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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Date: February 22, 2018

Court File No.: Toronto 15 – 45009084

Ontario Court of Justice

Between:

Her Majesty the Queen

— AND —

Eric Dugas

Before: Justice Paul H. Reinhardt

Heard on: 18, 19, 20 September, 6, 8 November 2017, 6, 7 February 2018

Reasons for Trial Ruling released on: 22 February 2018

Counsel:

Brad Demone — for the Crown

Jacob Jesin and Keith Torrie — for the accused

REINHARDT J.:

Charge

1Eric Dugas is charged that he did, on 27 November 2015, at the City of Toronto, in the Toronto Region:

(1) Commit a sexual assault on A.N., contrary to Section 271 of the Criminal Code of Canada.

Orders Made

2At the outset, on consent, I made two orders:

(a) Pursuant to section 486.4 of the Criminal Code, a ban on publication of any information that would tend to identify the complainant;

(b) Pursuant to section 486 of the Criminal Code, exclusion of the public, by way of an opaque screen being lowered between the public gallery and the rest of the courtroom while the DVD Video Clips, Exhibits 4 and 10A, 10B & 10C are being played on the video monitor in the courtroom;

3In making this order, I was satisfied that the criteria for making the orders, under section 486(2) and 486.5(7), respectively, had been met.

Evidence Heard

4In this proceeding I heard evidence from:

(1) A.N., the complainant, and;

(2) Cameron Monroe, Badge #10708, the Officer-in-charge of the case;

Exhibits

5As part of the evidence, Exhibits 1 & 2 were Admissions by the accused, Eric Dugas.

6For the purposes of this trial, Mr. Dugas admitted the time and place of the offence.

7Exhibit 3 was a Biology Report dated 1 May 2017 and supporting documents prepared by Melinda Matte, B.Sc. (Hons.) Forensic Scientist, from the Centre of Forensic Sciences, Ministry of Community Safety and Correctional Services, 25 Morton Shulman Avenue, Toronto ON M3M 0B1.

8In his admissions, in Exhibit 2, Mr. Dugas concedes that he is the source of the male DNA profile "CDW-5341" referred to in Melinda Matte's CFS Biology Report dated 1 May 2017, in which she concluded that the CDW-5341 male semen cannot be excluded as the source of the male semen recovered from a skin swab of the complainant A.N.'s abdomen.

9Exhibits 4, 10A, 10B & 10C were DVD VIDEO clips, all recorded on 27 November 2015, which captured the complainant, A.N. performing sexual acts with another woman by the name of "Tia" and the accused, in what the complainant understood to be an audition for a role in a movie, to be directed and produced in Japan.

10Exhibits 4, 10A, 10B & 10C also capture discussions by the three individuals, during the recorded scenes and in intervening periods, regarding what the scenes would depict, and what limits would be placed on the sexual activity.

11Exhibits 5 & 7 were E-Mail communications between the accused and the complainant, proximate to the alleged offence date, describing the audition and the roles for which the complainant would be considered.

12Exhibit 6, was a handwritten agreement dated 27 November 2015, signed by the accused and the complainant, A.N., in which the accused undertook not to share the DVD VIDEO clips recorded on 27 November without the consent of the complainant and to "delete" these clips after they were submitted for the purposes of an audition with the production company in Japan.

13Exhibits 8 was an E-Mail from the complainant to the investigating officers, dated 2 December 2015, following her electronically recorded interview on 1 December 2015, in which the complainant stated, inter alia:

The other girl was applying for the lead role and I said I didn't want to. I told them that I didn't want to have sex with anybody because I was not having any sex and hadn't in over 10 months. They also both said I didn't have to do anything I didn't want to and I said I was only okay with implied, which was why I was so freaked out when it went past that and especially when he came into the scene not wearing his clothing and started to touch me.

The whole thing was very traumatic and it has been very hard to explain. I can't remember exactly what was said when I made them stop but I made it very clear I wasn't interested in having sex with him, and he went soft and eventually turned the camera off.

I can't remember if I told you that today but talking about it jogged my memory bit because I've tried to block nit out of my mind since then.

14I have reviewed the testimony and exhibit evidence in this trial and concluded that the Crown has not proven the offence of Sexual Assault to the criminal standard, that is, beyond a reasonable doubt. Let me explain how I have reached this conclusion.

SUMMARY OF THE PROCEEDINGS AND EVIDENCE

A.N.

15The complainant testified that she is thirty-three years old, and was thirty-one at the time of these events.

16She has obtained a Bachelor's degree in design from the Ontario College of Art and Design ("OCAD"), and works as a professional model and fitness coach, as well as having a new Vegan start-up food business. Thus she has advertisements in a number of internet sites and locations, and commercial Facebook pages.

17The complainant testified that the accused first contacted her through Facebook, in approximately June or July of 2015.

18The complainant testified that her image and e-mail identifiers were posted at that time on a Facebook page advertising models for modelling work.

19The complainant testified that modelling included still photography and advertising, as well as commercials.

20The complainant testified that the accused placed a request on the Facebook site to retain her, initially, for some modelling work.

21The complainant testified that she was contacted through her e-mail address by an individual who identified himself as "Xander Diesel", and in this proceeding, his counsel has conceded that he was in fact, the accused, Eric Dugas.

22The complainant testified that the accused told her that he was interested in her services as a model, and requested that she provide him with a resume of her work experience.

23The complainant testified that she replied to this request and provided a resume and some photos.

24The complainant testified there was no response for a while, until on 21 November 2015, she received a detailed e-mail, and for the first time, the accused indicated that he was now back from a meeting with some movie executives in Japan who, on the basis of her modelling photographs, were interested in auditioning her for a role or roles in a movie or movies they were producing.

25The e-mail, which is part of Exhibit 5 in this trial, reads as follows:

2015-11-21 1:11 GMT-5:00 Xander Diesel xander@inbox.com :

Hi A:

Sorry for this delay, just got back from meeting the producers and exec's in Japan, I am setting up first auditions Nov 27 th . They love your look for a couple of lead roles and some main roles. There are 3 films, so you could get a role in each film, with pay up to $200,000 cdn per role. The roles require lingerie, nude and sex scenes. Let me know what time Nov 27 th works for you between 2 pm and 11 pm.

Xander

26The complainant testified that she had never before been involved in a movie, and wasn't really sure if she wanted to do film work, but decided to at least audition, and she agreed to go to the audition.

27After she had e-mailed her interest in the audition, the e-mail exchanges continue. On 24 November 2015, at 10:14 PM, the complainant received an e-mail from the accused, which gave more detail about the proposed movies, and the time of the audition:

2015-11-24 22:14 GMT-05;00 Xander diesel xander@inbox.com :

Hi A:

I might be able to set your audition up for 2:30 or 3 pm, should be done by 4:30-5 pm so lots of time to make your shoot.

There are 3 films, each a bit different. The production companies are in Japan, and the films will be sold on DVD in China only, so never any chance it being seen in Canada/USA.

There are 2 R rated films (softcore) so nude and implied sex scenes – you are auditioning for a couple main roles so pay is $100,000-150,000 cdn. One film is X-rated – so nude and sex scenes – you are auditioning for a lead role and if you don't get that you are suitable for a couple main roles – so lots of chance to get a role.

So if you are open to all 3 films you could make up to $500,000 cdn – you will be paid 50% when you agree to the contract (have time to review it and have a lawyer review it) and 50% when your filming is done.

Do you have lingerie to bring? And does 2:30 or 3 pm work for you?

Xander

28The complainant testified that this e-mail gave her concerns about the nature of the work, and her initial response was that this was a proposal for a "porno" and that was not something she would ever agree to do.

29However, in her return e-mail, sent on the morning of 25 November 2015, at 9:06 AM, she simply stated:

Hi Xander,

Ok that's fine. Let me know which one it is: 2:30 or 3:00 and I'll be there. And yes. I have lingerie. :)

Thank you have a good day.

A.

30The complainant testified that she next spoke to her mentor, and decided to audition, but with limits on what she would agree to do on camera, in the audition.

31The complainant testified and the e-mail exchanges confirm as set out in Exhibit 5 that after the time and place for the audition was set, the complainant and the accused also discussed various modelling possibilities for the shoot, including still poses, headstands, and the use of fitness equipment, such as a hula hoop, as well as her promise to bring clothing for the shoot, including lingerie.

32The complainant also testified that at no time prior to her entering the hotel room, was she provided with any materials or information in relation to the audition, other than the references in the e-mail chain, Exhibit 5.

33Thus, the complainant testified that she was given no advance information such as a script, the name of her character or the nature of her role.

34As a result, the complainant testified that on 27 November 2015, when she attended at the Quality Suites, 2180 Islington Avenue in Toronto, and waited in the lobby until she was contacted and asked to come to room 1004, she was not clear as to what the audition sequences would actually include.

35The complainant testified that when she arrived at Apartment 1004, a young woman was just leaving, and she was greeted by the accused and a second young woman by the name of "Tia".

36The complainant testified that during the shoot, no one other than the accused and Tia were in the hotel bedroom with her.

37The complainant testified that in the course of this initial conversation in the rental suite, the accused told her he would be directing and recording a series of audition scenes.

38The complainant testified that she was told by the accused that the video footage would then be shown to the producers for the purpose of her audition for a possible role or roles in an upcoming series of movies being produced in Japan.

39The complainant testified that she was told by the accused that she was to participate and "role play" in a few scenes, as directed by the accused, for the audition, but provided no script or other information about the scenes to be acted out.

40The complainant testified that she was told by the accused that the initial audition scene, ("Scene 1") would involve just the two women playing the parts of two friends who come home after a party and then sexually "fool around" on a bed.

41The complainant also testified that after Scene 1, there was an intervening discussion in which she was instructed by the accused, Mr. Dugas, that in the second scene, the scenario on the bed would continue, with the accused, Mr. Dugas, entering the room, and playing a "surprise" male participant in the sexual activity with the two women. ("Scene 2")

42The second person in the hotel room, Tia, according to the complainant, also participated in these discussions.

43The complainant testified that Tia told her that she had auditioned for the accused before"vouched" for the accused, and said she was trying to get the "full" role, and wanted to make $500,000, indicating that she was willing to do "on camera" whatever X-rated sex acts were required for the top-paying role.

44On our first day of trial, following the morning recess, a protective screen was lowered to separate the public gallery from the courtroom, proper, and the Crown set up the audio-visual screens in the courtroom to present to the witness Exhibit 4, which was a DVD recording including a series of six video clips recorded by the accused during the incident in the hotel room on 27 November 2015. (Exhibit 4, Crown compilation)

45On the second and third day of trial, in addition to the Crown compilation, Exhibit 4, the defence, presented to the complainant three additional DVD's which were portions of the footage taken in the hotel room by the hand-held GoPro camera, operated by Mr. Dugas. (Exhibits 10A, 10B & 10C).

46During her cross-examination, A.N. conceded that she never told the accused in the e-mail exchanges leading up to the audition that she would limit her participation in the audition to "implied sex" scenes.

47In cross-examination, A.N. also conceded that at the end of the filming, before leaving, she had concerns as to how the audition tapes might be used, and therefore drew up the written "contract" limiting the use of the video for audition purposes only.

48In cross she also conceded that she did not inform Mr. Dugas, at this time that she was not interested in obtaining a role or roles in the proposed films.

49In cross-examination, A.N. also conceded that with respect to Scene 1, in which "Tia" performed oral sex on her vagina, she was uncomfortable, but did not communicate that lack of comfort to either Tia or Mr. Dugas.

50To clarify this point, she agreed in cross-examination that what she did not wish to do, was to herself perform oral sex on Tia, so she would "simulate" that part of the scene, without actually touching Tia's vagina.

51In cross-examination, A.N. conceded that when she was on the bed, in a position where Tia's upper body was between A.N.'s legs, and A.N.'s upper body was between Tia's legs, the video record shows that Tia was penetrating A.N.'s vagina with a dildo.

52The video record also reveals that A.N. because of the position of the bodies, could not have seen this.

53However, in cross-examination, A.N. conceded that during this scene with Tia using the dildo, Tia asked her "Is that okay, baby", and she answered "Okay."

54In her examination in chief regarding the second scene on the bed, in which the accused, Mr. Dugas entered the scene as a "surprise" third participant with the two women, A.N. testified that she was, during the balance of her time on the bed, trying to make sure that Mr. Dugas neither touched her vagina with his hand or his penis.

55In chief, A.N. told the court that she became so uncomfortable with the accused's attempts to touch her, that she first tried to hold him at a distance with her hand, and later brought the filming to a halt in order to clarify her boundaries with regard to his role in the second scene.

56In her testimony in chief, she testified that even after they had discussed what would happen in the second scene, she was never told by the accused that at the end of the scene, he would ejaculate on her stomach, which she found to be "disgusting". (See discussion in transcript, 18 September 2017, pages 90 to 117)

Detective Constable Cameron Monroe

57Detective Constable Cameron Monroe testified he first interviewed the complainant at Women's College Hospital and later that day, at Toronto Police Headquarters, 40 College Street, in Toronto, on 1 December 2015.

58Constable Monroe testified that as a result of his interview of the complainant, he obtained a search warrant and on 17 April 2016 executed that warrant at the residence of the accused, Eric Dugas, 2 Bracebridge Avenue in East York, Toronto, Ontario.

59Constable Monroe testified that he also obtained blood samples from the accused pursuant to a judicially authorized DNA Warrant.

60Constable Monroe testified that as a result of that search, he seized a GoPro handheld camera, two laptops, three cell phones, a computer hard drive, a passport, and sex toys, all items belonging to the accused.

61It is conceded in this proceeding by the defence that the DVD video clips and visual images the passport and the sex toys seized in that search were all lawfully obtained and copies and photographs of the items were admissible in evidence in this case.

62In cross-examination, Constable Monroe conceded that in his conduct of the interview of the complainant, A.N., in this case, the complainant was not sworn, as is normally the practice in investigations of sexual assault, as recommended in the case of R. v. KGB, in the Supreme Court of Canada.

63In cross-examination, Constable Monroe also conceded that an additional female, named Tia who was a participant in the videos produced in evidence by both the Crown and the defence, was never interviewed by the police in their investigation, and not a witness at this trial, despite her presence during the portions of the videos that depicted the alleged assault.

ISSUES IN DISPUTE

Crown

64For the purposes of this trial, counsel have agreed to refer to the two filmed audition sequences at the Quality Suites Hotel on 27 November 2015, as follows:

Scene 1: The complainant and a second female, Tia, sexually "fool around" on the hotel room bed;

Scene 2: The two females are joined on the bed by the accused, and the three individuals continue the sexual activity, which culminates by the accused ejaculating on the complainant's stomach.

65The Crown provided the court with a casebook and submitted that the evidence in this trial, as interpreted by the case law, establishes beyond a reasonable doubt that Mr. Dugas committed a sexual assault on the complainant.

66The Crown submits that this court should find as fact that the offence was made out as follows:

(1) in the initial recorded footage of the two women on the bed, Mr. Dugas surreptitiously and without her consent assaulted the complainant, twice, first by spreading her buttocks and later, by pressing a dildo into her vagina, thereby committing two sexual assaults;

("Scene 1")

(2) in the second portion of the recorded material, when the two woman on the bed are joined by the accused, Mr. Dugas, Mr. Dugas, without her consent, penetrated the complainant's vagina twice, and thus exceeded their agreement to only have "simulated sex" during the audition, thereby committing two further sexual assaults.

("Scene 2")

Defence

67In his written argument, defence counsel submits that the Crown has not established that any of the sexual activity depicted in the DVD recordings was not consensual, based upon the initial e-mail exchanges between the complainant and the accused (Exhibits 5 and 7); and the further discussions that took place on camera. (Exhibit 4 (MAH00114) and Exhibit 10C, (GP010059)).

68In the alternative, defence counsel submits that his client had a mistaken but reasonable belief that the sexual activity was consensual, based upon all of the evidence, including Exhibits 4, 5, 7, 10A, 10B, and 10C, and her answers in cross-examination on 20 September 2017, pages 27 to 54, and 135 to 141.

69The defence submits, with respect to the particulars of the Crown's submissions, as follows:

(1) In Scene 1, Mr. Dugas' role was to simply film the two women's interaction on the bed, and no inference can be drawn from the video footage other than that he was filming the scene, adjusting camera angles and assuring continuity of the dildo prop;

(2) In Scene 2, Mr. Dugas' role was defined to the complainant as being an integral part of the sexual activity, and the penetration that took place was fleeting, accidental and unintended.

LEGAL FRAMEWORK

70The Criminal Code of Canada provides:

Assault

265 (1) A person commits an assault when

(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;

Application

(2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.

Consent

(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of

(c) fraud;

Accused's Belief as to Consent

(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused's belief, to consider the presence or absence of reasonable grounds for that belief.

R.S., c. C-34, s. 244; 1974-75-76, c. 93, s. 21; 1980-81-82-83, c. 125, s. 19.

Meaning of Consent

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.

Where No Consent Obtained

(2) No consent is obtained, for the purposes of sections 271, 272 and 273, where

(a) the agreement is expressed by the words or conduct of a person other than the complainant;

(b) the complainant is incapable of consenting to the activity;

(c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;

(d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or

(e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.

Subsection (2) Not Limiting

(3) Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained.

1992, c. 38, s. 1.

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.

1992, c. 38, s. 1.

Case Law

The Requisite Actus Reus and Mens Rea for Sexual Assault

(1) When is an Assault Sexual?

71In R. v. Chase, [1987] S.C.J. No. 57, the court was hearing an appeal from a decision of the New Brunswick Court of Appeal, setting a conviction at trial for sexual assault, where the accused had grabbed a 15-year-old teenager's breasts, on the basis that there was no contact with the victim's genitalia. Justice McIntyre, speaking for the court, restored the conviction, and stated:

11 Applying these principles and the authorities cited, I would make the following observations. Sexual assault is an assault within any one of the definitions of that concept in s. 244(1) of the Criminal Code which is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated. The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: "Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer" ( Taylor , supra, per Laycraft C.J.A., at p. 269). 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, including threats which may or may not be accompanied by force, will be relevant (see S.J. Usprich" A New Crime in Old Battles: Definitional Problems with Sexual Assault" (1987), 29 Crim. L. Q. 200, at p. 204 .) The intent or purpose of the person committing the act, to the extent that this may appear from the evidence, may also be a factor in considering whether the conduct is sexual. If the motive of the accused is sexual gratification, to the extent that this may appear from the evidence, it may be a factor in determining whether the conduct is sexual. It must be emphasized, however, that the existence of such a motive is simply one of many factors to be considered, the importance of which will vary depending on the circumstances.

12 Implicit in this view of sexual assault is the notion that the offence is one requiring a general intent only. This is consistent with the approach adopted by this Court in cases such as Leary v. The Queen , [1978] 1 S.C.R. 29, and Swietlinski v. The Queen , [1980] 2 S.C.R. 956, where it was held that rape and indecent assault were offences of general intent. I am unable to see any reason why the same approach should not be taken with respect to sexual assault. The factors which could motivate sexual assault are said to be many and varied (see C. Boyle, Sexual Assault (1984) , at p. 74). To put upon the Crown the burden of proving a specific intent would go a long way toward defeating the obvious purpose of the enactment. Moreover, there are strong reasons in social policy which would support this view. To import an added element of specific intent in such offences, would be to hamper unreasonably the enforcement process. It would open the question of the defence of drunkenness, one which has always been related to the capacity to form a specific intent and which has generally been excluded by law and policy from offences requiring only the minimal intent to apply force (see R. v. Bernard (1985) , 18 C.C.C. (3d) 574 (Ont. C.A., per Dubin J.A.)) For these reasons, I would say that the offence will be one of general rather than specific intent.

13 Turning to the case at bar I have no difficulty in concluding, on the basis of the principles I have discussed above, that there was ample evidence before the trial judge upon which he could find that sexual assault was committed. Viewed objectively in the light of all the circumstances, it is clear that the conduct of the respondent in grabbing the complainant's breasts constituted an assault of a sexual nature. I would therefore allow the appeal, set aside the conviction of common assault recorded by the Court of Appeal and restore the conviction of sexual assault made at trial. The sentence of six months should stand.

(2) The Absence of Consent or an Honest but Mistaken Belief in Consent

72In R. v. Ewanchuk, [1999] S.C.J No. 10, the complainant 17-year-old woman was applying for a job in a van. After the interview the accused invited the complainant to a trailer behind the van, to "see some of his work". During the time in the trailer, the accused became more and more intimate, touching the complainant despite her protests. The trial judge acquitted the accused based upon the defence of "implied consent".

73In the Alberta Court of Appeal, the court agreed. McClung, J.A., speaking for the majority, concluded that the Crown had failed to prove the accused possessed the requisite criminal intent. At the Supreme Court of Canada, the court allowed the appeal, a conviction was entered, and the matter was remanded to the trial judge for sentencing.

74Justice John Major, speaking for the court, stated, inter alia:

28 The rationale underlying the criminalization of assault explains this. Society is committed to protecting the personal integrity, both physical and psychological, of every individual. Having control over who touches one's body, and how, lies at the core of human dignity and autonomy. The inclusion of assault and sexual assault in the Code expresses society's determination to protect the security of the person from any non-consensual contact or threats of force. The common law has recognized for centuries that the individual's right to physical integrity is a fundamental principle"every man's person being sacred, and no other having a right to meddle with it, in any the slightest manner": see Blackstone's Commentaries on the Laws of England (4th ed. 1770), Book III, at p. 120. It follows that any intentional but unwanted touching is criminal.

29 While the complainant's testimony is the only source of direct evidence as to her state of mind, credibility must still be assessed by the trial judge, or jury, in light of all the evidence. It is open to the accused to claim that the complainant's words and actions, before and during the incident, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place. If, however, as occurred in this case, the trial judge believes the complainant that she subjectively did not consent, the Crown has discharged its obligation to prove the absence of consent.

30 The complainant's statement that she did not consent is a matter of credibility to be weighed in light of all the evidence including any ambiguous conduct. The question at this stage is purely one of credibility, and whether the totality of the complainant's conduct is consistent with her claim of non-consent. The accused's perception of the complainant's state of mind is not relevant. That perception only arises when a defence of honest but mistaken belief in consent is raised in the mens rea stage of the inquiry.

Effect of the Complainant's Fear

36 To be legally effective, consent must be freely given. Therefore, even if the complainant consented, or her conduct raises a reasonable doubt about her non-consent, circumstances may arise which call into question what factors prompted her apparent consent. The Code defines a series of conditions under which the law will deem an absence of consent in cases of assault, notwithstanding the complainant's ostensible consent or participation. As enumerated in s. 265(3), these include submission by reason of force, fear, threats, fraud or the exercise of authority, and codify the longstanding common law rule that consent given under fear or duress is ineffective: see G. Williams, Textbook of Criminal Law (2nd ed. 1983), at pp. 551-61. This section reads as follows:

(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of

(a) the application of force to the complainant or to a person other than the complainant;

(b) threats or fear of the application of force to the complainant or to a person other than the complainant;

(c) fraud; or

(d) the exercise of authority.

37 The words of Fish J.A. in Saint-Laurent v. Hétu , [1994] R.J.Q. 69 (C.A.), at p. 82, aptly describe the concern which the trier of fact must bear in mind when evaluating the actions of a complainant who claims to have been under fear, fraud or duress:

"Consent" is . . . stripped of its defining characteristics when it is applied to the submission, non-resistance, non-objection, or even the apparent agreement, of a deceived, unconscious or compelled will.

38 In these instances the law is interested in a complainant's reasons for choosing to participate in, or ostensibly consent to, the touching in question. In practice, this translates into an examination of the choice the complainant believed she faced. The courts' concern is whether she freely made up her mind about the conduct in question. The relevant section of the Code is s. 265(3)(b), which states that there is no consent as a matter of law where the complainant believed that she was choosing between permitting herself to be touched sexually or risking being subject to the application of force.

39 The question is not whether the complainant would have preferred not to engage in the sexual activity, but whether she believed herself to have only two choices: to comply or to be harmed. If a complainant agrees to sexual activity solely because she honestly believes that she will otherwise suffer physical violence, the law deems an absence of consent, and the third component of the actus reus of sexual assault is established. The trier of fact has to find that the complainant did not want to be touched sexually and made her decision to permit or participate in sexual activity as a result of an honestly held fear. The complainant's fear need not be reasonable, nor must it be communicated to the accused in order for consent to be vitiated. While the plausibility of the alleged fear, and any overt expressions of it, are obviously relevant to assessing the credibility of the complainant's claim that she consented out of fear, the approach is subjective.

(3) When Circumstances Can Vitiate Consent or a Reasonable Belief in Consent

75In R. v. Hutchinson, 2014 SCC 19 , [2014] S.C.J. No. 19, the complainant consented to sexual activity with a condom to prevent conception. Unknown to her at the time, her partner, the accused, had poked holes in the condom and the complainant became pregnant. The accused was charged with aggravated sexual assault. The complainant said that she did not consent to unprotected sex. The trial judge agreed and convicted the accused of sexual assault. The majority of the Nova Scotia Court of Appeal upheld the conviction on the basis that condom protection was an essential feature of the sexual activity, and therefore the complainant did not consent to the "sexual activity in question". The accused appealed. The main issue on appeal was whether the Crown proved that the complainant did not consent to the sexual touching by the accused.

76Chief Justice McLachlin and Justice Cromwell, speaking for the majority at the Supreme Court of Canada, dismissed the appeal.

77In the majority decision, the court emphasized the limited circumstances in which mistakes resulting from deception may negate consent under the fraud provisions in s. 265(3)(c) of the code:

Analysis

Sexual Autonomy and the Criminal Law: Overview

17 The sexual assault offences invoke the criminal law to protect sexual autonomy. The Criminal Code and jurisprudence establish a high level of protection of the right to choose whether to engage in sexual activity and with whom. The absence of consent to sexual activity, as part of the actus reus of the offence, is judged subjectively from the complainant's point of view: Ewanchuk, at paras. 25-26 . Consent cannot be implied, must coincide with the sexual activity, and may be withdrawn at any time. Additionally, no consent is obtained if the apparent agreement to the sexual activity is obtained by coercion, fraud or abuse of authority. (We note that this is a case of apparent agreement -- the complainant subjectively agreed at the time sexual intercourse occurred. This is not a case where there was no such agreement. The question is whether, in spite of that agreement, no consent was obtained in law because that agreement was obtained as a result of Mr. Hutchinson's deceit about the condition of the condom.) Individually and collectively, these features of sexual assault law protect Canadians' sexual autonomy.

18 But the law has long recognized that there are limits on how completely it may fulfil that objective through the blunt instrument of the criminal law. As the most serious interference by the state with peoples' lives and liberties, the criminal law should be used with appropriate restraint, to avoid over-criminalization. It draws a line between conduct deserving the harsh sanction of the criminal law, and conduct that is undesirable or unethical but "lacks the reprehensible character of criminal acts": R. v. Cuerrier , [1998] 2 S.C.R. 371, at para. 133 ; A. Wertheimer, Consent to Sexual Relations (2003). The companion of restraint is certainty. The criminal law must provide fair notice of what is prohibited and clear standards for enforcement: R. v. Mabior , 2012 SCC 47 , [2012] 2 S.C.R. 584, at paras. 14 and 19 .

19 The need for restraint and certainty, which sometimes work at cross-purposes to absolute protection of sexual autonomy, has influenced the law's approach to consent, particularly where consent has been obtained by deception.

33 Three aspects of Cuerrier are particularly important. First, the majority held that the concept of fraud in the new s. 265(3)(c) was not restricted to deceptions as to the nature and quality of the act: para. 108. The former jurisprudence was rejected as being too restrictive, but at the same time, the majority recognized that some limitations on the concept of fraud are clearly necessary: para. 135.

34 Second, the majority introduced an analysis of fraud that required two elements to be present before consent was vitiated by fraud: deceit and injury or, expressed differently, dishonesty and deprivation or risk of deprivation: Cuerrier , at paras. 110-16 . With only two narrow exceptions that we will discuss shortly, consent will be vitiated by fraud only when consent is obtained by lies or deliberate failure to disclose coupled with a significant risk of serious bodily harm as a result of the sexual touching: paras. 125-39. As Cory J. wrote for the majority, at para. 135:

The existence of fraud should not vitiate consent unless there is a significant risk of serious harm. Fraud which leads to consent to a sexual act but which does not have that significant risk might ground a civil action. However, it should not provide the foundation for a conviction for sexual assault. The fraud required to vitiate consent for that offence must carry with it the risk of serious harm. [Emphasis added.]

35 Third, the majority accepted that the traditional notion of fraud in relation to the nature and quality of the act and the identity of the partner would continue to vitiate consent: Cuerrier , at para. 118 . We understand this to mean that deceptions in relation to the sexual nature of the act and the identity of the partner (narrowly defined) vitiate consent without proof that the sexual activity gave rise to the risk of serious bodily harm.

ANALYSIS

The Record

78This trial was a difficult one for the complainant, to say the least.

79In this trial the court was presented with a unique record, for an allegation of this type, from my experience, because of the e-mail exchanges and the video recordings.

80In this trial the initial discussions about the sexual activity that would take place was done through e-mail exchanges that are part of the record.

81The trial is also unique, in my experience, in that, following the e-mail exchanges further discussions about the parameters of the sexual activity, and the sexual activity itself, were recorded on film as part of the audition process, and portions of that footage became exhibits at this trial.

Credibility and Reliability of the Complainant as a Witness

82As a witness giving her testimony in these circumstances, the complainant, A.N., had a very difficult task.

83By my calculation, she began crying on four separate occasions while being initially questioned by the Crown, on our first day of trial, 18 September 2017, on her first run-through of the video material.

84During her cross-examination, on 20 September 2017, when she was being asked to watch the video record a second time, principally with respect to the second scene on the bed, in which she and Tia were joined by the accused, she often averted her gaze so as not to have to watch.

85This response was repeated by her a number of times until she was alerted by counsel that it was necessary for her to watch the video that was playing, in order to answer the questions she was going to be asked.

86The transcript of the proceeding also records a number of times when A.N. is asked a question and either makes no audible response, or simply records a non-answer such as "Mm-hmm".

87Thus, in my view, the unique exhibit video record and the difficulty the complainant had in answering questions and reviewing the exhibits made the evaluation of her testimony more difficult.

88The evidence in this trial as a whole make clear the extreme embarrassment the complainant encountered in having to review the video record.

89However, the video record, the e-mail exhibits and her statement to the police given on 1 December 2015 reveal significant discrepancies with her court testimony regarding her state-of-mind during the sequence of events in the Quality Suites on the afternoon of 27 November, 2015.

90The video record also contradicts what she stated to the investigating officers in her e-mail of 2 December 2015.

91On 2 December 2015, she e-mailed the officers and stated:

The other girl was applying for the lead role and I said I didn't want to. I told them that I didn't want to have sex with anybody because I was not having any sex and hadn't in over 10 months. They also both said I didn't have to do anything I didn't want to and I said I was only okay with implied, which was why I was so freaked out when it went past that and especially when he came into the scene not wearing his clothing and started to touch me.

The whole thing was very traumatic and it has been very hard to explain. I can't remember exactly what was said when I made them stop but I made it very clear I wasn't interested in having sex with him, and he went soft and eventually turned the camera off.

I can't remember if I told you that today but talking about it jogged my memory bit because I've tried to block it out of my mind since then.

(Exhibit 9)

92In the exercise that the court must engage in to evaluate the credibility and reliability of a witness, I find her e-mail, Exhibit 9, assertions she makes to the police in her recorded witness statement and the video record of her "intervening discussions" with the accused, Exhibit 10C, very discrediting, on a number of factual issues.

93The video record of Scene 2 confirms that the accused was wearing clothing when he entered the scene, unlike what she stated to the officers in Exhibit 9.

94The video record also records a discussion and agreement between the complainant and the accused to continue the scene by participating in simulated sexual intercourse.

95When cross-examined on the assertions in this e-mail, in my view, she was unable to explain the discrepancies between the statements she made in the visual recording of her discussions with the accused"the intervening discussion" before the resumption of the filming of Scene 2, and her testimony in court, regarding her subjective state-of-mind in Scene 2.

96This was clearly put to her in cross-examination, when she was asked by defence counsel whether, in the right circumstances, she would agree to do a porno film. The sequence went as follows:

Q. I'm just asking if you recall ever saying to Mr. Dugas – or admitting to him that you would do an X-rated video if you had great chemistry with the person?

A. No. And, like, when we say that, like I would do an R-rated film, but I would not do a porno with anybody.

Q. You would not do a porno with anybody?

A. No.

Q. Okay, I am going to give you an opportunity to correct that answer and tell His Honour the truth before I go on.

A. That I said I would do a porno with somebody if I had chemistry with them? I don't think so.

97In further cross-examination, 20 September 2017, defence counsel plays to A.N. the recorded discussion she had with the accused during the filming of Scene 2, which counsel and I refer to as an "intervening discussion". (See Exhibit 10C, GPO10059, time 9:18 to 10:12)

98In the video recording she states:

I mean if I had chemistry with the X-rated thing, and, like, with the guy, like, whatever, them, yeah, I could fucking blow them away.

(Transcript, 20 September 2017, page 139, lines 17 to 19)

99Immediately following this, on the video she tells the accused:

I do believe you work for this company

(Transcript, 20 September 2017, page 140, lines 18 to 24)

100After these recorded comments are played in court to the complainant, on 20 September 2017, she is asked in cross-examination if she still believes that the accused works for the Japanese company and she replies;

I did at that point

(Transcript, 20 September 2017, page 140, lines 21 to 24)

101Regarding her statement that with proper "chemistry" she would perform unprotected sex, she continued to deny that she had said that despite having reviewed in the courtroom on the video monitor the video sequence which records her making the statement.

102On the record of this trial, I have therefore concluded that the complainant was not a credible or reliable witness on some of the key factual elements of the case.

103In my view, her recorded comments to the accused both undermine her credibility as a witness, generally, but they lend support to the defence submissions on the issue of material parts of the defence argument in this case, regarding her "state-of-mind" at the time of the audition, including:

(1) She was not ruling out taking an "X-rated" role in a future movie;

(2) She did not question the accused's role in the audition at the time of the filming of the audition on 27 November 2015;

(3) She was consenting to the sexual sequences in Scene's 1 and 2;

104In my view, her recorded comments in Exhibit 10C along with her comments to the officers about her inability to remember due to "blocking it out of my mind" also raise doubt as to reliability as a witness in this trial as to her state-of-mind, during the filming.

Findings of Fact

105On the record of this trial, I have concluded that the complainant made a considered decision to accept a proposal made to her by the accused to participate in a filmed audition for a potential future part or parts in a sexually explicit film or films.

106I have concluded that she understood and agreed that the audition would include being filmed in her underwear, as well as being filmed while she was naked and participating in explicit sexual activity.

107Before agreeing to attend for the audition, I find as a fact that she consulted an individual who she respected as a mentor, and decided to participate in the audition with the approval of her mentor because she understood and believed if she was selected for a part in one of the proposed films she would be paid a significant amount of money, which she would then use to start up a company.

108During the initial sequence, referred to as "Scene 1" in this proceeding, I find that the accused touched A.N.'s person twice, firstly by placing his hand on her buttocks and secondly by re-inserting a dildo in her vagina, which had originally been placed there by a third party, referred to in this proceeding as "Tia".

109I find that this touching by the accused was unbeknownst to the complainant at the time, and not something she had anticipated or put her mind to prior to it happening. (See testimony of the complainant, in chief, 18 September 2017, p. 68, lines 24 to 32, p. 69, lines 1 to 3.)

110In addition, in the second audition sequence, referred to as "Scene 2", I find that the accused twice momentarily and partially penetrated her vagina with his penis.

The Issue of Consent

Scene 1

111On the evidence of this trial, regarding Scene 1, I do not find that the complainant explicitly knew or agreed to be touched by the accused during the filming of this initial sequence.

112However, I accept the defence submission that she did agree to the accused filming the scene, as part of her audition tape, and that this agreement included her agreement for him to both direct and create a film of the scene.

113In this role, I accept that he should be given some latitude to "pose" the complainant and the dido to obtain an optimum camera angle, and to maintain continuity with the dildo.

114Thus, in this context, I am left in doubt that this brief touching of the complainant was done for the purpose of the accused's sexual gratification.

115I am also left in doubt, having regard to all the circumstances, that this brief touching of the complainant in Scene 1, could be described as a sexual assault. (See R. v. Chase, supra, paragraph 11)

Scene 2

116In the e-mail exhibits in this proceeding, Exhibits 5 & 7, which were exchanged between the complainant and the accused, prior to her attendance at the Quality Suites on 27 November 2015, I find that the complainant did not put any boundaries as to what level of sexual activity she would participate in, as part of the audition tape.

117In her trial testimony, in chief, the complainant testified that it was in Scene 2, when the accused had joined the complainant and Tia, on the bed, that she first became uncomfortable. (See testimony of the complainant, 18 September 2017, page 96, lines 1 to 19.)

118She testified to her growing lack of comfort as Scene 2 progressed, due to his attempts to touch her vagina with his finger.

119She testified that she therefore brought her discomfort to the accused's attention and therefore intervened to call a halt to the filming, to discuss her discomfort, before further filming took place. (See Testimony, 18 September, page 96, lines 29 to 33.)

120In my view, the visual record in this trial, does support the complainant's uncomfort and her intervention in order to attempt to place limits on her interaction with the accused.

121However, my review of the recorded interactions and discussions between the complainant and the accused, including the discussions that took place during the shoot, and the "intervening discussion" included in Exhibit 10C lead me to conclude that the accused was alive to the complainant's discomfort.

122In addition, on reviewing the recorded interactions and discussions between the complainant and the accused, including the discussions that took place during the shoot, and the "intervening discussion" included in Exhibit 10C, I am persuaded that complainant was also providing mixed messages and therefore somewhat ambiguous in her comments.

123Moreover, a review of Exhibit 10C would leave a reasonable observer with the impression that the complainant wanted to continue filming and was generally encouraging the filming of the two scenes.

124Finally, a reasonable observer could also conclude that she was actively engaged, and making an effort to succeed in the audition and get a contract.

125I am also of the view that the accused was attempting to film this scene within the parameters of the limits requested by the complainant in their recorded conversations in the hotel room.

126Those conversations suggested that the parameters would be that the sexual intercourse between the accused and the complainant, which culminates the scene, would be "simulated" and his penis would be held by Tia on top of the complainant's stomach, and would not penetrate her vagina, (See Exhibit 4 (MAH00114, MAH00123 and GPO20059) and Exhibit 10B (GOPRO60) and Exhibit 10C (GPO10059).

127The complainant has testified that she did not expect the accused to ejaculate his semen on her stomach, at the end of this scene, and that this eventuality was not discussed.

128I accept her testimony in this trial that after Mr. Dugas ejaculated on her stomach she was upset and feared for her safety due to the possibility of sexually transmitted disease.

129However, I also conclude that this ejaculation was reasonably foreseeable once the complainant had agreed to engage in "simulated sex" with the accused, in the manner agreed, with the assistance of Tia, holding Mr. Dugas's penis to A.N.'s stomach.

130To summarize on the issue of consent, I find that the Crown has not proved "lack of consent" on the part of the complainant, to the Criminal standard.

131Further, in my view, the accused's immediate filmed responses when the vaginal penetrations occurred suggest that they were accidental, and that he did not intend to penetrate her vagina with his penis in Scene 2.

132I therefore accept the defence submission that I should have doubt as to whether the two penetrations of the complainant's vagina, in Scene 2, were intentional.

Fraud Vitiating Consent

133Near the end of her cross-examination, the defence asked the complainant A.N. whether her reason for going to the police was because she was angry at not being compensated for her time, and not obtaining a role in a film or films.

134A.N. denied she was angry, but suggested that her reason for going to the police was that she concluded, after some reflection, that the accused was simply a sexual predator, and created a fake "audition" in order get women to have sex with him under the pretence of applying for a high-paying film role.

135A.N. testified that she went to the police so this would not happen to other women.

136The Crown specifically did not argue "fraud" or "fraud vitiating consent" however I would like to briefly address it.

137On this issue, I accept the defence submissions, and the authority of R. v. Hutchison, supra, in the Supreme Court of Canada.

138The case law suggests that the court must engage in a two-step process. I will do so now.

139In step one, I firstly find, as set out above, that the complainant did consent to the two filmed scenes as part of her audition.

140Turning to the second step, I am not satisfied that the Crown has been able to prove fraud or risk of serious harm.

141The only point raised in evidence by the Crown was the fact of the absence of any stamp or other indication on the accused's passport that the accused had travelled to Japan, as he claimed to have done. (See Exhibit 11)

142In my view, I have no basis in the evidence of the passport to make any findings on that fact, on that evidence alone.

143In this case the Crown has not brought any other evidence to show that this was not a bona fide audition or that there was any other fraud that would vitiate consent.

144In my review of the evidence, and bearing in mind the principle of restraint as set out in R. v. Hutchinson, supra, in paragraphs 17 through 19, I am not prepared to conclude that fraud played any part in this case.

Reasonable but Mistaken Belief in Consent

145If I were required to do so, I would conclude that the conduct of the complainant would have given a reasonable person, standing in the place of the accused sufficient basis to establish a defence of a reasonable but mistaken belief in consent.

146Moreover, the trial record shows the accused made reasonable efforts to not exceed what he understood to be parameters which the complainant had outlined in their discussions, as a basis for her continued participation in Scene 2.

147For this reason I have concluded on all the evidence that the allegation of sexual assault must fail.

148In the result, I will dismiss the charge before the court.

Released: 22 February 2018

Signed: "Justice Paul H. Reinhardt"