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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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
DATE: February 7, 2023 COURT FILE No: 21-1205 O N T A R I O C O U R T OF J U S T I C E
B E T W E E N :
HIS MAJESTY THE KING
-AND-
T.S.
Before: Justice M. G. March
Heard on: November 28 and December 5, 2022
Reasons for Judgment released on: February 7, 2023
Counsel: Mr. Marc Lecorre………………………..…Counsel for the Provincial Crown Mr. Adrian Cleaver..……………………………………………………………Counsel for T.S.
March, M.G., J. :
Introduction
[1] T.S. stands charged that on or about June 20, 2021, he did commit a sexual assault upon R.G. contrary to section 271 of the Criminal Code of Canada (the “ Code ”).
[2] At the outset of the trial, T.S., through his counsel, admitted the date of the alleged offence, the jurisdiction of the Court to hear the matter and the ability of R.G. to identify him as the accused perpetrator of the sexual assault.
[3] T.S. and R.G. were best friends for a period of some 15 to 17 years. They met as older teenagers or young adults while R.G. was working at Tim Horton’s.
[4] On the evening of June 19 leading into the early morning hours of June 20, 2021, T.S. and R.G. engaged in intimate, sexual activity. This was a first for both. Up to that point, they had been “best friends”.
[5] T.S. maintained in his evidence that everything which occurred between them was consensual. To the contrary, R.G. testified that everything was consensual until T.S. penetrated her anally and vaginally with his penis.
[6] As with so many criminal trials, the outcome will turn on an assessment of credibility and reliability in the accounts given by T.S. and R.G. on the night in question.
The Relevant Evidence
R.G.
[7] When R.G. gave her evidence on November 28, 2022, she was 32 years of age. She had been employed as a Personal Support Worker. However, she was at that moment focusing on her duties as a “stay-at-home mom”.
[8] She had also decided to go back to school. She was studying to become an Addictions and Community Support Worker.
[9] R.G. recalled that on June 19, 2021, it was Father’s Day weekend. T.S. and she drove to Oiseau Rock in Québec to hike up the trail leading to the cliffs overlooking the Ottawa River. T.S.’s sister accompanied them.
[10] At the conclusion of this outing, T.S. dropped his sister off at her home. R.G. and he then went to R.G.’s place in the west end of Pembroke. R.G. believed that they would have arrived at her house around 6 PM.
[11] R.G. recalled that she was wearing a spaghetti strap top, a bra, jeans and underwear. T.S. had a dark shirt and jean shorts on at the time.
[12] During the evening, they both went outside to her backyard to socialize with her neighbours, S. and K.
[13] They all listened to music and had a couple of drinks together. R.G. was consuming gin premixed in a can. Between 6 PM and midnight, R.G. estimated that she would have had three or four such cans at a rate of one per hour or so. She was unsure about the alcohol percentage of these beverages she was drinking.
[14] R.G. reckoned that T.S. had much less to drink. She thought he had consumed perhaps half a cooler of Palm Bay.
[15] In gauging her state of alcohol, R.G. felt that she was “okay”.
[16] In describing the layout of her backyard, R.G. explained that her home is part of a row housing complex. The fence shared with her neighbours does not extend the entire length of the backyard. T.S. and she were beyond the length of the fence and able to socialize with her neighbours in that manner.
[17] According to R.G.’s recollection, it was around midnight that T.S. and she “started making out” on a blanket laid down on the grass. Her neighbours were still present when T.S. started cuddling her. R.G. and T.S. then kissed and decided to go inside her house. Her neighbours went into their own homes as well.
[18] R.G. was clear that she wanted the cuddling and the “make out” session to happen. He went into her pants using his hands. He touched between her legs penetrating her vagina with his fingers, and making contact with her clitoris.
[19] When questioned by Crown counsel as to how she communicated her consent, R.G. stated she “just went with it”. She explained that her neighbours would go outside and back in again. When they did, it interrupted their sessions; however, R.G. did recall that T.S. gave her “a little bit of oral” before they went inside her house. When he did, she was still wearing all her clothes, but her pants and underwear were to her knees. He also kissed “down there”. She later described “down there” to mean “in my vagina”.
[20] R.G. explained that she had asked before the “oral” commenced, “Don’t you think this is weird?” She added that she felt that there was something off because they had been friends for so long, as much as she was “having fun” at the time.
[21] T.S. just kept progressing with his advances. He did not say anything. R.G. “went with it”.
[22] R.G. related that the lighting in the backyard was nearly nonexistent. It was “pitch black”.
[23] Once inside R.G.’s home, T.S. followed her through the living room and “chased” her up the stairs. They were going quickly. She jumped into her bed. She was wearing clothing at the time, but no shoes or socks.
[24] T.S. undressed to his boxers. R.G. allowed him to take her pants and underwear off. He then started to give her “oral” and to finger her. When asked by Crown counsel to specify, R.G. stated that T.S. was “licking [her] clit” and putting his fingers in her.
[25] Then, she testified, he “started getting aggressive”. She clarified that he was not being “physically aggressive”, but “very desperate” in his actions. He would not slow down. He was going very hard thrusting with two of his fingers inside her.
[26] R.G. felt very uncomfortable. She went to get some Vaseline, so it would not hurt. She was only wearing her shirt and bra when she did so. T.S. remained in his boxers.
[27] She thought as well that getting the Vaseline would allow time for T.S. to “regroup”.
[28] When she came back with the lubricant, she crawled back onto her queen bed. Again, T.S. started to give her “oral” and to finger her to which she consented. There was no conversation between them.
[29] T.S. then got up and put his knees under her legs. He then began putting Vaseline on his penis when his underwear were off. R.G. began to “freak out”. She told T.S., “No. I don’t want to have sex.” She repeated this statement a couple of times. He still was not stopping. He did not care. To her it seemed as though he did not hear her. He did not say a word. He just stared at her as he started to stick it in.
[30] She told him that she had chosen to be alone for three years and that she did not want to just give that up. However, he still was just “pushing it”. She froze.
[31] Then she started to pull him out of her anus where he had started to penetrate her at first. Then he went in her vagina. He was going very slowly, so she could feel his penis go all the way in.
[32] She pulled him out again, but he started to pin her hands. This happened on three occasions. Whenever he would get inside, he would let her hands go, so she would fight. T.S. would hold her wrist and had his legs wedged under her knees to prevent her from removing him. He was laughing at her when she fought.
[33] By fighting him, R.G. explained that she only had one arm to pull him out, but the way he had her legs pinned, she could not flex, nor move him off her. Once she realized she could no longer fight, she did not try anymore.
[34] R.G. did not know how long this incident lasted. It ended when he took a shower and stayed the night with her.
[35] When asked whether T.S. had ejaculated, R.G. testified that she could not say for the first time, he did during the second. R.G. went on to explain that T.S. did it to her again in the morning.
[36] Later, R.G. gave evidence that T.S. did ejaculate during the first occasion as well.
[37] In describing her feelings about T.S. staying the night at her home, R.G. surmised that she just laid in bed and tried to sleep. She did not move. She turned on the radio.
[38] Off and on, she was able to sleep. She could feel his presence behind her. He was just cuddling her. She did not want this to happen.
[39] Regarding the second occasion, when Crown counsel asked whether she wanted to be entered in the morning, R.G. stated, “No, but I didn’t talk to him.” She elaborated that she did not try, because “It feels grosser when you say no, and it doesn’t stop.”
[40] She clarified that by entering her, she meant that he put his penis inside her vagina. She did not recall T.S. saying anything to her, or any conversation occurring between them before he did that. He did not ask if it was “okay”.
[41] She added that he ejaculated “half in me, half all over me”.
[42] She then laid there as he got a towel. He cleaned her off. Then he went to get them coffee. He left her house to go buy it and he later returned.
[43] That morning, he made her get out of bed to go do something. They went to a place in Petawawa to a trail. They just walked around and sat under a bridge. Afterwards, they went back to her place and watched a movie.
[44] During the movie, he tried to cuddle and kiss her. She would not allow it.
[45] Eventually, he went to leave and tried to kiss her again at the door. He backed her against the wall. She said no. She started “freaking out” and saying, “No means no. No means no.” He just looked at her and then walked out. She locked the door behind him.
[46] A couple of months later, R.G. reported these incidents to police. Her motivation for doing so was because she thought that T.S. was stalking her. He would come to the end of her street, turn around, then go back up it again. She had also seen him a couple of times in Round Lake where her ex-husband’s trailer was located. She became fearful and did not want to stay in her own home.
[47] T.S. and his friend would also go past her ex-husband’s house in Pembroke as well to see whoever was around.
[48] R.G. did not want to have any contact with T.S.
[49] Under cross-examination, R.G. stated on the night in question, she knew that T.S. was intending to come to her house with “beverages”, which she understood to mean alcohol. She could not recall whether the cooler given to her by T.S. was a Palm Bay or not. She maintained that she only had three or four alcoholic drinks over the course of the evening. She was not impaired or intoxicated.
[50] She did not remember getting two blankets – one for her neighbours and one for T.S. and her. Nor could she recall a blanket ever being over T.S. and her while they were in her backyard. Later in her testimony, she was sure she was never under the blanket with T.S.
[51] She was quite certain that no intimate touching began while her neighbours were present. When he began touching her outside, she was fine with it, but it seemed to her that the sexual activity in the yard lasted longer than simply a few minutes.
[52] T.S. had two drinks, R.G. thought, but he knocked both over on the ground. R.G. told police he did that on purpose while giving her statement about the incident. She felt that it was more than clumsiness on T.S.’s part that caused this to occur.
[53] R.G. entertained the notion that T.S. intentionally drank less and wanted her to be more drunk.
[54] She confirmed that all sexual contact which occurred between T.S. and her outside in her backyard and initially for approximately the first hour in her bedroom was consensual. It stopped being consensual when he attempted to penetrate her with his penis.
[55] R.G. agreed she could have stayed on the first floor of her house on the couch in the living room if she just wanted to “fool around” and cuddle thereafter. However, they went upstairs because he told her to go upstairs. She agreed that she did not tell police that she went upstairs to her bedroom with him at his command.
[56] When R.G. testified previously that T.S. chased her up the stairs, it was not to suggest he was being aggressive with her.
[57] At the commencement of the sexual activity on her bed during the first instance it occurred, R.G. conceded that she lifted her butt to allow T.S. to remove her pants and underwear. She laid back on the bed and he started to perform oral sex on her.
[58] She denied that T.S. began to kiss her body thereafter, and that he did so prior to them having sexual intercourse in the missionary position.
[59] The nonconsensual sexual activity commenced when T.S. started to put Vaseline on his penis.
[60] R.G. testified that T.S. threw her up in the bed on the pillows. The sexual activity ended during the nighttime session with T.S. engaging in sexual intercourse with her ‘doggy style’, during which he would not talk to her or look at her. He then went to have a shower. She could not remember telling him where the towels were in the closet.
[61] She did not remember putting pajama bottoms on prior to his return to the bedroom. He attempted to kiss the side of her neck. She denied that he succeeded. He did try. She stopped him.
[62] To the contrary, she testified that any biting of her neck occurred while they were still outside at her invitation at the beginning of their sexual encounter. It did not result in a hickey that R.G. could remember.
[63] According to R.G., T.S. then dry humped her throughout the night, but claimed he was sleeping.
[64] She denied pulling down her pajama bottoms to allow for intercourse to occur again in the morning.
[65] R.G. stated that although she did not inform police that T.S. first tried to put his penis in her anus, that did happen. She was embarrassed by it, and that is why she did not tell police about it.
[66] R.G. could not remember how many times that she told police T.S. had ejaculated. She did recall that T.S. ejaculated inside her and on her pillow. She was certain she informed police that he then laughed at her.
[67] She did remember a discussion about “blue balls” when T.S. and she spoke in the morning. She had forgotten this conversation when she gave her statement to police. She denied that she said she should finish T.S. off during that exchange. Nor did she give off that “drift” to him. He started the second act of sexual intercourse, and she “just went with it”.
[68] When he went for coffee in the morning, she did not lock the door to prevent him from returning. She just laid in her bed.
[69] R.G. acknowledged that T.S. did not force her to go out with him in the morning. She agreed to go for a drive and to take another walk. She denied adamantly that she held his hand along the way. He tried to grab her hand and to kiss her, but she would not allow this.
[70] R.G. denied that after their walk in the morning after spending the night together, one of her neighbours saw them return to her house. Nor would any of the neighbours have seen T.S. rubbing R.G.’s feet. Nor did R.G. recall one of her neighbours asking her if T.S. and she were now “an item”. R.G. was certain that did not happen.
[71] R.G. did agree nevertheless that T.S. and she never had a face-to-face conversation about what happened between them the night they slept together. She did however send texts to him about it a week after their encounter.
[72] R.G. clarified that she did not see T.S. in Round Lake. Rather, she watched him pass by her once on the well-travelled Round Lake Road while she was on her way there, and he was passing by her going in the opposite direction.
[73] She confirmed that she did clearly communicate to T.S. that she did not want to have sex. She had not had sexual intercourse in three years. Previously as well, she had told T.S. she did not want to have a relationship.
[74] She figured that they would go to her bedroom, “make out” and fall asleep.
[75] She did not know how long the sex lasted. She has a poor conception of time. She denied that it went on for 25 minutes or so after they both entered her bedroom.
[76] R.G. doubted that T.S. would not have ejaculated during the first act of penile penetration of her vagina due to the way he “swelled up”. He did not say anything afterward and before going to take a shower. They both laid in bed after he returned.
[77] R.G. denied categorically that she simply regretted having sex with a friend whom she knew for 16 years. Nor did she change her views on what had occurred after the fact (i.e. that she originally consented to the sexual activity, but later reconsidered and felt she had not). She had stated “No” from the beginning when it was clear to her that T.S. wanted to use his penis.
T.S.
[78] When he testified on December 5, 2022, T.S. was 35 years of age. He lives with his mother in Pembroke. He has an adult son, who resides with his own mother.
[79] T.S. finished high school graduating via an alternative program. He has been diagnosed with ADHD.
[80] He now works as a construction labourer.
[81] T.S. met R.G. when he was 16 or 17 years old. She was working at Tim Horton’s. They were just friends.
[82] He reckoned they lost touch for about seven years ago before reconnecting. She was then married to R.H.
[83] T.S. recalled that in June 2021, he drove to Oiseau Rock with R.G. and his sister for a hike. Afterwards, he dropped his sister home. He then stopped for some fast food at McDonald’s and went back with R.G. to her place.
[84] While eating, they watched a movie together. Later that evening, they socialized with two of R.G.’s neighbours, one woman in her late 40s or early 50s, the other in her mid-20s whose son aged between 5 to 7 years accompanied her to R.G.’s.
[85] T.S. explained that where R.G. lives, the fences which separate the residences from her neighbours, are not long. They measure roughly 8 feet or so in length.
[86] At one point during the evening, R.G. went inside to retrieve a blanket to sit on. She also brought a second blanket to put over T.S. and her. The neighbours were present when R.G. did this.
[87] T.S. recalled that he was drinking Palm Bay coolers, a fruity alcoholic drink which he brought to R.G.’s place. There were only three or four of them. He asserted he was never impaired by alcohol over the course of the evening. Nor did he pour out any alcohol on the ground intentionally. One of his coolers did tip over accidentally.
[88] He also had a shot or two of rye directly out of the bottle from which he swigged.
[89] Later in the evening, T.S. recalled carrying the boy home. He had fallen asleep.
[90] When he returned, R.G. told him she would like to go outside to watch the stars.
[91] While doing so, they began to “make out”. They had been sitting on a blanket. T.S. began rubbing her leg. They started to kiss. There was no objection from R.G. when they did. Eventually, T.S. began to digitally penetrate R.G.’s vagina.
[92] To accomplish this, R.G. took her pants and underwear down halfway. T.S. added that he did not perform oral sex on R.G. outside. She suggested that they go inside. T.S. did not decline the offer. The oral sex then happened in her bedroom.
[93] As they entered, she threw the blanket on the couch. T.S. followed her upstairs. He did not chase her.
[94] By T.S.’s account, R.G. started to undo her pants on her own. When she laid on the bed, T.S. pulled them off her legs and feet.
[95] T.S. testified he then “went down on her”. He estimated that the oral sex he performed on her using his tongue in her vaginal area lasted approximately five minutes. T.S. was adamant that she did not say she did not want to. Nor did her body language suggest she was averse to it.
[96] T.S. recounted that he next got on top of R.G. and they “humped”. He was “pretty sure” that they assumed what is called the “missionary position”. He clarified that he did put his penis inside her vagina while laying above her. They were kissing each other, as they had sex.
[97] T.S. denied that R.G. ever said to him, “T. Don’t!!!”.
[98] Nevertheless, T.S. did remember R.G. telling him to slow down. She had not had intercourse in a while. She left the bedroom and returned with Vaseline. She gave the lubricant to him. He put it on his penis. She did not apply any to herself.
[99] They then began to have sexual intercourse “doggy style”. She was leaning on the bed. He was behind her. He never laughed at her. They continued to have sexual intercourse as such for roughly 10 minutes.
[100] He was “sweating bad”. He did not ejaculate. By this point, T.S. estimated that 25 minutes or so had elapsed since the sexual activity in the bedroom had begun. He stopped and went to have a shower.
[101] T.S. remembered that he used a towel to dry himself afterwards, but he did not use one to clean any ejaculate off R.G.’s body. He could not recall the radio being turned on. He confirmed that one was located in the bathroom.
[102] When T.S. returned to the bedroom, R.G. was laying on the bed with pajama bottoms on. He climbed into bed with her and fell asleep quickly thereafter. He was sleeping on his left side. They were “spooning”.
[103] He believed it was around 6 AM when he woke up. He could see sunlight. R.G. was sleeping with her head on his arm.
[104] R.G. guessed there was “a little bit of dry humping”. He joked that he had “blue balls”. She asked him why he had not finished last night.
[105] They started kissing. She pulled down her pajama bottoms and they started “going at it again”. She told him to bite her neck. He did so gently. He noticed she had two hickeys from where he had been kissing her the night before.
[106] T.S. clarified that she took her pajama bottoms completely off but left her shirt on. They had no further conversation. The sexual intercourse lasted under 10 minutes. T.S. ejaculated inside her vagina after he asked her where she wanted him to go.
[107] They then fell back asleep for probably another couple of hours. When T.S. woke up again, he left to go home. He showered there. He bought coffee for R.G. and himself before he returned to her place. He estimated he was only gone about 45 minutes to an hour. He was back at her house by midmorning.
[108] R.G. was downstairs when he arrived. He wanted her to go on an outing with him again. He did not have to force her. They went to the Interprovincial Bridge on the outskirts of Pembroke spending approximately 20 minutes there. Afterwards, they went to Chalk River. Together, they walked the trails around a body of water he believed was called Corry Lake.
[109] During this period spent with R.G., they did not discuss the events of the previous evening. T.S. denied that R.G. ever expressed any displeasure with him about what had occurred of a sexual nature between them. To the contrary, he recalled playing with her hair on the way to Chalk River. She held his hand during the walk. Upon their return to Pembroke, they stopped at Harvey’s to pick up food and again ended up at her place.
[110] They watched a movie together. There was no kissing, but T.S. did play with her hair again, and he guessed they kind of cuddled.
[111] That night T.S. went home around 8 or 9 PM. It was a Sunday. He had to go home and do laundry.
[112] He denied that he ever pinned R.G. against a wall to kiss her before leaving. He was adamant that he did not force a kiss upon her. She did not appear to him to be angry.
[113] However, T.S. did agree that they did not speak again after that night except over social media.
[114] He could not remember when he was contacted by the police.
[115] T.S. asserted that he did not stake out R.G.’s home. Nor did he ever follow her.
[116] He pointed out that he does not camp in Round Lake. He did not see R.G. on the Round Lake Road. Rather, T.S. camps in Calabogie.
[117] Under cross-examination, T.S. confirmed that he gave a voluntary statement to police on September 19, 2021, at roughly 11:00 p.m., some three months after he had spent the night in question with R.G. He had never been through an experience such as that before. He was truthful with police but confused at times.
[118] T.S. understood that he was being charged with sexual assault, and that he did not have to talk to the authorities, but he also did not want to be seen as trying to hide anything from them. He agreed that the questions put to him by police were uncomplicated.
[119] T.S. acknowledged that he did not tell police anything about “blue balls”, nor that R.G. took her own pants off at one point.
[120] In direct answer to one of the questions put to T.S. by police he answered, “We had a mishap, and honestly, it just went to shit.”
[121] In his testimony, T.S. explained that by using the word “mishap”, he was attempting to convey that R.G. and he were talking online and sending each other text messages. They each had their own interpretation of what had occurred between them during the subject sexual encounters. T.S. did tell police, “It looks bad on me now . . .” R.G. had been drinking. They all were.
[122] T.S. agreed that R.G. and he had never had any arguments or misunderstandings before the night in question. There was never any “bad blood” between them until R.G. started saying some “nasty stuff” about him.
[123] T.S. confirmed he did not tell police anything about the text messaging that led him to believe a “mishap” had occurred. However, he did say to police that he believed things went for shit because she started posting stupid shit online about the consent stuff and all of that, and about “no means no”.
[124] He acknowledged he used to go over to her place maybe twice a week to hang out, more often on weekends, but that routine ended following the night he slept over. He conceded that there was no reason to stop hanging out with R.G. if everything had been consensual.
[125] However, he added that she was not happy about the two hickeys she had on her neck, because her ex-husband would see them.
[126] When speaking to police about the possibility that R.G. and he may end up in court, and essentially that it would be one person’s word against another’s, T.S. responded, “I’ll just . . . I’ll have to take her word when we get there. I don’t know how.” T.S. added that he did not mean by saying this to police that she did not consent to him having penile sex with her. It did not signify that he would acquiesce to whatever she said as being the truth.
[127] T.S. acknowledged that he knew how stupid it looked and sounded in what he was saying to police.
[128] Nevertheless, T.S. maintained that R.G. did not ever say she did not want to engage in penile sex with him. They had begun having intercourse in the missionary position. R.G. stopped and went to get Vaseline.
[129] T.S. denied that he ever pushed R.G. up against the wall.
[130] He conceded however that he did not tell police all the details of what occurred. Of note, he did not tell police that R.G. took her own pajama bottoms off in the morning. Nor that his kissing on her neck resulted in hickeys.
[131] T.S. was clear however that R.G.’s testimony that she said “no” to having penile sex with him was false.
[132] He conceded that he did not ask R.G. if she wished to have vaginal sex with him because “they were too busy kissing”.
[133] T.S. maintained that everything of a sexual nature which occurred between R.G. and him was consensual. He clarified that although he cannot read her mind, from what she was doing, it was willingly on her part.
[134] He added that when he returned to her bed from the washroom having taken a shower, R.G. cuddled right into him. He went to sleep right away. He would not have been aware if R.G. was awake the whole night because he was asleep.
[135] Regarding his version of what occurred outside in R.G.’s yard, T.S. stated that began with digital penetration. They then went to her bedroom because R.G. was not comfortable engaging in what they were doing there, even though they had the blanket over them.
[136] Inside T.S. was clear that he did not ever ask for the express permission from R.G. to use his penis. He adamantly denied that he ever put his penis into her anus. He claimed he has never done that to anyone.
[137] In the morning, he did not ask R.G. if he could have vaginal sex with her. She was laying with her back towards him. He could not see her face. He assumed she wanted to have intercourse because she pulled her pajama bottoms down.
[138] In re-examination, T.S. clarified that everything he said to police was not contained in the recorded statement he gave. His lawyer told him not to speak to police.
[139] He found out about what R.G. was saying he did to her when he asked her what was wrong. She had started to post references regarding him online. It dealt with issues of “consent”. These posts began being issued a week or so after the fact.
[140] It was “mind-boggling” to T.S. because his brain does not register like others. He was at a loss to understand how she could think he had sexually assaulted her.
[141] In short, T.S. explained that there was no talk of R.G. ever saying “no” or wanting to stop. To have proceeded to do things to her after she said “no”, in T.S.’s view, “ . . . would have been like rape”.
The Issues
[142] I must apply a W.(D.) [1] analysis to the evidence adduced at T.S.’s trial. Clearly, the credibility of both T.S. and R.G. must be carefully assessed. Their reliability as historians for significant past events, although secondary, is worthy of some minor comment as well.
[143] Essentially, in applying the law, I must acquit T.S. if I believe his testimony regarding the incident in question after I assess the evidence as a whole.
[144] If I do not believe him, but his evidence raises a reasonable doubt upon my assessment of the evidence in its totality, I must also find him not guilty.
[145] Even if I do not accept the evidence of T.S., nor does it raise a reasonable doubt, I must still be satisfied of his guilt beyond a reasonable doubt based on the evidence which I do accept, if I am to find him guilty.
The Law
[146] In R. v. Barton, 2019 SCC 33, Moldaver J. set out the elements of the offence of sexual assault. He also addressed squarely the legal meaning of consent in an intimate partners context. He wrote:
[87] A conviction for sexual assault, like any other true crime, requires that the Crown prove beyond a reasonable doubt that the accused committed the actus reus and had the necessary mens rea . A person commits the actus reus of sexual assault “if he touches another person in a sexual way without her consent” (R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440 , at para. 23 ). The mens rea consists of 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” (R. v. Ewanchuk, [1999] 1 S.C.R. 330 , at para. 42 ).
[88] “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, [2014] 1 S.C.R. 346 , at paras. 55 and 57 ).
[89] 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 ) (my emphasis).
[90] 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” (Ewanchuk, at para. 49 ). 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” ( ibid. , at para. 47) (my emphasis).
[147] Further, at para. 155 in addressing the trial judge’s treatment of ‘after-the-fact conduct’, Moldaver J. added:
With these principles in mind, I note that the trial judge’s charge on after - the fact conduct contained a number of passages that are both clear and free from legal error, including the following :
“[t]he Crown’s position is that [ the after- the - fact conduct ] evidence is circumstantial evidence that can lead you to conclude that Mr. Barton is guilty of criminal conduct , as opposed to having caused Ms. Gladue’s death by accident” (A.R., vol. VIII, at pp. 169-70);
“[y]ou must not infer Mr. Barton’s guilt from his after - the - fact conduct unless, when you consider it along with all the other evidence, you are satisfied that it is consistent with his guilt and is inconsistent with any other reasonable conclusion” (p. 170);
“evidence of after - the - fact conduct has only an indirect bearing on the issue of Mr. Barton’s guilt . You must be careful about inferring his guilt from this evidence because there might be other explanations for this conduct ” (pp. 170-71);
[148] In R. v. Jaura, 2006 ONCJ 385, Duncan J. succinctly and eloquently captured the role of the trier of fact in a “he says/she says” case such as this one. He expounded on it in the following manner:
[12] The assessment of credibility is not a science (R v Gagnon, 2006 SCC 17, [2006] 1 SCR 621 ) nor can it be reduced to legal rules or formulae: R v White (1947), 89 CCC 148 (SCC) . However, proper credibility assessment is closely related to burden of proof. For this reason, an accused is to be given the benefit of reasonable doubt in credibility assessment: R v W.D., [1991] 1 SCR 742 63 CCC 3d 397 . Credibility must not be assessed in a way that has the effect of ignoring, diluting, or worse, reversing the burden of proof. What must be avoided is an “either/or” approach where the trier of fact chooses between competing versions – particularly on the basis of mere preference of one over the other: R v Challice (1979), 45 CCC 2d 546 (Ont CA) cited with approval R v Morin, [1988] 2 SCR 345 ; see also R v Chan (1989) 52 CCC 3d 148 (Alta CA). Acceptance of a complainant’s version does not resolve the case. The court must still consider and weigh the defendant’s version and, if unable to reject it, must consider itself to be in a state of reasonable doubt: R v Riley (1979), 42 CCC 2d 437 (Ont CA) .
The learned trial Judge then proceeded to consider each version in isolation and preferred the version of the complainant to that of the appellant. Having concluded that he preferred the complainant’s testimony to that of the appellant, he found that the Crown’s case had been proved beyond a reasonable doubt. With respect, we think that he erred in approaching the issue before him in that manner. The issue before him was not which version of the evidence was true, but rather, on the totality of the evidence viewed as a whole, whether the Crown’s case had been proved beyond a reasonable doubt.
It is not without significance that the trial Judge did not specifically reject the evidence of the appellant nor find his evidence to be incredible. Yet, in this case the appellant could not be convicted unless his evidence on the issue of consent was totally rejected.
[13 ] In assessing the credibility of any witness, including the accused, the existence of evidence that contradicts the witness is obviously highly relevant. For my part I regard it as the single most important factor in most cases, though the relative weight given to this versus other factors - such as demeanour, contradictions within the witness’s evidence itself, potential bias, criminal record or other factors - varies from case to case. No witness is entitled to an assessment of his credibility in isolation from the rest of the evidence. Rather, his evidence must be considered in the context of the evidence as a whole. In a “she said/he said” case, that necessarily means that the defendant’s evidence must be assessed in the context of and be weighed against the evidence of the complainant (and vice versa): R v Hull (Ont CA Aug 4 2006 at Para 5):
W. (D.) and other authorities prohibit triers of fact from treating the standard of proof as a credibility contest. Put another way, they prohibit a trier of fact from concluding that the standard of proof has been met simply because the trier of fact prefers the evidence of Crown witnesses to that of defence witnesses. However, such authorities do not prohibit a trier of fact from assessing an accused’s testimony in light of the whole evidence, including the testimony of the complainant, and in so doing comparing the evidence of the witnesses. On the contrary, triers of fact have a positive duty to carry out such an assessment recognizing that one possible outcome of the assessment is that the trier of fact may be left with a reasonable doubt concerning the guilt of the accused (underlining added)
[14] But the question remains whether, following such an assessment, a trial judge is entitled to reject the evidence of the accused on the basis of a finding that the complainant is credible. In the “she said/he said” cases, a line of authority is often cited for the proposition that the rejection of the defendant’s evidence must be grounded in something other than or additional to, the opposing evidence of the complainant because to reject it for that reason alone would violate the principles stated above in paragraph 12: R v Maharaj (2004), 186 CCC 3d 247 ; R v SJD (2004), 186 CCC 3d 304 ; R v Dore (2004), 189 CCC3d 526 (Ont C.A.) . In this latter decision, the Court said:
In his reasons, the trial judge reviewed the evidence of the two witnesses and cited the three-prong test in R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.) . The trial judge then said that he found “the evidence of the accused incredible”. In other words, the trial judge found the accused to be “incredible” based on the complainant’s believability. This approach ignores the burden of proof.
[15] It is beyond dispute that, in any other criminal case, rejection of the defendant’s evidence can be based solely on the contradicting Crown evidence, particularly where the latter is scientific in nature or otherwise practically exempt from the usual credibility assessments to which witness testimony must be subjected. For example, an accused’s denial of being present at the crime scene could surely be rejected if there is DNA evidence or a videotape putting him there.
[16] But what if the contradicting evidence is another witness or witnesses whose credibility is itself in issue? In R v Boffo [1997] O.J. No 5156 (C.A.) the trial Judge rejected the evidence of the defendant saying:
The real reason and the most important reason why I reject the accused's evidence is that it is inconsistent with what I regard as credible evidence from the Crown witnesses who contradict his version of the event.
[17] It was argued in the Court of Appeal that the passage betrayed forbidden reasoning in that the trial Judge reasoned, in effect: I accept the evidence of the Crown witnesses;- the accused’s evidence differs from the evidence of the Crown witnesses – therefore the accused’s evidence was not to be believed . It was contended, therefore, that the trial judge thereby “denied him access to the benefit of reasonable doubt”. The Court of Appeal dismissed the appeal noting that the trial Judge directed himself properly on the burden of proof and R v W.D. and analyzed the evidence for both sides. The Court concluded:
The trial judge's reasons also make it clear that he was alert to the prospect that a reasonable doubt might arise from the appellant's evidence, even if he rejected it, or from all of the evidence. He rejected the appellant's evidence and said why he rejected it. He included in his reasons for rejecting the appellant's evidence the fact that he accepted the Crown evidence that was the converse of the appellant's evidence. This does not, in our view, mean that he looked at the case as an "either/or" proposition, to the exclusion of the prospect that he might have a reasonable doubt of the appellant's guilt on the basis of the appellant's evidence, or on all of the evidence (including that which he disbelieved). We are satisfied that the trial judge's reasons, when read as a whole, make it clear that he did not proceed on the basis that the verdicts were controlled solely by the resolution of a credibility contest, that is by the answer to the question whether he accepted the Crown evidence or the appellant's evidence.
[18] As is apparent, Boffo was a case where the evidence that contradicted the defendant came from more than one witness – a “they said/he said” case – if you will. However, it is my view that there is no difference in principle between that case and a case in which a single witness contradicts the accused. Equally they are both situations where the defendant’s evidence is weighed against Crown evidence that in itself is subject to credibility assessment. Equally the defendant’s evidence can be rejected on the basis of its inconsistency with that evidence where the latter is found to be credible.
[19] It seems to me that the cases of Boffo and R v Hull supra , effectively resolve the issue in the present case. Maharaj and the other decisions can now be understood and distinguished as “inadequate reasons” cases where the trial judge appeared to engage in the forbidden reasoning that because he believed the complainant he was unable to do other than reject the contrary evidence of the accused. By so doing, he denied the defendant a fair assessment of credibility and the benefit of reasonable doubt.
[20] In summary, it is my view that the case law establishes that, in a “she said/he said” case, the Rule is that a trial judge can reject the evidence of an accused and convict solely on the basis of his acceptance of the evidence of the complainant, provided that he also gives the evidence of the defendant a fair assessment and allows for the possibility of being left in doubt, notwithstanding his acceptance of the complainant’s evidence.
[21] Quite apart from case authority, there is ample reason to conclude that this must be the Rule. If it were otherwise, there would effectively be a legal corroboration requirement imposed in these cases and the undoing of years of reform in this area. Alternatively, the issue of guilt would turn on whether the trial judge could identify and articulate that little something extra over and above the complainant’s evidence - that flaw in the accused’s evidence or its presentation - that would become the additional crumb on which a conviction could be supported. Reasons for judgment would become an exercise in highly subjective nit picking of the accused’s evidence, disingenuously disguising the real reason for its rejection. Finally, if the Rule was otherwise, it would be necessary for this to be explained to juries.
[149] Six weeks after Jaura was decided, in R. v. J.J.R.D., Doherty J., speaking for a unanimous three member panel of the Court of Appeal for Ontario and upholding a trial judge’s verdict in finding an accused guilty of sexual assault in a “he says, she says” case, adopted a very similar line of reasoning to Duncan J. Doherty J. held at para. 53:
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.
Analysis
Do I believe T.S.?
[150] Regarding the incidents in question, I find that I have one solid basis for the rejection of T.S.’s evidence. I fully believe R.G.’s account of what happened in the bedroom after she returned with the Vaseline. It was not an invitation for T.S. to apply it to his penis. Yet T.S. clearly wanted, with R.G.’s retrieval of the lubricant, to take the sexual activity to the next level.
[151] He acknowledged during his own evidence that she told him to “slow down”. She had not had intercourse in a while. If ever there was a time when T.S. was by law required to ascertain the bounds of R.G.’s consent, it was then.
[152] I accept R.G.’s testimony that she told T.S. unequivocally, “No”, when he started putting Vaseline on his penis. Yet T.S. persisted and threw her on the bed. He proceeded to penetrate her with his penis from behind. I find that T.S. went on to intentionally, or at a minimum, recklessly have sexual intercourse with R.G. “doggy style” by pinning her legs and laughing at her as she attempted to resist him.
[153] R.G. was skilfully cross-examined by very able counsel. Yet she remained unshaken in her evidence that she clearly communicated to T.S. her unwillingness to allow him to use his penis to penetrate her when they were in her bedroom together.
[154] R.G.’s credibility was not negatively impacted by her agreement to allow T.S. to touch her vagina with his hands outside in the backyard. It was pitch black. The neighbours were nowhere around at that point.
[155] Her decision to go to her bedroom after T.S. and she went inside her house was not a clear invitation to elevate the sexual activity beyond what was occurring, and what she was consenting to. If T.S. believed it was, he ought to have inquired. It was not much of a reasonable step to expect of him when she returned with the Vaseline.
[156] What I believe and conclude most decidedly is that R.G. told T.S. that she had not had vaginal intercourse in three years. His digital thrusting caused her discomfort. She certainly did not invite him to use his penis. That was his idea which she immediately tried shut down. However, T.S. was undeterred.
[157] T.S. was not entitled to read into the retrieval of the Vaseline anything more than that R.G. wished for him to continue with the digital penetration. If he thought she wanted more, he could simply have asked.
[158] I find specifically that he ignored her when she protested his act of applying the Vaseline to his penis. I have no doubt that T.S. forced his will upon R.G. In his zeal, he may well have begun to penetrate her anus. R.G.’s credibility is not affected by her failure to mention this detail to police. She told the authorities the substance of what occurred.
[159] I make nothing of R.G.’s decision to bypass the couch in her living room. It stands to reason that her bedroom would allow the greatest level of privacy and comfort to engage in the sexual activity which she wanted.
[160] R.G.’s word choice in describing T.S. as chasing her up the stairs, to my mind, did not make her less believable in the slightest. If anything, it was intended to capture T.S.’s enthusiasm for continuing with the sexual activity that commenced in the backyard.
[161] I reject completely the conjecture on the part of T.S. that R.G. concocted a story about not consenting to having sex with him because she feared her ex-husband may notice the hickeys on her neck. I heard no evidence on what the state of the relationship between R.G. and her ex-husband on the night in question was, nor in the days, weeks or months which followed. All I can glean is that the relationship had been over for quite some time. No suggestion was made that R.G. wished to rekindle it with her ex-husband.
[162] T.S.’s explanation to police regarding what occurred between R.G. and him as a “mishap” could not be more of an understatement. It was a crime. T.S. knew exactly what he did to R.G. He was aware that he was in the wrong, and that he would have to answer for it. He was prepared to accept R.G.’s word because he knew she would speak the truth in Court.
[163] I wholly disbelieve that T.S. only learned of R.G.’s expression of a lack of consent through social media. She told him “No” the very night he literally forced the use of his penis upon her. She repeated, “No means no,” to him when he left her house for the final time the next evening.
[164] There was good reason for him never to see her again. Nor, on the evidence put before me, did it appear as though he ever really tried. He used to go twice a week to visit R.G. Suddenly, that routine stopped. The friendship abruptly ended.
[165] The only inference I can draw is that T.S. behaved horribly on the night in question without any regard for R.G.’s stated wish for no penile penetration. He knew exactly the significance of the line he had crossed, and the consequences which would likely ensue. He was conscious of his guilt. His ‘after the fact’ conduct was indeed telling.
Does T.S.’s evidence raise a reasonable doubt?
[166] Having rejected T.S.’s evidence, it cannot raise a reasonable doubt in my mind. I did not believe him when he testified that R.G. never told him, “No”. I am sure she did.
[167] T.S. was simply unprepared to listen to her wish. She allowed him to take it to the point of digital, then oral penetration of her vagina. In T.S.’s mind, he felt he had a license to progress to the next step, when in law, he did not.
On the basis of the evidence which I accept, am I satisfied beyond a reasonable doubt in the guilt of T.S.?
[168] I am.
[169] I find that R.G. needed time to process what had occurred between T.S. and her the night of June 20, 2021. That does not detract from her credibility. In fact, I find it was enhanced by her willingness to acknowledge the “blue balls” discussion the morning after.
[170] Sexual intercourse had happened the night before, at T.S.’s insistence, whether she wanted it or not. T.S. was not taking “no” for an answer then. After he began dry humping R.G. at daybreak, she had no reason to believe that he would not persist as he had the night before.
[171] Specifically, I conclude that if T.S.’s recollection is correct and R.G. did take down her pajama pants in the morning, assuming she was wearing them, it matters little in any event. She voluntarily agreed based on the previous night’s experience to give T.S. what he wanted. As she aptly put it, “It feels grosser when you say no, and it doesn’t stop.”
[172] I cannot, of course, allow a subsequent agreement to engage in sexual activity to inform whether consent to partake in an instance of it on an earlier occasion was offered or not.
[173] Nor do I find that R.G.’s submission or lack of resistance to the sexual activity T.S. wanted in the morning was a result of any fear entertained by R.G. which would have vitiated her consent. It was merely another example of how R.G. “went with it”. Reluctant consent can still be legal consent.
[174] R.G.’s inability to recall whether T.S. had ejaculated during the first instance of his vaginal penetration of her gives me no pause for disbelieving her. She likely assumed T.S. had. It was clear in her mind that the sexual intercourse would end when T.S. chose to stop.
[175] Over the course of the day with the trips to the Interprovincial Bridge and Chalk River, I accept the general tenor of R.G.’s evidence that she was cold in her demeanour toward T.S. She was upset, and rightfully so. She knew her long-standing friendship with T.S. was likely coming to an end.
[176] I find she rebuffed his attempt to kiss her as he was leaving her house the next day. He made no contact with her without her consent for a sexual purpose that evening. She was quite clear with him. She could not have been more correct in telling him, “No means no.”
[177] I make nothing of R.G.’s delay in reporting the incident to police. I draw no adverse inference from it. I understand R.G.’s reticence in going forward to the authorities where she initially agreed to the sexual activity with T.S. Her delay in reporting the crime does not detract from her credibility one iota.
[178] Alcohol was essentially a nonfactor for either R.G. or T.S. Neither assessed it to play any role in their respective abilities to recall and narrate critical events accurately. It did not impact to any significant degree the reliability of the evidence which both R.G. and T.S. gave.
Conclusion
[179] For the above reasons, I must find T.S. guilty of sexually assaulting R.G. on June 20, 2021.
DATED: February 7, 2023
March, M.G., J.
Endnotes:
[1] R. v. W.(D.), [1991] 1 SCR 742 (see para 142)
A trial judge might well instruct the jury on the question of credibility along these lines:
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.