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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.
Ontario Court of Justice
DATE: 2025-03-13
COURT FILE No.: Central West Region 998 22 47103224
BETWEEN:
HIS MAJESTY THE KING
— AND —
G.(R.)
Before Justice J. De Filippis
Heard on January 8 & 9, 2025
Reasons for Judgment released on March 13, 2025
Mr. Woloshyn-Chick — counsel for the Crown
Mr. R. Mohan — counsel for the accused
Introduction
1The defendant was charged with sexual interference and sexual assault. The allegations arose almost 11 years ago. The defendant and complainant were in high school at that time.
2I heard from three witnesses, including the defendant. It is not in dispute that the parties engaged in sexual activity on the date and place in question. Moreover, there is no material difference in the testimony given by the complainant and defendant about the events leading up to the activity. They differ about the extent of the sexual activity and whether the complainant consented to it.
3These reasons explain why the charges are dismissed.
Evidence
4In 2014, the complainant was 14 and in grade 9. She was dating the defendant’s brother. On May 15, she met the defendant at a mall in Hamilton after having had an argument with his brother. They walked to a nearby school to talk about the argument. Classes were not in session. They sat in a corner of the building and soon started kissing. The complainant testified that “it just started” and that she was “okay with the kissing”. She added that when the defendant tried to remove her clothes, she said “no” but he persisted and she “eventually gave up”. This resulted in oral and vaginal sex. They then walked away together. About one hour elapsed from the time the parties arrived at the school until they walked away.
5The complainant provided the following details: The parties were seated with their backs against a brick wall. The defendant began removing her cardigan. She said no, tried to pull it back up, and “let it come off”. He pulled on her lulu lemon tights. She said no and tried to pull them back up. One pant leg, one sock and one shoe came off. When she tried to stand up to put the pant leg back on, the defendant “buckled” her knees causing her to squat on his lap with her back against the wall. He inserted his penis in her vagina, removed it, vagina, “grabbed’ her jaw, kissed her, and put his penis in her mouth. All this took about one minute. The defendant then stepped away and ejaculated.
6No words were exchanged between the parties as the complainant’s cardigan and pant leg were removed. She did not resist during the events that quickly followed. After the vaginal penetration, the defendant said she was enjoying it. The complainant testified, “I was not okay with this, I was zoned out staring at the wall”. She added that, “I was confused, scared, dissociated and once initially penetrated I zoned out”. The complainant noted that the defendant seemed agitated during the sexual activity and believes this was because, “I wasn’t doing anything, I was a dead force”. She added that “he was bigger and stronger, and my options were limited”.
7When the complainant said she wanted to go home, the defendant walked her to the bus stop. She does not recall what they discussed along the way. Once on the bus, she urinated. She went to the home of TG, a friend she had known for 11 years. A second friend was also present. The complainant went to this home because she wanted their opinion about what had happened – “because I went silent”. She was also “confused because I had kissed him and had not resisted”. Her friends were not supportive. One of them said that the fact the complainant had gone to the school with the defendant “was consent enough”. Soon after “it was all around the school that I had lost my virginity”.
8The complainant saw the defendant at school every day after these events. She reported the matter to the police 8 years later. She explained that until this report she had “wanted to forget about it”.
9The complainant confirmed that she was 14 years old at the time, her boyfriend, the defendant’s brother was 16 and the defendant was 18. She conceded she was attracted to the defendant but denied any intent “to hook up” with him on the day in question. She wanted to talk to him about the argument she had had with his brother. The complainant was “comfortable” with the defendant in the lead up to the events. They spent about 1 hour at the mall and another hour at the school. She denied touching the defendant’s arm or leg while they were in the nook at the school. She did not “flirt” with him. The kissing was consensual and its “initiation probably mutual”.
10The complainant insisted the defendant removed her cardigan and one pant leg. She was not wearing underwear. After they sat on the floor, he pulled her on top of him. When asked if, in doing so, he was “guiding or aggressive”, she replied, “a little bit of both, I had no options”. Defence counsel suggested, “You weren’t forcibly held on top of him?”. The complainant replied, “I did nothing, did not get up, I was scared of repercussions”. When counsel pressed this point, the complainant conceded the defendant had not said or done anything aggressive. He did not restrain her at any time. She repeated that he seemed agitated, and she felt intimidated and confused because she had said no while he removed her clothes, and he did not stop. She said nothing more as the defendant vaginally and orally penetrated her.
11The complainant did not attend for medical treatment after these events. She testified that her relationship with the two friends she immediately confided in suffered as she did not feel they supported her. She told her family what had happened 3 years later and did not go to the police for another 5 years because she was confused. She added that she was also aware the defendant had started a family and did not want to “mess with that”.
12The complainant was angry with the defendant because he told others at school he had had sex with her. When asked if she resented him for this, she replied, “I resented him for different reasons”. The complainant did not see the defendant after high school. Later, she worked at McDonald’s restaurant with his mother.
13Defence counsel put it to the complainant that, “you felt different about the encounter in 2014 than years later”. She replied, “no, it became clearer what happened to me”. She added that she considered going to the police in high school, but she was confused and her friends suggested what had happened was her fault.
14In re-examination, the complainant explained that what became clearer over time is that the fact she did not resist is not her fault. She learned this through therapy and outside resources. She came to realize that saying no was enough. She added that, “my confusion was not about wanting the sex but about whether I said ‘no’ enough”.
15TG is one of the friends that the complainant spoke to soon after the events in question. She remembers the incident, but not the date. She testified that they were in grade nine at the time. Another student was present when the complainant arrived to report “what had happened with [the defendant]”. TG described the complainant as “emotional”, “confused”, and “not herself”.
16TG does not recall much of the conversation, explaining that “it was 10 years ago” and we were 14 at the time. She and the complainant have since grown apart. TG recalls the complainant stating she had had sexual intercourse but does not remember her speaking of sexual assault. TG concluded, based on the complainant’s demeanour, that she had not consented. She conceded she did not tell the police this when interviewed at the time, explaining that she has since reflected on the incident and details have come back to her.
17The defendant is 29 years old and married with three children. At the time of the events in question he was 18 years old and in grade 12. He acknowledged engaging in sexual activity with the complainant on the date and place described by her. They met had known each other for about one year, having met when she began dating his brother.
18The defendant testified that the complainant sent him a text message asking to meet as she had argued with his brother. He agreed with the complainant’s narrative about meeting at the mall and walking to the school and sitting down in a nook, where they continued to talk, started kissing, and had sexual intercourse. However, this is the extent of the agreed facts.
19According to the defendant, when they met at the mall, the complainant was upset, and he was understanding and comforting. Her demeanour changed to one of excitement. As they walked to the school, she kept trying to hold his hand and that when they arrived at the school, she asked him to kiss her. She took off her cardigan and pants, sat her on top of him, and they had intercourse for about two minutes. He then stood up and ejaculated into the corner of the nook. She was happy as they walked to the bus stop. They texted each other that night and the next day and it was “all good”.
20The defendant testified he did not hear any rumours about their sexual encounter afterwards. He had no contact with the complainant after this final year of his high school. He met his present wife the next year. He was surprised to be arrested as there was no sexual assault because she consented.
21The defendant denied any oral sex. He denied removing her clothing and grabbing her. He agreed he held her on his lap during intercourse and that there had been no discussion of the sexual activity in advance. He explained that he did not ejaculate during intercourse as he was not ready for children. He had no concern about the difference in their ages or the fact his brother was dating the complainant.
22When asked why he thought the complainant had consented, the defendant replied, “by her body language. When pressed on this point, he insisted that you ‘can gage intent by body language’.”
Submissions
23The Defence began submissions by noting the date of the alleged offences; “Ten years is a long time, memories change, and circumstances can cause it to change, time does not serve memory any purpose”. Counsel added that there is no independent evidence to consider in this case. All TG can say is that at the time the complainant reported a sexual encounter, not a sexual assault.
24The Defence pointed out that consent to sexual activity can be conveyed by word or gesture. The complainant and defendant agree that they consented to kissing and the latter adds that she was flirtatious and initiated the kissing. The sexual intercourse was not accompanied by physical restraint and occurred in silence. All this amounts to non-verbal consent. Counsel concluded submissions by stating that, in any event, it cannot be concluded beyond a reasonable doubt that the complainant did not consent.
25The Crown noted that there is no dispute that sexual activity occurred. Counsel added, however, that the complainant gave “unequivocal testimony” that she did not consent to such activity beyond kissing and that the defendant ignored this or was reckless or wilfully blind to it. In this regard, the fact that the parties walked together to a bus stop after the events, as well as the long delay in reporting the matter to police does not mean the complainant is not credible or reliable. Similarly, the fact that the complainant did not resist after saying “no” beyond kissing does not equate with consent. The difference in age between the parties reflects a power imbalance. That the complainant was confused is entirely understandable given that she was 14 years old.
26The Crown submitted that the complainant’s evidence was fair and candid and that this cannot be said of the defendant’s testimony. Counsel added that any suggestion of honest and mistaken belief in consent must fail because the defendant did not take reasonable steps to ascertain such consent.
Legal Principles
27The Crown must prove its case beyond a reasonable doubt if the defendant is to be found guilty. This means that if the defendant has called evidence, there must be an acquittal: (i) where the testimony is believed, (ii) where the testimony is not believed, but leaves the trier of fact in reasonable doubt, (iii) where testimony is not believed and does not leave a reasonable doubt, but the remaining evidence fails to convince, beyond reasonable doubt, that the defendant is guilty: R v W.D., 63 C.C.C. (3d) 397 (S.C.C.). The application of this principle does not mean the defendant's evidence is to be viewed in isolation, divorced from the context or other evidence in the case: F v R.D., [2004] O.J. No. 2086 (O.C.A.).
28In many cases of sexual interference, consent is not a defence because a complainant under the age of 16 cannot legally consent, whatever that person may have said or done. However, in this case, since the defendant was less than five years older than the complainant and was not in a position of trust with respect to her, the defence is available, and the Crown must prove the complainant did not consent with respect to both charges.
29The principles that apply to the issues in the present case were set out by the Supreme Court of Canada in R v Ewanchuk, [1999] S.C.J. No. 10 and again, more recently, in R v Barton, 2019 SCC 33. I understand the law to be as follows:
Consent to sexual activity must be communicated by word or deed and cannot be assumed. There is no doctrine of implied consent, and it cannot be based on the relationship of the parties. Moreover, the complainant cannot be deemed to consent because she did not resist or say “no”.
The defendant can rely on mistake of fact as a defence; this acknowledges that the complainant did not consent and rests on the claim that he honestly but mistakenly believed she did. The defence is based on fact that the Crown has proven the actus reus and negates mens rea.
The mistaken belief is linked to “communicated” consent. This avoids straying into forbidden territory of assumed or implied consent.
The defendant’s mistaken belief in communicated consent must be honestly held; it must be based on the complainant’s words or deeds. Silence, passivity, or ambiguous conduct by the complainant is not sufficient.
To rely upon the defence of honest but mistaken belief in communicated consent, there must be evidence the defendant took reasonable steps to determine consent. This is highly fact specific.
30These principles were subsequently discussed by the British Columbia Court of Appeal in R. v. Capewell, 2020 BCCA 82 [citations omitted]:
[52] Consent is relevant to both the actus reus and the mens rea of sexual assault. However, consent at the actus reus stage is assessed from the point of view of the complainant, whereas at the mens rea stage, the focus shifts to the accused and his steps to ascertain consent….
[53] The actus reus of sexual assault is met if the accused “touche[d] another person in a sexual way without her consent”…. Therefore, the Crown must prove these three elements: (i) touching, (ii) the sexual nature of the contact, and (iii) the absence of consent: Ewanchuk …. The first two elements are objective; it is sufficient for the Crown to prove that the accused’s actions were voluntary: Ewanchuk at para. 25 . However, non-consent is subjective from the complainant’s point of view, as set out in Barton …:
Consent is treated differently at each stage of the analysis. For purposes of the actus reus , “consent” means “that the complainant in her mind wanted the sexual touching to take place” ( Ewanchuk , at para. 48 ). Thus, at this stage, the focus is placed squarely on the complainant’s state of mind, and the accused’s perception of that state of mind is irrelevant. Accordingly, if the complainant testifies that she did not consent, and the trier of fact accepts this evidence, then there was no consent — plain and simple… At this point, the actus reus is complete. The complainant need not express her lack of consent, or revocation of consent, for the actus reus to be established….
[54] It bears emphasizing that at the actus reus stage, the complainant’s state of mind is determinative in establishing non-consent. The accused’s perception of the complainant’s state of mind is irrelevant, and only arises when a defence of honest but mistaken belief in communicated consent is raised at the mens rea stage.
[55] The mens rea of sexual assault is met if the accused had the “intention to touch and knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched”…. The Supreme Court of Canada in Barton … set out the role of consent at the mens rea stage as follows:
For purposes of the mens rea , and specifically for purposes of the defence of honest but mistaken belief in communicated consent, “consent” means “that the complainant had affirmatively communicated by words or conduct her agreement to engage in [the] sexual activity with the accused”... Hence, the focus at this stage shifts to the mental state of the accused, and the question becomes whether the accused honestly believed “the complainant effectively said, ‘yes’ through her words and/or actions”.
31A delay in disclosure has no necessary implications with respect to the credibility or reliability of the complainant. The timing of the allegation is simply one circumstance to consider. This is assessed in the context of the trial evidence as a whole: R. v. S.G., 2022 ONCA 727.
Conclusion
32The complainant and defendant met to discuss a matter that was troubling her. They began kissing. This was consensual. This was followed by sexual intercourse. She did not physically resist. He was not aggressive. This much is agreed upon.
33The testimony given by TG adds little to the analysis. All I can take from this witness is that soon after the events in question, the complainant showed up at her residence in an emotional and confused state of mind. She added that, with reflection, over time, the complainant’s demeanour demonstrated she had not consented to the sexual activity. I must ignore this additional comment. I do not suggest TG lied to me. Clearly, with the passage of time, she has come to this belief. I cannot act upon this opinion as a basis for fact finding. That she did not tell the police this when interviewed in a sexual assault investigation is an astonishing omission. It confirms she did not believe it at the time and her subsequent conclusion, informed by an unknown amount of hearsay, is inadmissible and irrelevant.
34The defendant testified that soon after meeting the complainant she seemed excited and tried to hold his hand as they walked to the school. He added she initiated the kissing, removed her cardigan and pants, and sat on his lap. The defendant held her as they had sexual intercourse. She never said anything after asking to be kissed. He asserts that she consented by gesture, by her “body language”. He denies putting his penis in her mouth or ejaculating. If these are the facts, the defendant is not guilty. However, I am not satisfied I can accept this version of events.
35There is reason to doubt the defendant’s testimony, especially with respect to the oral sex. As I will explain, I am confident in the sincerity of the complainant. As such, is unlikely that she is mistaken about this, and, if so, that the defendant forgot about it. Nevertheless, even if this justifies rejection of his testimony, the prosecution fails.
36There is nothing in evidence before me to suggest the complainant fabricated the allegations. She presented as articulate, calm, candid. I accept that the sexual acts she described did, in fact, occur. The complainant recalls that after consensual kissing, the defendant began removing her clothing and she said “no”. After this, the parties said nothing as further sexual activity occurred. The defendant pulled her down upon his lap and penetrated her. He put his penis in her mouth. When this was done, he stood aside and ejaculated. He was not aggressive. The complainant did not physically resist. She believed she had no other options. If these are the facts, the defendant is guilty. However, I am not satisfied the Crown has proven beyond a reasonable doubt that the sexual activity was non-consensual.
37The complainant reported this matter to the police many years later. This does not necessarily mean her report is false or inaccurate. But such delay can affect reliability even where, as here, there are no concerns about credibility. What happened in that schoolyard caused the complainant to be emotional and confused. This is not surprising; she was 14 years old. With the passage of time, personal research, and therapy, she came to understand she had not consented. In these circumstances, I am troubled by the reasonable possibility that the picture painted upon reflection may not represent the actual scene. That image remains blurred.
38I have considered the Crown’s argument about the difference in age between the parties. In teenage years a 4-year gap in age is more significant than at later stages of life. Whatever one may think of a person in grade 12 having sex with another in grade 9, Parliament has determined that the younger person can consent. As such, non-consent must be proven by the Crown.
39I appreciate this is a difficult journey for the complainant. Her present understanding of what occurred may be true. However, I cannot conclude beyond a reasonable doubt that it reflects her state of mind in that schoolyard and governed her conduct at that time.
40The Crown has not discharged its burden of proof. The charges are dismissed.
Released: March 13, 2025
Signed: Justice J. De Filippis