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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Court File and Parties
ONTARIO COURT OF JUSTICE
DATE: 2023 11 07 COURT FILE No.: Sudbury 4011-998-20-1111-00
BETWEEN:
HIS MAJESTY THE KING
— AND —
DAKOTA DUNCAN
Before: Justice Leonard Kim
Heard on: May 1, and 2, and June 15, and 16, 2023. Oral Judgment released on: September 19, 2023 Written Judgment released: November 7, 2023
Counsel: K. Ludgate, counsel for the Crown C. Laperriere, counsel for the accused Dakota Duncan
L. KIM J. (orally)
Introduction
Introduction
1Mr. Duncan stands charged with five criminal offences allegedly committed upon C.L. on December 21 to 22, 2019, in the City of Greater Sudbury. Ms. L. had travelled from Espanola to Sudbury on her birthday to spend the evening with Mr. Duncan. They had communicated online for approximately six months prior to this first in-person date.
2The Crown alleges that Mr. Duncan assaulted Ms. L. physically and sexually and had also threatened to cause her bodily harm. It is also alleged that he took her father's Toyota Camry without her father's consent and willfully caused damage to it by driving it on a highway while significantly impaired by alcohol.
3In my reasons, although I will not make reference to every detail of evidence adduced in this trial, I wish to make it clear that I have carefully reviewed the testimony of each witness and the exhibits filed by counsel in conjunction with the applicable legal principles.
Credibility and reliability of Ms. L. (as it relates to the sexual assault charge)
Credibility and reliability of Ms. L.
4A central part of my analysis requires me to consider the credibility and reliability of each of the witnesses that provided testimony in this trial.
5Madame Justice A.M. Malloy in Nyznik, 2017 ONSC 4392 had this to say about the principle of reasonable doubt in sexual assault trials:
“15 Typically, the outcome of a sexual assault trial will depend on the reliability and credibility of the evidence given by the complainant. Reliability has to do with the accuracy of a witness' evidence -- whether she has a good memory; whether she is able to recount the details of the event; and whether she is an accurate historian. Credibility has to do with whether the witness is telling the truth. A witness who is not telling the truth is by definition not providing reliable evidence. However, the reverse is not the case. Sometimes an honest witness will be trying her best to tell the truth and will fervently believe the truth of what she is relating, but nevertheless be mistaken in her recollection. Such witnesses will appear to be telling the truth and will be convinced they are right but may still be proven wrong by incontrovertible extrinsic evidence. Although honest, their evidence is not reliable. Only evidence that is both reliable and credible can support a finding of guilt beyond a reasonable doubt.”
6Ms. L. was questioned for several hours by the Crown and the Defence in this trial. I had the opportunity to observe the manner in which she responded to each of the questions put to her from both sides of the counsel table. Specifically, as it relates to her recollection of the three instances of sexual assault she spoke about, I found her to genuinely attempt to do her best to answer each question as she recalled the alleged events dating back some three and half years ago. I sensed in her testimony an element of disappointment and embarrassment, perhaps from a feeling of rejection from Mr. Duncan in what was evidently a disappointing first date.
7On the most sensitive topic of intercourse both vaginally and anally, I find that she was a truthful witness, and I did not find her to be evasive in her responses, however, there were portions of her evidence where her memory was not the strongest likely due to the passage of time.
8As it relates to her reliability on the sexual assault involving vaginal and anal intercourse, the evidence revealed that Ms. L. had consumed some alcohol but not excessively. I do not find that her alcohol consumption throughout these incidents diminished her ability to recall the events in question.
9Ms. L. was questioned regarding the chronology of events including the interactions she had with her friend, T.H., her mother, and the hospital staff at Espanola Hospital when she was examined. She recalled that she discussed the events of a sexual nature with Ms. H. but did not proceed with a formal complaint at this point because she was very confused. She also recalled that it was the staff at the hospital, not Ms. H., who suggested that she get the police involved.
10With respect to the allegation of sexual assault, when pressed by Defence counsel, Ms. L. was unable to recall:
(1) Whether she told medical staff during the examination that she denied being sexually assaulted;
(2) If the moment she first came to realize that she had been sexually assaulted was on December 23rd, the Monday after the weekend encounter;
(3) If she spoke to J.Li. about these events or any other individual about these events on Monday, December 23rd, which was the day she returned to work;
(4) If she and Mr. Duncan discussed any aspect of their sexual encounter the following day, on Sunday, December 22nd.
11These aspects of Ms. L.’s recollection are worthy of noting because of its probative value in my general assessment of Ms. L.’s credibility and reliability as it relates to her ability to recall the relevant events honestly and accurately in her complaint of sexual assault.
12I am not convinced that any of the problems in her memory on the above issues significantly detract away from Ms. L.’s credibility and reliability as it relates to the core allegations of each of the three instances of sexual assault that she recounted.
Credibility and reliability of Mr. Duncan
Credibility and reliability of Mr. Duncan
13I have reviewed Mr. Duncan’s testimony in conjunction with the full trial exhibits which included the text messages, videos, photographs, medical evidence, and testimony of each witness.
14Mr. Duncan admitted to some facts that were not helpful to his Defence. He admitted to slapping Ms. L. one to two times even after she told him to stop during the game of “mercy” and to making threats to her although in his mind, they were justified, and were not to be taken seriously.
15Mr. Duncan also admitted to spanking Ms. L. on her vagina with a large, 12-inch wooden paddle. And he admitted this fact in the face of her inexperience and knowing that it caused her pain and stinging while he repeatedly struck this most sensitive part of a woman’s anatomy.
16I did not sense that he was attempting to be evasive on the stand or withhold any evidence from the Court.
17As to his reliability, during the examination in chief, Mr. Duncan’s ability to recall the events of the evening of December 21 to 22, 2019, appeared to be somewhat functional and with little gaps that impacted the veracity of his testimony.
18However, during cross-examination, Mr. Duncan admitted to consuming a large quantity of alcohol, namely, most of a 26-ounce bottle of rum, with 40% alcohol concentration, the afternoon and evening of December 21st, 2019.
19He acknowledged that he was intoxicated, and that Ms. L. had to wake him up after he passed out during the evening and that his judgment was impacted due to his high degree of intoxication.
20His admission of intoxication was consistent with the observations of Ms. L. in person and Ms. H. during their video call.
21When pressed by the Crown as to his memory, Mr. Duncan insisted that the amount of alcohol he consumed did not negate his ability to remember the events that transpired throughout the evening and into the following day. However, he admitted that he could not recall entirely what was said between himself and Ms. L. and that there was a chance that he could not recall what he might have said to others.
22Ultimately, I conclude that Mr. Duncan presented as a credible witness. However, I find that his reliability was significantly compromised due to his high degree of alcohol impairment which was clearly evident in both direct and circumstantial evidence throughout this trial.
23I now turn to the first issue to be resolved which is to address the assault allegation.
Did Mr. Duncan physically assault Ms. L.?
Did Mr. Duncan physically assault Ms. L.?
24The Crown alleges that Mr. Duncan committed multiple physical assaults upon Ms. L. including during a game of “mercy”, prior to and after the end of a video call and during and after an unidentified neighbour had left Mr. Duncan’s home. In support of the crown’s case, medical and photographic evidence was filed which depicts several bruises upon Ms. L.'s arms, legs, neck, and face.
25Mr. Duncan denies committing any physical assault upon Ms. L. and insists that the game of “mercy” was nothing more than a consensual game of fun and good humour. He insisted that he was assaulted by Ms. L. and any visible injuries upon her were sustained as a result of him defending himself from her attacks and a prolonged physical struggle later in their interactions when he attempted to prevent Ms. L. from cutting herself with a sharp object.
26Ms. L. explained that the accused hit her prior to and after the video call with her friend Ms. H., and well before the video call ended. She also denies initiating any physical contact with Mr. Dakota at any point of their interactions.
27She disputed the notion put to her by Defence counsel that the two of them were goofing around, wrestling or play-fighting. She also disputed that she initiated any physical contact with the accused.
28Defence counsel suggested to Ms. L. that no assaults happened during the video chat with Ms. H. online. Ms. L. disagreed. However, Defence counsel put to her a prior statement to police where she said that her friend did not witness any of the assaults. When pressed on this point in court, Ms. L. indicated that:
(1) She could not recall saying this to police;
(2) This is not the truth now;
(3) She was trying to be truthful at the time she spoke to police; and
(4) This was not the truth today.
29As I had discussed with Defence counsel during this trial, the probative value of this line of questioning is weak at best. The best person who would be in a position to testify as to what Ms. H. witnessed during the video call is Ms. H. herself.
30On the second day of trial, the Crown called Ms. H. who was the friend of Ms. L. present on the video chat during the course of the evening of December 21, 2019. I found her to be a credible and reliable witness. While she had to have her memory refreshed regarding the initial statement she gave police regarding the game of “mercy”, this was not unreasonable given the passage of time.
31Ms. H. described Mr. Duncan to be drunk and aggressive. She observed him to stumble into a table and abruptly change his mood from one of playful during the game of “mercy” to then angry within a short period of time. She also identified empty containers of alcohol including one of a Captain Morgan’s bottle of liquor that she was able to see during the video call.
32Ms. H.’s evidence was particularly probative on the assault charge as it relates to the game of “mercy” that allegedly progressed to a physical assault committed by Mr. Duncan upon Ms. L. She explained that she witnessed both individuals to be in a playful mood and commence to slap each other as part of this game, often referred to as “mercy”.
33According to Ms. H., this game of back and forth slapping of legs between Ms. L. and Mr. Duncan progressed until Ms. L. said the word, “OW” and then had to yell at Mr. Duncan to stop. Ms. H. explained that Ms. L. was in some degree of pain due to the last slap from Mr. Duncan which she repeatedly described in her testimony to have some considerable degree of force.
34When Ms. L. told Mr. Duncan to stop hitting her, she was visibly upset. According to Ms. H., it was at this point that Mr. Duncan’s mood shifted. His mood went from playful and joking to angry and aggressive. Mr. Duncan appeared to take offence to this, and she witnessed him on video to be swearing and stomping away and refer to Ms. L. as a “stupid bitch” and as overly sensitive.
35Upon having her memory refreshed by the Crown, Ms. H. testified that after Ms. L. stated the word, “OW”, she told Mr. Duncan to stop. When asked by the Crown how many times Mr. Duncan slap or hit Ms. L. after she told him to stop, Ms. H. indicated “approximately three or four times.”
36In his Defence, Mr. Duncan explained that this was a consensual game and that at no point did he slap Ms. L. outside of this context. However, during cross-examination, he did admit to the Crown that he slapped Ms. L. one to two times, even after she told him to stop.
37I remind myself that the burden of proof is upon the Crown and never shifts to the accused.
38The credibility of Mr. Duncan must be assessed as I consider whether the Crown has proven a simple assault upon Ms. L. to the standard of beyond a reasonable doubt. Upon application of the principles in the leading case of R. v. W.(D), I have considered the following questions:
(1) If I believe the accused’s evidence, I must find him not guilty.
39I do not accept the evidence of Mr. Duncan that this was simply a game of mercy and nothing more. Indeed, on his own evidence during cross examination by the Crown he admitted to hitting Ms. L. at least one to two additional times after she had told him to stop.
(2) Even if his evidence leaves me with a reasonable doubt regarding any essential element of the assault charge, I must find him not guilty.
40In light of Mr. Duncan’s evidence or any other evidence relied upon by the Defence for this charge, I am also not left with a reasonable doubt that Mr. Duncan had hit Ms. L. approximately three to four times after she had told him to stop.
(3) Finally, even if his evidence does not leave me with a reasonable doubt about his guilt, if after considering all the evidence that I do accept, I am not satisfied beyond a reasonable doubt of his guilt, I must acquit.
41Having considered the totality of the evidence from each of the witnesses along with the review of the exhibits before me, I find beyond reasonable doubt that Mr. Duncan physically assaulted Ms. L. during the video call in the presence of Ms. H. and after this game of “mercy” had concluded and in the face of clear requests from Ms. L. for him to stop hitting her.
42On the evidence that I do accept as a whole, I am satisfied beyond a reasonable doubt of the guilt of the accused as it relates to a simple assault. Accordingly, there will be a finding of guilt on the Assault count pursuant to s. 266 of the Criminal Code.
The physical altercations in the kitchen and elsewhere in the home
The physical altercations in the kitchen and elsewhere in the home
43Ms. L. was unable to recall whether she had made a suicide attempt by cutting her wrist with Mr. Duncan’s scissors in the kitchen of his home. When asked by Defence counsel whether she attacked Mr. Duncan, her response was that she does not remember doing so.
44The facts regarding a suicide attempt in the kitchen are not ancillary to the assault charges on the Information. Rather, they relate directly to the facts that may provide important evidence that would assist me in determining whether any essential elements of the charges of Assault or Take Motor Vehicle Without Consent are lacking.
45In assessing the evidence to support a conviction for simple assault, the existence of a physical intervention by Mr. Duncan to prevent Ms. L. from harming herself or alternatively, a consensual fight between the two of them, is a vitally important set of circumstances in my fact-finding process.
46With respect, I do not accept Ms. L.’s response as being truthful when she repeatedly testified that she does not recall those events. In a reasonable review of the evidence, there is ample evidence to support the fact that a physical altercation involving a sharp object resulting in cuts to both parties did in fact happen and this was acknowledged in writing by Ms. L.
47I need not look any further than the exchange of text messages between Ms. L. and Mr. Duncan the following day after the alleged sexual and physical assaults. Furthermore, Ms. J.Li. has indicated in the Agreed Statement of Facts filed as Exhibit 10, that she observed cuts to Ms. L.’s wrist.
48I find that Ms. L. does indeed recall the specific physical altercation in the kitchen with Mr. Duncan but has chosen not to speak about it in court, likely out of embarrassment due to her mental state at the time in the context of a highly anticipated first date with a man whom she had sought acceptance from.
49This is not a reliability concern, but rather, a credibility issue I have with Ms. L. that I cannot reconcile given the other sources of confirmatory evidence affirming the existence of such an incident involving a sharp object that completely supports Mr. Duncan’s recollection of what transpired in the kitchen.
50I find no reason to doubt the testimony of Mr. Duncan in so far as the physical altercation that took place in the kitchen, when he came upon Ms. L. who was distraught and upset and was attempting to cut her own wrist with a pair of scissors.
51In the face of Ms. L.’s repeated assertions that she could not recall such an event, I am left with Mr. Duncan’s uncontradicted description of a prolonged physical fight with Ms. L. to disarm her of the scissors while the two of them fought in the kitchen area to the point where they both ended up on the ground.
52Given the concerns that I have with Ms. L.’s evidence as it relates to a physical altercation in the kitchen and her possible use of scissors to cut herself, I am unable to find that the physical injuries documented in the hospital records as being determinative of whether or not Ms. L. was physically assaulted by Mr. Duncan.
53Those injuries may have been a result of being physically assaulted by Mr. Duncan, but I am unable to rule out the very real prospect of them being a product of a physical intervention by Mr. Duncan to stop Ms. L. from continuing to cut her own wrist or a consensual fight at some point in time.
54I am unable to find as a fact to the standard of beyond a reasonable doubt that Mr. Duncan physically assaulted Ms. L. prior to the video call or when the unidentified neighbour was in the home.
55Accordingly, I find that there was no physical assault that took place in the kitchen or elsewhere in the home during the course of any other interaction throughout the course of the evening of December 21 to 22, 2019, but my conclusion here does not apply to the portion of the evening that transpired during the video chat with Ms. H. and the game of “mercy” earlier that same evening.
56I wish to make it clear that my credibility concerns regarding the possible suicide attempt in the kitchen and use of scissors in this particular portion of my analysis is not equally applicable to other aspects of Ms. L.’s evidence in this trial, particularly as it relates to the sexual assault allegations.
57A careful review of the totality of the evidentiary record as it relates to the evidence she provided in describing the various sexual acts with Mr. Duncan does not cause me the same concern that I have with respect to the events in the kitchen and possible suicide attempt or her reluctance to admit that she may have consented to the use of her father’s vehicle for the purpose of obtaining illicit drugs for collective consumption.
Did Mr. Duncan sexually assault Ms. L. by repeatedly hitting her vagina with a paddle?
Did Mr. Duncan sexually assault Ms. L. by repeatedly hitting her vagina with a paddle?
58Consent is legally defined in s. 273.1(1) of the Code as “the voluntary agreement of the complainant to engage in the sexual activity in question.”
59Having considered Ms. L.’s testimony regarding Mr. Duncan’s use of the wooden paddle and number of strikes inflicted upon her unclothed vagina, I observe that her testimony and description of being hit with the large wooden paddle on her vagina was clear and unshaken both in chief and in cross-examination.
60I accept that Ms. L. did not consent to being struck with the wooden paddle on her vagina.
61However, Mr. Duncan has raised the Defence of an honest but mistaken belief in communicated consent as an alternative Defence to actual consent obtained from Ms. L. As explained by the Supreme Court of Canada in Barton, there is a pre-requisite of reasonable steps that I must explore prior to considering any possible Defence of honest mistaken belief in communicated consent:
“ [104] Section 273.2(b) imposes a precondition to the defence of honest but mistaken belief in communicated consent — no reasonable steps, no defence. It has both objective and subjective dimensions: the accused must take steps that are objectively reasonable, and the reasonableness of those steps must be assessed in light of the circumstances known to the accused at the time ( see R. v. Cornejo (2003), 68 O.R. (3d) 117 (C.A.), at para. 22, leave to appeal refused, [2004] 3 S.C.R. vii, citing K. Roach, Criminal Law (2nd ed. 2000), at p. 157; see also Sheehy, at pp. 492-93). Notably, however, s. 273.2(b) does not require the accused to take “all” reasonable steps, unlike the analogous restriction on the defence of mistaken belief in legal age imposed under s. 150.1(4) of the Code ( see R. v. Darrach (1998), 38 O.R. (3d) 1 (C.A.), at p. 24, aff’d 2000 SCC 46 (without comment on this point) ).”
62Ms. L. testified that prior to vaginal intercourse, Mr. Duncan did not ask her if he could hit her with a wooden paddle before he proceeded to hit her up to six times on her vagina, while the two of them were unclothed. She explained that he accessed a 12-inch-long wooden paddle from a nearby drawer and hit her the first time on her unclothed vagina, at which point, she told him to stop.
63When hit a second time, she told him again to stop, because it hurt.
64Mr. Duncan then proceeded to hit her with the paddle on her vagina a third, fourth, fifth and possibly a sixth time.
65After each of these instances, Ms. L. told him to stop because it hurt. However, according to Ms. L., he did not stop until after the fifth or sixth strike on her bare vagina with this large wooden paddle.
66She described feeling terrified, horrified, uncomfortable and in pain on her vagina due to these repeated strikes inflicted upon her by Mr. Duncan.
67It is Mr. Duncan’s position that he discussed the use of the paddle with Ms. L. prior to hitting her vagina with it. He was aware that she had not experienced the use of a paddle as a sex toy during sexual interactions before but perceived that she had agreed to his request to use the paddle upon her. This purported agreement from Ms. L. was specifically denied by Ms. L. when it was put to her under cross examination by the Defence.
68Mr. Duncan indicated to his lawyer that on a scale of one to ten with ten being the highest degree of force, he hit Ms. L. on her inner thigh and vagina with the paddle at approximately a level four degree of force.
69He also explained during his testimony that at first, he perceived Ms. L. did not seem to mind being hit with the wooden paddle but after he struck her a few times, he was aware that it began to sting and became increasingly painful to her. He acknowledged that Ms. L. told him to stop, and he explained that he did.
70I specifically reject Mr. Duncan’s evidence and I do not accept that Ms. L. consented to Mr. Duncan hitting her vagina with this large wooden paddle in advance of the first strike or at any subsequent point in time.
71I also find that Mr. Duncan was significantly impaired by alcohol and that as a result, his ability to react to the situation as the hitting progressively became more painful for Ms. L. was greatly inhibited.
72Put another way, I find that due to Mr. Duncan’s high degree of intoxication by alcohol, it is clear to me that his ability to accurately interpret Ms. L.’s initial and ongoing responses telling him to stop as expressed by her after each and every strike upon her vagina was highly compromised and misinterpreted by him.
73When it comes to assessing whether reasonable steps were taken by Mr. Duncan in ascertaining Ms. L.’s consent to strike her vagina with the large wooden paddle, I remind myself that there may also be situations where more would be expected to satisfy the legal requirement to take reasonable steps to ascertain consent under s. 273.1(1). The Supreme Court in Barton describes those circumstances this way at paragraph 108:
“It is also possible to identify circumstances in which the threshold for satisfying the reasonable steps requirement will be elevated. For example, the more invasive the sexual activity in question and/or the greater the risk posed to the health and safety of those involved, common sense suggests a reasonable person would take greater care in ascertaining consent. The same holds true where the accused and the complainant are unfamiliar with one another, thereby raising the risk of miscommunications, misunderstandings, and mistakes. At the end of the day, the reasonable steps inquiry is highly contextual, and what is required will vary from case to case.”
74Mr. Duncan admitted to knowing that Ms. L. had never experienced being hit with a wooden paddle on her vagina in the context of sexual intimacy. Still, with this knowledge, more caution and care were required of him but ultimately, insufficient steps were taken to ascertain her consent as he proceeded to repeatedly hit Ms. L. with this large wooden paddle on her bare vagina.
75On his own evidence, he became aware that his strikes upon her vagina began to sting and cause her pain. The legal requirement to do more and be extra careful was further elevated since Mr. Duncan and Ms. L. had just met each other in person for the first-time mere hours prior and this was their first sexual encounter. There is no evidence before me that the specific sexual boundaries of this type of action was ever discussed with Ms. L. in advance of this first date between them.
76Even if the use of the paddle was discussed moments before the first strike on the night in question, it was in my view, insufficient given Ms. L.’s inexperience and the repeated degree of force applied by Mr. Duncan with such a large object.
77I am explicitly guided by the Supreme Court’s comments in Barton in paragraph 109:
“Trial judges and juries should be guided by the need to protect and preserve every person’s bodily integrity, sexual autonomy, and human dignity. Finally, if the reasonable steps requirement is to have any meaningful impact, it must be applied with care -- mere lip service will not do.”
78Common sense dictates that where such a large object on such a sensitive area upon a women’s body were to be repeatedly used, more was objectively required by Mr. Duncan to stop at an earlier point in time, prior to continuing to cause Ms. L.’s vagina to sting and for her to suffer ongoing pain.
79The degree of reasonable steps subjectively and objectively expected from Mr. Duncan was increased when I consider the sensitive nature of the part of her body that he repeatedly hit upon a new, and inexperienced partner that he had no prior sexual contact with.
80By not stopping sooner and given the unfamiliarity between the two parties, and inexperience of Ms. L. from being exposed to this sex toy, the prospect of miscommunication, misunderstanding and mistake was predictably elevated just as the Supreme Court warned in paragraph 108 of Barton.
81Accordingly, while he was subjectively aware of these factors, I find that Mr. Duncan did not objectively take adequate reasonable steps to ascertain Ms. L.’s consent in striking her vagina with the large wooden paddle.
82More specifically, I am satisfied beyond a reasonable doubt that Mr. Duncan was aware or reckless or willfully blind to the absence of consent on the part of Ms. L. when he struck her vagina with the large wooden paddle six consecutive times after Ms. L. repeatedly told him to stop after each strike.
83On the basis of this finding, I am satisfied the Crown has proven the charge of sexual assault beyond a reasonable doubt. There will be a finding of guilty on the offence of sexual assault and a conviction registered pursuant to s. 271 of the Criminal Code.
Did Mr. Duncan sexually assault Ms. L. by having vaginal intercourse with her without her consent?
Did Mr. Duncan sexually assault Ms. L. by having vaginal intercourse with her without her consent?
84According to Ms. L., the topic of sexual intimacy first came up when Mr. Duncan asked her to engage in vaginal intercourse after he returned her damaged car. The two proceeded to his bedroom.
85Ms. L. explained that the two of them progressed to vaginal intercourse while she was lying on her back on his bed. She testified that while she did verbalize consent to Mr. Duncan, her consent was not voluntary because she was scared and wanted him to calm down. In her mind, she felt that if she were to agree to vaginal intercourse with Mr. Duncan, this would calm him down from his aggressive and hostile mood at the time. She explained that she felt anxious, scared, and worried.
86On the other hand, Mr. Duncan takes the position that the vaginal intercourse was consensual and with Ms. L.’s willing and voluntary agreement throughout. He asserts that there was no evidence that he threatened, intimidated, or used force against Ms. L. in order to obtain her consent for vaginal sex. He elaborated in his testimony and described Ms. L.’s verbal and physical expression to be in favour of engaging in vaginal sexual activity with him.
87I accept that Ms. L. did not voluntarily consent to engage in vaginal intercourse with Mr. Duncan, primarily because she was afraid of Mr. Duncan and acceded to his request because of his prior aggressive demeanor, as witnessed by Ms. H. during the video chat.
88However, I also accept that Mr. Duncan had honestly interpreted by mistake that her verbal and physical expression prior to engaging in vaginal intercourse with her amounted to voluntary consent.
89I also find that Mr. Duncan took sufficient reasonable steps to ascertain Ms. L.’s consent to engage in vaginal intercourse with the information that he knew at the time.
90I find that Mr. Duncan had an honest but mistaken belief in communicated consent from Ms. L. to engage in vaginal intercourse and that there is a reasonable doubt as to whether Mr. Duncan knew that Ms. L. was not consenting.
91Accordingly, I find that Mr. Duncan did not commit the offence of sexual assault by engaging in vaginal intercourse with Ms. L.
Did Mr. Duncan sexually assault Ms. L. by having anal intercourse with her without her consent?
Did Mr. Duncan sexually assault Ms. L. by having anal intercourse with her without her consent?
92After initial vaginal intercourse, it is alleged by the crown that Mr. Duncan rolled Ms. L. over onto her stomach and penetrated her anally, without her consent. She testified that at no point did Mr. Duncan discuss with her anal intercourse prior to him penetrating her. She insists that she told him to stop while he proceeded to have anal intercourse with her, but that he did not cease and continued to the point of ejaculation without a condom.
93Mr. Duncan asserts that after consensual vaginal sex had commenced, he asked Ms. L. if she would agree to anal intercourse. After she agreed, he then turned her over on to her stomach and they commenced anal intercourse. Throughout these interactions, he described Ms. L.’s body language and demeanor had been positive and in his words, “into it”.
94At some point, Ms. L. told him to stop. He complied and ceased anal intercourse. It was at this point that Mr. Duncan insists there was a break in the sexual activity when they discussed commencement of anal intercourse. From his perspective, Ms. L. agreed to continue, and he proceeded to the point of ejaculation. During this second phase of anal intercourse, he described Ms. L.’s body language and demeanor to be positive throughout.
95Throughout the entirety of anal intercourse, Mr. Duncan maintains that he obtained the consent of Ms. L. and ceased when she told him to stop.
96With respect, I reject Mr. Duncan’s recollection of how the anal intercourse proceeded. I do not accept that Ms. L. had verbally consented to engage in anal intercourse with Mr. Duncan after vaginal intercourse. I find that Mr. Duncan had commenced this act without first explicitly obtaining her consent and that Ms. L. told him to stop.
97However, I am left with a reasonable doubt after I consider Mr. Duncan’s evidence in conjunction with the totality of the evidence before me on this particular aspect of the events.
98I am prepared to find that Mr. Duncan took sufficient reasonable steps to ascertain Ms. L.’s consent to engage in anal intercourse with the information that he knew at the time if there was a first stage of anal intercourse, which I remain unsure of, and after their verbal conversation during the break in time before commencing to the second stage of anal intercourse.
99Ultimately, I cannot rule out that Mr. Duncan had honestly interpreted Ms. L.’s verbal and physical expression of consent combined with her demeanor to amount to voluntary consent to engage in anal intercourse.
100Accordingly, I find that Mr. Duncan had an honest but mistaken belief in communicated consent when the two of them had anal intercourse and that there is a reasonable doubt as to whether Mr. Duncan knew that Ms. L. was not consenting.
101I find that Mr.Duncan did not commit the offence of sexual assault by engaging in anal intercourse with Ms. L.
Did Mr. Duncan threaten to cause bodily harm upon Ms. L.?
Did Mr. Duncan threaten to cause bodily harm upon Ms. L.?
102Ms. L. testified in chief that she felt terrified due to the threats made to her by Mr. Duncan. She expressed that she just wanted to leave his residence as early as the commencement of the video call with Ms. H. but that she could not because Mr. Duncan had the keys to her car and her car was later rendered inoperable by him. Some of the statements that could be clearly uttered by Mr. Duncan on the video were:
“I’m going to slap the fuck right out of you…”
I’m going to take your vehicle.
Bind you to my bed…
“I’m just kidding” –
103Chronologically, this video clip was taken prior to Mr. Duncan leaving his residence with Ms. L.’s car.
104According to Ms. L., regardless of stating that he was “only kidding” at the end of the video containing these threats, she did not believe him and took these threats seriously.
105Ms. L. also alleged that Mr. Duncan stated to her that if he has to go back to jail, that he would come after her, and also threatened to shoot her. Ms. L. asserts that at some point after these threats were made, she ran outside of Mr. Duncan’s residence because she was afraid for her safety. It was at this point that a male neighbour called her over and asked her what was going on.
106Ms. L. testified that she had already been hit and slapped by Mr. Duncan at this point of the evening.
107She described feeling scared when these words were uttered to him as observed on the video. It is plainly visible on this video that she is crying as Mr. Duncan says these words to her.
108According to Ms. L., Mr. Duncan prevented her from leaving his residence because he took the keys for her car and did not return them to her until the following day. This implies that even if Ms. L. wanted to leave Mr. Duncan’s residence, she would not have had the ability to do so.
109On the other hand, Mr. Duncan testified that on multiple occasions he invited or encouraged Ms. L. to leave his home because of what he described a roller coaster of an evening with her that included moments of cuddling, plenty of drinking and then physical confrontations. He admitted that he took Ms. L.’s car keys away for a brief period of time, but that this was only for a brief period of time because she had been consuming alcohol and he did not expect her to make it far in her vehicle due to her level of impairment. His position is that he returned the keys to her car shortly thereafter.
110During cross-examination, Ms. L. admitted that during the hour or more when Mr. Duncan had taken her car without her consent, she could have called the police, contacted another tenant in the building call or text a friend or family member for assistance but did not do so.
111It is agreed factually that:
(1) Ms. L. called her friend J.Li. on Saturday December 21, 2019, but this friend was asleep;
(2) Ms. L. did not ask Mr. Li. to come pick her up that day; and
(3) Ms. Li. and her boyfriend attended Mr. Duncan’s residence to take Ms. L. to Canadian Tire for the purposes of purchasing a mirror for her father’s damaged car.
112However, during cross-examination, Ms. L. did not recall that she had stated to police in her second statement that she had called her friend, J.Li., during the evening of December 21, 2019. She also did not remember telling police in her statement that her friend had offered to come get her, but she declined by stating, “Just let me be, I’m fine, I’ll see you tomorrow.”
113Due to Ms. L.’s lack of memory on this point, she was not in a position to dispute what Defence counsel purports she had previously told police.
114Given the vast array of differences in human behaviour and the fact that individual complainants may react to situations of perceived trauma or fear differently, I am unable to place any weight in the way in which Ms. L. reacted after she had in her mind decided to leave Mr. Duncan’s residence. I am, however, mindful of the fact that Ms. L. was 19 years old at the time and like many situations of an intimate partner context, may have been willing to remain in the face of what she was enduring on account of her underlying desire to be loved and accepted by Mr. Duncan.
115My analysis on the threat charge is assisted considerably with the existence of corroborative evidence in the form of the video itself and the fact that Ms. L. fled Mr. Duncan’s residence only to return shortly thereafter with a concerned neighbour. Indeed, this neighbour, who had no prior relationship with both parties at the center of this trial, felt the need to remain within Mr. Duncan’s residence upon witnessing Ms. L. dash from the home while screaming for help. This neighbour’s actions permit me to assess the conduct of Ms. L. as an accurate reaction to what she perceived to be serious threats by Mr. Duncan to cause her bodily harm.
116I reject Mr. Duncan’s assertion that he was only kidding when he made these threats to harm Ms. L. as presented by the Crown both on video and through her viva voce testimony.
117Upon careful review of the video itself and the relevant evidence in the trial record before me, I am persuaded beyond a reasonable doubt that these threats to be serious and true. They are in my view subjectively serious threats to cause bodily harm upon Ms. L. and her perception was objectively reasonable. Accordingly, there will be a conviction registered on Count 3 and a finding of guilty on the charge of Threat to Cause Ms. L. bodily harm, contrary to section 264.1(1)(a) of the Criminal Code.
Did Mr. Duncan take M.L.’s 2007 beige Toyota Camry without his consent?
Did Mr. Duncan take M.L.’s 2007 beige Toyota Camry without his consent?
118There is a difference of evidence between Ms. L. and Mr. Duncan as to whether or not she had lent her father's beige Toyota Camry to him for the purposes of purchasing drugs for their collective use. Ms. L. alleges Mr. Duncan took her father's 2007 beige Toyota Camry without her consent and drove this vehicle while in an intoxicated state and caused significant damage to it by crashing into a snowbank. Her evidence is that at no point did she provide consent for the accused to take the beige Toyota Camry and drive it that evening.
119On the other hand, Mr. Duncan asserts that he was unaware that this motor vehicle belonged to Ms. L.'s father and that she had told him specifically that he could use her car to go buy drugs. With this he assumed that he had the consent to use this motor vehicle and the keys were willingly provided to him by Ms. L.
120Ms. L. was unable to recall the following key facts when questioned by the Defence:
Whether she had explicitly told Mr. Duncan to use her father’s car to go and purchase some drugs for them to use that evening; and
Whether she had given Mr. Duncan money for the purposes of buying these drugs.
121Ms. L. then went on to agree with Defence counsel that Mr. Duncan was gone for about an hour at which point she received a call from him indicated that he was stuck in a snowbank in lively.
122At no point did Ms. L. contact the police regarding the taking of her car by Mr. Duncan contrary to her permission.
123The specific circumstances of how it came to be that Mr. Duncan obtained the keys to Ms. L.’s car that evening appears to be uncontradicted on two main points. As indicated earlier, Ms. L. does not recall if she provided her vehicle to Mr. Duncan for the purposes of buying drugs for their joint news from Mr. Duncan's friend. Secondly, she also does not recall if she gave Mr. Duncan money for this specific drug transaction.
124This lack of memory as it relates to the intended use of the car and funds provided to purchase drugs goes to the heart of the consent issue for the charge of Taking a Motor Vehicle Without Consent. I cannot rule out that Ms. L. did in fact provide her consent and approval to Mr. Duncan to take her father’s car to purchase drugs for the two of them and provided him with the money to obtain those drugs.
125On the basis of Ms. L.'s lack of recollection on those two key evidentiary points, I find that it is entirely possible that she did in fact consent to her vehicle being taken by Mr. Duncan and provided him with money for the purposes of their joint benefit to obtain drugs from his friend for their common use but does not remember doing so.
126Given the reasonable likelihood that this in fact was the case, I am left with a reasonable doubt on Count 4. The Crown has not proven the essential element of a lack of consent for that charge. Accordingly, Count 4 pursuant to section 335(1) of the Criminal Code of Canada which specifically alleges that Mr. Duncan took the Toyota motor vehicle without the consent of Ms. L.'s father, is hereby dismissed. There will be a finding of not guilty on that charge.
Did Mr. Duncan willfully damage the 2007 beige Toyota Camry?
Did Mr. Duncan willfully damage the 2007 beige Toyota Camry?
127The legal definition of “willfully” is expanded in section 429(1) of the Criminal Code and is described as follows:
“Willfully causing event to occur.
“429 (1) Everyone who causes the occurrence of an event by doing an act or by omitting to do an act that it is his duty to do, knowing that the act or omission will probably cause the occurrence of the event and being reckless whether the event occurs or not, shall be deemed, for the purposes of this Part, willfully to have caused the occurrence of the event.”
128The video exhibits in this trial that are relevant to the issue of willful damage to Ms. L.’s vehicle are identified as #5233 and 5235.
129These videos were played by Ms. Laperriere during cross examination of Ms. L. In the first video (#5233), Ms. L. can be heard laughing at Mr. Duncan who then brags to her that he had outrun six cops while holding a motor vehicle bumper in his hands laughing along with her.
130In IMG # 5235, Mr. Duncan can be seen and heard laughing while Ms. L. can be heard referring to him as a “dumb ass”.
131In response to the Defence suggestion that she was laughing and joking around with Mr. Duncan in these two videos, Ms. L. explained that in the first video, she was crying but admitted that she had a slightly nervous laugh. During all videos, Ms. L. explained that she was scared because she did not know what to do.
132Ms. L. admitted during cross-examination that she was afraid to bring her father’s car home in the damaged condition it was in and afraid to tell him what had happened.
133She also admitted that when Mr. Duncan hugged her and apologized the following day after their sexual encounter, that this apology could have been partially directed towards the damage he caused her father’s vehicle, and that he felt guilty about this.
134Mr. Duncan denies willfully damaging Ms. L.’s father’s Toyota Camry. He relies on the explanations he provided on the videos, namely, that he drove the Toyota in the dark and the roads were slippery which caused him to hit a snowbank damaging the bumper, tire, and mirror on the Toyota Camry.
135Under cross-examination, Mr. Duncan made the following relevant admissions:
That he unintentionally damaging the Toyota Camry by hitting a snowbank causing damage to its bumper, mirror, and tire;
That he failed to report to police this accident despite the damage to the motor vehicle potentially being in the thousands of dollars;
That he drove the Toyota after he had passed out from consuming alcohol, and had woken up;
That he was intoxicated when he drove the Toyota but did not black out at any point;
That he exercised poor judgement for driving the Toyota while intoxicated by alcohol which amounted to a “reckless” decision on his part;
That he misled the police when he stated during his interview that he was not involved in a collision with the Toyota;
That the utterance he made on one of the video clips, “6 cops I just fuckin beat…” was not true when he stated this to Ms. L.
136I find that upon application of section 429(1) of the Code, the actions of Mr. Duncan by driving the Toyota Camry after passing out due to the excessive consumption of alcohol and while significantly impaired by alcohol meets the definition of willful for the purposes of the offence of Mischief.
137I am persuaded beyond a reasonable doubt that Mr. Duncan drove this vehicle after consuming copious amounts of alcohol and knew that by doing so, it would probably cause him to lose control of this vehicle while driving on a highway, in the dark and in slippery winter driving conditions, resulting in significant property damage, and he was reckless as to whether this would occur or not.
138Accordingly, I find that the Crown has proven the essential elements of the Mischief charge at Count 5 to the standard of beyond a reasonable doubt. There will be a finding of guilt on that count and a conviction registered.
139I wish to thank Ms. Laperriere and Mr. Ludgate for their excellent submissions and professional advocacy throughout this trial.
Signed: Justice Leonard Kim