WARNING

The court hearing this matter directs that the following notice be attached to the file:

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 212, 212, 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

Date: October 23, 2017

Court File No.: Woodstock 13 0165

Between:

Her Majesty the Queen

— AND —

Shawn Eugene Vandooren

Before: Justice C.A. Parry

Heard on: December 8, 2016; February 24, 2017; July 27, 2017; and July 28, 2017

Reasons for Judgment released on: October 23, 2017

Counsel:

• Andre Rajna, counsel for the Crown
• Frank Miller, counsel for the defendant Shawn Eugene Vandooren

I. OVERVIEW

1This judgment pertains to the trial of Shawn Vandooren, who stands charged with the following two offences:

(1) That on the 20th day of December, 2012, at the Town of Ingersoll, he did commit the offence of Sexual Assault upon M.G.; and

(2) That on the 22nd day of January, 2013, at the Town of Ingersoll, he did commit the offence of Sexual Assault upon M.G.

2The trial took place on December 8, 2016; February 24, 2017; July 27, 2017; and July 28, 2017.

3This was Mr. Vandooren's second trial on this information. It took place after a successful summary conviction appeal. Mr. Vandooren pleaded not guilty to both counts.

4During the course of the trial, the Crown sought to tender the videotaped interview of Mr. Vandooren as part of its case in chief. The defence brought a Charter application, alleging that the statement was obtained during the course of a breach of the accused's right to counsel, and accordingly sought to exclude the statement pursuant to section 24(2) of the Charter. All parties agreed that, subject to the Charter ruling, the evidence heard during the course of the voir dire would apply to the trial proper. For oral reasons previously given, the court dismissed the Charter application. The defence effectively conceded the voluntariness of the accused's statement. Consequently, the accused's statement became admissible and formed part of the Crown's case in its prosecution of Mr. Vandooren.

5The defence called no evidence in the matter, choosing instead to rely upon the accused's account of the alleged events as described during the course of his police interview.

6The Crown relied primarily upon the evidence of the complainant, M.G., and secondarily upon what it alleges is the substantially corroborative evidence contained in the accused's statement. The video of the accused's statement was proffered via the evidence of the arresting officer, Cst. Huggins.

7The evidence of Cst. Huggins also provided a non-controversial narrative that established that the police were dispatched to the home of the complainant on the morning of January 23rd, 2013. Cst. Huggins and her partner received the initial complaint and then promptly arrested the accused when he arrived at the complainant's home for work that morning. The officers subsequently transported the accused to the police detachment and interviewed the accused. The accused was later released on a Promise to Appear in court.

8While there exists some disagreement between the complainant's account and the accused's account of the events that form the subject matter of the charge, the main issues raised by the defence are (1) whether the Crown has established beyond a reasonable doubt that the complainant did not consent to the sexual contact made by the accused upon her body; (2) whether the Crown has established beyond a reasonable doubt that the accused did not have an honest but mistaken belief that the complainant was consenting to the contact in question.

II. THE EVIDENCE OF THE COMPLAINANT

A. The Historical Backdrop

9In 2012, the complainant worked for a local tile manufacturer in their logistics department. She was recently separated and had three children.

10The alleged sexual assaults occurred in her newly purchased home. Up until the purchase of her new home, she and her children had lived briefly with her mother. After the purchase of her home, she moved into the home with her three children.

11While in the process of purchasing a home, she sought advice about the renovations that might be needed for the home and the cost of those renovations. She sought a referral from her company. A friend in the complainant's company recommended the accused.

12The complainant had met the accused once during the course of his involvement with her company. The accused was one of the recommended installers for the tile company.

13Prior to the purchase of the home, the complainant asked the accused to take a look at the home to assess the required renovations and the estimated costs.

14Once she purchased the home, she retained him to perform renovations in both her basement and kitchen. The home had been a carriage house that had been converted into a one bedroom and one bathroom home. She commenced the basement renovations in order to provide her children with bedrooms and a bathroom in the basement. In simple terms, the project involved finishing the basement [including the installation of bedrooms and a bathroom] and remodelling the kitchen. The complainant and her children lived in the home during the course of the renovations. Both explicitly and implicitly, the complainant made it clear that she was anxious to finish the renovations as quickly as possible, so as to minimize the inconvenience of living in the midst of a renovation project.

15The accused commenced work on the renovations on or about December 10th.

B. The Incident on December 20th

16The first incidence of alleged sexual misconduct occurred on December 20th. According to the complainant, it occurred in the basement. The complainant described being in the small basement near the bottom of the basement stairs, talking to the accused about part of the project. She was looking up and talking about the work with Mr. Vandooren. According to the complainant, the accused came up beside her and said he really needed to complete the plumbing because he really needed a shower. He then put his hands on her hips and rubbed his genitals against her and told her that she was "so fucking sexy." According to the complainant, she was annoyed and irritated. She had no forewarning about the accused's advances. There had been no discussion about whether or not she would welcome this kind of sexual contact. She indicated that she did not consent to this contact. The complainant pulled away and moved to her left and told the accused, "back to the plumbing." Although annoyed and irritated, the complainant indicated, "I frankly just needed to get this renovation completed….", so she redirected the accused back to the business at hand. The complainant then went upstairs and moved on to her next task.

17At the conclusion of the complainant's evidence in-chief, the Crown attempted to refresh the complainant's memory about events other than those about which she had testified, using the transcript from the first trial. That attempt was met with an objection. After a brief break, the Crown then asked the complainant if she recalled any other events happening on the 20th of December. The complainant then referred to an incident in the kitchen where the accused placed his hand on the complainant's bum while she was asking about the instruction manual for Ikea cabinets. The complainant could not recall whether this incident occurred on that day or a subsequent day. As with the other sexual contact, she described the behaviour as inappropriate, again implying her lack of consent.

C. The January 22nd Events

1. The Basement Incident

18Following the first incident, the accused continued to work for the complainant. The work continued into the month of January 2013. On January 22, 2013, more sexual contact occurred. The sexual contact on this date occurred during two discrete events.

19The first event again occurred in the basement. The complainant had been sanding drywall in the basement the previous night. She wanted feedback from the accused about the sanding job she had done. While in the basement with the accused and looking at the ceiling and gesturing towards the work, she asked the accused about the sufficiency of the sanding. The accused came up behind her, put his hands on her hips, then up her abdomen, then over her ribcage, and then over her breast. She did not consent to this contact. There had been no discussion of any sort about this contact. He did not ask permission. The complainant was shocked, indignant, annoyed, and maybe angry. She pulled away from the accused and told him that she did not know what was going on with his relationship status, but she was not at all interested in any kind of relationship. She then went upstairs and he followed her. The complainant could not recall the accused's precise response to her reaction to his advances.

D. The Kitchen Incident

20Later on in the same day, in the afternoon, the complainant was standing in her kitchen. The kitchen was "a horrible mess." They had just recently pulled out all the kitchen cupboards. The complainant was standing in the doorway, holding a container of jellybeans. She poured some into her hand and was eating some. She then offered some to the accused. In doing so, she said, "Don't take the green [or perhaps some other colour] ones. They taste like shit." According to the complainant:

And Shawn steps directly towards me and rather than reaching for the jellybeans, he put his hand directly onto my genitals and very close to my face and said, "I wonder what you taste like?"

21He did not ask for permission to touch the complainant's genitals. She did not consent to this contact.

22The complainant was shocked and angry. She hit the accused's hand away and backed through the doorway into the dining room. After a few minutes she told the accused that his conduct was "really inappropriate." According to the complainant, the accused agreed with her and said, "I won't touch you again."

23For several minutes, the complainant tried to process what had just occurred and what was going on. She then gathered up a few things and departed the house.

E. The Narrative Leading up to the Police Complaint

24On the evening of January 22nd, the complainant spoke to a friend about her issues with the accused. She told her friend that if she did not need the job done so urgently, she would fire the accused. Naturally, the friend inquired about the reason for her dissatisfaction with the accused. In response, the complainant provided an account of her complaint. Having confided in her friend, the complainant then decided to contact the police the next morning. None of this narrative evidence was tendered for the purpose of proving the truth of any prior consistent statements, but solely for the purpose of explaining how the complaint came to the attention of the police.

F. Areas of Alleged Inconsistencies in the Evidence of the Complainant

25In submissions, the defence highlighted numerous areas of the complainant's evidence, which it submitted disclosed inconsistencies with prior statements or inconsistencies with the Crown theory. I will summarize the main points below.

1. The Elaboration about the Accused's Ongoing Inappropriate Conduct

26The Crown's examination of the complainant focussed on the accused's conduct on two distinct dates. In cross-examination, defence counsel explored the complainant's characterization of the accused's conduct before and in between those dates. As a result of this exploration the complainant described other incidents of inappropriate comments that escalated in severity over time. Generally speaking, these comments could be characterized as sexual and/or romantic come-ons. He called her sexy. He made mention of her effect upon his ability to think, and other comments that, from the complainant's perspective, were declarations of an inappropriate interest.

27Through cross-examination, it became apparent that the accused's inappropriate comments commenced many days prior to December 20th. In this regard, the evidence in cross-examination might be seen to be inconsistent with her in-chief assertion that, prior to December 20th, her dealings with the accused had not been anything other than professional. However, it became clear, in cross-examination, that the answer to the questions in chief pertained to the complainant's characterization of her own conduct, not that of the accused. She maintained that the accused's behaviour towards her was unprofessional both before and after December 20th, but had understood the Crown to be asking her about her behaviour prior to December 20th.

28As will be seen from a discussion of the accused's statement, the accused essentially corroborated the assertion that the accused repeatedly and overtly flirted with the complainant during virtually the entire course of his employment with her.

2. The Basement Incident on January 22nd

29In cross-examination, the complainant asserted that the basement incident occurred "at the bottom of the stairs". She maintained that she was not in the bathroom and was pointing at the drywall.

30At the prior trial, the complainant testified as follows about the incident:

We were downstairs, Shawn was standing behind me in the bathroom, the new bathroom downstairs in my house, and we were looking up at the plumbing, and I was standing in front of Shawn and he'd come up behind me and put his hands around my body, and from behind and over my hips, and up over my breasts and pulled me into him and I had twisted aside, and said….

Thus, in her prior testimony, she appears to have given a conflicting account of her location and the item(s) examined by she and the accused at the time of the alleged offence.

31The complainant explained that there was an issue with the ducting, which should have been moved out of the shower, and so there was a conversation about the ceiling. She conceded that she was not looking at the plumbing, as indicated in the first trial, but rather at the ductwork. She explained that moving the ductwork meant more mudding and sanding of the drywall. In essence, the conversation was about plumbing, ductwork, and the related drywall work. Having said that, in cross-examination the complainant seemed far less certain about what exactly she was examining and discussing as the alleged sexual assault occurred. It is also clear from cross-examination, that the complainant did not view the finer details of the project discussion to be at all important to her narrative of the allegations of sexual abuse.

32As a result of the cross-examination, a diagram of the basement was prepared by the complainant. In it, she placed herself near to the [under construction] bathroom and adjacent to the side of the basement stairway. She conceded her feet may or may not have crossed the threshold of the bathroom [which did not yet have a door]. It was clear from her evidence that the area between the opening for the bathroom and nearby the landing at the bottom of the stairs was one open space. It was also clear from her evidence that if one stood near the bathroom one would also be very near to the side of the basement stairs.

3. The Jellybean Incident on January 22nd

33At trial, the complainant made it clear that she did not recall the accused having anything in his hands at the time he touched her genitals [over her clothing]. She agreed in cross-examination that, according to her current recollection, the accused had nothing in his hands. Accordingly, she agreed that she did not pour any of the offered jellybeans into the accused's hands before he allegedly touched her. Indeed, she firmly denied pouring jellybeans into his hands prior to being groped.

34However, during her videotaped police interview on January 23rd, 2013, the complainant told the investigating officer that the accused had jellybeans in one hand while he touched her with his other hand.

35The complainant acknowledged the contradiction. She admitted, effectively, that the jellybeans had to have come from her: "I'm the jellybean person, yes." However, she maintained that her current recollection was that she simply poured the jellybeans into her hand and offered them to the accused. She did not, at the time of trial, recall the accused physically touching jellybeans that day -- only her. That said, the complainant acknowledged that with the passage of four years, her recollection could be incorrect. Upon hearing her prior police statement, she acknowledged that she was mistaken when testifying that the accused did not have jellybeans in his hand.

4. The Suggestion that the Complainant's Ongoing Retainer [business relationship] with the accused was inconsistent with a Lack of Consent

36The defence fairly points out that the complainant, by her own admission continued to employ the accused for over a month after the first alleged sexual assault occurred. The defence points to the complainant's ongoing civility and willingness to employ the accused as evidence of her subjective consent to the sexual conduct she describes.

37As noted, the complainant testified about her anxiousness to complete the job and provide her and her three children with enough bedrooms, enough bathrooms, and a working kitchen.

III. THE EVIDENCE OF THE ACCUSED [AS INTRODUCED BY THE CROWN THROUGH HIS POLICE INTERVIEW]

A. Overview

38As already noted, the accused did not testify. However, the Crown tendered the contents of the accused's police interview, which occurred on January 23, 2013, a day after the final alleged sexual assault. In an adversarial system, an out of court statement by a party to the proceedings may be introduced by another party to the proceedings. Once tendered into evidence, the court is required to consider the entirety of the statement, including not only the admissions that favour the party who tendered the statement, but also admissions that inure to the benefit of the party against whom the statements were tendered. In short, for better or for worse, the statement may be relied upon both parties in this trial.

39As will be seen below, the accused's description of the overall framework of his physical encounters with the complainant tends to correspond with the framework provided by the complainant. He describes an initial event [with varying estimates of the date] and then two events on January 22nd [a basement incident and a jellybean incident]. While corroborating the complainant's description of the number of events, he provides a somewhat different account of the nature and severity of each contact. In addition, the accused purported to have a belief that the complainant was consenting to the contact.

40It also becomes clear from the accused's interview that he describes himself, over the course of his roughly 40 days of employment, as persistently flattering and flirting with the complainant. He generally confirms the complainant's description of him making overt references to her appearance and physique; and making sexually suggestive overtures. Even on the accused's evidence, he presented as an aggressive pursuer of a casual sexual relationship with a divorced woman who was seeking to quickly construct sufficient bedroom space for her three children in the wake of her divorce and recent move.

B. The Accused's Description of His Employment and the First Physical Contact with the Complainant

41The accused confirmed that he was referred to the complainant by her work friend, J.. J. introduced the complainant to the accused because the complainant had recently been divorced, moved to the region from "out West", and had bought a house that needed renovating. He was a contractor and accordingly was asked to do work on the renovations. He agreed. He also confirmed that he commenced work on the contract in the first week of December.

42According to the accused, he and the complainant "got along fine." He also indicated that he "talked to her many times and told her … how I feel about her." According to the accused, "I just told her that … I find her very attractive…."

43From the accused's perspective, "We just kept working together. We were working closely together."

44The accused concluded that the complainant knew he was attracted to her, because he told her so. He recounted his first physical encounter with her [which he described as being about a week from the commencement of his contract] as follows:

And, hmm, and one day in the basement I hugged her and she didn't really respond. So, I apologized and I said I'm really attracted to you. She said, "It's okay. Don't worry about it." Later on [that day] or the next day, I was working in the basement with her, [and] she said something about "I don't want any commitments. I don't want to make any commitments." And neither do I. I'm not committed to anyone really. That's about it really. That was about the end of it. We just talked about regular stuff. I mean I haven't been there for a week and a day. [1]

45The accused's description of this first incident corresponds chronologically to the date of the first alleged sexual assault described by the complainant. While he admits initiating physical contact, and apologizing for that physical contact, he describes a less sexually intrusive form of contact than that described by the complainant. Perplexingly, although he describes the event occurring "a week and a day" after he commenced working for the complainant, he went on [when asked to pinpoint a date] to "guess" that the incident occurred two weeks before his arrest; and then further estimated that the event occurred in the beginning of January. Effectively, he provided three time estimates for the date of the initial contact.

46The accused interpreted the complainant's non-reciprocation of this initial advance, coupled with her assertion that she did not want any commitments, as being a communication that, "She doesn't want a boyfriend. We could have some fun."

C. The Accused's Description of the January 22nd Event in the Basement

47In his recount of physical contact with the complainant, the accused then skipped ahead to the events of January 22nd. In doing so, he confirmed the complainant's assertion that the next relevant physical contact occurred in the complainant's basement while the two of them were examining some of the work in progress.

48The accused described the event as follows:

And yesterday, I hugged her. Then she just said like, you know, it would be better in our lives the way they are, kind of crazy, you're divorced and that. She doesn't want to start a relationship. And I can understand that. I don't want to start a relationship either. But if it was a problem, all she had to say was Shawn don't touch me.

49He further elaborated, indicating:

We were side by side in the basement looking at some stuff.

And then I reached behind her and I did touch her breasts.

And I kissed her on the cheek.

50The accused described the complainant's response to his advance as follows:

She just kind of, she just, she said she didn't really want to start a new relationship given our lives the way they are; too much going on, I guess. Which I didn't want to start a relationship either.

51As can be seen from the quotations above, the accused's account of this basement incident is fairly similar to the account given by the complainant.

52After a brief discussion of the jellybean incident with the accused, the officer then returned to what I infer to be the basement incident that occurred on January 22nd. She asked the accused, "Okay. So did she move away from you when you were in the basement?" The accused replied:

No. Not really. No. She just didn't… she didn't really. She didn't push me away. She didn't move away. She didn't do anything. She just kind of stood there and cold, you know. I don't get this. Wearing provocative clothing and smile and say thank you every time I comment on your beautiful body and then when I get close to you, you know.

53The officer then asked the accused to describe her clothing. The accused indicated, "Her tight, skin-tight slacks." He went on to indicate:

And she's staring at my crotch a lot and to me that's like, you know, and it's kind of, you know.

54The officer then asked the accused if he felt he was getting signals from the complainant that he felt warranted the actions he took. The accused responded, "Exactly."

D. The Accused's Description of the Jellybean Incident

55When asked by Constable Huggins if the basement incident was the only incident that occurred on January 22nd, the accused recounted his version of the jellybean incident. He described the incident as follows:

We were eating jellybeans.

She was commenting on the taste of jellybeans. And I'm embarrassed to tell you but I said I'd like to taste this. [2]

56At this point in the interview, the accused gesticulated with his finger pointing across and downward, as if pointing at someone's crotch. He then continued his account of the exchange as follows:

… she said, "that's really inappropriate behaviour Shawn." Which surprised me. Okay. So I thought for a minute and I said, "You're right. That is inappropriate and I won't ever touch you again.

57At this point in the interview, the officer said the following:

Q. Okay. So you just made a motion like you pointed. Did you point or did you put your hands on her?

58The accused responded:

I didn't put my hands on her but I did touch her with my fingertip. I touched her here. [3]

At the same time, he used his finger to touch his own crotch, thereby clearly indicating that he had touched the vaginal area of the complainant while telling her that he would like to taste it.

59The officer then replied:

I, so, okay. So you touched her with your, so you did put your hands on her?

The accused answered: "Yes."

60The officer then went on to provide a serial description of many of the complaints made by the complainant, the last of which was the allegation that the accused cupped his hand on the complainant's vaginal area [over her clothes].

61The accused replied, "I didn't. And I did not. I pointed and I touched her but I did not cup her."

62When seeking a response to the serial description of the numerous allegations, the officer posed an inherently problematic question. Counsel are repeatedly warned by courts to not pose multi-part questions to witnesses. Multi-part questions inevitably give rise to ambiguous, confusing, and/or unhelpful answers. Having carefully watched and considered the video tape of the interview, I have come to the conclusion that the only thing I can infer from the accused's response to the multi-part allegation is that he was responding to the last allegation on the list, the "cupping" allegation. In denying "cupping" he re-affirmed his earlier assertion that the contact with the complainant's crotch involved touching her crotch with his index finger.

63Later in the interview, the accused again reaffirmed his admission that he touched the complainant in the vaginal area with his finger. He also reaffirmed that he agreed with the complainant's declaration that the behaviour was inappropriate. He also reaffirmed that he then told the complainant that he would never touch her again.

E. THE ACCUSED'S EVIDENCE ON THE ISSUE OF MISTAKEN BELIEF IN CONSENT

64Throughout the interview, the accused presented as being shocked, upset, and perplexed about having been charged. At various points, he expressed his bewilderment. In doing so, he repeatedly asserted [either expressly or implied] that he believed the complainant had been consenting to his overt and persistent advances.

65Near the outset of the interview, the accused indicated:

I don't understand…. I don't understand. She knows… she knew I liked her and all … she had to say was "Shawn… no. Don't touch me", or … "Don't make comments about me." All she had to say was no and I would have stopped. I wouldn't have touched her ever. She never said, "Don't do that."

66As noted above, the accused interpreted the complainant's non-reciprocation of his initial physical contact [coupled with her assertion that she did not want to make any commitments to anyone] as being an assertion that "She doesn't have a boyfriend. We could have some fun."

67When describing the basement incident of January 22nd, the accused asserted, "But if it was a problem, all she had to say was, 'Shawn, don't touch me.'"

68Also, as noted above, the accused felt like he was getting signals from the complainant that his advances were welcome. He referred to what he considered provocative clothing [e.g. tight pants], staring at his crotch, and smiling in response to his overt comments about her body.

69When asked if the complainant had ever invited the accused to touch her in any way, the accused responded, "That's debatable." He then went on to explain:

I don't know how to say this. It seemed like we worked together for weeks in renovations, shoulder to shoulder quite a bit. There was some places that she's sanding something in a corner and asks me to sand and … helping her; and… and "can you get that spot", she says. And that would require basically being on top of you [i.e. her] to try and sand this spot.

70When asked if he thought his actions were appropriate, the accused replied:

Well, … I don't think it's wrong because all she ever had to do was say, "Shawn, don't touch me", or "Shawn, I don't like this comment", or anything like that is all she had to do and I wouldn't have touched her ever. But she never, she staring at my crotch and wearing very provocative clothing and I couldn't help but be attracted to her.

71Later, in response to the suggestion that his touching was unwanted, the accused replied, "But it wasn't unwanted. She didn't say don't do that."

IV. AN OVERVIEW OF THE LAW

72A sexual assault has two basic elements: the illegal act and the illegal intent.

73The illegal act involves the following components:

(1) The application of force by the accused to the body of the complainant.

(2) The application of force must be of a sexual nature, such that the sexual integrity of the victim is violated by the conduct. The assessment of the sexual nature of the touching is an objective one. The court must ask itself whether, in light of all the circumstances, the requisite sexual nature or carnal context of the assault is visible to a reasonable observer. The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct will be relevant. Proof of the sexual nature of the assault does not require proof that the accused had a sexual intent when applying force to the complainant.

(3) The application of force must be without the consent of the complainant.

74The illegal intent involves the following components:

(1) The application of force must be intentional; and

(2) The intentional application of force occurs when the accused knows of the lack of consent, is willfully blind to the recognized possibility it does not exist, or is reckless as to whether or not consent exists.

The Crown bears the onus of proving all these elements of the offence beyond a reasonable doubt. [See R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330; R. v. Chase, 1987 CanLII 23 (SCC), [1987] 2 S.C.R. 293; R. v. S. (P.L.), 1991 CanLII 103 (SCC), [1991] 1 S.C.R. 909]

75In appropriate cases, the defence of honest but mistaken belief in the existence of consent must be considered by the court. This defence is effectively a challenge to the mental element [the intent element] of the crime. A belief in the existence of consent is a belief in the absence of an essential element of the offence [a lack of consent]. In cases where the belief turns out to be accurate, the intentional application of sexual force is not an offence.

76In many circumstances, once the intentional application of non-consensual sexual force is established beyond a reasonable doubt, one can readily infer beyond a reasonable doubt that the accused knew that the complainant was not consenting. However, where there exists an air of reality to the claim that the accused honestly but mistakenly believed that the complainant was consenting to the sexual contact, the trial judge must assess this "defence" and determine whether the Crown has proven beyond a reasonable doubt that the accused did not have an honest but mistaken belief in the complainant's consent. The defence may arise from evidence elicited by either party, including evidence from the complainant, the accused, other witnesses, or a combination of all three. Conversely, where there exists no air of reality to the claim, a trial judge has a duty to not put the defence to the jury [or to him/herself in judge alone trials].

See R. v. Park, 1995 CanLII 104 (SCC), [1995] 2 S.C.R. 836

R. v. Cinous, 2002 SCC 29 (CanLII), [2002] 2 S.C.R. 3

R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330

R. v. L.S., 2017 ONCA 685 (CanLII), [2017] O.J. No. 4586 (C.A.)

77Section 273.2 of the Criminal Code prohibits the invocation of the defence of honest but mistaken belief defence in consent in certain circumstances. The section reads as follows:

Where belief in consent not a defence

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.

The presence or absence or reasonable steps may arise from the evidence of the complainant, the accused, other witnesses, or a combination of all three. [See R. v. L.S., supra.]

78Needless to say, the burden of proof in a criminal case rests upon the Crown. In order to achieve a criminal conviction, the prosecution must prove beyond a reasonable doubt that the accused committed the essential elements of the offence. This standard of proof does not apply to each individual fact in issue. Rather, the criminal standard of proof applies at the stage of the determination of the verdict. A trial judge cannot convict the accused unless, having considered all of the evidence and, on the basis of the facts the judge does accept, is convinced beyond a reasonable doubt of the guilt of the accused. Put another way, I must ask myself whether, on the whole of the evidence and on the basis of the facts I do accept, I am left with a reasonable doubt about the guilt of the accused. In summarizing the burden of proof, I remind myself that a trial judge may accept some, all, or none of the evidence of any particular witness during the necessary consideration of the evidence as a whole.

79The standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence. The burden of proof rests on the prosecution throughout the trial and never shifts to the accused. A reasonable doubt is not a doubt based upon sympathy or prejudice. Rather, it is based upon reason and common sense. It is logically connected to the evidence or absence of evidence. It does not involve proof to an absolute certainty. It is not proof beyond any doubt nor is it an imaginary or frivolous doubt. On the other hand, more is required than proof that the accused is probably guilty. It falls much closer to absolute certainty than to proof on a balance of probabilities. Accordingly, a jury which concludes only that the accused is probably guilty must acquit.

80It follows from the presumption of innocence and the burden of proof that a trial judge cannot, when faced with competing versions of evens, simply choose between them. To do so ignores the fact that disbelief of an accused does not automatically make the evidence called by the Crown credible, reliable, and worthy of acceptance beyond a reasonable doubt. Treating a criminal trial as a contest between two competing versions places upon the accused the burden of proving his version in order to win. It shifts the burden of proof on the accused, thereby removing one of the barricades that protects liberty from tyranny.

81When applying the criminal burden of proof in a case where the accused has testified and provided exculpatory evidence [and thus where credibility and reliability are central issues], trial judges are encouraged to take the following approach to the evidence:

(1) First, if the trial judge accepts the exculpatory evidence proffered on behalf of the accused [having regard to the whole of the evidence], the judge must acquit the accused.

(2) Second, even if the trial judge does not accept the entirety of the exculpatory evidence proffered on behalf of the accused, the trial judge must ask whether that evidence, or the portions of it that the judge accepts, leaves the judge with a reasonable doubt. If left with a reasonable doubt by the evidence of the accused, the court must acquit.

(3) Third, even if the judge entirely rejects the exculpatory evidence proffered on behalf of the accused and is not left with doubt by it, the trial judge must still examine the whole of the evidence and ask whether, on the basis of the facts accepted by the court, the Crown has proven the case beyond a reasonable doubt.

82This approach is similarly warranted in situations where the accused's response to the allegations has been tendered by the Crown via the introduction of out of court admissions of the accused, as has happened in this case.

V. APPLICATION OF THE LAW TO THE FACTS OF THIS CASE

83I will begin by examining the evidence of the accused. In doing so, I will first make some general observations.

84It is clear to me that the accused was extremely attracted to the complainant and pursued her almost from the outset of his retainer. He was quite candid about this point. In other words, he fully and frankly admitted what appears to be an overwhelming motive to commit the acts about which the complainant complains.

85It is also clear that he made his motives repeatedly clear to the complainant. By his own admission he repeatedly told her about his opinions of her body. His flirtations were overt, indelicate, and at times admittedly crude. [4]

86At its highest, the accused's account of the complainant's response to his aggressive pursuit at times involved descriptions of a "cold" response; a declaration of a desire to not have a relationship; no response at all; a polite smile; working in close quarters with the accused as the two of them attempted to complete a rather extensive renovation on their own; and [with respect to the final event] a strong rebuke. The accused also points out that the complainant wore clothing [tight pants/slacks] and appeared to frequently look at his crotch. What he describes can hardly be described as a clear and unequivocal communication by the complainant that she has an interest in sexual contact with him.

87Indeed, when asked whether he thought her behaviour suggested an invitation to touch her in any way, he responded "that's debatable." That response is hardly a ringing endorsement of his claims that either (a) the complainant was consenting; (b) that he mistakenly believed that the complainant was consenting to the physical contact he initiated; or (c) that he took sufficient and reasonable steps to ascertain that the complainant was consenting.

88The main thesis of his response to the accusations was as follows: "All she had to do was say no." This was a viewpoint that he repeated throughout his police interview. Implicit in this thesis is the notion that he was prepared to seek forgiveness rather than ask permission. He was candidly of the view that, if she did not want him to touch her, she could say no after the fact. He repeatedly disclosed a willingness to act first, and confirm the existence of consent [or lack thereof] later. Put another way, it discloses an ongoing state of recklessness.

89I turn now to the specific physical events described by the accused.

90In looking at the evidence of the accused, I am satisfied that he and the complainant are speaking of the same events. She describes three main physical events [5]; so does he. She describes an initial one near the beginning of his employment; so does he. She indicates that this initial event occurred in the basement; so does he. She indicates that the next two events occurred on January 22nd; so does he. She indicates that the first January 22nd event occurred in the basement while the two of them were looking at some things; so does he. She indicates that the second January 22nd event occurred while she was discussing jellybeans with him; so does he.

91With respect to the first event, the accused describes an initial incident that occurred about a week after he started. While he also indicates that this same incident occurred about 2 weeks before his January 23rd interview and at the beginning of January, it is clear he is describing the initial physical contact. Consequently, it is clear to me that he and the complainant are talking about the same event.

92On his evidence, he intentionally hugged her without warning. Given the entirety of the context, I am satisfied that the accused intended this contact to be sexual and that, objectively speaking, it was sexual in nature – even on his description of the contact. By his own admission, she did not initially respond to his advance. He then apologized. This description of the non-response and immediate apology amounts to a recognition that his physical contact was not wanted. He recognized that the complainant did not consent to his conduct. Lest there be any doubt, the complainant then told him that she was not interested in a relationship. The accused purported that this was an assertion that the complainant was seeking a casual sexual relationship. With respect, this claim lacks credibility. I specifically reject it. At its best, it appears recklessly delusional. I therefore reject his assertion that the complainant consented to this sexual contact. On its face, what the accused describes is a non-consensual contact to which the complainant provided a negative response.

93I now turn to the accused's evidence that his initial contact involved merely a hug. Having considered all of the evidence, I reject this suggestion. The accused presented as having an overriding and persistent sexual desire for the complainant. He candidly admitted making persistent and blatant sexualized overtures to the complainant. He candidly admitted what amounted to an overriding motive to engage in a casual sexual encounter. He initially downplayed the nature of his second contact with the complainant [at first calling it a hug] before sheepishly elaborating upon that initial characterization and describing the groping of the complainant's breasts. In doing so, he presented as attempting to minimize his conduct. I infer that his description of the initial contact with the complainant is another example of the minimization of his conduct.

94Having rejected the accused's minimization of the initial sexual contact, and having rejected his assertion of consent, I now turn to his assertion of an honest but mistaken belief in consent. In addressing this issue, I keep in mind the accused's own candid admission about the "debatable" suggestion that the complainant had at any point by words or conduct invited his physical advances. I also keep in mind his own evidence of his persistent, aggressive, relentless, ham-handed, and at times crude pursuit of the complainant. Having regard to the entirety of his evidence, when considered in the context of all the evidence, I reject any suggestion by him, in his evidence or submissions before the court, that he took reasonable steps to ascertain the complainant's consent when making this initial sexual contact. Based upon the accused's account of the event, I infer that the accused was prepared to test the waters in the hope that the complainant might eventually be won over by his persistence. Again, seeking forgiveness rather than permission. What he describes is reckless conduct, which was epitomized by his constant refrain, "all she had to do was say no." The inherent flaw in this refrain is the reality that the accused's conduct dictated that any "no" would necessarily come as the physical contact was already occurring, and not before. I therefore reject his defence of an honest but mistaken belief in consent. It is not supported by sufficient evidence to establish that the accused took reasonable steps to ascertain consent. In addition, there simply is no air of reality to this defence.

95Despite his failure in his first attempt, the accused persisted in his flirtations, apparently oblivious that he was first and foremost in a contractual relationship with the complainant to complete a renovation.

96On his account, on the morning of January 22nd, he came up from behind her, without seeking permission and embraced the complainant in a fashion that involved him grabbing her breasts and kissing her. There is no doubt from his evidence that this physical contact was sexual in nature, and that he intended it to be sexual in nature.

97In its essence, the accused is describing intentional sexual physical contact that was initiated without notice from behind. The complainant was not in a position to make any decision about granting or refusing consent to this contact prior to it occurring.

98On his evidence, the complainant again provided a negative response. She again reiterated that she was not interested in a relationship. Her theme was consistent. Not once did she overtly suggest even a fleeting romantic interest in the accused. Any behaviours relied upon by the accused to infer a romantic interest were extremely ambiguous at best.

99I again infer from the accused's own evidence that he was recklessly testing the waters in the hopes of eventually wearing down the complainant and obtaining her consent. I again reject any suggestion that the accused took reasonable steps to obtain the complainant's consent to this admittedly sexual contact. I also infer from his own description of the basement event that the complainant did not consent to his unannounced and uninvited groping.

100With respect to the jellybean incident, I note that it occurs within hours of the earlier incident in the basement, where the complainant rebuffed the accused's earlier advance. Despite being previously rebuffed, the accused, by his own admission, touched the complainant's vaginal area and indicated a desire to taste her. On any objective standard, this is highly sexual intentional conduct – and I infer from the accused's description of the event that he knew it to be so. By his own admission to her, his conduct was "inappropriate." By making this admission, he effectively conceded that (a) the complainant did not consent, and (b) he did not believe he had her consent prior to initiating the sexual contact. He did something wrong and then admitted it was wrong to his victim. He admitted his guilt for this transgression. He reinforced that admission by assuring the complainant that he would never touch her again. With this evidence in mind, combined with (1) the accused's own description of his rejection hours earlier; (2) the spontaneity of the contact; and (3) the evidence of his overriding and single-minded motive to engage in sexual activity with the complainant, I once again conclude that (1) the accused took no reasonable steps to ascertain the complainant's consent; and (2) any suggestion of a mistaken belief in consent completely lacks an air of reality and is incapable of persuading a judge that the Crown cannot prove intent beyond a reasonable doubt.

101I will next address the accused's assertion that he only touched the complainant's crotch with the tip of his finger. In the examination of evidence, context is crucial. By his own admission, the accused was making a lascivious attempt to engage in sexual activity with the complainant. Nothing about his own description of his behaviour discloses a hint of restraint or discretion: as he made contact with her vaginal area, he declared that he wanted to taste her. I consider it highly improbable that in this context, he would limit his contact with the complainant to the tip of his finger. I infer that this is another instance in which the accused attempted to minimize his conduct. I specifically reject this minimization beyond any reasonable doubt.

102I now turn to the evidence of the complainant. I begin with a few general observations. As noted, the accused's evidence tended in many respects to support and corroborate the complainant's evidence about the nature of the accused's actions. While their accounts differed as to the severity of the sexual contact, they each described what I infer to be the same three events and the same general pattern of conduct. Simply put, the complainant's description of the same events suggested more serious sexual contact than the sexual contact admitted by the accused. I would also observe that the complainant testified in a thoughtful, clear, and intrinsically logical fashion. As will be discussed below, I found any variations between her testimony and any of her prior evidence or statements to have either been minor or easily explained.

103The defence suggested her credibility suffered from her failure to initially describe the accused's conduct as being unprofessional prior to December 20th. She provided an explanation for her original answer. I have outlined that explanation above and I accept that explanation as credible.

104The defence also suggested that the complainant's credibility should suffer because of her unclear or shifting description of the location of the basement incident on January 22nd. With respect, I consider this a red herring. I do so first and foremost because the accused essentially confirms that most of what she describes did in fact occur, while the two of them were in the basement looking at "stuff". It is hardly surprising that over the course of four years, minor peripheral details about her exact location and the "stuff" being examined in the construction zone might not remain in precise focus.

105The defence also suggests that the complainant's differing account about whether the accused had jellybeans in his hand(s) as he sexually touched her vaginal area should negatively affect my assessment of her credibility. Again, I consider this a red herring. I note again that the accused essentially corroborated most of the complainant's allegations about this event. It is entirely understandable that one might not recall, four years after the fact, what was in one hand of a perpetrator as he groped one's crotch with the other. I make no negative credibility findings from the complainant's response to the cross-examination on this issue. As noted, the accused described the event in a very similar fashion and admitted his conduct was inappropriate, all of which tends to vindicate and corroborate the complainant's core description of the event.

106Finally, the defence points to the complainant's willingness to continue to employ the accused as evidence of her consent to the conduct. I certainly agree that, in some circumstances, the post offence behaviour of a complainant towards an accused might be probative and assist the trier of fact in assessing whether the alleged assault occurred [see for example, R. v. L.S., supra, at paragraph 91-92]. However, I do not agree that the evidence in the case at bar supports the submission of the defence. I accept the complainant's assertion that she was highly motivated to complete the renovation so that her home would have a sufficient number of bedrooms and bathrooms for her and her children. She made it clear that she just wanted the renovation done and that she was prepared to overlook the accused's non-consensual contact with her for a time. A willingness to overlook a transgression does not equate to consent for that transgression. I infer the complainant was, for a time, attempting to politely decline the accused's advances, so as to not jeopardize the timely completion of the renovation. On her evidence, which I accept, she ultimately reached a point where her willingness to overlook the accused's unwanted advances had come to an end. I accept her evidence on this point.

107In summary, having regard to all of the evidence, where the evidence of the accused conflicts somewhat with that of the complainant, I specifically reject the accused's evidence and conclude that any exculpatory evidence he provided does not leave me with a reasonable doubt. In my view the accused essentially provided a minimization of the non-consensual conduct ascribed to him. I note for example that the accused initially described his breast grabbing assault as a hug from behind, before somewhat sheepishly adding that the hug involved a groping of the complainant's breasts and a kiss. Moreover, in describing his own conduct, the accused betrayed himself as possessing outdated and ill-advised attitudes about what constitutes the lawful and respectful approach to courtship. In repeatedly asserting that the complainant just had to say no after any unwanted contact, the accused showed a willingness to minimize the seriousness of his behaviour, a willingness to act first and seek forgiveness later, and consequently a lack of respect for the personal and sexual integrity of the complainant. As previously noted, I entirely reject the accused's assertion of an honest but mistaken belief in the complainant's consent – it lacks any air of reality and is consequently incapable of leaving a court with a reasonable doubt. In my view the accused was reckless as to the existence of consent and/or willfully blind the possibility that the complainant might not consent to the sexual activity he initiated.

108Furthermore, having regard to all of the evidence, for the reasons outlined above, I accept the complainant's evidence beyond any reasonable doubt.

109For all of the reasons just indicated, the accused will be convicted on both counts of sexual assault.

Released: October 23, 2017

Signed: Justice C.A. Parry

October 25, 2017

Addendum

When delivering this judgment orally, I made comments regarding the quality of the transcription of the accused's interview [Exhibit 3]. In doing so, I had erroneously been referring to a different transcription of the same interview, which had previously been given to me by counsel. While there remain some minor differences between the content of Exhibit 3 and my own auditory interpretation of the content of the accused's interview, I consider Exhibit 3 to be a fairly accurate representation of the content of the accused's interview. I have adjusted the footnotes in the judgement accordingly.

Signed: Justice C.A. Parry

Footnotes

1I note here that may be minor differences between the transcription of the accused's interview [Exhibit 3] and what I was able to discern from the video itself. This quotation is a distillation of what I heard when watching the video.

2Again, I note here that may be minor differences between the transcription of the accused's interview [Exhibit 3] and what I was able to discern from the video itself. This quotation is a distillation of what I heard when watching the video.

3Again, I have relied upon my viewing of the video to arrive at this quotation.

4Consider, for example, the jellybean overtures, wherein he expressed curiosity about tasting her vagina.

5As noted in the summary of the facts, there is some reference to a groping of the complainant's buttocks on an unspecified date – evidence which received little attention from either party in this trial.