on top of his mother. He was unable to say anything about any sexual activity but suggested her shorts were off. He stated he went over to P.O. who said nothing. P.N. said Bobby said, “oh shit”, and ran away with his jean shorts off and his underwear around his ankles. S.R. [14] S.R. is one of the child guests and is the complainant's niece. She was 17 years old at the time of the alleged sexual assault. She was upstairs helping V.N. dye her hair. She testified that the adults were at the firepit. She stated that all four of them went looking for P.O. P.N. went out of the house and screamed. She observed P.O. on the ground by the fire and Bobby was on top of her. She then saw him get off her and leave the backyard while falling over his pants. She did not see any sexual activity. S.R. then helped P.O. to her feet and helped her put her pants on. She stated that P.O. could walk fine but seemed confused. Cst. Brennan Burrows [15] Cst. Burrows is a member of the Cape Breton Regional Police. On August 9, 2020, at 12:10 a.m. he was dispatched to P.O.’s home in response to a sexual assault complaint. When he arrived, all were in the house. He described the scene as lots of yelling and screaming. He was provided with several different reports as to what had gone on. He testified that P.O. approached him and he observed her to be severely intoxicated. He stated she was “too drunk” to communicate. He testified he had to help her walk to his police vehicle. [16] Cst. Burrows asked P.O. if she wanted charges laid and found her to be ambivalent. He testified she was too drunk to give a statement and he could not get a concise version of what had happened that evening. He removed P.O. to the hospital. Cst. Keith Power [17] Cst. Power took a statement from Mr. MacLeod on August 9, 2020. The video of that statement was made an exhibit in this trial. Mr. MacLeod denied sexually assaulting P.O. While he acknowledged having sexual relations with P.O., he contended that he forced nothing and that all acts were consensual. The following is an exchange between the two: Q: I’m just trying to, I’m not saying you did, what I’m saying is somebody walked up on you, you were on top of P.O. your penis was inside of her you were having intercourse with her so I just need you to explain how you went from T.B. going inside the house to having a conversation around the campfire to being on top of P.O. A: I don’t know … Q: If your saying no, no conversation happened then how did she give you consent … A: I don’t know how we got how we got to that point but … Q: Did she say I want to have sex with you? A: Um I can’t I can’t remember exactly how like how it all went down but it was it wasn’t there was nothing there was nothing forced. Q: did you hear her say I want to have sex with you? A: Um did I hear her say that no I didn’t I don’t I didn’t hear her say that no. Q: Ok. A: No. Q: Did you did you ask her to have sex with you? A: Um no I didn’t I, I no. Q: Thank you very much. A: No. Q: Ok did she give you consent to put your penis inside her vagina? A: Um she allowed me to yes. Q: Ok did she take you by the penis and put your penis inside of her? A: Ah she spread her legs right. Q: Ok how did her shorts get off? A: She took them off. Q: Ok and what did she say when she was taking her shorts off. A: Nothing. Q: She didn’t say anything. A: No, no. Q: Ok. What was her level of intoxication? A: Um she was probably pretty full I was pretty full we were all pretty full. … Q: Was there any conversation about you and P.O. having sex that night? A: No not really no it’s just something that happened. Q: Ok. How did it happen cause she would have had to move from the chair to the ground… A: Just little gestures and you know… Q: Explain the gestures. A: Um she took me by the hand you know give me a little just she’s getting fresh right … Q: Was this last night? A: This was last night yeah. Q: Ok going into this morning. A: Yeah. Q: Ok how was she getting fresh. A: Um just really close and you know really close … Q: But no words. A: No it was just something that happened right. Q: Ok, ok. A: Not that I, no there was really no words. Q: Who took your pants off? A: Um she unbuckled me I think … Q: You’re not sure though … A: I’m not sure. … Q: What do you mean you’re not understanding, I only asked you what gave you the impression that she was enjoying having sex with you. A: Cause she was laid out and moaning groaning just like any other you know sexual experience. Q: But you never had sex with her before last night. A: No I haven’t no. … Q: Right. But what did P.O. do last night to lead you to believe that it was mutual and that she wanted to have sex with you? A: Ah she kissed me. Q: Ok tell me about that. A: Ah was pretty passionate kiss. Q: Ok tell me about it. A: Ah that’s all I can say to it really. Q: Ok well that makes it a passionate kiss. A: Um I don’t know a kiss is a kiss I guess I don’t know … Q: Well a kiss is … A: I thought it was … Q: A kiss is … A: I, I thought it was was kind of passionate I felt I felt ah I felt aroused. Q: Who initiated the kiss? A: Ah she did. Q: Ok how did that happen. A: I don’t know I know we were both pretty full and we were falling around the fire and stuff right I think she kind of almost fell in and I grabbed her and like whoa you know don’t be careful your gonna get burnt right. Q: Um hum. And when she almost fell in the fire and you grabbed her and said be careful … A: Then she got close to me. Q: Ok and where were yous then, were you standing up? A: Yeah we were standing up. Q: Ok and then what happened? A: Ah I can’t ah we were like hugging I guess … Q: Ok. A: Yeah. Q: And is that when she kissed you? A: Yeah. Q: Ok what happened after she kissed you? A: Um start we start getting really close that’s when … Q: Well you have to be close if you were kissing … A: Yeah we start doing like I don’t know … Q: Who’s idea was it to lay on the ground? A: Um I guess both, both of us I guess I don’t know. Q: Ok. A: More comfortable. Q: But yous didn’t talk about it. A: No we just no. Robert (Bobby) MacLeod [18] Mr. MacLeod elected to testify. He is a 58-year-old carpenter. The Crown has not alleged a criminal record. He testified firepits were a regular occurrence at P.O.’s home. He would visit P.O.'s home every two to three weeks where drinking alcohol was the usual activity. He stated that these were enjoyable events and he never observed conflict. [19] Mr. MacLeod testified about the events of August 8/9, 2020. It was a Sunday and he was shingling his house until approximately 5 p.m. After drinking some beers, he noticed the gathering at the P.O. residence next door. He took six beers and joined the party at about 7 p.m. He stated that T.B. and the children went inside leaving P.O. and him at the firepit. P.O. was drinking alcohol out of glasses and he consumed his six beers. He testified the atmosphere was good and there were no disputes or arguments. [20] Mr. MacLeod testified they were sitting around talking and drinking when P.O. almost fell into the fire. He helped her up by the arms and they got “kind of close”. He was holding her up face to face. They kissed and ended up on the ground hugging each other. He testified that P.O. took off her pants and underwear. She then helped him remove his pants and underwear. Mr. MacLeod described these actions as just happening. P.O. then got on her knees and performed oral sex on him as he stood. Once that was complete, they got on the ground and engaged in sexual intercourse. It was at that point that P.N. came out with the flashlight. [21] Mr. MacLeod acknowledged there was little, if any, conversation and that everything was mutual. He found mutuality from P.O.’s physical responses. He described her as “welcoming” and P.O. as “enjoying herself”. He said she responded by “moaning and groaning” and by wrapping her arms and legs around him. He said they were not on the ground long before P.N. came out of the house. He stated that P.O. appeared shocked but said nothing. He testified that he did not take long getting out of there. Upon returning to his home, he sat down wondering “what just happened”. He said he felt it was not morally right as P.O. had a partner. Position of the Crown [22] The theory of the Crown is that Mr. MacLeod forced himself on P.O. and therefore is guilty of the offence alleged. Alternatively, if P.O. consented it was vitiated by P.O.’s level of intoxication. Position of the Defence [23] The defence argues that P.O. was the instigator of the sexual activity. It suggests that the evidence establishes that P.O. is accusing Bobby to protect her children and partner from concluding she was having a casual sexual encounter with a neighbour. Alleging a sexual assault gave her a way of avoiding conflict within her family. P.O. denied this proposition when it was put to her. The Issues in this Trial [24] The critical issue in this prosecution is whether P.O. consented to the sexual contact, and if she did consent, whether she had the capacity to consent as a result of her consumption of alcohol. My analysis follows the approach of Justice Beverage in R. v. Al-Rawi, 2018 NSCA 10. The jurisprudence recognizes that to have capacity to consent a complainant must also be able to understand that he or she can agree or decline to participate in the sexual activity in question. Justice Beverage stated at paragraph 66 of the Al-Rawi decision: [66] Therefore, a complainant lacks the requisite capacity to consent if the Crown establishes beyond a reasonable doubt that, for whatever reason, the complainant did not have an operating mind capable of: 1. appreciating the nature and quality of the sexual activity; or 2. knowing the identity of the person or persons wishing to engage in the sexual activity; or 3. understanding she would agree or decline to engage in, or to continue, the sexual activity. These inquiries are entirely subjective as established in R. v. Ewanchuk (1999) 1 S.C.R. 330. [25] In R. v. Hutchinson, 2014 SCC 19 the Court suggested a two-step approach to cases involving consent and capacity to consent. The Supreme Court addressed this approach at paragraph 4: [4] The Criminal Code sets out a two-step process for analyzing consent to sexual activity. The first step is to determine whether the evidence establishes that there was no “voluntary agreement of the complainant to engage in the sexual activity in question” under s. 273.1(1). If the complainant consented, or her conduct raises a reasonable doubt about the lack of consent, the second step is to consider whether there are any circumstances that may vitiate her apparent consent. Section 265(3) defines a series of conditions under which the law deems an absence of consent, notwithstanding the complainant’s ostensible consent or participation: Ewanchuk, at para. 36. Section 273.1(2) also lists conditions under which no consent is obtained. For example, no consent is obtained in circumstances of coercion (s. 265(3)(a) and (b)), fraud (s. 265(3)(c)), or abuse of trust or authority (ss. 265(3)(d) and 273.1(2)(c)). In this case intoxication is a significant issue. There is very little subjective evidence that P.O. did not consent. She testified she tried to push Bobby away with her arms and stated "no, no". These actions were not corroborated by other witnesses who were in a position to observe those activities. The Issue of Consent [26] After considering all of the evidence, I am satisfied that P.O. consented to sexual relations with Robert MacLeod. This conclusion is rooted in the evidence of the accused and P.O. who advance different views of whether there was consent. The first arises from my W.D. analysis. I believe Mr. MacLeod. While he may not be overly articulate, he gave his evidence in a straightforward manner and did not embellish his version of events. The evidence as a whole does not contradict his evidence. His viva voce testimony was consistent with his earlier statement to police. He was not compromised on cross-examination. [27] Mr. MacLeod was obviously embarrassed at being found having sex with P.O. I do not equate this with accepting he had committed an offence. He stated in his statement “I’m not proud of what happened”. I found that he was referring to having sex with someone who had an intimate partner and that he should have had the strength to resist his urges. Further, acceptance of his evidence leads to the inescapable conclusion that P.O. instigated the sexual contact. [28] There are a number of other factors that support the fact that the Crown has not proven lack of consent beyond a reasonable doubt. They are as follows: The Testimony of P.O.: I found that on the hard questions she was prone to rely on a lack of memory to avoid damaging conclusions. I found this to be a theme throughout her testimony. There were several contradictions between her police statement and her trial testimony. She testified she resisted with clenched fists when such was not mentioned to the police. She testified she had no memory of Bobby being on top of her before her son came out into the yard. She told police he was on top of her for five minutes before her son came out of the house. KGB Statement: This Court is very familiar with these cautioned statements and their purpose. Yet when the police took a statement from P.O., they used this investigative technique. This is most unusual when taking a statement from a sexual assault complainant. The Children: When the police arrived shortly after midnight, the scene was described as “lots of yelling and screaming” with different stories about what had happened. When P.O.’s daughter V.N. testified, she stated she was there “for her mom” and that “she was raped by Bobby”. When P.O.’s son P.N. testified, he was first asked if he knew why he was in court to which he replied “what happened to my mom – she got raped”. I am concerned by this testimony as it suggested the adults were telling the children their version of events. I am concerned that the narrative was developed over a two-year period. Motive to Lie: The evidence leads me to believe that P.O. decided to engage in sexual activity that she might not do if she was sober. She knew her partner was asleep in the house and that her children were occupied in the upstairs of the home. It was very dark in the backyard. She was faced with having to explain her actions to her children and partner. Allegations of “rape” avoids family disintegration. SANE Nurse's Evidence: The SANE nurse met P.O. at the hospital at 2:30 a.m. on August 9, 2012. She testified that she had no concern about alcohol affecting informed consent and that intoxication was “never an issue”. These observations were made approximately two hours after Cst. Burrows had his first contact with P.O. I have considered his testimony that at 12:10 a.m. P.O. was incoherent and highly intoxicated. I prefer the evidence of the SANE Nurse from the totality of the evidence. It is difficult to reconcile the change in sobriety over a two-hour period. P.O. testified that she has no memory from the hospital until waking up at home the next day. Mr. MacLeod’s Evidence: I have accepted Mr. MacLeod’s evidence as trustworthy and reliable. His testimony and police statement indicate that P.O. consented to sexual activity with him. The Issue of Capacity [29] Notwithstanding P.O.’s willingness to have sexual relations, Mr. MacLeod had a responsibility to resist if he viewed she lacked capacity to consent. The Court in R. v. Heraldson, 2012 ABCA 147 discussed the difficult position triers of fact must grapple with in these type of cases at paragraphs 6 and 7: [6] The central issue at trial was the complainant’s capacity to consent. The Crown correctly states that the capacity to consent requires something more than the capacity to “execute base-line physical functions,” and that the capability to speak or perform a sexual act does not preclude a determination that the complainant lacked capacity to consent in the circumstances. The Respondent agrees with the test formulated by the Crown, but points out that a drunk complainant may retain the capacity to consent, and that the issue is one of fact or mixed fact and law. The Crown says that the trial judge erred by focusing on the complainant’s ability to perform relatively primitive functions (such as providing instructions to the cab driver, getting out of the taxi cab, and participating in the sexual conduct), as opposed to whether the complainant could understand the risks and consequences associated with the sexual activity and the sexual nature of the act, and to realize that she could decline to participate. The competing submission is that there was sufficient evidence to show actual consent based on the Respondent’s statement that the complainant was an active and engaged participant, and that there was an absence of evidence to prove incapacity beyond a reasonable doubt. The Respondent says that while intoxication is a factor, there was evidence to demonstrate “the cognitive ability [of the complainant] to articulate her desires,” and that she was responsive to questions and appeared to be aware of her surroundings. [7] The Criminal Code explicitly provides that there can be no consent if the complainant is incapable of consenting to the activity (s. 273.1). Capacity to consent to sexual activity requires something more than the capacity to execute baseline physical functions. The question is the degree to which intoxication negates comprehension or volition. A drunk complainant may retain the capacity to consent: R. v. R.(J) (2006), 2006 CanLII 22658 (ON SC), 40 C.R. (6th) 97 (Ont. S.C.J.) at paras. 17‑19, 43. Mere drunkenness is not the equivalent of incapacity: R. v. Jensen (1996), 1996 CanLII 1237 (ON CA), 106 C.C.C. (3d) 430 (Ont. C.A.). Nor is alcohol-induced imprudent decision making, memory loss, loss of inhibition or self control: R. v. Merritt, [2004] O.J. No. 1295 (Ont. S.C.J.). A drunken consent is still a valid consent. Where the line is crossed into incapacity may be difficult to determine at times. Expert evidence may assist and even be necessary, in some cases (R. v. Faulkner (1997), 1997 CanLII 1193 (ON CA), 120 C.C.C. (3d) 377 (Ont. C.A.)), though it is not required as a matter of law: R. v. Merritt, supra; R. v. Hernandez, [1997] A.J. No. 955 (Alta. C.A.), R. v. Cedeno, 2005 ONCJ 91, 195 C.C.C. (3d) 468 at para. 18. [30] The burden is on the Crown to establish that P.O. lacked the capacity to consent. In Al-Rawi, Justice Beveridge stated at paragraphs 112-115: [112] The trial judge’s comment “Clearly, a drunk can consent” received sharp criticism from some quarters. The Crown concedes that the impugned expression is not wrong, but says the judge’s choice of words amounted to an unfortunate personalization of the complainant. [113] The Crown's concession is appropriate. As detailed earlier, it is well established in our jurisprudence that an intoxicated person may still have the capacity to voluntarily agree to engage in sexual activity despite the expectation that if sober or less impaired they would not have done so. [114] Capacity to consent mandates an inquiry as to whether the complainant had the minimal or limited cognitive capacity to understand the nature and quality of the activity, the identity of the person(s) with whom the activity is engaged, and the awareness of choice to agree or decline. [115] It is self-evident that a person who is unconscious or insensate lacks the capacity to enter into a voluntary agreement to engage in sexual activity. But that is not the divide between capacity and incapacity. It is never an easy task to look inside a complainant's head to determine whether they had the capacity to consent to sexual relations. I have concluded that P.O. did have that capacity notwithstanding her consumption of alcohol. This conclusion is based on a consideration of all of the evidence. CONCLUSION [31] I am satisfied that P.O. had sexual contact with Mr. MacLeod, including sexual intercourse, while possessed of the cognitive capacity to understand the nature and quality of the activities. I am also satisfied that she was aware of the choice to agree or decline. Consequently, I find that the Crown has failed to prove that P.O. did not consent or that she did not have the capacity to consent. I find Mr. MacLeod not guilty. Coady, J.