WARNING
The court hearing this matter directs that the following notice be attached to the file:
This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:
110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.
111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.
129. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.
Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:
138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
In addition, a non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Court Information
Ontario Court of Justice
Sitting under the provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1, as amended
Between:
Her Majesty the Queen
— and —
J.A.C., a young person
Before: Justice D.A. Kinsella
Heard on: March 7, April 6, May 12 and May 16, 2017
Reasons for Judgment released on: June 20, 2017
Counsel:
Aquilas Kapend — counsel for the Crown
Meaghan Thomas — counsel for the defendant J.A.C.
KINSELLA J.:
Introduction
1Hollywood's depiction of teenage relationships is an idealized one, with perfectly scripted dialogue where everyone always says the right thing, the soundtrack is current and catchy, and the endings are always happy. Unfortunately, real life is not like Hollywood. Miscommunication and misunderstanding can lead to heartache and things do not always end well. Such was the situation for J.A.C. and S.C., a young couple who met in high school and who had a brief relationship. That relationship came to an end in December of 2015 and resulted in the criminal charge before this court.
2J.A.C. stands charged that on or about the 13th day of December, 2015, he did commit a sexual assault on S.C., contrary to section 271 of the Criminal Code.
3The trial commenced in front of me on March 7, 2017 and continued on April 6, 2017, May 12, 2017, and May 16, 2017. On May 12, 2017 I ruled that the statement made by J.A.C. to Detective Constable Amy Smirnov of the Ontario Provincial Police on December 14, 2015 was admissible, with written reasons to follow. Those reasons are contained herein.
Evidence
4Most of the evidence in this case is not in dispute. S.C. (who was nineteen at the time of the incident) attended Tagwai High School with J.A.C. (who was 16 at the time of the incident). They were close friends who had had a brief dating relationship that ended just a few days prior to December 13, 2015, in part due to complications arising out of J.A.C.'s relationship with a prior girlfriend, L.P., who resumed her relationship with J.A.C. after this charge and who testified at the trial. Despite this, the dating relationship between J.A.C. and S.C. ended on a positive note, and the two continued to be friends who had romantic feelings towards each other.
5On December 13, 2015 arrangements were made for S.C. to visit with J.A.C. at his residence to do some homework and watch a movie. He lived with his grandparents at a residence in Duff's Corners. His mother, C.C., along with J.A.C. picked S.C. up from her home and drove them to his residence. After briefly speaking with J.A.C.'s grandparents, the two young people, along with J.A.C.'s younger brother, went down into his bedroom in the basement. This bedroom was an enclosed room but did not have a door. There was a bed and a TV.
6J.A.C. and S.C. sat on the bed, while his brother sat on the floor. They watched the movie together for a short while, during which J.A.C. and S.C. began to hold hands. This progressed to closed-mouth kissing after which J.A.C. asked his brother to leave the room, which he did. The kissing progressed to French kissing, then mutual fondling both above and below clothing, and eventually to both removing their shirts. J.A.C. and S.C. agreed that all of this was mutual and consensual.
7Eventually, J.A.C. asked S.C. if she would give him a "blow job", which both understood to mean that she would perform oral sex on him. She testified that, while she was initially somewhat reluctant as she had not done anything like that before, she agreed. She also testified that this reluctance was of a brief duration and something that was only occurring within her own mind, not something she communicated. She undid his pants and began to perform oral sex; however they were interrupted when J.A.C.'s grandfather came downstairs to add some wood to the stove.
8Once the grandfather had returned upstairs, J.A.C. asked S.C. if he "could go down on her" which both understood to refer to his performing oral sex on her. Again, S.C. testified that she hesitated briefly and agreed in cross-examination that she expressed some of that hesitation to J.A.C. She agreed, however, and either she or J.A.C. unbuttoned her pants and pulled them down. J.A.C. then performed oral sex on her for a short period of time.
9According to S.C., J.A.C. then asked if they could have sex, to which she replied by asking him if he had a condom. He said he did not and she indicated that she did not either, and so they would not be able to have intercourse. She testified that, while she never intended to have intercourse with J.A.C., she was nonetheless concerned about having a condom to protect against sexually transmitted diseases (STDs) or unwanted pregnancy which might occur if the two of them had genital contact short of intercourse. According to S.C., J.A.C. was aware that she was a virgin, something they had spoken of earlier. They did not, however, ever have a discussion about STDs.
10She also testified that, sometime prior to this evening, she and J.A.C. had had a discussion about "being intimate with the anus". When exactly this discussion occurred and what was said was not explored any further in evidence. According to her, however, she had this previous discussion in mind when J.A.C. asked her if they "could keep going, just with the ass." She testified in chief that she did not recall him asking if they could have anal sex, but admitted in cross-examination that he might have said something to that effect. When asked to explain what she understood J.A.C. to be asking her, she replied "I believed he meant fingers and grinding, so no intercourse, just like rubbing genitalia."
11She then got on her hands and knees on the bed so that she was facing away from J.A.C., who was behind and above her, with her face partially in the pillows. She testified that she felt something, she was unsure if it was his penis or fingers, rub across her vagina and then enter her vagina. Although in her evidence in chief she described this as one swift movement, in cross-examination she acknowledged that there had first been some "grinding" which involved J.A.C. rubbing his erect penis in the area between her anus and vagina. She acknowledged that this act was pleasurable and that she responded by moving her "butt" towards him. She also agreed that she was aroused and lubricated as a result.
12She said that, after he had thrust into her vagina anywhere from two to five times (for a total period of time lasting less than ten seconds), she realized that he was inserting his penis into her vagina. She said she did not know what to do and stiffened slightly, but did not say anything. He then removed his penis from her vagina and inserted it into her anus. She believed he had inserted it some distance and it was painful. She then "kind of gave out a yelp" and started crying. J.A.C. pulled out of her and immediately pulled her pants up. She went into a panic attack and J.A.C. attempted to console her, saying he was sorry. He, too, started crying.
13They stayed in the room while her panic attack subsided, and then she gathered up her clothing and belongings. She testified that she did not want to "cause a panic" or let anyone upstairs know what had happened, as she was scared of what they might think of her. She described the atmosphere as uncomfortable and awkward. It was at this point that J.A.C., who hunted with his grandfather, began showing her some of the weapons he kept in his room, including a small handgun as well as some knives which he collected. She said she found this scary because she could not understand why he was showing them to her at that time, although she agreed he was not threatening. She also agreed with the suggestion made to her in cross-examination that this was likely an unsuccessful attempt on J.A.C.'s part to break the tension in the room.
14Shortly after, C.C. arrived to drive S.C. home. J.A.C. and S.C. agreed that the trip home was awkward, with neither really saying anything to each other. J.A.C. used his phone to type messages to hand to S.C. to read in the back seat. These messages can be generally characterized as apologies by J.A.C. to S.C. She refused to read most of them.
15Once S.C. arrived home, she went inside and immediately got into the shower. Her mother became concerned about the length of time her daughter had been in there and went to check on her. She found S.C. distraught. S.C. disclosed to her mother what had happened and she was immediately taken to the hospital, where a sexual assault examination kit was done. She then reported the matter to the Ontario Provincial Police and provided a video-taped statement that evening.
16J.A.C.'s account of the evening did not differ substantially from S.C.'s, save and except for the crucial conversation which occurred after he had performed oral sex on her. According to J.A.C., he asked S.C. whether or not she wanted to have sex, to which she asked him whether or not he had a condom. When he said he did not, she replied "you can't put it in." He then asked if he could "play with her" which to him meant "rubbing my parts against hers." He testified that he explained what he meant by this, and she agreed to it, after which he rubbed his penis briefly up and down against her vagina. Next, he testified that he asked her if she wanted to have anal sex. She agreed and asked him to help roll herself over onto her hands and knees, which he did.
17He then got behind her on his knees, which meant he was looking down at her from above. After using some spit to lubricate the area between her buttocks, he rubbed his penis in the area between her buttocks and vagina, to which she responded by rocking back and forth against him. He began to thrust and believes he only thrust two or three times before he realized that he was not inserting his penis into her anus but rather her vagina. He pulled out and attempted to put his penis into her anus, but stopped when he realized what he had done, which was take S.C.'s virginity. He denied hearing her cry out but did notice she was crying once he had removed himself. His description of the remainder of the evening did not differ from that provided by S.C.
18J.A.C. testified to having had some prior sexual experience, but had never had anal intercourse. In cross-examination, he denied asking S.C. if he could "play with her ass" but did acknowledge using the word "play" several times during his interview with the police to describe the sexual conduct they were engaging in. He also acknowledged that he did not initially admit to the police that he had had vaginal intercourse with S.C., although he did "come clean" once he was directly asked that question by the officer. He explained that inconsistency by saying he was nervous about the interview process. He also admitted that the phrase "do you want to have anal sex" may not have been the exact words he used.
19The Crown also called L.P., J.A.C.'s girlfriend at various stages and also a friend to S.C. L.P. and J.A.C. dated on and off between 2013 and January of 2017, both before and after his brief relationship with S.C. L.P. testified that J.A.C. had provided her with "different versions" of what had happened between him and S.C. on the night of December 13, 2015. Those "different versions" were as follows:
i. Once he had sex with S.C. and that she said it was okay but then the next day she charged him;
ii. He didn't use a condom so he "went differently" and then she went and pressed charges;
iii. He claimed to have had oral with her "and then again like she said that she agreed to it but…" L.P. did not finish the sentence in her testimony.
20Detective Constable Amy Smirnov was assigned to follow up on the matter the next morning. She called and left messages for both J.A.C.'s mother and grandfather. At 11 am, J.A.C.'s mother returned her call. She explained that there had been an allegation by an ex-girlfriend of J.A.C.'s that she had been sexually assaulted. While there was initially some apparent confusion as to which ex-girlfriend had made the complaint this was rectified a short time later. At the request of the officer, J.A.C. came to the Ontario Provincial Police station with his mother and grandfather, arriving shortly after 11:35 am.
21Detective Constable Smirnov first took separate video statements from J.A.C.'s mother and grandfather. Afterwards, she met with both of them in the boardroom to explain her investigation. She advised them that she had grounds to arrest J.A.C. for the offence of sexual assault. She explained her process to them: she would meet with J.A.C., arrest him and read him his rights to counsel, advising him at that time that he could chose to have a parent or guardian present with him if he wished. She testified that it was always her practice to review the rights with the young person without a parent present because the rights belong to the young person and any decision as to how to exercise those rights also belongs to the young person.
22At 12:12 pm the officer took J.A.C. into the interview room. Their interaction was captured on an audio-video recording. J.A.C. was arrested for the sexual assault of S.C. The officer then went through with him in some detail his rights as a young person. Those rights and his responses were recorded both on video as well as on the "Statement of a Young Person" form filed as exhibit "A" in the voir dire. In the video, J.A.C. presents as an intelligent young man, who is articulate. J.A.C. was clear in that he wanted to tell his side of the story without his mother or grandfather present, despite admitting that they would have preferred to be present.
23J.A.C. was then released on officer-in-charge undertaking.
Ruling on Voir Dire
24Counsel for the Crown sought a ruling that the video statement provided by J.A.C. on Dec 14, 2015 was voluntary in that it complied with the pre-requisites set out in section 146 of the Youth Criminal Justice Act (YCJA). Counsel for J.A.C. submitted that the Crown had failed to prove beyond a reasonable doubt that the prerequisites were met and that J.A.C. waived his protections. Specifically, counsel for J.A.C. argues that the police failed to meet the statutory prerequisites in the following ways:
The police failed to properly inform J.A.C. about his right to have a parent or guardian present during the interview;
The police failed to make reasonable inquiries about J.A.C.'s level of comprehension; and
J.A.C.'s waiver of his statutory protections was not an informed or unequivocal one.
25Section 146(2) of the YCJA reads as follows:
No oral or written statement made by a young person who is less than eighteen years old, to a peace officer or to any other person who is, in law, a person in authority, on the arrest or detention of the young person or in circumstances where the peace officer or other person has reasonable grounds for believing that the young person has committed an offence is admissible against the young person unless
(a) the statement was voluntary;
(b) the person to whom the statement was made has, before the statement was made, clearly explained to the young person, in language appropriate to his or her age and understanding, that
(i) the young person is under no obligation to make a statement,
(ii) any statement made by the young person may be used as evidence in proceedings against him or her,
(iii) the young person has the right to consult counsel and a parent or other person in accordance with paragraph (c), and
(iv) any statement made by the young person is required to be made in the presence of counsel and any other person consulted in accordance with paragraph (c), if any, unless the young person desires otherwise;
(c) the young person has, before the statement was made, been given a reasonable opportunity to consult
(i) with counsel, and
(ii) with a parent or, in the absence of a parent, an adult relative or, in the absence of a parent and an adult relative, any other appropriate adult chosen by the young person, as long as that person is not a co-accused, or under investigation, in respect of the same offence; and
(d) if the young person consults a person in accordance with paragraph (c), the young person has been given a reasonable opportunity to make the statement in the presence of that person.
26R. v. L.T.H., 2008 SCC 49 is the leading case on the admissibility of youth statements. In that case the court acknowledged that section 146 of the YCJA provides important procedural protections to young persons, recognizing the power imbalance between a young person and a person in authority such as a police officer. Further, the Act acknowledges the relatively immaturity of young people, even those who may present with "bravado and braggadocio" (at paragraph 33, citing R. v. J.J.T., [1990] 2 S.C.R. 755).
27Trial judges are encouraged to engage in "an individualized, objective approach" to assessing whether or not section 146 of the YCJA has been complied with (at paragraph 30). Similar to the obligations imposed on police under section 10(b) of the Canadian Charter of Rights and Freedoms, section 146(2) imposes both informational and implementational obligations on police (at paragraph 47).
28The informational duty requires police officers to ensure that the substance of the rights referred to in the section are communicated to the young person in language that is appropriate to their age and comprehension. Reading from a standardized form, without anything more, will not normally be sufficient to establish the caution (at paragraphs 48 & 49).
29The Crown must prove beyond a reasonable doubt by "clear and convincing evidence" that the police took reasonable steps to ensure that a young person understands his s. 146 YCJA rights (at paragraph 50).
30Once the Crown has proven beyond a reasonable doubt compliance with the informational component, the trier of fact is "expected to infer that the young person understood" those rights absent evidence to the contrary. While it is not necessary that police officers have the young person to recite the rights back as they understand them, the practice may "go some way to demonstrate that the explanation was at once appropriate and sufficient" (at paragraph 51).
31Finally, the Crown must call clear and unequivocal evidence that the young person who waives his rights is doing so with a full understanding of those rights as well as the effect the waiver will have on the process (at paragraph 7).
Failure to advise J.A.C. of his right to have a parent or guardian present
32Ms. Thomas on behalf of J.A.C. submits that the officer's decision to only advise J.A.C. of his rights, including his right to have a parent or guardian present, in the absence of his parent and guardian resulted in a failure to properly explain that right to him. She submits that section 146(2) of the YCJA requires the presence of a parent or guardian until such time as the young person says otherwise. In support of that position, she asks the court to find that the word "statement" as contained in section 146(2) refers to the entirety of the police interaction with the young person. In her oral submissions, Ms. Thomas candidly acknowledged that this was a "novel" argument.
33In order to properly assess this submission, it is important to consider section 3 of the YCJA, which sets out the principles of the legislation. Section 3(2)(b)(iii), for example, emphasizes "enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected." Section 3(d)(i) states that "young persons have rights and freedoms in their own right, such as a right to be heard in the course of and to participate in the processes, other than the decision to prosecute, that lead to decisions that affect them…"
34There may be circumstances, for example where the young person has an intellectual or perceptual handicap, which would alert the officer to the need to have a parent present at this early stage in order to ensure that the young person understands their rights (see, for example, R. v. M.C., [2009] A.J. No. 99 (Prov. Ct.)). Whether or not this step is needed will depend on the individual circumstances of the young person.
35This does not in my view, however, expand the definition of "statement" to the extent that counsel wishes but rather is a recognition of the police obligation to ensure that the young person comprehends their rights. As clearly stated in the YCJA's Declaration of Principles, these rights belong to the young person and not the parent, and include the right to privacy and the right to make their own decisions.
Failure to make reasonable inquiries as to J.A.C.'s comprehension
36As previously noted, the informational component of the duty placed on police officers who seek to take a statement from a young person must be provided in language that is clear and geared towards the young person's understanding. It flows logically from that the officer must learn something about the young person's education, language and vocabulary skills, his ability to understand and his emotional state. As noted by the court in R. v. L.T.H., supra:
These inquiries do not call for the intervention of a psychologist, or a telephone call to the school teacher, or even to a parent. But they do require enough conversation with the young person, to permit the officer to determine how many phrases must be explained and to what extent he must use ordinary or street language or even slang to be sure the child understands what is being said (at paragraph 23, citing R. v. C.G., 1986 CarswellOnt 1556 (Prov. Ct. (Fam. Div.)))
37In this case, a review of the entire video statement shows that Detective Constable Smirnov did communicate at a level appropriate to J.A.C.'s comprehension. She engaged in conversation with him at the outset in plain language and ensured that he could understand what was being explained to him, including having him read back the form out loud at one point. She did not use technical language or place any undue reliance on the form. She spoke with his mother and grandfather first and there is no evidence that any concerns about his level of comprehension were raised. Nor was there anything on the video that gave me any concern about his ability to comprehend.
38I am satisfied that the steps Detective Constable Smirnov took to determine J.A.C.'s level of comprehension were sufficient in the circumstances.
39Ms. Thomas also suggested that the officer minimized the importance of J.A.C.'s rights by her repeated reference to having to "go through" forms which were "lengthy". In support of this position, Ms. Thomas relies on the case of R. v. A.H., [2014] O.J. No. 6459 (CJ). The facts in this case are substantially different than those in R. v. A.H. I do not find that Detective Constable Smirnov was minimizing or denigrating the process by her comments, particularly when the entire statement is considered.
Failure to ensure an informed and valid waiver
40Ms. Thomas submits that the Crown has failed to establish beyond a reasonable doubt that J.A.C. waived the procedural safeguards he was entitled to under section 146 of the YCJA. As previously noted, any valid waiver includes an understanding of the rights being waived and the effect that waiver will have on those rights.
41Ms. Thomas asks the court to carefully review the Statement of a Young Person, filed as exhibit "A" on the voir dire. That document, which was reviewed with J.A.C. on video, sets out the rights he is entitled to. The young person is asked to acknowledge each right, which is reviewed in some detail. Section 6 of the form is titled "Waiver of Rights" and requires the young person to acknowledge that they are waiving their rights, including the right to speak with counsel or a parent/guardian and to have that person present with them during the interview. The young person is asked to sign their name if they are waiving their rights, something which J.A.C. did.
42Section 7 of the form is titled "Caution". This portion of the form contains a version of the standard caution read to all accused persons, modified to suit the comprehension and understanding of a young person. The "caution" advises the young person that they do not have to say anything about the charge unless they want to; that anything they say will be recorded in writing or on audio-video; and may be given in evidence in court. Section 8 of the form is entitled "Secondary Caution." This, too, is a modified version of the secondary caution given to all adult accused persons. In it, the young person is advised that, if another police officer or anyone has spoken to them, it should not influence them in their choice to give a statement; and they are again reminded that they do not have to say anything about the charge unless they want to.
43Ms. Thomas argues that the inclusion of the caution and secondary caution AFTER the waiver results in the young person waiving their rights without fully understanding the process and the potential consequences of that decision. How can a young person, she argues, understand what right(s) they are waiving if they are not first told that they do not have to speak to the police or provide a statement?
44This submission carries some merit. The concept of voluntariness encompasses a respect for the right to silence, enshrined in section 7 of the Charter. As noted by the Supreme Court of Canada in R. v. Singh, 2007 SCC 48, the modern view of the confessions rule "clearly includes the right of the detained person to make a meaningful choice whether or not to speak to state authorities."
45That being said, the failure to properly caution a suspect is not necessarily fatal to the voluntariness of a statement. While the absence of a caution is a factor, all the surrounding circumstances must be investigated. See Boudreau v. the King, 7 C.R. 427, at p. 433.
46In addition to the placement of the cautions in the process, counsel also points out that, in response to the question "Do you want to talk to a lawyer?" J.A.C. responds "not right now." Later, in response to the question "If your parent(s) are not available, do you want to talk to an adult relative?" he answers "Not at the moment". Finally, when asked "If an adult relative is not available, do you want to talk to another appropriate adult?" he answers "Not right now." These, Ms. Thomas submits, are equivocal answers and, as such, fail to meet the requirement of an unequivocal waiver.
47While those responses on their own may be seen as equivocal, they must be not be viewed in isolation. Immediately after two of those responses, Detective Constable Smirnov tells J.A.C. that he can change his mind at any time and if he does to let her know.
48I am left with some concerns about the form used by the Ontario Provincial Police in this case. It would be preferable, in my view, if the caution and secondary caution were explained to the young person before they are asked to waive their rights so that there can be no doubt that they understand what it is that they are doing.
49However, viewing the interview process as a whole, I am satisfied beyond a reasonable doubt that J.A.C. knew his rights, knew he did not have to speak to Detective Constable Smirnov, and in fact wanted to give his side of the story. In other words, I am satisfied that the Crown has proven beyond a reasonable doubt that Detective Constable Smirnov fulfilled the informational and implementational duties placed upon her by section 146 of the YCJA and that the statement made by J.A.C. to her was in fact voluntary.
Fundamental Principles
50An accused person is presumed to be innocent. The Crown always bears the onus of proving the charge against the accused beyond a reasonable doubt. That is a very high onus, one that never shifts. An accused person is not required to testify or to call any evidence, nor is he obligated to explain anything.
51A criminal trial is not a "credibility contest." It is a trial to determine whether the Crown has proven the guilt of the accused on the specific charge alleged, beyond a reasonable doubt. It is therefore wrong, where there is conflicting evidence about whether the accused is guilty, to decide a criminal case simply by choosing which version of events is preferred. The decisive question is whether, considering the evidence as a whole, the Crown has proved the guilt of the accused beyond a reasonable doubt.
52In a case where the accused has chosen to testify, I remind myself of the important principles set out by the Supreme Court of Canada in R. v. W.(D.), [1991] 1 S.C.R. 742 at pp. 757-758 which must be applied when I determine whether the Crown has proven guilt beyond a reasonable doubt:
If I believe the testimony of the accused that he did not commit the offences with which he is charged, I must find him not guilty.
Even if I do not believe the testimony that he did not commit these offences, if his testimony leaves me with a reasonable doubt of his guilt, I must find him not guilty of those offences.
Even if the testimony of the accused does not leave me with any reasonable doubt as to his guilt, I may only find him guilty only if, based on the evidence that I do accept, I am satisfied beyond a reasonable doubt of his guilt.
53The case of W.D. is essential in that it reinforces the central notion that an accused cannot be found guilty simply because the court prefers the evidence of the complainant. As noted by the Court of Appeal in R. v. O.M., 2014 ONCA 503:
It is elementary that a complainant's credibility cannot be established by assuming the accused's guilt. Nor can an accused's evidence be rejected simply because the evidence of a complainant is accepted. W.(D.) precludes this "either/or" approach to the assessment of credibility. Instead, under the third step of W.(D.), the trial judge must ask whether, although she may not believe the accused's evidence, a reasonable doubt arises on the whole of the evidence that she does accept (at para 42).
54This analysis cannot be done in a vacuum. No witness is entitled to an assessment of his or her credibility in isolation from the rest of the evidence. Rather, his evidence must be considered in the context of the evidence as a whole. In a case where the parties have given two different versions, that necessarily means that the defendant's evidence must be assessed in the context of and be weighed against the evidence of the complainant (and vice versa). As always I can chose to accept all, some or none of a person's evidence.
Sexual Assault and Consent
55The offence of sexual assault is set out in s. 271:
- Everyone who commits a sexual assault is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding 10 years and, if the complainant is under the age of 16 years, to a minimum punishment of imprisonment for a term of one year; or
(b) an offence punishable on summary conviction and is liable to imprisonment for a term not exceeding 18 months and, if the complainant is under the age of 16 years, to a minimum punishment of imprisonment for a term of 90 days.
56Section 273.1(1) defines "consent" as follows:
273.1 (1) Subject to subsection (2) and subsection 265(3), "consent" means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.
57There is no issue in this case that J.A.C. touched S.C. intentionally and that the physical contact was of a sexual nature. What is at issue is the extent of that intentional touching and whether or not S.C. consented to all of it. Therefore, the Crown must prove the following elements of the offence beyond reasonable doubt:
i. That S.C. did not consent to the specific sexual activity with J.A.C., namely anal intercourse;
ii. That J.A.C.'s actions in inserting his penis into S.C.'s vagina, which it is acknowledged she did not consent to, was intentional; and
iii. That J.A.C. did not have an honest but mistaken belief in consent as it relates to the anal intercourse (R. v. Park, 99 C.C.C. (3d) 1).
58A trier of fact determines whether or not consent existed by considering the complainant's subjective state of mind as to the sexual touching at the time it occurred (R. v. Ewanchuk, 131 C.C.C. (3d) 481). The question to be asked at this stage is essentially: "Did the complainant want the sexual touching to take place"? This is the actus reus of sexual assault.
59The mens rea of sexual assault is established by evidence that the accused knew the complainant was not consenting to the specific sexual acts, or was wilfully blind or reckless concerning the absence of consent (R. v. J.A., 2011 SCC 28, at paragraph 24). An accused may also raise the defence of an honest but mistaken belief in the existence of consent.
Honest But Mistaken Belief in Consent
60The defence of honest but mistaken belief in consent contains two elements:
i. The accused honestly believed that the complainant consented by communicating agreement to engage in the sexual act by words or conduct; and
ii. The accused was mistaken in this belief.
61There is no obligation on the accused to establish the defence and the burden remains, as it always does, on the Crown. Before the trier of fact can consider such a defence, however, there must first be an air of reality to it. An air of reality refers to something beyond the accused's mere assertion of "I thought she was consenting." There must be evidence which is "reasonably and realistically capable of supporting that defence" (R. v. Park, supra at paragraph 20). This air of reality is often drawn from the complainant's testimony, the accused's testimony, or a combination thereof (R. v. Esau, [1997] 2 S.C.R. 777 at paragraph 16).
62An air of reality cannot reasonably exist if the accused and complainant provide "diametrically opposed versions." A situation where there is a version of events amounting to a clear refusal of consent on one hand and a clear consent on the other would rarely result in an air of reality. On the other hand, where the complainant's evidence does not substantially contradict that of the accused, a trier of fact may "cobble together…a reasonably coherent set of facts, supported by the evidence, that is capable of sustaining the defence of honest but mistaken belief in consent" (R. v. Esau, supra at paragraph 61; R. v. Park, supra at paragraph 25).
63There are also statutory limits placed on an accused's ability to raise this defence. Section 273.2 describes the circumstances in which an accused cannot rely on his belief that the complainant consented to the activity as a defence to a charge of sexual assault. To begin, section 273.2(a)(ii) of the Criminal Code provides that an accused cannot assert that he had a reasonable belief where his belief arose from his own drunkenness, his recklessness or willful blindness. None of these circumstances arise based on the evidence in this case.
64Further, section 273.2(b) places an additional limit on an accused's ability to claim an honest but mistaken belief in consent. An accused cannot rely on this defence unless he takes reasonable steps in the circumstances to ascertain consent. The accused's obligation is only based on what he knew at the time and the steps required depend on the particular circumstances (R. v. Crangle, 2010 ONCA 451, leave to appeal to S.C.C. refused, at paragraph 29).
65In the recent case of R. v. Alboukhari, 2013 ONCA 581, the Court of Appeal noted that the approach to determining whether or not an accused has taken reasonable steps to determine consent is a "quasi-objective test". The court went on to adopt the approach taken by the Manitoba Court of Appeal in R. v. Malcolm:
First, the circumstances known to the accused must be ascertained. Then, the issue which arises is, if a reasonable man was aware of the same circumstances, would he take further steps before proceeding with the sexual activity? If the answer is yes, and the accused has not taken further steps, then the accused is not entitled to the defence of honest belief in consent. If the answer is no, or even maybe, then the accused would not be required to take further steps and the defence will apply (at paragraph 41).
66Courts have also held that "factors personal to the accused", including any intellectual or other limitations that may apply, must be considered in assessing whether or not reasonable steps were taken. Included in this category have been the intellectual limitations of an accused and a diagnosis of FASD (see, for example, R. v. Sinclair, [2013] A.J. No. 1433 (ACQB); R. v. May, [2017] O.J. No. 1347 (CJ)). J.A.C.'s youth (16 at the time of this offence) is a factor personal to him and one I must consider in assessing the reasonableness of the steps he took.
67Although the steps taken must be reasonable, an accused's mistaken belief need not be. As noted by the Ontario Court of Appeal in R. v. Darrach, 38 O.R. (3d) 1, "[w]ere a person to take reasonable steps, and nonetheless make an unreasonable mistake about the presence of consent, he or she would be entitled to ask the trier of fact to acquit on this basis." However, the reasonableness of the belief will be relevant to the issue of whether it was in fact honestly held. The more reasonable the grounds for the asserted belief, the more likely a trier of fact will be to conclude it is genuine.
Analysis
68I will start by addressing the evidence of L.P. While I believe she was being truthful in her testimony and have no reason to doubt it, I must conclude that her evidence did not offer any assistance in determining the relevant issues. What she believed were different versions of the incident as provided by J.A.C. were not, in fact, different. Rather, they appeared to be J.A.C.'s attempts to describe different aspects of what happened on the night of December 13, 2015. Furthermore, none of the "versions" were inconsistent with what he testified to in court.
69As for the testimony of both J.A.C. and S.C., I found them to be generally truthful. I say generally because each had some issues, as raised by both the Crown and defence. Prior to addressing those issues, however, I must make the comment that both J.A.C. and S.C. are both youthful. This fact does not mean that I am relieved of my obligation as the trier of fact to carefully assess their testimony for both credibility and reliability. It does mean, however, that I need not necessarily hold that testimony to the same standard that I would of a mature adult.
70Ms. Thomas, on behalf of J.A.C., asks me to reject S.C.'s testimony that she never intended to consent to anal intercourse in light of her evidence about asking J.A.C. if he had a condom. She submits that that testimony is illogical. She also asks me to rely on the fact that S.C. did not initially disclose the consensual sex acts to her mother, something that should give the court concern about her credibility. Ultimately, I cannot find that either of these issues impact on her credibility to any real extent. I accept her explanation for why she asked about a condom, which related to her concern that she might be exposed to either an unwanted pregnancy or STD by genital-to-genital contact short of intercourse. As for her failure to disclose the consensual aspects of the evening to her mother at the time, that reaction is understandable given her distress and focus on what had really harmed her, the unwanted vaginal intercourse.
71For all of these reasons, I do accept her evidence that she was not consenting to have intercourse of any kind, either vaginal or anal. S.C. was consistent throughout her testimony that she was okay with a variety of sexual acts, but intercourse was not one of them. As such I am satisfied that the actus reus has been established beyond a reasonable doubt.
72Ms. Kapend points to issues with J.A.C.'s testimony which she submits make his evidence unbelievable. One significant problem, in the Crown's submission, is J.A.C.'s evidence concerning the vaginal intercourse. She submits that his explanation that he could not see that his penis was initially in S.C.'s vagina as opposed to her anus is completely implausible and that there is no possible way he could make that mistake. That submission, in my view, fails to take into account the relative positions of J.A.C. and S.C. at that moment. He was on his knees behind and above her, in a room with minimal lighting. Given that fact, along with his youth and the brief duration of the incident, I cannot find that he was being untruthful when he gave his account to the court.
73I did, however, have difficult with his testimony that, prior to each and every sexual act, he discussed in detail with S.C. what would happen, including the anal intercourse. I also reject his testimony that he specifically asked S.C. if she wanted to have anal intercourse. While very adamant on this point during his evidence in chief, in cross-examination he eventually acknowledged that he may not have used those exact words. Despite this admission, he maintained that he did not ask S.C. if he could "play with her ass". This testimony, in my view, is contradicted by the fact, brought out during cross-examination, that in his statement to the police he repeatedly used the word "play" to describe his consensual interactions with S.C. on the night in question.
74The reality is that neither S.C. nor J.A.C. is entirely certain what was said prior to her getting on her hands and knees. I find that it was something closer to "play with your ass" then anything with the word "intercourse" in it.
75As it relates to the vaginal intercourse, in order to convict J.A.C. of this aspect of the offence contrary to section 271 I must find that this touching was an intentional act. J.A.C. testified that it was not. On this point, I can find no discrepancy between the testimony of J.A.C. and S.C. Both agree that: the sexual contact which occurred between them once S.C. got onto her hands and knees was brief, lasting only a few seconds; she was moving her body towards him as he was moving towards her; both were aroused and she was lubricated as a result; he only thrust a few times, as little as twice and no more than five; neither realized at first what was going on insofar she believed he may have inserted his finger inside her and he believed he was inserting himself into her anus; once he realized what was going on he stopped; and afterwards he apologized.
76At the very least I am left with a reasonable doubt that, based on his testimony and a consideration of all of the evidence, he intended to insert his penis into her vagina.
77That leaves the issue of mens rea and whether or not J.A.C. can avail himself of the defence of an honest but mistaken belief in consent as it pertains to the anal intercourse. The Crown urges me to find that this defence has no air of reality because of the "diametrically opposed versions" offered by J.A.C. and S.C. Furthermore she submits that, even if there were an air of reality to this defence, J.A.C. cannot avail himself of it because of his failure to take reasonable steps to ensure S.C. was continuing to consent to anal intercourse after he realized he had mistakenly had vaginal intercourse with her.
78As it relates to the Crown's first submission, I cannot find that the versions provided J.A.C. and S.C. were "diametrically opposed." In fact, they were at idem on almost every essential point save and except for exactly what was said prior to S.C. getting on her hands and knees. What they agree on is that something was said involving playing with S.C.'s ass, something S.C. thought meant "being intimate with the anus" short of intercourse, while J.A.C. thought it meant anal intercourse.
79While I have some concerns about some of J.A.C.'s testimony, I accept his evidence that he had an honest, albeit clearly mistaken belief, that S.C. was consenting to anal intercourse, based both by their discussion and her actions. I further find that belief to be reasonable in the circumstances, including: the nature of their relationship, where they were not quite dating but were something more than just friends; their sexual interactions throughout the evening, which had proceeded in a logical manner to progressively more intimate actions, each one accompanied by an inquiry into consent; their discussion some time prior to this night about "getting intimate with the anus" as an alternative to vaginal intercourse; and her actions in getting on her hands and knees and moving her buttocks towards him.
80As for the Crown's second submission, that J.A.C. failed to take reasonable steps to ascertain consent, I again observe that the test to be applied is not, as the Crown says, a standard of strict objective reasonableness but rather a quasi-objective test. This is an important distinction. As the trier of fact I am obligated to consider factors personal to the accused. In this case that must include consideration of the fact that I am dealing with a 16 year old relatively inexperienced young man. I also cannot ignore that the sexual act to which S.C. did not consent lasted a few seconds at best. Furthermore, the uncontroverted evidence is that J.A.C. and S.C. discussed each act they were engaging in in advance, although they did differ somewhat on what words were used in each and every instance. I find that the steps taken by J.A.C. to ascertain S.C.'s consent, while imperfect, were nonetheless reasonable in the circumstances.
81There is no doubt that J.A.C.'s actions had a devastating effect on S.C. He took something from her that night that she was not prepared to give - her virginity. That is something she can never get back. Nothing in this decision should be taken as being critical of her or her actions. She is not to blame for what happened.
82That said, the criminal law must ensure that those who are punished are morally blameworthy. For all of the reasons I have set out, I am not satisfied that the Crown has proven beyond a reasonable doubt that J.A.C. did not have an honest but mistaken belief that S.C. was consenting to anal intercourse. As such, I find him not guilty of the offence of sexual assault.
Released: June 20, 2017
Signed: Justice D.A. Kinsella