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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged 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 victim of the right to make an application for the order; and
(b) on application made by the victim, 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
Information No.: F18-3703
Ontario Court of Justice (at St. Catharines, Ontario)
Between:
Her Majesty the Queen
- and -
Henry Oleksiuk
Reasons for Judgment
Counsel:
- Ms. S. MacDougall, for the Crown
- Mr. M. DelGobbo, for Henry Oleksiuk
An order has been made under s. 486.4 directing that any information that could identify the complainant, J.W., shall not be published in any document or broadcast or transmitted in any way.
The Allegation
1The Crown alleges that on Wednesday, June 13, 2018, Henry Oleksiuk (Henry), sexually assaulted J.W., during their first and only date, which took place in the Crystal Beach/Ridgeway area of Fort Erie. Henry's sexually assaultive behaviour toward J.W. is alleged to include:
- fondling of her breasts and kissing the skin of her left breast;
- fondling her inner upper thigh and her crotch area over her clothing;
- placing her hand repeatedly on his penis both over his pants and against his bare skin; and,
- forcing her to perform fellatio on him.
2On August 30, 2018, an information alleging one count of sexual assault was sworn against him. The Crown elected to proceed by indictment and Henry elected to have a trial in the Ontario Court of Justice.
3Henry is liable to be found guilty if the Crown proves to the exclusion of any reasonable doubt that he committed any one or more of these acts with the requisite mens rea provided that the act proved amounts to the actus reus of the crime of sexual assault.
The Complainant and The Accused
4J.W. was born on […], 2001. She was 18 when she testified on November 12, 2019 and she was about a month and a half shy of turning 17 on the day that she went out with Henry.
5Henry was born on […], 1999. He was 20 when he testified on November 12, 2019 and he was about two months shy of turning 19 on the day that he went out with J.W.
6Henry is afflicted with psychological disabilities and a serious learning disability, according to his mother, Elizabeth Hartmann. From a young age, Henry has suffered from a "serial" learning disability. He has also been diagnosed with Asperger's syndrome, which Ms. Hartmann qualified as being on the mild end of the autism spectrum. In addition, Henry is afflicted with Tourette's syndrome. When Henry testified, he added dyslexia and obsessive-compulsive disorder to his basket of disabilities. These additional disabilities were not the subject of any inquiry by either counsel.
How Henry Met J.W.
7About a week prior to June 13, 2018, J.W. was working behind the counter at a [redacted] when Henry came into the store with a group of his friends. The group was all boys except for one girl whom she recognized.
8One of the boys, (not Henry), approached J.W. and asked her to give him her telephone number so that he could give it to one of his friends in the group. J.W. wasn't sure who he was going to give her number to, but she agreed and wrote her number on a piece of paper.
9Henry was given J.W.'s number. He had not asked his friend to obtain it and he did not know that his friend had done so before it was given to him.
10Over the course of the next week Henry and J.W. exchanged text messages and finally, when their respective schedules permitted it, they arranged to meet at the home of a friend of Henry's near the Crystal Beach/Ridgeway area of Fort Erie.
The Duration of the Date
11The evidence about how long J.W. and Henry spent together varies among the three witnesses who spoke to that issue. J.W. said that she was dropped off at Henry's friend's house by her older sister, E., at about 6:00 p.m. and that E. picked her up outside of a restaurant called South Coast at 8:00 p.m. or perhaps 8:30 p.m.
12E., testified that she left her home to drop J.W. off at between 3:00 p.m. and 5:00 p.m. as an estimate but that she was not 100% sure other than that it was after noon. It was roughly a 15 to 20-minute drive from South Coast to their home and South Coast was within walking distance of the house where J.W. was dropped off. E. said that when she picked J.W. up, she and Henry were sitting on a bench outside of South Coast and it was late evening. She said that the sun was setting and that it was dusk and that it was between 6:00 or 8:00 p.m. if she had to make a guess.
13Henry testified that he did not recall what time J.W. was dropped off at his friend's home but thought that it was around 4:00 or 5:00 p.m. although it could have been earlier or later.
A Narrative of the Initiation of the Complaint
14E., J.W.'s older sister, was curious about her date with Henry. She tried to draw J.W. out on the ride home. There are differences between their respective recollections. However, both agree that as they approached their home J.W. sought her sister's help in covering up severe "hickey" marks that Henry had made on both sides of her neck so that J.W. could get past their mother without being questioned about the date.
15J.W. got past her mother and went up to her bedroom and fell asleep. E. woke her up later to talk as S., their elder sister, (then 21), was now home. The three sisters took a drive together, which they commonly did. During that drive E. asked J.W. about the night and at that point J.W. said, among other things, that she did not want to "do it." J.W. spoke to E. while S. drove and listened. S. then drove home and leaving J.W. and E. in the car she, apparently, made a complaint to their mother and the police were called.
16EMS arrived and took J.W. to a hospital where an exam was conducted, and police photographs were taken. E. rode in the ambulance with J.W. and heard J.W. being informally questioned by an ambulance attendant. E. was not questioned by the police until November 4, 2019 when she gave a telephone interview to an officer.
17J.W. was not formally interviewed until July 11, 2018. Thereafter, the police waited to initiate a charge until contacted by J.W. to do so. The information was sworn on August 30, 2018. By that date all signs of the hickies that J.W. had given to Henry had dissipated.
Admissions
18Prior to calling evidence a series of agreed facts were filed as an exhibit. The parties agree that the date, identity and jurisdiction are admitted. In addition, a sequence of police photographs of J.W. was agreed to be exhibited without any further formality. Finally, it was agreed that male DNA was identified on a swab taken from J.W.'s left breast and that the chance of a random match to the accused's DNA was one in one trillion.
A Précis of the Evidence
19Henry's friend was called Jay. J.W. and Henry went into Jay's house and spent some time with him in his room where J.W. had a small inhalation of marijuana from a "bong" at the urging of the two boys; though, particularly from Jay, who extolled its relaxing effects. The two boys had ingested some before she arrived. From J.W.'s perspective the drug had no perceptible effect on her.
20After a time, Henry asked if J.W. would like to walk to the beach and the two then walked through Henry's friend's house where Henry spoke to Jay's family before leaving. They went out the back door and started walking to the beach.
21They walked to the beach and then, shortly after getting there, stood behind a chest-high wall looking out at the water. Henry had brought a pipe and suggested smoking a "bowl" of marijuana but couldn't easily find his lighter and so gave up looking for it. J.W. was relieved as she didn't want to smoke again. Because Henry had given up on the idea, she "didn't have to put her foot down". It is not clear from her trial testimony whether she verbalized her desire not to consume any more marijuana.
22In any event, Henry suggested walking down the beach some more and J.W. agreed and so they continued walking along the beach. Henry said it was at this point that he took J.W.'s hand and they continued walking the beach holding hands. J.W. said that they began to hold hands later when he "grabbed" her hand.
23In cross-examination she conceded that when she used the word "grab" she meant that Henry had taken hold of her hand. And, she agreed, that she held his hand too.
24Regardless of when the hand-holding began, at a point in their beach-walk Henry drew J.W. in by the shoulder and pointed out a spot to her where he used to play when he was younger. Having drawn her to him he used that opportunity to kiss her on the lips. She kissed him back and they kissed for a time.
25J.W. agreed that when he started kissing her on the lips she was responding to it. She said that this kissing wasn't aggressive.
26Henry said that after kissing her on the beach he suggested that they walk to somewhere more private and she agreed and they walked, holding hands, until they got to a grassy alleyway away from the beach that the locals called "the shipyard".
27J.W. said that when they stopped kissing Henry said something like, "let's go on a walk" and they turned back the way they'd come. J.W. said that Henry "grabbed" her hand and he started leading her back off the beach, through some streets and into a grassy area. When they got to the grassy area Henry asked her if she would like to sit down and they did. J.W. voiced no objection to leaving the beach.
28It is here that their evidence diverges most notably, although there are still substantial elements of concurrence between them. I have attempted to compare and contrast their testimony about what happened at the shipyard. Since counsel did not ask the same kinds of questions in the same order during their respective examinations there may be some repetition of topics for each of the witnesses. In addition, there may not be precise spots available to compare and contrast their evidence. Despite that, I have attempted to create the following comparative table. It should also be noted that this table is not exhaustive. It does not contain every comment in their evidence on these topics.
Comparative Evidence Table
| She Said | He Said |
|---|---|
| So we sat on this giant stone slab and I was sitting on his right side and he was on my left and we started kissing again and then he said, "do you want to lay down?" and I said "no. This is our first time meeting, I'm not that kind of girl," sort of thing. I remember saying "this is our first date" and I chuckled, "this isn't even a date" and then he said "okay" and started kissing me again. | We sat on an overturned boat mold where we began kissing and whatnot and gave each other hickies. |
| And then he started to lean back and as he leaned back I was being pulled on top of him so then he ended up laying down on the rock thing and I was now on top of him and we were still kissing and then he started humping me and I felt uncomfortable so I sat up and I pushed off of him and now I was on the left side and I once again said, "that's not what I'm looking for I'm not that type of girl" – that sort of thing. These aren't exact quotes but this is what I'm conveying to him. He had sat up now and he said, "okay" or something and he started kissing me again. And he was going down my neck and stuff and sucking really hard on my neck and it was on both sides and it was everywhere and this is when he started feeling me up. | Defence: What happened after that? A: Ah we were still kissing we had our arms around each other and I kinda put her on my lap at which point we were kinda like grinding on each other. Q: And next? A: I suggested that we have sex and she said she would not be comfortable with that so I stopped asking. Q: Did you continue with the grinding or … A: No, she got off me. We were still kissing and whatnot. Crown: But before that when you were kissing and it was becoming more intense you began to hold her tighter didn't you? A: Not really – we kinda had our arms around each other, I wasn't like … Q : Not that you were holding her down or anything. A: Ya, no we were just we were kissing we were holding each other. Q: Okay and she began to pull away didn't she? A: No she did not. Q: Okay, you said that you put her on your lap? A: Ya we were … we here holding each other, we were kissing and I kinda put her on my lap at which point we kinda began grind like grinding on each other. Q: Okay, so you're hugging, you don't know each other very well but you decide that this is the opportune time or the right time to ask J.W. if she wants to have sex, is that right? A: Yes, yes. Q: And so what prompted you to do that? A: I don't know, it seemed like it was in the realm of possibility, we were kissing, grinding on each other, she was giving me hickies, I thought maybe she would be interested. |
| He would put his hand on my breast over my clothes and he moved his down to my legs to my thigh and then over top of my genitals, crotch, so he had his hand over my crotch and I had to keep pushing his hand away and I remember saying, "no" and I had to keep pushing his hand away and he'd just keep kissing me. | And then, ah, we're sitting there, I remember what happens, I was kinda touching her chest area. Q: Were you kissing at this point? A: Yes. Q: Did you ask her to touch her breast area? A: I did not but at no point did she ask me to stop or push my head. Q: Was her bra, were you on top of her clothes or inside her clothes. A: Both. Q: Did that go any, how did that end or did you just stop? A: I just stopped. |
| At one point he had gotten his hand underneath my shirt. I had a body suit on. It's like a leotard that you step into. He was able to pull the strap and expose the bra and he tried to put his mouth onto my boobs and I had to push him away and he …. started kissing me again. | Crown: That's exactly what she did didn't she, she started to pull away from you didn't she? A: No, that was when at one point I was reach and like kinda reaching towards her crotch area and she said she was not comfortable with that. Q: Do you recall the words that she used? A: She said she didn't want that, said "no" and then said "I don't feel comfortable with that." |
| … and he ended up grabbing my hand and putting my hand onto his erect penis but he was fully clothed so it was just his pants on his crotch area I guess you'd say and he just like had me rub over his pants for a little bit. Judge: Does he use your hand to rub it or does he let go of your hand and you rub his penis without his direction? A: Yes, so he ended up letting go of my hand and I continued for a little bit and then I pulled my hand away. Judge: (I then ask about duration prefacing the question by noting that no one had a stop watch or was looking at the sweep hand of a clock.) J.W. testified that Henry's hand was on hers for roughly 10 seconds, "it wasn't too long and then my hand 30 seconds to a minute maybe." | Defence: At some point did she, did her hand come in contact with your penis? A: Yes, before that though somebody walked through the alley way Q: Yes? A: Ya, and then she kind of put her hand on my penis and was rubbing it over my pants. Q: Your clothes were on? A: Ya, all my clothes were on. This went on for a little bit and then she said, "Let's get this belt off" and she began undoing my belt and helping me pull my pants down. Q: And did you pull your pants down too? A: Ya --- (to a point above his knees) Q: What happened next? A: She was rubbing my penis over my underwear. Q: Did you put her hand there? A: She put her hand there. Q: And what happened next? A: This went on for a little bit and she eventually took it out of my underwear and was like masturbating I guess you'd say and that went on for a little bit and she asked if I thought anyone else would walk by and I said no, at which point she put it in her mouth and began performing fellatio on me. |
| Crown: What were you feeling at the time? A: I was really scared because I didn't want to continue but every time so far that I'd say no or I don't want to he'd just continue kissing me or something so I at this point I just, I was just scared. | |
| Crown: What happens now? A: Um, he um, when I was able to move my hand away he ah started taking off his pants. Crown: What kind of pants was he wearing? A: They were like cargo shorts like tan cargo shorts. Um, he started taking his pants off and he just moved them to like mid thigh like mid-upper thigh you' say. It wasn't below his knees and it was still on him, um and then he was just in his boxers now and he was still doing that the kissing thing, like he'd still move down my neck and he still grab at my neck a little bit. Judge: Hang on again your voice trailed off a little. J.W.: I'm sorry. Judge: I know, he's still doing the kissing thing on your neck and? J.W.: um, he'd like hold my neck, um, and ah like when he was kissing me he like hold my neck and like push down with his fingertips a little bit. | |
| … and then um ah at one point um he ah ah he um moved my hand down to like his boxers again and I just started like rubbing his boxers a little bit and then um that didn't continue for long either, I couldn't tell you how long but it wasn't long um and then he ah and then I think at this point again he was trying to like feel me up like on my chest again but I just had to say no and he ended up taking off his boxers um and just putting it down where his pants were so ah now his penis was out and he had moved my hand to his penis for a little bit, I'm not too sure how long. | |
| and then um ah this part's kind of fuzzy I don't remember if he had pushed my head down or if I had put my head down but um his penis ended up in my mouth and he was holding my head like this, he had his thumb at like the nape of my neck and then his hand was all around my head, the back of my head and he was just holding my head down and I couldn't breathe and I was gagging a little bit but just like kept going and he didn't really stop and then like there was times when he pull his head, like hand away and I'd try to like come up for air and then just end up just happening again and then um he ah made this sound and he moved his hand away completely where I was able to sit up. Um, I don't know if he finished or anything like that. | Defence: Did you push her down on top of you? A: I did not. I did like I was touching her hair and whatnot but at no point was I pushing down. Q: So you didn't push the back of her head? A: No I did not. Q: And your recollection is she went down on her own? A: Yes, she also did like take it out of her mouth and was like licking it and stuff so I was, it wasn't a case I was not pushing her down or anything. Q: And how long did that go on for? A: I'd say about like 10 to 15 minutes. Q: At any point was she trying to pull her head off? A: No she was not. Q: And you pushing her back down? A: No. Q: Did you ah, how did things end? A: I ejaculated. |
| Judge: Sorry, I don't know if? J.W.: If he finished. Judge: Yes? J.W.: Like they asked me before, if he ejaculated. I'm not too sure but he had sat up and then I had sat up. | |
| Crown: I want to go back to earlier in the encounter on the rock slab you said that Henry was kissing your neck and the judge asked if they were like hickies and you said yes. How did you know, what did that feel like? A: Um it was just like he was just sucking on my neck like really, really, really hard for a long period of time, like he would suck on the same spot for like 20 seconds and then it was really painful. | I had hickies on both sides. They were smaller than the ones I gave her but they were darker in colour. |
| Crown: You were describing that Henry tried to pull your clothing to the side and you motioned to your left side. Was he successful? A: Yes. He was able to expose my left breast and he had tried to get his mouth towards it and then I had said like "no" and was able to wiggle, I guess, away from him. Crown: Okay. Did you move your clothing back? A: Yes Crown: When you said "no" did he say anything back to you? A: It was just the same like, "okay", "oh okay," then he'd go back to kissing. Q: Where was he kissing you? A: On my lips mostly and but then he's still throughout the entire time he'd still move down my neck sometimes but um whenever I said something like "no" and he'd say, "oh okay", he'd go right back to kissing my lips and then just progress from there again. Crown: You described as well when Henry had pulled his pants down and his boxers were still on that he would place your hand on his penis and rubbing it and you said he put his hand on the back of your neck again. Was it the first time that he put his hand on your neck or had he done that before? A: um, it was the first time that he was rough with it, like when we were kissing on the beach he had his hands around me but it wasn't anything hard but like when I mentioned he had his hands around my neck he was sort of applying pressure with his fingertips at like the back of my neck so it hurt. It was just really noticeable. Q: And did you react to that? A: Other than like flinching, like I'd make some sounds but he didn't like do anything about it and I didn't say "ow that hurts" or anything like that I just like flinched and stuff, that's it. Q: You said as well that Henry tried to feel you up or try to touch your breasts and you'd say "no". Was there any reaction to that? A: I couldn't really like look him in the face so I don't know if like he had body reactions or anything like that but he'd just say, "oh okay" and go back to kissing but I don't know if he had any reaction otherwise. | |
| Q When you had Henry's penis in your mouth you said he had his hand on the back of your head and when he pulled his hand away you'd try to come up for air but it would happen again. Happen again means? A: His hand would be back on my head until he finally like eventually took it away when he made the sound and I was able to come up and then sit up so I wasn't near his leg area any more. | |
| Crown: So, you've told us there's a bit of a back and forth here, I think that's vague but fair, there's a back and forth um I say that there was more than back and forth, that J.W. was pulling away from you and was moving your hands more than you say she was. A: She was not pulling away from me. I was there, she was not pulling away from me. Q: Okay. Was there any conversation at all through this that we haven't talked about? Is there any discussion when this is happening that you recall? A: Nope, not that I can recall. Q: Okay and so you testified that your eyes were closed because you were enjoying yourself, presumably? A: Yes, that was later like when I felt that I was close to ejaculation that I laid back and I closed my eyes. Q: Okay, and presumably you wouldn't want that to stop? A: No Q: No, so you held her head down. A: No I did not. At no point did I hold her head down. I said that, at no point did I hold her head down. |
29At the conclusion of the fellatio, Henry pulled his pants up and put on a fresh shirt. He said that he had taken off his shirt just prior to J.W. placing her mouth on his penis. J.W. said that she did not see him take his shirt off but saw that it was off. While he was dressing J.W. was texting her sister to come and pick her up at South Coast, a nearby restaurant.
Taking Their Leave of One Another
30At that point a friend of Henry's named Blake and another "sketchy" guy came by and after a moment of talking to or listening to these two, Henry and J.W. walked to South Coast. There they sat on a bench waiting for J.W.'s sister, E., to show up.
31Henry was asked, by Ms. MacDougall, about whether after this encounter he asked J.W. if she was all right. Henry answered that he didn't think to because he thought everything was all right and that J.W. seemed normal as he sat with his arm around her shoulder on a bench outside of South Coast.
32He said that he asked J.W. if she'd be interested in hanging out again and she replied, "we'll see". He also said that when E. showed up, they hugged each other goodbye. Finally, while he tried to text her the next day and for some days after and even tried to call her on the phone once, she never responded.
33As E. drove up to South Coast, she saw J.W. and Henry talking to each other on the bench, but she could not hear what they were saying as she chose to keep her window up to give them some privacy. She saw that Henry had his arm around J.W., but she also said that both of them looked uncomfortable and, to her, J.W. seemed stiff. She believes that they hugged each other before J.W. got in the car. I have concerns about E.'s emotive characterizations as she did not give a statement to the police until more than a year later and, of course, after talking to her sister.
34J.W.'s evidence is quite different. She testified that as they walked to South Coast, she did not speak to Henry; that she was silent and withdrawn and was not listening to him.
35E. described J.W.'s demeanour in the car as being quiet and that she was "in her head". E. said that J.W. seemed a little hesitant, scared and soft spoken. She said that she would describe her sister as a bit shaken up and that her voice was trembly. To E., J.W.'s mind was elsewhere as J.W. was barely paying attention to what E. was asking her. She felt her sister was brushing her off.
36But, J.W. got tense as the sisters got closer to home and she asked E. to help her hide the marks on her neck, marks that E. saw as soon as J.W. got into the car.
37While J.W. agreed with E. about seeking her help to hide her hickies, her evidence about their conversation during the ride home differed substantially. J.W. testified as follows:
"So E. asked me like how it was and I was just like "Oh, it was fine" and then she asked me, E.'s a really giddy person so she's like "oh did you guys kiss?" And I was like, "ya we kissed". And E. just asked me, "How do you feel about it?" um and I said, "I don't know." And she's like, "was it just a kiss?" and I said, "uh, well I gave him a blow job." And then she asked, "are you okay with that? And I said, "I don't know and I don't want to talk about it any more"."
Mr. DelGobbo's Submissions
38Mr. DelGobbo submitted that the following principles are in play in this case: consent, honest but mistaken belief in communicated consent, credibility and reliability of the witnesses, the presumption of innocence, reasonable doubt and the obligation on the Crown to establish an absence of consent beyond a reasonable doubt.
39The accused's evidence was credible and reliable and it, at the very least, raises a reasonable doubt on the second head of W.D. Moreover, the complainant's evidence was not credible or believable on critical points and it was not the type of evidence that permits a finding that the case has been established beyond a reasonable doubt.
40Specifically, the defence position is that these events were consensual and that the complainant's subsequent regret about acts that she engaged in does not negate the fact that the conduct was consensual.
41The sexual activity commenced in a consensual manner. There was holding of hands and there was kissing, and consent can be expressed by words or by conduct.
42On Henry's evidence there was consent for "most" (sic) of the activity bearing in mind that he is a boy who was 18 at the time of the allegations and a boy who suffers from a number of ailments.
43He testified that they kissed and hugged and held hands and that he suggested they go somewhere more private and J.W. agreed. He said that she asked him if they were truly alone in the shipyard and she asked if anyone would come through.
44These inquiries by him are reasonable steps that show both consideration for her feelings and an honestly held perception by him of her consent.
45An example of both the reasonable steps that he took to confirm her consent and his willingness to comply with the limits of conduct she consented to is his asking her if she wanted to have sex, that is to say, if she wanted to engage in sexual intercourse. J.W. said no and Henry respected her answer and he neither asked her again nor did he attempt to engage in sexual intercourse with her.
46Mr. DelGobbo noted that J.W. did not remember or at least relate that inquiry during her direct examination. J.W. admitted that Henry had asked her that question when it was put to her during cross-examination. Despite that admission, this lack of recall or candor by her is merely one example of what Mr. DelGobbo characterizes as both a lack of reliability and of credibility by J.W.
47Counsel submitted that Henry fondled J.W.'s breasts shortly after asking her if she wanted to have sex and that Henry testified that he was not stopped from doing so by J.W. By contrast, Henry admitted that when he tried to fondle J.W.'s inner thigh and crotch area, over her pants, she objected and said, "No" so Henry pulled his hand away and did not try to do that again. Henry also agreed that, in addition to verbally objecting to this act, J.W. pushed his hand away from her crotch area.
48On the issue of "testing the waters" Mr. DelGobbo acknowledged that while the law of consent requires an express consent or a conveyed consent to engage in a sexual act or action, he submitted that the prior actions of hand holding, passionate kissing and sucking on each other's necks conveyed a consent to Henry's further touching of J.W.
49Counsel submits that given the combination of these earlier and contemporaneous acts of affection, [the couple continued to kiss prior to the fellatio], Henry honestly but mistakenly held a belief that J.W. was conveying her consent to further sexual petting.
50Mr. DelGobbo goes further and points to Henry's evidence that it was J.W. who initiated her fondling of his penis that ended in her fellating Henry. Counsel adds that even if Henry invited J.W. to fondle him by placing her hand on him, she independently continued to rub his penis for up to a minute by her own estimation without any further urging or involvement by Henry.
51The submission being made is that one must look at the totality of J.W.'s conduct, conduct that was apparent to Henry. J.W.'s consensual conduct, as admitted to by her in her evidence included:
- accepting Henry's invitation to hold hands;
- engaging in romantic kissing with Henry;
- engaging in hugging with Henry;
- engaging in passionate kissing with Henry;
- sucking on Henry's neck and giving him hickies;
- consenting to Henry sucking on her neck and receiving hickies from him.
52The couple did all of this together in a private spot that they walked to holding hands. Arriving at this private spot they sat down consensually and began to become passionate towards each other.
53All of this occurred before Henry's fondling of J.W.'s breasts and crotch and this fondling of her, was bracketed or bookended by J.W.'s fondling of Henry's penis. That latter fondling was, according to Henry, initiated by J.W. Alternatively, that fondling was initiated by his gestured invitation to her to do so, an invitation that she accepted and by all appearances consented to; so, at a minimum, he had a reasonably and honestly held belief that J.W. was conveying her consent to his touching of her between the bracketed activities.
54Mr. DelGobbo submits that, given these bracketing or bookended behaviours, Henry's sexual touching of J.W. demonstrate her actual consent to his fondling of her breasts and crotch or demonstrates a reasonable doubt that the Crown's evidence proves a lack of her consent to that fondling.
55Moreover, and in the alternative, the defence position is that Henry had a reasonably and honestly held, albeit mistaken, belief that J.W. had conveyed her consent to his sexual fondling of her by hugging and kissing him, by kissing him passionately, by sucking on his neck and giving him hickies and by consenting to him doing the same to her and by either independently rubbing his penis or by accepting his gestured invitation to do so and by ultimately fellating him.
56If I find that Henry placed J.W.'s hand on his client's penis, counsel submits that that would not be a sexual assault in these circumstances. It would be no more than a gestured communication of invitation, which J.W. accepted. Her acceptance and consent to do so was demonstrated when he took his hand from hers and she did not move her hand away. Rather, by her own estimation, she kept it on Henry's penis and fondled it for up to a minute.
57Counsel stresses that when J.W. made it apparent and clear to Henry that she did not want him to touch her crotch he respected her wishes by stopping. His stopping confirms his honestly held but mistaken belief in her conveyed consent. When he realized his error, when he realized his mistake, he stopped.
58While this submission is repetitive, counsel stressed that Henry was entitled to rely upon all of the couple's prior activities, that Henry took care to ask J.W. if she wanted to have sex, a prospect that seemed possible to him as he testified to, but importantly, that he respected and complied with her rejection of that inquiry; that he respected her "No" and that, as he testified to, he did not force J.W. to do anything that she did not want to do.
59The defence contends that a testing of the waters was permitted in the circumstances that obtained; that Henry reasonably and honestly believed that consent was being conveyed to engage in further sexual activity and that when he found the limit of that consent he desisted; that he committed no sexual assault.
60Mr. DelGobbo counsels against a "micro-analysis" of these transactions.
61Returning to the facts, counsel submits that the events happened as testified to by Henry, that J.W. initiated her fondling of Henry's penis, but at a minimum the evidence does not permit a certain determination of those events such that the court must have a reasonable doubt about whether those events amount to a sexual assault.
62Mr. DelGobbo stresses that on her own evidence J.W. could not say and did not deny that she may have initiated her act of fellating Henry without any request, gesture or action by or from him to do so.
63Likewise, he pointed to the evidence of E., who saw the couple talking on the bench as she arrived to pick J.W. up and who saw the couple hug as they took their leave of each other.
64While there is no obligation on an accused to explain why a complainant would make their complaint Mr. DelGobbo suggested that there was a motive apparent on the evidence. It was to insulate J.W. from the choices that she had voluntarily made to engage in sexual activity with Henry. Counsel submits that J.W. clearly admitted that she did not want to talk to her mother about what she had engaged in that night. She wanted to and took steps to avoid talking to her mother on her return home. In particular, she took steps to avoid her mother seeing her hickies as she hurried upstairs.
65In effect, counsel contends J.W.'s complaint was designed to mask and excuse her prior consensual choices to be passionate with Henry, including fellating him, because those prior choices literally left her marked in a fashion that she could not hide from her mother.
66Mr. DelGobbo then briefly reviewed the cases that he had provided to me to assist me in arriving at a judgment, including W.D. and Starr and Lifchus and Morrissey along with the extra-judicial comments on sexual assault cases by the then Chief Justice McLachlin reported in the Globe and Mail on October 30, 2017, to the effect that "No one has the right to a particular verdict."
67Given counsel's stress on the application of R. v. Morrissey, 1995 CanLII 3498 (ON CA), [1995] O.J. No. 639 (C.A.) at paragraph [33] with respect to the evidence of J.W., I reproduce that paragraph here:
33 Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness's sincerity, that is, his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness's testimony. The accuracy of a witness's testimony involves considerations of the witness's ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness's veracity, one speaks of the witness's credibility. When one is concerned with the accuracy of a witness's testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is, honest witness, may, however, still be unreliable. In this case, both the credibility of the complainants and the reliability of their evidence were attacked on cross-examination.
68As explained in Morrissey testimony is potentially subject to veracity concerns and accuracy concerns. Veracity concerns deal with a witness's sincerity, that is, her willingness to speak the truth as the witness believes it to be. Veracity is another way to speak of a witness's credibility. It is the defence position that J.W. did not want to and was unwilling to speak the truth about her voluntarily performing oral sex on Henry.
69Accuracy concerns deal with the actual accuracy of the witness's testimony. The accuracy of a witness's testimony involves considerations of the witness's ability to accurately observe, recall and recount the events in issue. Accuracy concerns denote the reliability of a witness. Here again, the defence contends that because of her subsequent regret about her choices J.W. testified that she had intentionally suppressed her memories of that night. Accordingly, the defence submitted that J.W. was unable to provide reliable evidence.
70Indeed, Mr. DelGobbo submitted that J.W.'s evidence is rife with both credibility and reliability concerns.
71For example, when she gave her evidence in-chief she did not admit that she was giving Henry hickies. While she accepted that she did so during her cross-examination her failure to volunteer this evidence as she was recounting her version of the narrative of the events demonstrates that she was not willing to give a candid account of the events, that she was not willing to speak the truth, that her evidence was not credible. Moreover, the omission of this significant activity that she engaged in consensually detracts from her reliability as an accurate historian as well.
72Mr. DelGobbo also submitted that J.W. did not volunteer that she masturbated Henry when she gave her formal statement to the police in July. Counsel says, once again, that this was either an intentional omission speaking to her credibility or a reliability failure or both. As I noted to Mr. DelGobbo as he made this submission, in the absence of a detailed review of how J.W.'s questioning proceeded it is difficult to ascribe the appropriate significance to this omission.
73Mr. DelGobbo returned to his submission that in Henry's and J.W.'s evidence all the activity started consensually and if it ended with J.W. initiating oral sex on Henry then it would not make sense that their activity in between would be non-consensual. I suggested that the Crown might just invert that submission by pointing out that J.W. testified that she would not let Henry fondle her breasts or her crotch and ask: Why, given J.W.'s reticence in being fondled by Henry, would she give him oral sex?
74Mr. DelGobbo's response was that the answer to that kind of Crown submission is to be found in R. v. Cepic, 2019 ONCA 541 (CanLII), [2019] O.J. No. 3398 (C.A.) where as noted in the headnote to that case, a submission of that nature makes assumptions about female behaviour that would be unsupported by the evidence in this case. Such a determination, if submitted by the Crown and accepted by the court, would not be rooted in the specific evidence called in this case. Accepting that kind of submission would be inconsistent with the burden and onus of proof borne by the Crown.
75Turning to the issue of the availability of the "defence" of honest but mistaken belief in consent, Mr. DelGobbo submitted that I must consider that defence in this case. Referring to R. v. Park, 1995 CanLII 104 (SCC), [1995] 2 S.C.R. 836 at paragraph [26], counsel submits that "when the complainant and the accused give similar versions of the facts, and the only material contradiction is in their interpretation of what happened, then the defence of honest but mistaken belief in consent should generally be put to the jury, except in cases where the accused's conduct demonstrates recklessness or wilful blindness to the absence of consent." In the defence's submission that direction applies to this case.
76As a result, the defence submits that if I accept that "defence" or have a reasonable doubt about its application then I must find Henry not guilty.
77Mr. DelGobbo further submits that Henry did not make the error of law identified at paragraph [109] of Barton; that Henry did not rely upon J.W.'s silence, passivity, or ambiguity and that he did not mistake any of those for the communication of consent. Rather, he relied upon J.W.'s conduct of holding hands, passionate kissing, mutually giving each other hickies along with his specific invitation to engage in sexual intercourse that she declined, together with his invitation to her to go somewhere more private. All of the things that he relied upon are not matters of silence, passivity or ambiguity.
78Moreover, the defence position is that Henry did not recklessly attempt to "test the waters", which is precluded by Barton at paragraph [107].
79So, bearing Barton in mind, the defence maintains that as I consider the evidence including both the conflict and the consistencies in their evidence, I should find evidence from which Henry could honestly but mistakenly believe that she had conveyed her consent to allow him to touch her breasts and her crotch, always recalling that when he asked her if they could have intercourse and she said no he was fine with that. Further, when he reached the limit of her consent and she pushed his hand away from her crotch, he stopped again.
80In Mr. DelGobbo's submission, all of the sexual activity between J.W. and Henry was expressly consensual. At a minimum, I ought to have a reasonable doubt about whether he honestly believed that he was entitled to engage in this activity. On the evidence the Crown has failed to prove these allegations to the exclusion of any reasonable doubt. Accordingly, the defence asks for a finding of not guilty.
Ms. MacDougall's Submissions
81Ms. MacDougall began her submissions with a review of the law of sexual assault. "The actus reus of sexual assault is unwanted sexual touching. The mens rea is the intention to touch, knowing of, or being reckless of or wilfully blind to a lack of consent, either by words or actions from the person being touched."
82The actus reus of sexual assault is established by the proof of three elements:
- (i) touching;
- (ii) the sexual nature of the contact; and,
- (iii) the absence of consent.
83The first two of these are objective. It is sufficient for the Crown to prove that the accused's actions were voluntary. The sexual nature of the assault is determined objectively. The Crown need not prove that the accused had any mens rea with respect to the sexual nature of his or her behaviour.
84The absence of consent, however, is subjective and determined by reference to the complainant's subjective state of mind towards the touching, at the time that it occurred.
85"For the purposes of determining the absence of consent as an element of the actus reus, the actual state of mind of the complainant is determinative. At this point, the trier of fact is only concerned with the complainant's perspective. The approach is purely subjective. Any intentional but unwanted touching is criminal."
The Availability of Honest but Mistaken Belief in Consent
86Ms. MacDougall then turned to the meaning of consent and the different issues respecting consent that arise on the facts of this case.
87She split up the mens rea discussion between the touching of the breasts and the crotch area and then the oral sex act.
88The Crown stresses that only a W.D. credibility analysis is applicable to the oral sex act because, in Ms. MacDougall's submission, the testimony of the parties is irreconcilable. It is irreconcilable due to the conflict in their evidence regarding whether Henry applied force to the back of J.W.'s head. Relying on the last sentence at paragraph [26] of Park, the Crown submits that no honest but mistaken belief in consent analysis ought to be permitted when the evidence about the oral sex is considered. That portion of the case reads:
On the other hand, courts have generally refused to put the defence of honest but mistaken belief in consent to the jury when the accused clearly bases his defence on voluntary consent, and he also testified that the complainant was an active, eager or willing partner, where the complainant testified that she vigorously resisted. In such cases, the question is generally simply one of credibility, of consent or not consent.
89I disagree with the Crown on this point. In my view the evidence does not support a finding that J.W. "vigorously resisted". I accept that she testified that she did resist but she said that she was unable to express how hard she did so, other than to regret that she did not do so harder. I note that J.W. said that on June 13, 2018 she was 5'5" tall and weighed 180 pounds. Henry said that he did not force J.W.'s head down onto his penis and that he did not force her to persist in fellating him. The only other evidence respecting "resistance" was directed to J.W.'s reactions to Henry's sucking on her neck. Even though J.W. said that some of that sucking "really, really, really hurt" she described her response to that pain as "other than like flinching, like I'd make some sounds but he didn't like do anything about it and I didn't say "ow that hurts" or anything like that I just like flinched and stuff, that's it."
90Given the lack of vigorous resistance and given J.W.'s evidence that she may have initiated giving oral sex to Henry without his request, direction or gesture to do so, I am of the view that Henry is entitled to rely upon the defence of honest but mistaken belief in conveyed consent to the act of fellatio.
91Ms. MacDougall's position is that, even if that defence is available when the oral sex is being considered, honest but mistaken belief in consent is not available to be considered when Henry's touching of J.W.'s breasts or crotch is examined. I agree. I reject Mr. DelGobbo's invitation to conduct a retrospective circumstantial evidence analysis and use after-acquired evidence to qualify Henry's prior acts. In my view doing so would be contrary to law. Consent must be present at the moment of any sexual touching. I appreciate that the defence says it was or that I ought to have a reasonable doubt about whether it was consented to but I don't. I essentially agree with the Crown's conclusions respecting that fondling.
92Dealing with the fondling of J.W.'s breasts and crotch, the Crown's submission is that this defence of honest mistake is unavailable because there is no evidence that Henry took any reasonable steps to ascertain whether J.W. was consenting to those touches by his own admission. The law requires that one must take reasonable steps to determine if a person being touched sexually is consenting to that touch before one can avail oneself of that defence. So, that defence is not available to Henry.
93Moreover, on the issue of a testing of the waters, the law does not permit a unilateral assay of the testing of the limits of permission. It is a sexual assault to touch until you are stopped by the person you are touching. When that course of action is embarked upon the toucher is not permitted to say, "Well, I made a mistake; I thought that I could but I stopped when s/he objected."
94This matter is addressed specifically in Barton at paragraph [107]:
107 That said, it is possible to identify certain things that clearly are not reasonable steps. For example, steps based on rape myths or stereotypical assumptions about women and consent cannot constitute reasonable steps. As such, an accused cannot point to his reliance on the complainant's silence, passivity, or ambiguous conduct as a reasonable step to ascertain consent, as a belief that any of these factors constitutes consent is a mistake of law (see Ewanchuk, at para. 51, citing M. (M.L.)). Similarly, it would be perverse to think that a sexual assault could constitute a reasonable step (see Sheehy, at p. 518). Accordingly, an accused's attempt to "test the waters" by recklessly or knowingly engaging in non-consensual sexual touching cannot be considered a reasonable step. This is a particularly acute issue in the context of unconscious or semi-conscious complainants (see Sheehy, at p. 537). (emphasis added)
95To bring this point down to the evidence of this case, when Henry admitted that he touched J.W.'s breasts without her express permission the fact that she did not ask him to stop or push his head away from kissing her breast is not a defence to that sexual assault. Likewise, when he attempted to see if he could feel up her inner thigh and vaginal area, he committed a sexual assault when he fondled her crotch over her pants. On his own evidence, as given in-chief, he effectively admitted to committing that sexual assault:
Defence: Did you attempt to put your hand near her crotch area?
A: I did, I was putting it, like touching her thigh going up there. She moved my hand and told me to stop so I did.
Q: She moved, she did what?
A: I was kinda reaching up to her, I was kinda in her crotch area and she moved my hand and she asked me to stop so I did.
96Henry's failure to make any inquiry of J.W. about her willingness to let him fondle her in that fashion amounts to recklessness, which precludes him from relying on the defence of honest mistake. Put another way, Henry took no reasonable steps to determine if he was permitted to engage in that fondling.
97In the Crown's submission given the absence of any honest mistake defence, the case must be determined on a W.D. analysis. With that as her outline Ms. MacDougall then turned back to the beginning to deal specifically with the issues first of actus reus after which she turned to the issue of mens rea.
98The Crown submits, and I agree, that the first two elements of the actus reus are not in dispute. On the final and subjective element of the actus reus of sexual assault, the Crown submits that J.W.'s testimony that she did not want to be touched sexually by Henry is clear, convincing and credible; that the actus reus of all the touching has been proved to the exclusion of any reasonable doubt.
99Ms. MacDougall noted that consent requires a conscious agreement to engage in every sexual act in a particular encounter. It must be freely given and present at the time that the sexual activity occurs, and it can be revoked at any time. (See Barton at paragraph [88] and see R. v. A. (J.), 2011 SCC 28 at paragraphs [33], [34], [40] and [42] along with R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] SCJ No. 10 at paragraph [36].)
100Ms. MacDougall also noted that these common law principles, developed over the past two decades, have now been codified in s. 273.1(2) of the Criminal Code. The absence of consent for the purpose of the actus reus of sexual assault is purely subjective and refers only to the complainant's state of mind. What was in the mind of Henry is of no moment and is not in play when one considers the actus reus.
101Consent as defined in s. 273.1 is linked to the sexual activity in question, which encompasses (i) the specific act (see Barton at paragraph [118]); (ii) the sexual nature of the activity, i.e., consent to it being sexual in nature; and, (iii) the identity of the partner.
102For there to be consent the victim must be aware of and consent to all three of those elements. So, for example, when the act is changing from kissing to a fondling of J.W.'s breasts to a fondling of her crotch Henry's belief in J.W.'s consent is assessed separately as part of the mens rea. So, if there is no consent, the actus reus is complete given the other two elements, the touching and the sexual nature of it.
103Hence, if I accept J.W.'s evidence of a lack of consent to any of these touches then the actus reus is made out throughout.
104Ms. MacDougall next turned to the issue of "resistance" and noted that J.W. was not required to express her lack of consent or offer a minimal word or gesture of objection. A lack of resistance must not be equated with consent. As a result, the theme of the Crown's submissions really was to ask the court "to look for the yes" in any instance here.
105I asked for the Crown's comments on whether their kissing, which J.W. conceded was consensual, would amount to a sexual assault on the Crown's analysis of looking for the yes, as Henry did not seek any specific consent from J.W. to kiss her. Despite not seeking any specific consent to kiss J.W. she responded to his kisses and kissed him back and agreed that their kissing was consensual, (at least initially).
106Ms. MacDougall's response was to contend that people have been acclimatized to tolerate certain behaviours that are not acceptable. That is why the Crown submits one must look for the "yes" because, regardless of what may have been tolerable in the past, the law now requires the seeking of and the tendering of permission to engage in sexual activity.
107To those who say, "Well, who is going to have that conversation?" the Crown submits that if you respect someone and have respect for mutual boundaries "those conversations can come quite easily", particularly with someone you don't know (sic). Indeed, it is that conversation that plays a part in reasonable steps with a stranger. Such a conversation is important, abundantly reasonable and attractive, by demonstrating concern for a partner's feelings. On this analysis Henry sexually assaulted J.W. when he kissed her; but presumably she condoned that assault.
108Given that view, Ms. MacDougall repeatedly challenged Henry time and again by asking if he "checked in" with J.W.
109Moreover, Ms. MacDougall submitted that the catchphrase "no means no" has the effect of putting the onus on the complainant. "No means no" means that it was up to the complainant to say "no". In the Crown's submission an approach that requires a person to repeatedly say "no" to someone when you don't know how they're going to react to that "no" risks placing the objector in danger. Risk of danger arises because repeatedly saying no runs the risk of getting someone angry.
110When, as the law now clearly requires, the mantra is reversed to "yes means yes" the onus is now on the person acting. The onus is now on the initiator to make sure they have received a "yes" so that when we have these conversations in a courtroom, we avoid the confusion about whose "fault" or whose responsibility it was to ensure consent was obtained.
111In sum, it is the Crown's position that for a human being wanting to touch another human being sexually the one desiring to touch must first obtain consent to initiate that sexual touching for the touching to be lawful.
112The Crown's position is that as the time passed, J.W. became more uncomfortable and passive and Henry became more aggressive in very slight increments, which culminated in the incidents at the shipyard, where Henry tested the waters and committed sexual assaults against J.W.
The Crown's Submissions on "the forced oral sex act"
113Ms. MacDougall then turned to "the forced oral sex act." She submitted that J.W. did not consent to performing fellatio on Henry. Rather any perceived consent was vitiated by s. 265(3)(a) of the Code due to his application of force upon her.
114In the Crown's submission the evidence that J.W. fondled Henry's penis without him holding or manipulating her hand against it was an indication of her feelings of defeat, a matter she testified to directly; viz. "I felt defeated. Every time I said no he'd go back to it so saying no didn't feel like it meant anything."
115Ms. MacDougall submitted that while J.W. kept her hand on Henry's penis for a little bit (sic) her doing so is of no legal moment because J.W. testified that he repeatedly put her hand back on his penis as part of a repeating pattern. Moreover, the Crown submits that J.W.'s estimate of the time that she kept her hand on him is questionable, essentially because all estimates of time by witnesses are questionable.
116The Crown noted that when Mr. DelGobbo suggested to J.W. that she could have moved her hand away at any time J.W. did not agree because she said that it did not feel that way to her. J.W. said that eventually she did take her hand off his penis but that he put it back on, which Ms. MacDougall characterized as being part of a repeating pattern. J.W. also said that she thought it would be over soon and when it continued, she did not feel she could pull her hand away.
117The Crown submits that Henry's placing of J.W.'s hand onto his penis absolutely was a sexual assault. Any apparent compliance by J.W. was as a result of her fear and that she did not consent to this interaction so that her leaving of her hand on his penis was not as a result of her consent to touch it.
118I asked how Henry was to know J.W. was not consenting to touch him in these circumstances when she kept rubbing him for far longer than she says he held her hand there. Ms. MacDougall submitted that he would know that by her continuously taking her hand away and by her saying "No" at different points leading up to that point. So, Ms. MacDougall said that if the court accepts the complainant's testimony that she felt defeated and that she felt there was nothing that she could do and the court finds that amounts to consent then the Crown disagrees with that conclusion as being contrary to law.
119The Crown submitted correctly that while every consent involves a submission mere submission is not consent. Hence, if Henry puts J.W.'s hand on his penis and she pulls it away that's an assault and if he does it again and she doesn't pull it away that's not a consent. This is especially so where the acts are so close in time and it's the same action involving a complainant who has testified that she felt defeated. Each taking of her hand and placing it on his penis is an act of sexual assault.
A Mid-Judgment Discussion
120While I have no difficulty accepting Ms. MacDougall's exegesis on the law of sexual assault and the concept of consent, I am of the view that her narration of or characterization of the facts is not completely accurate.
121For the purposes of this discussion, accepting that Henry took J.W.'s hand and placed it on his penis over his pants and held it there for ten seconds I disagree with Ms. MacDougall's submission that the fact that J.W. kept her hand there for a little bit (sic) is of no legal moment "because J.W. testified that he repeatedly put her hand back on his penis as part of a repeating pattern" for the following reasons.
122To begin with, this was the first time that Henry put her hand on his penis so that J.W. could not know that this was a part of a pattern that was to be repeated. Second, while I fully appreciate the frailties of witness's estimates of times testified to, J.W.'s evidence was that she kept her hand on Henry's penis, without being physically required to do so for three to six times longer than she estimated Henry had his hand over hers. Third, J.W. did not merely keep her hand there for a little bit, she actively rubbed Henry's penis.
123Once again for these purposes, accepting J.W.'s evidence that she felt that she could not pull her hand away, that feeling speaks to the subjective element of the actus reus. Her subjective feeling does not illuminate what Henry was thinking or appreciating about the event. Moreover, there is no overt evidence that Henry said anything or did anything to J.W. to convey that he was going to use violence or even force to make or keep her hand on his penis.
124On the first occasion when J.W. said that Henry put her hand on his penis she said, "and he ended up grabbing my hand and putting my hand onto his erect penis but he was fully clothed so it was just his pants on his crotch area I guess you'd say and he just like had me rub over his pants for a little bit." I note first that when J.W. uses the word "grab" it does not connote and certainly does not denote violence or force. She said as much during her cross-examination. But it is significant that her imprecise use of language could, if not identified and corrected, lead to misconstruing what she was describing.
125In response to my question about whether Henry used her hand to rub his penis or whether he let go of her hand J.W. said that "…he ended up letting go of my hand and I continued for a little bit and then I pulled my hand away." Here again, J.W.'s language suggests violence or some resistance using force; viz. "I pulled my hand away." But that does not appear to be the case so far as what would be visible to Henry. It seems to me that what she is saying is that she took her hand off his penis or let go of his penis.
126There is another occasion in J.W.'s testimony where she described this initial incident in the following fashion:
Crown: What happens now?
A: "Um, he um, when I was able to move my hand away he ah started taking off his pants.
Once again, the impression this testimony conveys is that Henry has done something to prevent J.W. from letting go of his penis. That is not the case in any physical sense and that is the realm available to Henry.
127Moreover, and once again for these purposes accepting what J.W. said, it is not the case, by her own testimony that Henry put her hand on his penis and that she let go of it and he immediately put her hand back on it and so on. According to both, each touching by her of him took place in a serial fashion as he became progressively more naked.
The Crown's Preliminary Submissions on W.D.
128Ms. MacDougall submits that Henry's evidence that J.W. fondled his penis without his instigation is self-serving and that the events did not happen as Henry said. In contrast, the Crown submits that J.W.'s version of the events is not self-serving, which is why we are discussing these events. The logic of this submission appears to be that because some of what J.W. testified to detracts from her credibility and reliability her testimony is not self-serving and therefore more credible. While I agree that the candour that a witness displays tends to support that witness's credibility, such candour does not necessarily support that witness's reliability. That is one of the deficits to J.W.'s evidence.
129I do not accept the submission that Henry's evidence is self-serving. Most significantly, he said things that will ultimately cause himself to be found guilty of sexual assault.
130There is another reason why I reject this submission. In my view it tends to leach into a submission that an accused would be prepared to say anything to avoid a conviction. This kind of analysis risks an erosion of the presumption of innocence or the reversal of the burden of proof. As noted in R. v. S.D., 2007 ONCA 243, at paragraph [35]:
"… the kind of comment made by the trial judge as to the respondent's possible motive for falsely testifying is that the reasoning is inconsistent with the presumption of innocence. The leading case in this province on this issue is R. v. B. (L.) (1993), 1993 CanLII 8508 (ON CA), 82 C.C.C. (3d) 189 (Ont. C.A.). In that case, the trial judge stated: "The accused, of course, has a motive for not telling the truth, he does not wish to be convicted." Arbour J.A. held at p. 191 that this was an error:
The impugned passage in the trial judge's reasons in this case, in my opinion, goes beyond the permissible consideration of the accused's interest in being acquitted, as one factor to be taken into account when weighing his testimony. It falls into the impermissible assumption that the accused will lie to secure his acquittal, simply because, as an accused, his interest in the outcome dictates that course of action. This flies in the face of the presumption of innocence and creates an almost insurmountable disadvantage for the accused. The accused is obviously interested in being acquitted. In order to achieve that result he may have to testify to answer the case put forward by the prosecution. However, it cannot be assumed that the accused must lie in order to be acquitted, unless his guilt is no longer an open question. If the trial judge comes to the conclusion that the accused did not tell the truth in his evidence, the accused's interest in securing his acquittal may be the most plausible explanation for the lie. The explanation for a lie, however, cannot be turned into an assumption that one will occur.
131The court went on to note that as "both innocent and guilty accused have an interest in not being convicted, a trial judge has no way of detecting the difference based solely on each one's interest in the outcome".
132Ms. MacDougall submits that J.W.'s statement to her sister, "I'm not sure" is a comment by her about disclosure, it is no more than a form of delayed disclosure. Moreover, the Crown submits that J.W.'s use of the word "gave" when she told E. that "I gave him a blow job" does not connote voluntariness.
133In Ms. MacDougall's submission in an act of oral sex there is a giver and a receiver and the Crown submits that it is unfair to attach any significance to these words pretty well immediately afterward, as characterized by Ms. MacDougall. Indeed, she contends that the way to consider that statement is that J.W. is thinking about what had happened because it was confusing and would take time to process. J.W.'s quietness, her reflectiveness in the car, as testified to by E., is an indication that she was processing what had just happened so her responses are not surprising at all. I do not accept these submissions. As I shall explain below, J.W.'s responses are significant. Moreover, in my view, it is not unfair in the least to consider and weigh what J.W. said to E.
134Ms. MacDougall argues that since the court has J.W.'s evidence that she did not consent to this act of fellatio the fact that she told her sister "I don't know" when her sister asked if she was okay with it does not vitiate her evidence that she did not consent. That is certainly true as a matter of law, but the fact that when J.W. was first asked if she was okay with the oral sex she had given to Henry, her immediate response was "I don't know", which is the same thing she said about kissing him, and she admitted that was consensual on her part.
135While it is true that J.W. testified that she became more passive in her kissing, during her cross-examination she admitted that despite being more passive she continued to respond to Henry as he kissed her, even when she felt she was being more passive.
Returning to Submissions on Consent
136Ms. MacDougall then reviewed s. 273.1 of the Code, which defines the meaning of consent and submitted that pursuant to s. 273.1(2)(d) J.W. by both words and conduct expressed a lack of agreement to engage in the activity and that pursuant to (e) she having consented to engage in sexual activity, expressed by words and conduct a lack of agreement to continue to engage in the activity.
137In the Crown's submission those provisions taken together with s. 265.3(a), which vitiates any ostensible consent given as a result of the application of force, proves that the act of fellatio was a sexual assault because of J.W.'s evidence that Henry was pushing on the back of her head to make her fellate him. That said, Ms. MacDougall conceded she was still simply making submissions on the actus reus of sexual assault.
138In that vein, the Crown observed that the subjective fear of a complainant need not be reasonable. As noted at paragraph [39] of R. v. Ewanchuk, supra,
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.
139Ms. MacDougall submitted that J.W. was scared and that I ought to accept her evidence in that regard. She submitted that J.W. testified that she began to get uncomfortable on the walk when Henry began telling her about things that he said he did in the past in Crystal Beach. What those things are was never identified and so it is difficult to assess the credibility of that claim. J.W. went on to say that later, as they stopped to look out onto the water, she wouldn't look at him because she was scared that he would kiss her. Again, that statement is somewhat at odds with her evidence that she kissed him back and that their kissing was mutual and consensual. Finally, J.W. said that she got really scared in the shipyard. Yet, even here, she continued to kiss Henry passionately and gave him hickies, and even when she said that she became more passive, she admitted that she continued to kiss him responsively.
Mens Rea
140The mens rea for sexual assault is proof to the requisite degree of the intention to touch, knowing of, or being reckless of or wilfully blind to, a lack of consent.
141The Crown accepts that the court is obliged to consider the information that Henry said he adverted to in determining whether it has been proved that he had the intention to touch J.W. at a time when he knew or was reckless or wilfully blind to her lack of consent to that touching.
142However, the Crown correctly stresses that "consent must be present at the time the sexual activity in question takes place." Moreover, and correctly again, Ms. MacDougall notes that "consent" is defined under s. 273.1(1) of the Code as "the voluntary agreement of the complainant to engage in the sexual activity in question" so that consent must exist for each sexual act in question. Therefore, a consent to kissing does not extend to any fondling.
W.D. Redux
143Ms. MacDougall submits that I ought to reject Henry's testimony so that it does not remain to raise a reasonable doubt in my mind about his guilt for all of his actions towards J.W. but particularly with respect to the act of fellatio that she performed on him. In her submission, at a minimum, Henry was reckless or wilfully blind to J.W.'s lack of consent to his fondling of her and her fondling of his penis and her performance of fellatio upon him.
144She submits that Henry took no reasonable steps to inform himself of whether J.W. was consenting to any of these acts and as a result he is precluded from alleging that he had an honest but mistaken belief that J.W. was consenting to his behaviour towards her.
145Shortly put, if you don't have a yes then you're reckless. If you haven't made an inquiry, then you're wilfully blind. Henry was reckless, he didn't seek or obtain a yes to any of his fondling of J.W. And, he was wilfully blind by failing to make the requisite inquiry that the law demands that he make before touching her sexually. In the result Ms. MacDougall contends that there is no air of reality to honest mistake about consent in this case and it is therefore not to be considered by the court.
146Another iteration of the Crown's position is that Barton stresses the teaching of Ewanchuk which requires a communicated consent; i.e., an honest but mistaken belief in communicated consent. This prerequisite precludes reliance on any doctrine of implied or advanced consent. Reasonable steps are required to ground an honest mind-set where an accused is entitled to say I made a mistake. Without the taking of reasonable steps to form an honest belief that consent is being granted, there is no air of reality to that defence.
147Ms. MacDougall reviewed the law respecting reasonable steps noting that there are objective and subjective dimensions to what amounts to reasonable steps. Reasonable steps must be objectively reasonable, and the reasonableness of those steps must be assessed considering the circumstances known to the accused at the time. (See Barton at paragraph [104]). While there is no exhaustive list of steps an accused cannot rely upon silence, passivity or ambiguous conduct as a basis for alleging that he took reasonable steps. Additionally, testing the waters is not a reasonable step.
148Ms. MacDougall takes the position that Henry took no reasonable steps to ground any honest but mistaken belief in J.W.'s consent to any of his actions towards her and that defence is unavailable to him for any of his actions.
149I disagree. While that position is sound with respect to Henry's fondling of J.W.'s breast and crotch, the Crown fails to consider a number of facts in the evidence. In addition to Henry's evidence in this area J.W. testified that she fondled Henry's penis for up to a minute and she does not deny that she may have initiated giving him oral sex. Those are matters that may be pointed to by Henry as being a communication to him by her of her willingness to engage in further fondling of his penis and in being willing to fellate him.
150Ms. MacDougall's position is that, even if honest mistake is in play, given that this is really a credibility case, a W.D. analysis needs to be applied to the issue of whether Henry was pushing down on J.W.'s head and forcing her to fellate him. This brought the Crown to her W.D. credibility submissions.
The Crown's Submissions on W.D.
151The Crown's submission was that if I find that J.W. was an enthusiastic participant, as portrayed by Henry's testimony, then he must be found not guilty of any forced oral sex act. Ms. MacDougall went on to submit that "if you don't believe his testimony you must ask whether his version of the events introduces a reasonable doubt and so you have to acquit and thirdly, even if you are not left in doubt by his evidence you must consider on the basis of the evidence, which is accepted, whether the Crown has proven beyond a reasonable doubt that the assault occurred and in this case it would be on the evidence of J.W."
152The Crown urges that I reject Henry's evidence that he was not applying force to J.W.'s head. Ms. MacDougall submits that it is incredible that he might have his hand on J.W.'s hair and yet not be applying any force to her head to make her fellate him. His evidence that the oral sex was consensual and mutually pleasurable is incredible and should be rejected.
153The Crown submitted that there were several aspects of Henry's version of the events that ground a rejection of his evidence as incredible. First, while conceding any consumption of marijuana is not important per se, the Crown submits that Henry downplayed how much of it he smoked and that he offered a self-serving explanation for why he did not continue to search for his lighter while on the beach.
The substance of this submission is that Henry was shading his evidence, that (to use the language of Morrissey) he did not demonstrate a willingness to speak the truth as the witness believes it to be.
154I see nothing in this complaint about his evidence in this area, other than that Ms. MacDougall's cross-examination did demonstrate that Henry was unable to successfully follow her jumps from one point in the evidence to another, resulting in him getting confused about what was being referred to and therefore responding erroneously.
155The Crown's suggestion that his evidence did not make sense in this area does not resonate with me. Henry and Jay smoked some marijuana before J.W. got there. They offered her some and when she declined, they, and according to Henry, particularly Jay, extolled its benefits and convinced her to have a small toke. She did and it had no effect on her. When Henry and J.W. went for a beach-walk Henry decided to have another "bowl", but he couldn't find his lighter. As he was rooting through his school bag looking for his lighter, and before he could find it, he reconsidered and thought smoking more would be a bad idea because it could change his state of mind and because J.W. was a novice smoker.
156The Crown says, "it's incredible that he would intentionally bring marijuana to smoke on their walk but now for some reason would be concerned with altering his state of mind for no particular reason. So again, he's downplaying the fact that they didn't smoke on their walk [it] was actually a part of his good judgment. But it wasn't because of his good judgment or because of his unwillingness to alter his state of mind. It was an opportunity to present that to the court. The real reason was that he didn't have a lighter which is obviously the most reasonable and logical reason anyway." I don't accept that submission. The Crown is setting up a straw man to knock it down. This incident is no more than what Henry described it to be.
157In my assessment, a more significant aspect of this incident is J.W.'s refusal to candidly admit the real meaning of the phrase "to put one's foot down." During cross-examination Mr. DelGobbo sought to have her admit that she had the ability to resist a course of action or insist a upon of action; that she had the ability "to put her foot down". She had used that phrase when she told the police that she did not want to smoke any more marijuana on the beach. She told them that because Henry gave up on the idea of smoking any more, she did not have to put her foot down. The obvious implication of Mr. DelGobbo's cross-examination was that J.W. was not the helpless and overborne person that she portrayed herself to be to that point in her evidence.
158Rather than concede the obvious meaning of the idiom, she skewed the meaning of the phrase. She tried to avoid Mr. DelGobbo's implication by saying that when she used that phrase it only meant that she did not have to say no repeatedly to the possibility of persistent entreaties by Henry in the event that he pursued the suggestion to smoke more marijuana.
159A more significant challenge to Henry's evidence is his evidence that J.W. said, "Let's get this belt off." That didn't ring true to me when I first heard it; and, that piece of evidence from Henry could seriously detract from his credibility.
160Because of the potential significance of this portion of Henry's evidence, after counsel made their submissions, I listened very carefully to the digital recording of this portion of Mr. DelGobbo's cross-examination.
Q: Did you say something to the effect to him, "let's get this belt off?"
A: No - I don't - no.
J.W. denied saying this but, it did sound to my ear as if she may have been censoring her response. So, while the suggestion was not accepted, her response was not as unequivocal as it seemed to be at first hearing.
161Ms. MacDougall submitted that Henry's testimony demonstrates a consistent disregard for J.W.'s thoughts and feelings particularly at the shipyard and that this disregard is a basis for rejecting his evidence. The Crown's first specific submission during this portion of her argument concerns Henry's evidence that after they had been 'grinding" on each other and were now kissing, he saw someone he knew at the mouth of the shipyard and Henry gestured for that friend not to come over. For reasons that are completely unclear to me Ms. MacDougall submits that that is "very unusual". I do not accept that submission. Indeed, the opposite is true.
162Recounting Henry's evidence during that period, the Crown notes that Henry had testified that someone walked through the alleyway as he and J.W. were involved with each other. That person was a severely challenged schoolmate of Henry's who paid them no mind. The Crown went on to recount the substance of Henry's evidence culminating in J.W. asking if Henry thought anyone would walk by. He testified that she asked him whether he thought anyone would see.
163The Crown submits that since Henry had seen someone he knew at the mouth of the alleyway earlier and since he had seen someone walk through the alley, his "interaction" did not happen the way he described it as happening.
164While I fail to see the logic in that submission the Crown goes on to argue that, on his own testimony, Henry is misleading J.W. about the likelihood of privacy; he's lying to her as there is no basis for him to believe that no one would come by when he had just seen two different people encroach on the area where they were. Further, this is another demonstration of his lack of concern for J.W.'s feelings.
165Respectfully, this later submission was never put to Henry. However, Ms. MacDougall did challenge Henry on J.W.'s question about privacy and about his answer. The substance of those questions and answers proceeded as follows:
Q: Then J.W. asked you if you thought anyone would come by and you said, "No;" but you had just seen your friend (sic) walk by so why did you tell J.W. no?
A: I didn't think anyone else would be coming through.
Q: What would make you think that?
A: It was getting later in the night, usually not a lot go through there. I was surprised one person did. So I didn't think anyone else would be coming through.
Q: So why were you keeping an eye out?
A: Just in case.
Q: But you told J.W., "No".
A: I was keeping an eye out. Better safe than sorry because I didn't want to be embarrassed.
Q: But you didn't want to let J.W. in on this information for her to decide for herself?
A: I didn't really think there would be anybody.
166Ms. MacDougall asks me to conclude that Henry was so intent on engaging in further sex that he simply continued despite the risk of being seen and to reject or at least discount Henry's comment that he didn't want to be embarrassed. I do not see this portion of his evidence that way. I accept that he thought it likely that they would not be seen, and I accept that Henry did not want to be embarrassed.
167Ms. MacDougall points to a final area of Henry's testimony that she suggests is incredible and should, in conjunction with her earlier challenges to his evidence, result in his evidence being rejected on the second prong of W.D.
168When the oral sex act was completed and Henry got dressed the fellow that he had gestured at to stay away, (Blake), approached them in the company of a "sketchy-looking" person who was a stranger to everyone. According to Henry this individual had been panhandling, (that was what Blake told him), and he, the sketchy fellow, began to talk to all of them about drugs.
169Henry testified that he began to feel uncomfortable about this fellow and he thought J.W. was feeling that way too, so he and J.W. walked away from Blake and the sketchy guy. Ms. MacDougall says, once again, that this is very unusual, especially because as they walk away Henry asks J.W. for the first time whether she's comfortable. Moreover, the Crown submits that it is unusual that Henry would leave his friend Blake alone in the company of the sketchy guy. Once again, I have difficulty following the logic of this submission or finding that any of this is "incredibly unusual."
170Notwithstanding, the Crown's submission is that the "whole interaction is incredibly unusual". Ms. MacDougall submitted that it's incredible that this is a stranger, erratic drug involved stranger, who just appeared out of nowhere and not much discussion happens about what happens with Blake, where he goes.
171In the Crown's submission this incident was concocted by Henry to explain away evidence of a statement that the Crown alleges he made to J.W. on their walk to South Coast. Before getting to that statement I note first that J.W. testified that people did approach them in the shipyard.
"… but he had sat up and then I had sat up and his um friends or something along like around the corner and started talking to him. They just started talking about drugs around Crystal Beach and I turned away and I texted my sister that I wanted to leave and his friends were just talking and one sat on my left side and asked for my name and I told him J.W. That's all I said while they were there. And Henry asked me if my sister was coming and I said ya she's going to meet me at South Coast, a restaurant on the main road, a place I sort of would know …"
172Clearly Henry did not concoct evidence about people approaching them in the shipyard/alleyway. The Crown's submission is that Henry used that incident to tailor his evidence to account for a statement that he knew, from Crown disclosure, that J.W. would allege that he made.
173Expressly put the Crown submits that "all of that story with the stranger was a way for Henry to explain why he would make some kind of comment, if that's not the exact quote at least some kind of sentiment would be of an apologetic nature, or of a questioning nature of – 'was that okay, what just happened?' That was the sentiment and he told that story about the stranger to explain any kind of comment that he may have made regarding that. But my submission really was that didn't make any sense, because he left his friend alone with someone who was obviously scary without any regard for the safety of his friend so that didn't make sense." In the Crown's submission this statement is an indication of a consciousness of guilt that is corroborative of the fact that the Henry knew that J.W. did not consent to what had just happened.
174In my view, this type of argument, if not expressly forbidden, risks turning the constitutional right to disclosure into a trap.
175That said, the "statement" that the Crown alleges Henry made appears in this passage of J.W.'s testimony:
"Henry asked if my sister was coming and I said she'll meet me at South Coast um and he said okay and we started walking to South Coast um and he had grabbed my hand and then like walking to South Coast he was just like talking and I'm not too sure, I wasn't listening, I wasn't really answering either and he said something along the lines of "Oh ah did I push you? I'm sorry, that's a dick move." And I just didn't answer him saying anything and then we got to South Coast".
176I asked J.W. what this conversation was in relation to and she said:
"I, see, before like the conversation leading up to that I don't remember it having any clue to it cuz I don't remember it, um like we were just talking about, he was just talking about like his friends and then I wasn't really answering and then he had said the 'Sorry that was a dick move' part and then that was really it, we just kept walking and we ended up at South Coast."
Given that J.W. said that "I'm not too sure, I wasn't listening" and given that she further qualified her testimony respecting this "statement" by adding that what she heard was "along the lines of" and given that she said "see, before like the conversation leading up to that I don't remember it having any clue to it cuz I don't remember it", and given that J.W. said that Henry was "just talking about like his friends" it is difficult to ascribe any reliability to this aspect of her testimony. In my view it is not the admission against interest that the Crown submits that it is, particularly in the face of Henry's denial that he never said anything like it.
177In the Crown's submission all of these aspects of Henry's testimony that have been reviewed in this portion of the Crown's submissions were not credible. Ms. MacDougall contends that the way Henry presented himself and his version of events is completely favourable to him; that it is self-serving, and that it should not introduce a reasonable doubt.
178In the Crown's submission J.W.'s testimony should be accepted because there were elements that were not cut and dried, that were not self-serving or at least, her evidence is credible. She admitted when she left her hand on his penis and she admitted when she wasn't sure one way or the other whether she put her head down and those are elements that indicate a credible and forthcoming witness, who is not attempting to mislead or cast an unrealistic or an untruthful light on what was happening.
179Ms. MacDougall's last submission is that this is a case like R. v. J.J.R.D., 2006 CanLII 40088 (ON CA), [2006] O.J. No. 4749 (C.A.). Laskin J.A., explains J.J.R.D. at paragraphs [19] and [20] of R. v. D. (R.), 2016 ONCA 574. He noted that in J.J.R.D. the accused's denial, when "stacked beside" the complainant's evidence and her diary entries, "did not leave the trial judge with a reasonable doubt." But, the proper route to arrive at that decision as explained by Doherty J.A. in J.J.R.D. is that "an outright rejection of an accused's evidence" that is "based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence ..." (emphasis added by Laskin J.A.) is not an improper conclusion. In doing so, Laskin J.A. stressed the need for the trial judge to be convinced that the Crown's conflicting credible evidence establishes the accused's guilt beyond a reasonable doubt. In my view the evidence in this case does not permit such a finding and the rationale of J.J.R.D. is not applicable to this case.
Mr. DelGobbo's Reply
180Presumably in response to Ms. MacDougall's repeated submissions suggesting Henry had little regard for J.W.'s feelings, Mr. DelGobbo responded by saying that this proceeding is not a conversation about people's feelings. This is a criminal trial where there are real consequences for Henry and no consequences for J.W. It is not about a conversation. The issue is where does the evidence lead? The issue is: has the Crown proven an absence of consent beyond a reasonable doubt?
Conclusion
181In R. v. J.M.H., 2011 SCC 45 (CanLII), [2011] 3 S.C.R. 197, at paragraph [39], Cromwell J. noted that a reasonable doubt does not need to be based on the evidence; it may arise from an absence of evidence or a simple failure of the evidence to persuade the trier of fact to the requisite level of beyond a reasonable doubt.
182By his own admission Henry neither sought nor received J.W.'s permission to "feel her up", to fondle her breasts or crotch. The applicable law has been reviewed and discussed during the Crown's submissions and I have gone on at far too great a length already. Henry tested those waters without her consent. I find him guilty of sexual assault. The particulars of that sexual assault being his fondling of her breasts and crotch, as described by and admitted to by him in his evidence.
183My finding of guilt does not extend to any of the allegations of non-consensual oral sex. For reasons that I shall attempt to explain I have a reasonable doubt that the act of fellatio performed by J.W. on Henry was non-consensual.
184J.W.'s touching of Henry's penis was, I find, the initial act in a series of acts that ultimately led to her performing fellatio on him. I am unable to come to a conclusion about whether Henry initially placed J.W.'s hand on his penis and held it there briefly or whether she initiated that touching without any invitation or gesture or touch by Henry, as he said. I think it more probable that Henry took J.W.'s hand and placed it on his penis as his invitation to her to fondle it. However, I do not make that finding to the exclusion of any reasonable doubt. That said, I also think it more likely than not that she accepted that invitation and conveyed her acceptance by continuing to fondle him as discussed previously.
Sources of Reasonable Doubt
185My reasonable doubt about whether Henry forced J.W. to fellate him arises from a number of different pieces of evidence and on a number of different bases. In addition, there are the ineffable aspects of the assessment of credibility in play as well. For the most part, these bases for my reasonable doubt are not presented in any ordered or ranked fashion so that one topic or item is necessarily more important than another. I am merely trying to describe, as best as I can, why the evidence called in this case has not convinced me to the exclusion of any reasonable doubt that Henry forced J.W. to fellate him.
186A primary basis of my reasonable doubt is that J.W. did not allege that Henry forced her to put her mouth on his penis. She testified that that aspect of her recollection was fuzzy; that she does not know if Henry forced her head down onto his penis or whether she bent over and took his penis into her mouth on her own initiative.
187J.W. attempted to explain her lack of recollection and clarity about this on two bases. First, the events happened a long time ago, implying that her memory was faulty due to the passage of time. Second, she testified that she has actively attempted to forget and erase these events from her memory. Either basis substantially reduces the reliability of her evidence about this event.
188The Crown's contention is that regardless of how the fellatio was initiated I should accept J.W.'s evidence that once it was initiated it was non-consensual. I am not so satisfied. Quite simply, I don't reject Henry's evidence about the fellatio so that his denial of any use of force raises a reasonable doubt in my mind on the issue of consent. But there are many other aspects of the evidence that give me pause and cause me to find that the Crown has failed to prove that the fellatio was non-consensual. In the result, J.W.'s evidence fails to persuade me to the requisite level of beyond a reasonable doubt.
189Minutes after the fellatio ended Henry and J.W. walked hand-in-hand to South Coast to await E.'s arrival. Henry says they talked along the way and E. said they were talking on the bench and that Henry had his arm around J.W. Moreover, they hugged each other goodbye. J.W.'s behaviour as described by Henry and E. seems inconsistent with a violent sexual attack having just occurred.
190I fully appreciate the teaching of D.D. quoted previously about the idiosyncratic responses that victims can make to trauma. However, that direction does not require a fact-finder to ignore behaviour seemingly inconsistent with the Crown's allegation.
191Another matter that contributes to my conclusion on reasonable doubt is the conversation that J.W. had with her sister, E., during their drive home. E. asked J.W. if she and Henry kissed and when J.W. said that they did E. asked, "Are you okay with that?" and J.W. responded, "I'm not sure." Subsequently, J.W. told E. that she gave a "blow-job" to Henry. When E. asked, once again, if J.W. was "okay with that?" J.W. gave the same response: "I'm not sure."
192It seems to me that there are a number of matters of significance here. First, when asked whether she was "okay with" events that J.W. concedes were consensual - (the kissing) - she said, "I'm not sure." She then gave the same response to an act, which she did not characterize as non-consensual until hours later that night. Second, when she first described the act of fellatio to E., the first person she spoke to about it, J.W. said that she gave Henry a blow-job. She did not characterize what she did as non-consensual; she did not say or imply that Henry forced her to do so. Third, their descriptions of the oral sex varied markedly.
J.W. said she was being forced on Henry's penis and that she was choking and gagging as a result. Henry said J.W. was fellating him freely and would take his penis out of her mouth and lick it. It seems to me that Henry's description of the event is much more in keeping with J.W.'s response of "I'm not sure" than her description of that event.
193Once again, I am familiar with the concept of delayed disclosure but that, on its face, is not what was happening here. In any event, these are matters that I have observed, and which have contributed to my conclusion that the Crown has failed in its burden to prove to the exclusion of any reasonable doubt that the fellatio was non-consensual.
194The Crown may demur that J.W. said that not all of her kissing was vigorous and enthusiastic; that at one point she became less involved, less responsive and more passive. That may well be how J.W. felt subjectively. But she conceded in cross-examination that she never stopped responding to Henry's kisses completely. Despite being more passive she continued to respond to Henry as he kissed her, even when she felt she was being more passive. This is consistent with Henry's testimony that J.W. never pulled away from him, other than when she pushed his hand away from her crotch.
195It must be borne in mind that while Henry continually defaulted to kissing J.W. was continually responding to it. Given the onus and burden of proof, what must be shown is that Henry knew or was reckless or wilfully blind to her lack of consent. The fact that J.W. continued to respond to Henry's kisses and kissed him back makes it difficult for the Crown to meet their obligation.
196Another area that causes me concern is J.W.'s use of language. She persisted in using the word "grab", (that Henry grabbed her hand), but on being cross-examined about that use of language any forceful connotation in the use of that word was abandoned. On another occasion she said, "when I was able to move my hand away" leaving the impression that she had been prevented from doing so until control over her hand was removed. Again, there is nothing in the evidence to support the implication that J.W.'s evidence created, that she was prevented from removing her hand. Another area where J.W.'s use of language was previously discussed was her ability to "put her foot down". Somewhat analogously I note that J.W. did not volunteer during her direct examination that she was going down Henry's neck, that she was actively giving him hickies just as he was giving them to her. In my view she downplayed the extent to which she was sucking on his neck. She testified that her neck sucking was not aggressive and that she does not recall seeing any marks on his neck. I accept Henry's evidence and that of his mother that he had obvious hickies. The point of these references is that I get the impression that J.W. is shading her evidence, that these examples cause me to be concerned about her credibility, as explained in Morrissey.
197A further area where J.W.'s evidence is inconsistent is her testimony that Henry refused to accept a "no". That is not entirely accurate. He asked her if she wanted to have sex, (that is to engage in intercourse), and she said "no" and he did not pursue that. He tried to fondle her inner thigh and crotch and she pushed his hand away and said "no" and he respected that and did not try to do that again. I accept his evidence on that point. She never said "no" to his kisses and continued to respond to them. She never said "no" to their mutual neck-sucking and went down his neck as he did to her.
198Another area where I disagree with the Crown is in its contention that Henry's evidence is self-serving while J.W.'s is not. In my view that submission is incorrect. There are a number of places where Henry said things or made admissions that were not in his interest. The following items come to mind:
- Henry agreed that he did not either by word or action seek J.W.'s permission to fondle her inner thigh and crotch area and he conceded that he did not seek her permission to fondle her breasts before he commenced doing so.
- He conceded that he did not ask J.W. if she would be comfortable going to the shipyard.
- He agreed that he was sucking on J.W.'s neck quite hard.
- He agreed that he was not "checking in" with J.W. from time to time.
None of these are self-serving answers.
199Remembering that for the most part these are not ranked concerns, I note that there are some oddities in their evidence. J.W. doesn't know if Henry ejaculated and he says that he did but is not sure where, although he believes it was in J.W.'s mouth. He volunteered that he was a sexual novice, which may explain his failure to warn J.W. that he was about to ejaculate.
200One matter that is of no weight to my conclusion but which I should mention is that Mr. DelGobbo submitted that J.W. did not tell the police, in her formal statement, that she had fondled Henry's penis. Ms. MacDougall correctly noted that this omission, if it was one, was not part of the evidence. As a result, it plays no part in my decision.
201Finally, I shall make some brief comments, (beyond what I have already noted), on why I do not reject Henry's evidence. In my view, other than his testimony that J.W. said, "Let's get this belt off" his evidence seemed internally consistent and not so unreasonable or illogical that I have cause to reject it. Even his allegation about the belt while rejected by J.W. was, as I've said, rejected by her in a manner that was not wholly unequivocal to my ear.
202In my view Henry gave his evidence in an essentially guileless manner. His manner of giving evidence was also respectful and responsive, except in the following understandable instance during his cross-examination:
Q: Okay. ….. You testified that the next day your mother asked you what happened to your neck and you said that they were hickies.
A: Yes
Q: Ah then you said that you didn't want to tell your mother what had happened, you didn't want to talk about the details.
A: Yes
Q: Why not?
A: Well would you want to talk to your mom about your sexual experiences? It's kind of an awkward subject.
Judge: … I know that but your job as a witness is to answer questions not to ask them so …
A: Sorry, I felt awkward
203I do not reject Henry's evidence that he did not use force to make J.W. fellate him. He asked J.W. if she wanted to engage in intercourse, and he accepted her refusal to do so without objection and without the use of any force to coerce her to do so. He desisted from attempting to fondle J.W.'s crotch when she refused to allow him to do so and used no force against her to pursue that kind of touching. He used no force to hold her against her will. I do not reject his evidence that he did not use force to push or keep J.W.'s head on his penis. That unrejected evidence in conjunction with my other reservations about the Crown's case cause me to have a reasonable doubt about whether Henry forced J.W. to fellate him.
204In the result and for the reasons that I have tried to express, I find Henry guilty of the sexual assault of fondling J.W.'s breasts and inner thigh and crotch area. All of these matters were charged as one count of sexual assault. Had they been particularized into separate counts I would have found Henry not guilty of the allegation of forced fellatio.
Dated at St. Catharines this 17th day of January 2020.
J.S. Nadel, (O.C.J)