WARNING

The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences.

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of:

(a) any of the following offences:

• (i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
• (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION

In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall:

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE

(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Court: Ontario Court of Justice Location: Old City Hall – Toronto Date: March 18, 2020

Between: Her Majesty the Queen And: R.W.

For the Crown: A. Legget For the Defendant: L. Szkambara

Dates Heard: December 9 – 11, 2019; January 31 and February 7, 2020

Reasons for Judgment

RUSSELL SILVERSTEIN, J.:

A. INTRODUCTION

[1] R.W. is charged with one count of sexual assault and one count of assault causing bodily harm arising out of a sexual encounter with E.V. on July 25, 2018. The Crown has proceeded summarily.

[2] E.V. was an Uber driver who was just coming off his shift. R.W. was at home in Toronto's Parkdale neighbourhood. It was shortly after midnight when the two men met for the first time on Grindr, a social networking app marketed for, and used primarily by gay, bi and trans people.

[3] The two men agreed to meet and have sex. E.V. picked up R.W. near his home and they drove a short distance and parked. They put down the back seat of E.V.'s hatchback, climbed in the back and took their clothes off.

[4] According to E.V., their sexual encounter started smoothly with consensual kissing and touching, but then, without E.V.'s consent, R.W. took control of him and became aggressive and sexually violent, causing him injury to his face, neck, chest and genitals.

[5] While R.W. admits that he did become aggressive and dominant in the sexual encounter with E.V., he maintains that E.V. consented to all the sexual acts R.W. performed on him. In the alternative he says that if he was wrong about E.V.'s consent, by virtue of E.V.'s conduct and communications, he honestly believed that he was consenting.

[6] Ms. Legget, for the Crown, called three witnesses; E.V., and two nurses who examined E.V. in the hours after the incident. R.W. was the sole witness for the defence.

B. THE EVIDENCE

(a) The evidence for the Crown

[7] E.V. is a 46-year-old Uber driver. He was born in Mexico. He testified in Spanish through an interpreter.

[8] E.V. lived with a man with whom he had an open relationship. Both maintained Grindr accounts, but neither had access to each other's. E.V.'s account profile described him as, among other things, "cis, muscular, rugged and married". His "position" is set out as "top". His profile said he was looking for "chat, friends and networking".

[9] He saw that R.W. had "tapped" him on Grindr so he looked at R.W.'s profile which described him as, among other things, "a trainer, cis, muscular, in an open relationship" and looking for "right now".

[10] Shortly after midnight E.V., looking for a sexual encounter, initiated a conversation with R.W. by message on the app. He said "hello" and R.W. responded, "hi sir". E.V. understood this response to mean that R.W. was interested in being compliant in a sexual encounter and he decided to follow his lead in that regard, in order to keep him interested.

[11] R.W. let on that he was "drunk, high and horned (sic)". E.V. asked if he could go to him now and R.W. responded, "can't host sir". E.V. suggested they meet in a park, as he was driving. R.W. asked, "what you want me to do sir" and E.V. answered, "want you to obey...to fuck you".

[12] They agreed to meet. R.W. asked to see pictures of E.V. and E.V. sent R.W. a picture of his penis. R.W sent E.V. a picture of himself wearing only a pair of track pants. E.V. followed up with a picture of himself, clothed behind the wheel of his car.

[13] R.W. told E.V. that he could not douche and that his husband was asleep. E.V. said that that was okay, and R.W. then said, "I serve you" and that he was going to "suck [E.V.'s] cock".

[14] They met just outside R.W.'s home. R.W. got in the car and directed E.V. to a street nearby. E.V. parked the car. They both got out and put down the backseat. Very little was said. E.V. testified that he was expecting "normal sex…nothing kinky or weird…kissing, penetration and perhaps some mutual fellatio".

[15] After both had climbed in the back and undressed, they kissed, R.W. performed fellatio on E.V., then R.W. got on his hands and knees. E.V. tried to get on top of R.W. but couldn't because the back of the car was too small. E.V. never succeeded in penetrating R.W. but he did touch his anus with his fingers.

[16] Suddenly, and without warning, R.W. became aggressive and took control of E.V. He put E.V. on his back, got on top of him and began holding him by the neck and punching him in the chest, penis and testicles. He slapped his face and squeezed his testicles. He also aggressively placed his fingers in E.V.'s anus.

[17] E.V. told R.W. that he was hurting him and to stop. R.W. did not stop, but rather began to taunt E.V. by giving him a choice between being hit hard once or hit less hard three times. E.V. screamed at R.W. to stop. R.W. struck E.V. about 20 times in the testicles and squeezed his penis at least 10 times. He struck him in the chest at least 10 times with considerable force. He slapped him in the face approximately five times.

[18] As a means of getting R.W. to leave the car E.V. suggested they get out so that R.W. could show him how strong he was. R.W. agreed to get out and when they both did, R.W. hoisted E.V. up with one arm while squeezing his testicles down E.V.'s pants with his other hand. R.W. pulled on E.V.'s underwear and pants until they tore. A woman walked by as she walked her dog. E.V. told him to stop because he wouldn't be able to go home to his partner with torn clothes. R.W. laughed, and then left, but not before saying to E.V. something to this effect, "now you belong to me and whenever I want I am going to call you and you are going to be fucked by the person I say is going to fuck you". The entire ordeal in the car lasted about 20 – 30 minutes.

[19] E.V. then drove home. He was at first not inclined to complain to the police given his status as a refugee claimant. After going to his apartment he put his torn clothes in a bag, and rather than call 911, which he feared would wake up his roommates and alert his partner, he left, got in his car and drove until he spotted a police car nearby. After explaining what had occurred to the officer, the officer called paramedics. E.V. was given the choice of going to the hospital immediately or going to a police station in Parkdale first. He chose to follow the officer to the police station. He went to the hospital later that day, after accompanying the police to the place where the assault had taken place.

[20] As a result of the assault, E.V. had bruises and red spots on his neck and chest and some dark red inflammation to his penis. He felt pain in his genitals for about six weeks.

[21] On cross-examination E.V. admitted that he did not tell the police that he was screaming at R.W. in the car.

[22] Kirsty MacQueen, a registered nurse with more than 10 years' experience, and three years' experience as a sexual assault examiner, examined E.V. at Women's College Hospital on July 25, 2018.

[23] She gathered E.V.'s torn clothes and bagged them for the police. She made notes of injuries to E.V. There were multiple areas of redness or bruising on his penis, a small area of redness to his left inner thigh near his scrotum (4 cm x .5 cm) and swelling of his scrotum. She noted no visible injuries to his face or head.

[24] E.V. complained of tenderness in his shoulder, but Nurse MacQueen saw no signs of injury there. He also complained of tenderness when she took an anal swab.

[25] Michelle Bobala is a sexual assault nurse at Women's College Hospital. She did a follow-up examination of E.V. on July 26, 2018 at his request.

[26] E.V. complained of pain near his nipple and in the area of his scrotum. She found a small area of redness near his nipple as well as small abrasions to his scrotum and a 9 cm x 1 cm pink/red abrasion to his inner thigh just to the left of his scrotum. She did not examine his penis.

[27] E.V.'s underwear was examined at the Centre for Forensic Sciences and two reports were filed by the Crown with the consent of the defence. The underwear itself was not presented in evidence.

[28] The underwear was damaged to the point of being described as "unwearable". Four tears were noted and measured: a 26 cm horizontal seam separation in the waistband seam, a 14 cm vertical tear joining that horizontal tear perpendicularly, another 6 cm vertical tear, and another 8 cm horizontal tear.

[29] Some of E.V.'s blood was found on a swab taken from the upper back of his underwear.

(b) R.W.'s testimony

[30] In July 2018 R.W. was 43 years old, married, and part owner of a gym. His Grindr profile listed him as "versatile", which meant he was open to both giving and receiving anal intercourse. "Looking for" meant that he was just looking for sex.

[31] He saw E.V.'s Grindr profile and "tapped" him, meaning he communicated to E.V. that he was interested in him. When R.W. read E.V.'s profile he thought E.V. was holding himself out as masculine and tough. The messages he sent to E.V., calling him sir, were meant to communicate that he was in a passive mood. R.W. waited to see if E.V. was in a dominant mood.

[32] He told E.V. that he couldn't douche so that E.V. would understand that he could not clean his anus before their encounter. According to R.W., this is a common point of discussion between gay men meeting for sex. He wanted to give E.V. the opportunity to back out and he wanted to pave the way for a smooth sexual experience.

[33] When R.W. left his apartment to meet E.V., he was only slightly intoxicated and only somewhat buzzed on marijuana. Upon meeting E.V., he intended to follow his lead. R.W. suggested a place to drive to but E.V. turned left onto a nearby street. They began kissing and then got out. E.V. put the seat back down and they both got in the back. R.W. lay down and prepared to be passive. E.V. did not appear capable of playing the dominant role he said he would.

[34] R.W. suggested through gestures and body language that they switch roles and E.V. complied. E.V. seemed more comfortable in a passive role. R.W. got on top of E.V. and began to kiss him, play with his nipples and perform fellatio on him. He spit on his finger and slightly penetrated E.V.'s anus. E.V. expressed discomfort so he withdrew his finger.

[35] He masturbated E.V. and slowly increased the pressure on his penis as well as squeezing and pulling on his scrotum. According to R.W., E.V. "seemed fine" and "seemed to enjoy this". Nothing negative was said and E.V. was moaning with pleasure.

[36] R.W. progressed to tapping on E.V.'s penis and testicles with the back of his hand and then with a closed fist – as if he were knocking on a door. His goal was to play the aggressor in their dominant-submissive sex play and create some minor pain, followed by release, something that in his experience many men enjoyed. R.W. would sometimes break out of his aggressive role play to "check in" with E.V. and ask him if he should continue, to which E.V. said "yeah…go ahead". R.W. admitted to administering some light punches to E.V.'s chest and some light slaps to his face. He denied ever intending to cause him bodily harm.

[37] R.W. began to feel that because E.V. was not being particularly active, the sexual encounter was not very satisfying, and he suggested they stop. E.V. agreed and they began to put their clothes on.

[38] Once outside the car R.W. kissed E.V. while holding onto his pants. He pulled on E.V.'s underwear until they tore, which excited him. He asked E.V. if he could tear them further and E.V. nodded affirmatively, albeit somewhat sheepishly. R.W. went to tear E.V.'s shirt but stopped when E.V. asked him not to.

[39] They continued to share some small talk and E.V. offered R.W. a lift home, which R.W. declined. R.W. walked home. R.W. denied ever telling E.V. that "he owned him".

C. ANALYSIS

(a) Introduction

[40] To secure a conviction on the two counts before the court the Crown must prove beyond a reasonable doubt that the touching of E.V.'s body by R.W., sexual or otherwise, was without R.V.'s consent.

[41] Insofar as bodily harm is concerned, the Crown must prove beyond a reasonable doubt that E.V.'s injuries amount to bodily harm and that it was caused by R.W. If they succeed, R.W. will be guilty of sexual assault and assault causing bodily harm if he intended to cause E.V. bodily harm, albeit with the consent of E.V. See R. v. Zhao, 2013 ONCA 293.

(b) Did E.V. suffer bodily harm?

[42] As concerns bodily harm, I find that some of the injuries to E.V. meet the threshold as to what constitutes bodily harm as it is defined in section 2 of the Criminal Code: "any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature". The bruises to E.V.'s penis, which he said lasted for several days, along with pain for a few weeks, which testimony I accept, meet this definition. See R. v. A. (J.), 2010 ONCA 226, rev'd on other grounds, 2011 SCC 28. There is no dispute that the bodily harm to E.V. was caused by R.W.

(c) Has the Crown proved an absence of consent?

[43] As concerns consent, The Supreme Court in R. v. Barton, 2019 SCC 33, summarized the law as follows at paragraphs 88 and 89:

"Consent" is defined in s. 273.1(1) of the Code as "the voluntary agreement of the complainant to engage in the sexual activity in question". It is the "conscious agreement of the complainant to engage in every sexual act in a particular encounter" (J.A., at para. 31), and it must be freely given (see Ewanchuk, at para. 36). This consent must exist at the time the sexual activity in question occurs (J.A., at para. 34, citing Ewanchuk, at para. 26), and it can be revoked at any time (see Code, s. 273.1(2)(e); J.A., at paras. 40 and 43). Further, as s. 273.1(1) makes clear, "consent" is not considered in the abstract. Rather, it must be linked to the "sexual activity in question", which encompasses "the specific physical sex act", "the sexual nature of the activity", and "the identity of the partner", though it does not include "conditions or qualities of the physical act, such as birth control measures or the presence of sexually transmitted diseases" (R. v. Hutchinson, 2014 SCC 19, at paras. 55 and 57 (emphasis deleted)).

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 (see Ewanchuk, at para. 31). 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 (see J.A., at para. 37).

[44] Evidence on the issue of whether E.V. consented to the sexual activity in question comes from several sources. Direct evidence comes from E.V. himself who testified that he did not consent to being touched the way R.W. touched him after they changed roles. R.W.'s testimony offers circumstantial evidence of E.V.'s state of mind as concerns consent. He testified that E.V. told him to continue as he applied more pressure to his genitals. He also testified that E.V. appeared to be enjoying what R.W. was doing to him and that he moaned with pleasure.

[45] E.V.'s testimony and the testimony of R.W. as concerns what happened between them are irreconcilable. They cannot both be true.

[46] It is not my role to choose between their version of events. Rather, I must ask myself whether, weighing all the evidence, I am convinced beyond a reasonable doubt that E.V. did not consent.

[47] As concerns the objective evidence, i.e. the evidence of the nurses and the Centre for Forensic Sciences, in my view this evidence does not advance the case for either side. I heard no expert evidence to suggest that the injuries to E.V. are inconsistent with either E.V.'s or R.W.'s testimony. The absence of visible injuries to E.V.'s neck and face is meaningless absent evidence that one would expect visible injuries given his complaint. As concerns E.V.'s blood at the back of his underwear, this finding is irrelevant to any of the contested details of the parties' respective versions of events. The tears to the underwear are large, but there is no real difference between R.W.'s description of what he did to E.V.'s underwear and E.V.'s description of what R.W. did.

[48] The case thus comes down to the testimony of R.W. and E.V. and I must approach my analysis of their evidence according to the dictates of R. v. W.D..

[49] First, R.W. is presumed innocent and the burden of proof is on the prosecution throughout. In order to secure a conviction, the Crown must prove the absence of consent beyond a reasonable doubt.

[50] If I believe R.W. and his testimony is exculpatory, I must of course find him not guilty. Even if I do not believe him, his exculpatory evidence may nonetheless, when examined in the context of all the evidence, raise a reasonable doubt. If it does, I must also find him not guilty. If it does not raise a reasonable doubt, I must examine the evidence that I do accept to see if it proves an absence of consent beyond a reasonable doubt. If it does not, R.W. must be acquitted (setting aside the issue of the intentional infliction of bodily harm, which I will discuss below). If it does prove an absence of consent beyond a reasonable doubt, he must be found guilty.

[51] While R.W.'s testimony was internally consistent, I am not in a position to accept it. That is primarily because I found E.V.'s contrary testimony equally internally consistent. Moreover, E.V. seemed sincere and forthright. He was not prone to exaggeration or evasiveness. He was also prepared to make admissions that were not necessarily in his favour.

[52] Nor can I reject R.W.'s testimony. It too was internally consistent. He too seemed sincere and forthright. He too was not prone to exaggeration and made admissions that were not necessarily in his favour.

[53] My analysis of E.V.'s testimony leads to the same result. I can neither accept it nor reject it.

[54] As a result, I am quite unsure as to what transpired between E.V. and R.W.

[55] But that is a different issue from whether I am sure that E.V. did not consent. I am left to enquire whether, looking at all the evidence, I am convinced beyond a reasonable doubt that E.V. did not consent.

[56] In my opinion, R.W.'s testimony, which I re-iterate I neither accept nor reject, raises a doubt on this issue. While R.W.'s approach to this sexual encounter in many ways amounts to acting first and asking for permission second, his account of E.V.'s response to R.W.'s sexual advances if true, raises a reasonable doubt as to an absence of consent. Since I am of the view that R.W.'s evidence might reasonably be true, I cannot find an absence of consent beyond a reasonable doubt.

[57] Because the Crown has failed to prove an absence of consent beyond a reasonable doubt, I need not address the alternative defence of honest but mistaken belief in communicated consent.

(d) Did R.W. intend to cause bodily harm to E.V.?

[58] The final question is whether, notwithstanding the Crown's failure to prove a lack of consent beyond a reasonable doubt, the Crown has nonetheless proved that R.W. intended to cause bodily harm to E.V. If so, he is guilty as charged. R. v. Zhao, supra.

[59] R.W. has admitted that he intended to cause some mild transient pain and discomfort to E.V. This is not to be confused with intent to cause bodily harm. Even though I find that R.W. did indeed cause some bodily harm to E.V., I am not convinced beyond a reasonable doubt that he intended to do so. I believe R.W.'s testimony to the effect that the pain he intended to cause E.V. in their sexual encounter was of a trifling and transient nature.

D. CONCLUSION

[60] The charges are dismissed.

Released on March 18, 2020

Justice Russell Silverstein