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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 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 and Parties
Date: 2024-04-19 Toronto Ontario Court of Justice
BETWEEN:
HIS MAJESTY THE KING
— AND —
KEEGAN COMAR
Before: Justice Mara Greene Reasons for Judgment released: April 19, 2024
Counsel: V. Gallegos …………………………..……………………………………… for the Crown D. Carter ……………………………..……………………….......……..for Keegan Comar
Reasons for Judgment
1Mr. Comar is charged with one count of sexual assault in relation to an allegation that he ejaculated on G.G.’s back without her consent. It is alleged that they had engaged in consensual sexual activity but that one of the conditions of G.G.’s consent was the use of a condom at all times. It is alleged that G.G. did not consent to the specific sexual activity of Mr. Comar masturbating and ejaculating on her back. Mr. Comar took the position at trial that G.G. never told him that he had to wear a condom and as such believed that he had G.G.’s consent to ejaculate on her back.
2Crown counsel urged me to reject Mr. Comar’s evidence. As an alternative position, Crown counsel argued that even if I accept Mr. Comar’s evidence, it does not provide a defence in law.
Summary of the Evidence
3Two witnesses testified at trial, G.G. and Mr. Comar. Counsel also filed an agreed statement of fact confirming that Mr. Comar’s DNA was found on G.G.’s back.
4Certain facts are not disputed. It is agreed that G.G. and Mr. Comar met on October 30, 2022 at a sex club called Oasis. G.G. was a regular at this club. Mr. Comar was relatively new to this club. Both G.G. and Mr. Comar agree that late that night they had a discussion and agreed to have sex with each other. They then went upstairs and had sexual intercourse. Both parties agreed that after the sexual act, G.G. was very upset and angry that Mr. Comar ejaculated on her back. They also both agreed that in response Mr. Comar cried and apologized. In light of G.G.’s reaction at the time, Mr. Comar conceded that G.G. did not consent to him ejaculating on her back. The defence raised at trial was mistaken belief in communicated consent.
5G.G. and Mr. Comar’s evidence differs substantially on the content of the conversation that took place prior to their sexual engagement. In particular, they disagree on what G.G. stated was impermissible during their sexual encounter.
6G.G. testified that she was at the club on October 30 and spoke to Mr. Comar. They agreed to have sex. G.G. then told Mr. Comar that she had boundaries which included four specific “don’ts”. G.G. testified that she told Mr. Comar that there was to be no spitting, no hitting, no anal and that he had to use a condom. G.G. testified that she told Mr. Comar, that aside from this list of “don’ts” everything else was O.K. In relation to the condom rule, G.G. testified that nothing was to happen sexually without a condom on.
7G.G. then led Mr. Comar to the third floor. The rules of the club were that men could only access the third floor if they were accompanied by a woman. Once on the third floor they went to a room that had beds in it. G.G. then told Mr. Comar to retrieve condoms and lube, which he did. They then had sex in the missionary position. Mr. Comar ejaculated into the condom and then they discussed having sex again, this time in the doggie position. G.G. testified that Mr. Comar wanted to use the same condom, but she told him he had to get a new one, which he did.
8G.G. testified that she saw Mr. Comar put on the second condom. She then flipped over to be on her hands and knees and they started to have sex again. Once intercourse concluded, but while G.G. was still on her hands and knees she felt a wetness on her back. She touched her back and immediately knew that he had ejaculated on her back. G.G. became very angry and said “what the fuck”. G.G. looked at Mr. Comar, his penis was flaccid, and he did not have a condom on. Mr. Comar then began to cry and apologize. He asked her to not get him banned from the club.
9G.G. was horrified and in shock from the event. She was angry that he had removed the condom and was worried that he had intercourse with her without wearing the condom. She also did not know if he had ejaculated inside her. G.G. testified that she had been very clear that a condom had to be worn at all times and that her rules were absolute.
10Mr. Comar testified at trial. According to Mr. Comar, after he and G.G. decided to have sex together, she led him to the third floor where the beds were. On route, he grabbed condoms and lube. Once on the third floor, they then had a conversation about what was not permitted. Mr. Comar testified that G.G. identified four “don’ts”, and that everything else was fine. The four “don’t’s” identified were no anal, no hitting, no choking and no spitting. Mr. Comar testified that G.G. did not mention the use of a condom, but he had condoms and planned on using them.
11Mr. Comar testified that the sexual encounter started with some kissing and then he performed oral sex on G.G.. They then had intercourse in the missionary position. Prior to the intercourse, Mr. Comar put a condom on his penis. They started to engage in intercourse, but Mr. Comar could not maintain an erection which caused the condom to loosen. Mr. Comar proceeded to remove the condom and put on another one. He again tried to have intercourse with G.G., but again his penis did not stay erect and he had to change the condom a third time. Mr. Comar believed that G.G. then orgasmed. G.G. and Mr. Comar discussed having intercourse a second time, this time doggie style. Mr. Comar retrieved more condoms and put another one on his penis while G.G. rolled over and positioned herself on her hands and knees.
12Mr. Comar testified that he again tried to have intercourse with G.G., but again his penis would not stay erect. Eventually he pulled his penis out, removed his condom and masturbated. He then ejaculated on G.G.’s back. G.G. then stood up and the semen started to trickle down her back. G.G. touched her back and then became very upset and started to yell at him. He did not understand at first what he did wrong. She then said why did you remove the condom.
Issues
13Two issues arise in the case at bar. First, am I left in reasonable doubt by Mr. Comar’s evidence. Second, if I am left in a reasonable doubt by Mr. Comar’s evidence about what took place, does his version of events raise a reasonable doubt in law.
Analysis
14The starting point in understanding any decision in a criminal court is understanding the burden of proof. The burden lies on the Crown to prove each essential element of the offence beyond a reasonable doubt. This is a high standard. Reasonable doubt is based upon reason and common sense. It is logically connected to the evidence or the lack of evidence. It is not enough for me to believe that Mr. Comar is possibly or even probably guilty. Reasonable doubt requires more. As a standard, reasonable doubt lies far closer to absolute certainty than it does to a balance of probabilities. In order to convict, a trial judge must be sure that every essential element of the offence has been made out.
The Offence of Sexual Assault
15The offence of sexual assault must be considered in the context in which the offence was created. McLachlin C.J. wrote in R. v. J.A. 2011 SCC 28, [2011] S.C.J. No. 28 “It is a fundamental principle of Canadian law that a person is entitled to refuse sexual contact.” Major J., speaking for the majority of the court in R. v. Ewanchuck, [1999] S.C.J. No. 10 stated at paragraph 28,
…Society is committed to protecting the personal integrity, both physical and psychological, of every individual. Having control over who touches one’s body, and how, lies at the core of human dignity and autonomy. The inclusion of assault and sexual assault in the Code expresses society’s determination to protect the security of the person from any non-consensual contact or threats of force. The common law has recognized for centuries that the individual’s right to physical integrity is a fundamental principle, “every mans’ person being sacred, and no other having a right to meddle with it in any the slightest manner”: See Blackstone’s Commentaries on the Laws of England (4th ed. 1770). Book III, at p. 120. It follows that any intentional but unwanted touching is criminal.
16All offences in the Canadian Criminal Justice System have both an actus reus and a mens rea. The same is true for the offence of sexual assault. The actus reus of a sexual assault is made out where the Crown has proven beyond a reasonable doubt that: the defendant touched someone; where the contact was sexual in nature; and the person did not consent. The Crown must prove all three of these essential elements beyond a reasonable doubt. In other words, the test is not whether the victim consented. The test is whether the Crown has proven beyond a reasonable doubt that the victim did not consent.
17The mens rea for sexual assault is made out where the Crown proves beyond a reasonable doubt that the defendant intended to touch the complainant in a sexual manner and knew or was reckless or willfully blind to the complainant’s lack of consent. Once the actus reus is established, the defendant can only rely on his lack of knowledge about the absence of consent if the defendant took reasonable steps to confirm that the victim was consenting.
18In the case at bar, it is conceded that Mr. Comar touched G.G. in a sexual manner, that he intended to touch G.G. in a sexual manner and that G.G. did not consent to him ejaculating on her back though she did consent to the other sexual activity. Counsel for Mr. Comar conceded that even though G.G. did not articulate the use of a condom as a condition precedent to the sexual acts, her reaction and her evidence at trial clearly establish that she did not consent to Mr. Comar ejaculating on her back. A fact, however, that was unknown to him at the time.
19The main legal issue raised at trial is whether Mr. Comar knew or was reckless or willfully blind to the fact that G.G. did not consent and whether he took reasonable steps to ascertain G.G.’s consent.
Mistaken belief in communicated consent – Legal Principles
20The concept of consent in a sexual assault trial cannot be divorced from the purpose of criminalizing non-consensual sexual acts. As noted above the offence of sexual assault is premised on protecting personal integrity and having control over who touches one’s body. It is for this reason, that the definition of consent is not mere silent acquiescence. In R. v. J.A., supra, McLachlin C.J. stated that consent in the context of a sexual assault case is “the conscious agreement of the complainant to engage in every sexual act in a particular encounter” (see para 31). McLachlin C.J. further stated at paragraph 34 “consent for the purpose of sexual assault is defined in s.273.1(1) as the voluntary agreement of the complainant to engage in the sexual activity in question”.
21In relation to the mens rea for the offence of sexual assault, and specifically for the purposes of the defence of honest but mistaken belief in communicated consent, the focus is on the mental state of the accused. The issue becomes not whether the complainant did in fact consent but whether the accused honestly believed that the complainant was saying “yes” to the sexual contact through her words or actions (see R. v. Ewanchuck, supra, at para 47 and R. v. Barton, 2019 SCC 33 at para 90).
22Pursuant to section 273.2 (b) of the Criminal Code, it is not a defence to a charge of sexual assault that the accused believed that the complainant consented where the accused failed to take “reasonable steps, in the circumstances known to the accused at the time to ascertain that the complainant was consenting”.
23As was noted in R. v. Barton, supra, the reasonable step requirement was created to “replace the assumptions traditionally – and inappropriately – associated with passivity and silence”. The court went on to state at paragraph 105,
Professor Elizabeth Sheehy puts it this way: “Bill C-49’s ‘reasonable steps’ requirement was intended to criminalize sexual assaults committed by men who claim mistake without any effort to ascertain the woman’s consent or whose belief in consent relies on self-serving misogynist beliefs (P.492). The common thread running through each of these descriptions is this: the reasonable steps requirement rejects the outmoded idea that women can be taken to be consenting unless they say “no”.
24Pursuant to R. v. Barton, supra, the reasonable step requirement has both objective and subjective components. The Accused must take steps that are objectively reasonable (the objective component). These steps must be assessed based on the circumstances as known to the accused at the time (subjective component).
25While the Supreme Court of Canada in Barton noted that the reasonable steps requirement will be fact specific, they still identified things that are “clearly not reasonable steps” (Barton at para 107). Silence, passivity, or ambiguous conduct cannot be considered as a reasonable step. Testing the waters by recklessly or knowingly engaging in a non-consensual sexual touching is also not a reasonable step. (Barton, at para 107)
26The court further stated that the threshold for satisfying the reasonable steps requirement will be elevated in certain circumstances including where the accused and complainant are unfamiliar with each other (Barton at para 108).
27The process a trial judge should engage in when assessing if the defence of mistaken belief in communicated consent is available is as follows:
An accused who wishes to rely on the defence of honest but mistaken belief in communicated consent must first demonstrate that there is an air or reality to the defence. This necessarily requires that the judge consider whether there is any evidence upon which a reasonable trier of fact acting judicially could find (1) that the accused took reasonable steps to ascertain consent and (2) that the accused honestly believed the complainant communicated consent.
…If there is an air of reality to the defence of honest but mistaken belief in communicated consent, including the reasonable steps requirement, then the defence should be left with the jury. The onus would then shift to the Crown to negative the defence, which could be achieved by proving beyond a reasonable doubt that the accused failed to take reasonable steps. (R. v. Barton, supra at paras 121 and 122)
Findings of Fact – Legal Principles
28Before I engage in assessing the evidence, a few comments must be made about the fact-finding process. In Canadian Criminal Law, there is a clear process for addressing evidence where the defendant testifies. The court must consider whether she believes the defendant’s evidence. If the court does not believe the defendant, she must go on to consider whether the defendant’s evidence leaves her with a reasonable doubt about the commission of the offences. Where there are competing versions of events the court is not permitted to merely decide which version of events the court likes better. In assessing whether or not to accept the defendant’s evidence the court must consider all the evidence, including the evidence of the complainant. A considered and reasoned acceptance of the complainant’s evidence beyond a reasonable doubt is a sufficient basis to reject the testimony of the defendant. As was stated in R. v. J.J.R.D., [2006] O.J. No. 4749 (C.A.) at paragraph 53:
53 The trial judge's analysis of the evidence demonstrates the route he took to his verdict and permits effective appellate review. The trial judge rejected totally the appellant's denial because stacked beside A.D.'s evidence and the evidence concerning the diary, the appellant's evidence, despite the absence of any obvious flaws in it, did not leave the trial judge with a reasonable doubt. An outright rejection of an accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused's evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused's evidence.
29While it is open to the court to reject the evidence of the defendant because she believes the complainant, there may be occasions where the court believes both the defendant and the complainant. In such a case, as long as the defence evidence amounts to a defence in law, the court will be left in a reasonable doubt.
Findings of fact
30In my view, both G.G. and Mr. Comar were credible and reliable witnesses. Having listened to their evidence and heard submissions by counsel, both witnesses in my view were believable. G.G. presented as a strong, confident and intelligent woman who knows her own mind. Her evidence was clear and her narrative made sense. Having said that, Mr. Comar presented as an honest and truthful witness. His evidence was also clear and his narrative made sense. There was nothing in his evidence that caused me to doubt him. I am left in a reasonable doubt about whether the issue of condoms was raised verbally between Mr. Comar and G.G.
31I am mindful that I am permitted to reject Mr. Comar’s evidence on the basis that it contradicts other evidence that I do accept beyond a reasonable doubt. Having said that, I am not required to reject his evidence on this basis, and I cannot do that in this case. Having considered all the evidence in this case, I really do not know which version of events is accurate.
32In light of this, I must go on to consider whether the evidence as presented by Mr. Comar at trial provides a defence in law.
33Crown counsel argued that the defence of mistaken belief in communicated consent has not been made out because Mr. Comar was reckless in relation to G.G.’s consent and did not take reasonable steps to confirm G.G.’s consent to the specific act of masturbating and ejaculating on G.G.’s back. The argument put forward is that G.G.’s consent in her initial discussion with Mr. Comar was not active when Mr. Comar removed the condom and ejaculated on her back. Firstly, consent cannot be given in advance, a fact Mr. Comar ought to have known. Secondly, even though G.G. did not mention condoms, she had seen Mr. Comar use a condom during their sexual interaction. At the time that Mr. Comar removed his condom, G.G. could not see what he was doing. In that circumstance, Mr. Comar was required to ask if G.G. consented to this specific act. Thirdly, G.G.’s consent was overly broad and filled with ambiguities. Since they were strangers, Mr. Comar had a positive obligation to seek clarity before engaging sexually with G.G.
34As noted in R. v. Kirkpatrick 2022 SCC 33, 2022 S.C.C. 33, the meaning to be attributed to sexual activity cannot be narrowly defined or fixed for all cases. Context must be considered. The Supreme Court of Canada stated at para 40,
40The legal meaning given to the “sexual activity in question” cannot be narrowly drawn or fixed for all cases. Like the consent of which it is part, it is tied to context and cannot be assessed in the abstract; it relates to particular behaviours and actions (Hutchinson, at para. 57; Barton, at para. 88). Much will depend on the facts and circumstances of the individual case. In a very real way, it will be defined by the evidence and the complainant’s allegations. What touching does the complainant say was unlawful? Which acts were beyond the boundaries of any consent given? The sexual activity in question will emerge from a comparison of what actually happened and what, if anything, was agreed to. This is bound to change in every case.
35Just as context is important in assessing the presence or absence of consent, in my view, it is also important when assessing whether a defendant has taken reasonable steps to confirm consent.
36In the case at bar, G.G. and Mr. Comar had a conversation specifically on what was and was not permissible. G.G. gave Mr. Comar a list of things that were not permitted during sex. On Mr. Comar’s version of events, which I do not reject, wearing a condom during all sexual acts was not raised. G.G. affirmatively told Mr. Comar that everything else was agreeable. In that context, when Mr. Comar removed the condom, masturbated and then ejaculated on G.G.’s back, he subjectively believed that G.G. was consenting and it was not objectively unreasonable, negligent or reckless for him to believe that this act was encompassed in her consent to sexual activity.
37I am mindful that G.G. saw Mr. Comar use a condom during sexual intercourse and that she could not see Mr. Comar remove the condom, masturbate and ejaculate. In the context of this particular case, Mr. Comar could not reasonably have known that G.G. would not consent to this nor was he required to seek additional consent to this act. In my view, this was not a separate sexual act so fundamentally different from the earlier sexual acts so as to require further steps on the issue of consent by Mr. Comar.
38I reject Crown counsel’s argument that G.G.’s consent was so broad and ambiguous so as to require further clarification by Mr. Comar. While in hindsight there was a lack of clarity and agreement on what sexual acts were permitted, at the time of the discussion and when the sexual acts were taking place, Mr. Comar had no reason to seek clarification. In that moment, the ambiguity was not apparent and could not reasonably have been apparent.
39In R. v. Barton, supra, the Supreme Court of Canada specifically speaks to the fact that more care is required to confirm consent when the parties are strangers. This is because the risk of miscommunication or mis-understanding is higher with strangers. In the case at bar, however, while G.G. and Mr. Comar were strangers, they did have a conversation about consent. As noted above, in hindsight clarification was required as G.G. did not consent to Mr. Comar ejaculating on her back, but at the time, Mr. Comar had taken the requisite steps to establish consent and to confirm the scope of the consent.
40I also disagree with Crown counsel that the moment Mr. Comar removed his penis from G.G. and started to masturbate and then ejaculate that he was engaging in a separate and distinct sexual act. In my view, it was all part of the same sexual act of having intercourse the second time. I disagree that the activity changed to the extent that additional or new consent was required.
41In submissions, Crown counsel framed the question as whether there was a positive yes that G.G. was consenting to Mr. Comar removing the condom, masturbating and ejaculating on her back. Respectfully, I disagree. It is agreed that G.G. did not consent to this. The issue raised in the case at bar is not one of consent. The defence raised is mistaken belief in communicated consent. The question I have to ask is whether Mr. Comar was willfully blind or reckless to his belief in her consent or if he took reasonable steps to ascertain her consent.
42This is not a matter of implied consent or of an overly broad consent. The issue is Mr. Comar’s state of mind and whether he has made out the defence in law.
43In the case at bar, Mr. Comar testified about the steps he took to confirm G.G.’s consent and why he believed she was consenting. His evidence raises more than an air of reality to the defence of mistaken belief in communicated consent. I am satisfied that when he removed the condom, masturbated and ejaculated on G.G.’s back that he held the honest but mistaken belief that she had communicated consent to this activity, that he was not reckless or willfully blind to her consent and that he had, by having a conversation with her about what was and was not permissible did take reasonable steps to confirm her consent.
44I therefore find Mr. Comar not guilty.