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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: 2024 02 29 Court File No.: Toronto 998- 22-70006149

Between:

HIS MAJESTY THE KING

— AND —

JOHN PAUL KELLY

Before: Justice Christine Mainville

Heard on: February 7, 8 and 9, 2024 Reasons for Judgment released on: February 29, 2024

Counsel: Meghan Scott...................................................................................... counsel for the Crown Luba Szkambara............................................................................. counsel for the accused

Mainville J.:

[1] Mr. Kelly is charged with having choked and thereby assaulted his then-intimate partner, S.W., and with having sexually assaulted her.

[2] These events are said to have taken place in 2016 and 2017, after which S.W. broke off the relationship. She never reported these incidents to the police. Instead, she was contacted by the police years later as they investigated other allegations relating to Mr. Kelly that form no part of this trial.

[3] S.W. was the sole witness for the prosecution, and Mr. Kelly was the sole witness in his defence. At least in part because the allegations are dated, both parties had an imperfect recollection of what had transpired at the relevant time.

[4] Nevertheless, their accounts of each incident are not diametrically opposed. Mr. Kelly’s version of events has the incidents unfolding differently than as described by S.W. He also asserts that S.W. consented to each alleged act – or at least, he honestly believed her to have consented.

[5] For the reasons that follow, I find Mr. Kelly guilty of having assaulted S.W. by choking her and of having sexually assaulted her by touching her breasts, but not guilty of sexual assault by anal touching.

Overview of Testimony

[6] Mr. Kelly and S.W. lived apart during their relationship, which lasted from around the latter part of 2016 until their breakup in the spring of 2017. They sometimes slept at each other’s homes. S.W. testified they were “on and off” during this time given frequent arguments between them that would lead her to periodically break things off.

[7] S.W. testified that back in 2016 and 2017, she had sleep issues in addition to other health issues. As a result, her sleeping patterns were irregular and when she did sleep, she fell into a deep sleep and could sleep for prolonged periods of time. Around that time, she was also taking a medication that lowered her blood pressure and would have her go into an even deeper sleep, but she could not be sure whether she was taking this medication at the time of the events described below.

[8] S.W. explained that her sleep issues became a point of contention between her and Mr. Kelly. Because she spent a lot of time sleeping and there were times when she did not want to have sex when she was awake, Mr. Kelly would be close and intimate with her while she slept. She says he justified this by expressing his need to be intimate and feel loved. While over the course of their relationship, S.W. voiced that she wasn’t comfortable with that, she also at times just accepted it based on his expressions of need. But if she woke up and experienced some pain, she would take issue with the activity that had caused her pain.

[9] S.W. stated that Mr. Kelly frequently engaged in sexual activity with her while she was asleep, but she could only pinpoint two such incidents based on Facebook Messenger messages between them that she more recently located.

Anal penetration

[10] Based on messages sent on December 23, 2016, S.W. testified that she and Mr. Kelly had spent the previous night together. She did not recall at whose home. On December 23rd, her anus was hurting in a significant way, such that she messaged Mr. Kelly saying, “Did you put something in my butt? It hurts”.

[11] Mr. Kelly responded, “Finger, you dont remember? Ill leave it alone, sory” (sic). She understood from this that the reason her butt hurt was that he had put his finger in it. She did not recall this happening but did not know whether this was because she had been asleep or because it had occurred when she was drinking.

[12] She responded to him, “It’s ok baby; It’s just that I’m not healthy and it hurts there regardless”. She explained that she did not want any type of anal interaction because her digestive issues affect that area quite significantly, so she does not want to mix that with sexual or intimate activity.

[13] When asked whether they had any conversations about that, she indicated it was more than likely because it is a conversation she almost always has with people, being very firm that she does not want anything in that area. She did not have any recollection of Mr. Kelly asking her permission to do it.

[14] Mr. Kelly testified that both he and S.W. had finished work for the holidays and were in holiday celebration mode. They were at S.W.’s home and had consumed drugs – primarily cocaine – and some alcohol. He said they began engaging in sexual activity that lasted several hours. Part of that activity included “choke play”, which I reference below.

[15] Mr. Kelly explained that they were both conscious and participating in sexual activity for hours. He was therefore confused that she didn’t remember. He had no specific recollection of how a finger ended up where it did that night, but accepted that there was some degree of “anal play” during their sexual encounter.

[16] Mr. Kelly testified that he did not know before she expressed it in the text messages that S.W. suffered from discomfort in that area. He testified that he was not aware of her position on digital anal penetration prior to the events and there had not been any discussion about it.

[17] As for the moment in time when they did engage in it, Mr. Kelly did not know if they discussed it in the heat of the moment. But he testified that there was enthusiasm and dynamism, not any objection to it or any indication that S.W. was sore. He perceived her to be consenting and indicated that “it wasn’t stopped.” His recollection is that it did not progress beyond putting his finger in her anus.

[18] Mr. Kelly indicated that the sexual activity that night ended after they both passed out from exhaustion.

[19] S.W. wrote to him after they had gone their respective ways, as she was travelling back to her family’s place for Christmas. Just before the exchange set out above, he sent her a picture of him and his dog which he indicated was at his place. She responded with “My boys!” and “I miss you guys” before asking about the anal pain.

Breast touching

[20] The second incident referenced in Facebook messages was on February 24, 2017. S.W. recalled that they went to Florida for the Blue Jays’ spring training around February or March of that year.

[21] Before that trip, she had awoken one day to her breasts being extremely sore. She messaged Mr. Kelly around 1:20 am to know what had happened. She worked late nights at the time such that it was normal to still be up at that time of night. The following exchange took place:

S.W.: My boobs hurt so Friggin bad I had to wear a sports bra tonight and it still killed me J.K.: weird, I was just thinking about them S.W.: I don’t think that’s weird. You always think of them J.K.: I mean, yeah, but you don’t S.W.: Not until they hurt this bad J.K.: do both sides hurt equally cause I was playing with them a lot S.W.: Really bad Ok well I think you need to stop till I get my period J.K.: I mean, you were sleeping S.W.: Well they hurt now babe That’s my point

[22] S.W. explained that her breasts would get tender and sore in and around the time of her period. She would experience a normal amount of pain. This time, however, her breasts were more sore than usual such that she felt the need to ask Mr. Kelly about it.

[23] S.W. did not recall him touching her breasts, presumably because she had been sleeping. She discovered the pain when she woke up the next day. She said there had quite possibly been a conversation between them about how her breasts got sore during her menstrual cycle.

[24] Mr. Kelly confirmed that they left for Florida around the 26th of February. In the week leading up to the 24th, S.W. had just returned from a work trip and from another trip down south with a friend, and her breasts were sore. He indicated that this was a constant topic of discussion that week.

[25] Mr. Kelly did not recall the text exchange referenced above, but assumed he was on the verge of sleep as it was 1:20 am. He did not believe that he was in fact thinking about her breasts when he wrote as much – it was simply a flirtatious remark.

[26] Mr. Kelly explained that most of the time, he and S.W. would fall asleep in a spooning position, with his arms around her and his hands resting on each of her breast. He would not do anything beyond that if they were going to sleep, but if they were both up and active, he would be more affectionate. She had never previously told him not to play with her breasts.

[27] Mr. Kelly’s recollection was that on February 23rd, the night prior to the text messages, that is how they went to bed. He recalls wanting to provide some relief for the discomfort S.W. had been complaining about all week. He was therefore kneading her breasts gently as they were falling asleep. Mr. Kelly described the massage as very clinical, like a breast cancer self-check. He was not touching her nipples or being sexual. He does not recall any conversation at that point in time.

[28] Mr. Kelly does recall eventually noticing that S.W. was asleep as she was drooling on his arm. He therefore moved his hands to her back to give her a kidney (lower back) massage because of the stress she had been under, having read that this could help. This was approximately 10 minutes after they had first laid down to go to bed. After about 10 minutes of rubbing her back, he went back to the spooning position and fell asleep.

[29] Mr. Kelly explained that the text exchange was in the last month of their relationship. Things were often volatile and often went in the wrong direction. When he texted with S.W., he was either straight-shooting or managing a situation to avoid anything developing. At this stage of the relationship, things were dire, and every conversation had a “life or death” seriousness to it.

[30] Mr. Kelly explained that this was one instance where he was downplaying what he was doing to avoid any mention of the fact that S.W. was pregnant at this time. His recollection is that at that time, he believed she was pregnant as her period was late, but they talked around the issue. He explained that he wanted to avoid bringing up the pregnancy to not make her upset or piss her off.

[31] Mr. Kelly acknowledged that S.W. had explicitly referenced the possibility of being pregnant in the course of the week leading up to this exchange and had reported that during her trip down south, someone had commented about her breasts being larger.

[32] Mr. Kelly testified that when she sent the message about her breasts hurting, he thought to himself that the massage he gave her did not work so he should not do that again. When he indicated she was sleeping, he was describing the point where she fell asleep. He was not trying to document what had happened.

[33] In reference to the comment about whether both breasts hurt and playing with them both, he explained in cross-examination that when he was touching them, one felt more fibrous so he wondered whether that one was hurting more than the other.

Choking

[34] S.W. testified that one night in late 2016 or early 2017, while they were having consensual sex at her home, Mr. Kelly proceeded to choke her with his hand or hands, to the point of unconsciousness. She indicated that he would cut off the blood flow so significantly that she would lose consciousness and then regain it. This was repeated though she does not know how many times given the level of confusion that resulted from losing consciousness.

[35] S.W. explained that when this happened, she was positioned on top of him and believes she fell on him when she would lose consciousness – though she could not be sure what happened once unconscious. She did not know how long she was unconscious for before coming to. She indicated that once she regained consciousness, she and Mr. Kelly continued to engage in sexual intercourse. He then proceeded to choke her again to that same point of losing consciousness.

[36] S.W. testified that they had discussed wanting to try choking before (though in cross-examination, she stated she could not be sure if it was a conversation) and that it was possible that the prospect of engaging in such activity came from her. She indicated, however, that hurting her or losing consciousness was “not part of the conversation”. She was not sure whether they discussed how far or the extent to which they might go, but it was not her intention that it go that far. In cross-examination, she indicated that she did not believe she would have agreed to being choked until she passed out, but went on to state more clearly that she would not have consented to that.

[37] S.W. did not recall whether there was any discussion about choking at the time they engaged in the activity. She recalled coming to and being confused about it, but what happened during that time was unclear because of her level of confusion. In cross-examination, she recalled that Mr. Kelly would be talking to her and trying to wake her up when she was coming to, that she would ask him what happened as she was not aware she had lost consciousness, and that he told her she had passed out. She did not specifically recall telling him not to do it again, nor him asking if she was OK or whether she was OK to continue. She did not remember whether they discussed it afterward.

[38] At the time, S.W. had some general understanding of how that kind of activity could affect the person’s blood flow or breathing capability, and that there is a spectrum which includes non-risky choking with a point at which it becomes risky. She believed that losing consciousness crosses that threshold. She did not know whether Mr. Kelly had that level of knowledge about the activity.

[39] In his testimony, Mr. Kelly pinpointed the date of this incident as December 21st or 22nd, 2016 – the same night as the anal penetration that was referenced in the Facebook messages produced by S.W. that were dated December 23rd. As previously indicated, this was an evening where, as he recalled, they had consumed cocaine and some alcohol and engaged in sexual activity for several hours.

[40] Like S.W., Mr. Kelly did not recall what if any conversation had taken place about engaging in choking prior to its occurrence that night. However, he indicated that this was not part of his repertoire at that time such that it seemed strange to him that he would have introduced it without them having talked about it first. He testified that if it came up during the sexual encounter, they would not have had what he would call a “discussion” about it but that if she asked him to do something, he would just comply.

[41] Mr. Kelly’s version is that they were having sex with S.W. on top and straddling him. He sat up and put his hands around the back of her head to pull her closer and start making out. As the intensity of their contact increased, he pressed the sides of her neck with his forearms as they continued to kiss. Within about three seconds, she had lost consciousness. This made him freak out internally, but she quickly regained consciousness and was OK.

[42] Mr. Kelly estimates that S.W. began to stir after two to three seconds, and was alert within five seconds. There was not enough time for him to take any action. She then asked him what happened, and he told her she passed out. They resumed having intercourse.

[43] According to Mr. Kelly, he asked S.W. if she was OK and if she wanted to do more of that. She answered in the affirmative and was enthusiastic in her tone. In total, he recalls choking her three to five times and her almost instantaneously losing consciousness every time, but quickly coming back to. He says each time he checked in with her to ensure she was OK. Mr. Kelly says he did not engage in sexual activity (including intercourse) with her while she was unconscious.

[44] When asked in cross-examination about not having taken any precautions, Mr. Kelly testified that there was ample opportunity before S.W. lost consciousness for her to signal any issue, and she did not. He emphasized the duration of three Mississippi seconds before her losing consciousness.

[45] Mr. Kelly also testified that he does not believe they revisited this incident, but they did not engage in choking or in this kind of risky sexual behaviour again in the future. He could not offer a clear answer as to why but explained that things got complicated after this period and he believes the type of sobriety in future encounters had something to do with it.

The Principles to be Applied

[46] Mr. Kelly is presumed innocent. There is no obligation on him to do anything to establish his innocence. The presumption of innocence remains in place, unless and until the Crown has proven each essential element of these offences beyond a reasonable doubt.

[47] Reasonable doubt is based upon reason and common sense. It is logically connected to the evidence or the lack of evidence. It is not enough for me to believe that Mr. Kelly is probably or likely guilty. Reasonable doubt requires more than mere probability. Although it cannot be described with mathematical precision, reasonable doubt is a high standard, consistent with its role as a safeguard against wrongful convictions. At the same time, reasonable doubt does not require proof beyond all doubt, nor is it proof to an absolute certainty.

[48] In assessing the evidence of the witnesses in this case, I must consider their credibility and reliability. Credibility relates to the honesty of the witness, including whether the witness was trying to tell the truth and if the witness was candid, sincere, biased, evasive or prone to exaggeration or minimization. Reliability relates to the accuracy of a witness’ testimony and involves a consideration of the person’s ability to accurately observe, recall and describe the events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. However, credibility alone does not establish reliability, as a truthful witness may give unreliable evidence.

[49] Testimony can be assessed through a non-exhaustive list of factors, including (a) the plausibility of the evidence; (b) the presence of independent supporting or contradicting evidence; (c) the external consistency of the evidence; (d) the internal consistency of the evidence; (e) the “balance” of the evidence, meaning the witness’ apparent willingness to be fair and forthright without any personal motive or agenda; and to a limited extent, (f) the witness’ demeanour while testifying.

[50] I am entitled to believe all, part, or none of a witness’ evidence and may attach different weight to different parts of a witness’ testimony.

[51] In assessing the credibility and reliability of the witnesses, I do not simply choose one conflicting version of events over another. Instead, I must apply the framework set out by the Supreme Court of Canada in R. v. W.(D.):

(i) If I believe the evidence that is inconsistent with the accused’s guilt, I must acquit him.

(ii) Even if I do not believe the evidence that is inconsistent with the accused’s guilt, if I cannot decide whether that evidence is true or if it raises a reasonable doubt in my mind, then I must acquit.

(iii) Even if I entirely disbelieve the evidence inconsistent with guilt, the mere rejection of that evidence does not establish guilt. Instead, I must be satisfied that the evidence I do accept proves the accused’s guilt beyond a reasonable doubt.

General Credibility and Reliability Assessments

[52] S.W. came across as very credible. She was a careful witness who candidly admitted memory issues and other frailties in her evidence. She testified in what struck me as a fair and balanced way, candidly admitting to not remembering certain events and indicating the possibility of certain events having taken place that she could not recall. S.W. did not appear to have any animus toward the accused. Indeed, she did not even choose to come forward with these allegations in the first place. Nor do I draw anything from her lack of any contemporaneous complaint in the circumstances of this case. In my view, S.W. tried to provide her best account of what transpired at the time.

[53] However, I must be cautious about the reliability of her evidence given the passage of time and how she has tried to put these memories out of her mind over the past years. That has, even by her own admission, significantly impacted her ability to recall certain things.

[54] Similarly, Mr. Kelly could not recall many details of the interactions he had with S.W. given the passage of time. To his credit, he candidly admitted as much even when this was to his detriment. He testified to most events to the best of his recollection.

[55] Mr. Kelly admitted to many details of the occurrences between him and S.W. but had a somewhat different perception and recollection of how these unfolded.

[56] However, as further detailed below, I do find that some of his evidence was non-sensical and lacked credibility.

[57] In many respects, however, this case is not a pure W.D. case. Mr. Kelly admits to most of the actions attributed to him. A key question is whether, in law, his actions amount to assault and sexual assault, even if I were to accept his evidence.

The Elements of the Offences

[58] To establish the offence of assault, the Crown must prove that Mr. Kelly intentionally applied force to S.W., that S.W. did not consent to the force that Mr. Kelly applied, and that Mr. Kelly knew that S.W. did not consent to the force applied.

[59] Of note, in certain social contexts, a person cannot consent to bodily harm as it is defined in the Criminal Code, if that harm is both intended and caused: R. v. Jobidon, [1991] 2 S.C.R. 714; R. v. Paice, 2005 SCC 22, at para. 12.

[60] To establish the offence of sexual assault, the Crown must prove that Mr. Kelly intentionally touched S.W. in circumstances of a sexual nature without her consent and knowing that she did not consent to the touching.

[61] Consent involves S.W.’s state of mind at the relevant time. It relates to her conscious agreement to take part in every physical sexual act in the encounter. S.W.’s consent must have been given freely at the time each specific physical sexual act occurs. S.W. may revoke or limit her consent at any time.

[62] An agreement to take part in one specific physical sexual act is not an agreement to any or all other specific physical sexual acts. An agreement to touching of one kind, or of one part of the body, is not an agreement to touching of any or all other kinds, or to another or all other parts of the body. An agreement to touching of some degree or force is also not an agreement to touching of any degree or force: R. v. J.A., 2011 SCC 28, at para. 34; R. v. Ewanchuk, [1999] 1 S.C.R. 330; Brown et al., Prosecuting and Defending Sexual Offence Cases, Emond 2nd edition, at p. 400.

[63] To prove the requisite mens rea, the accused must have either known that the complainant was not consenting to the sexual act in question or was reckless or willfully blind to the absence of consent. In other words, the Crown must prove either that the accused actually knew that she was not consenting; or that he knew there was a risk that she was not consenting to the sexual touching but went ahead anyway; or that he knew of indications that she was not consenting to the sexual touching, but deliberately chose to ignore those indications because he did not want to know the truth: J.A., at para. 24.

[64] The accused may raise the defence of honest but mistaken belief in consent if he believed that the complainant communicated consent to engage in the sexual activity, subject to the limits set out in ss. 273.1(2) and 273.2 of the Criminal Code: J.A., at para. 24.

Findings of Fact and Analysis

Count 3: Sexual assault – Anal penetration or touching

[65] My conclusion on this count turns on the factual findings that I am able to make – or more precisely, that I am unable to make – beyond a reasonable doubt.

[66] Given the lack of reliability of the evidence relating to this encounter, I cannot find beyond a reasonable doubt that there was no consent to the touching or penetration at the relevant time.

[67] What is relevant is whether S.W. consented to engage in the anal touching at the time it occurred. I accept that in general, based on the digestive issues she had at the time and as she expressed in the text communications the following day, this is not an area where S.W. wished to be touched.

[68] It is also not the case that I would need to have some form of overt expression of non-consent to make a finding that there was no consent. To be sure, S.W.’s silence, submission, or lack of resistance is not consent. Nor is there consent simply because of the relationship between S.W. and Mr. Kelly, or because they may have otherwise been engaging in consensual sexual activity.

[69] As the law makes clear, an agreement to take part in one specific physical sexual act is not an agreement to any or all other specific physical sexual acts.

[70] Still, to find Mr. Kelly guilty, I must be able to find beyond a reasonable doubt that S.W., in her own mind, was not consenting to this activity at the time it occurred (or that she was unable to consent).

[71] The difficulty here is that the evidence leaves open the possibility that S.W. did in fact consent in the spur of the moment, and she simply does not recall.

[72] Certainly, if S.W. was unconscious, she could not consent to this act and a finding of guilt would ensue: J.A.

[73] Mr. Kelly testified that they were both conscious at the time this activity took place, which is why he was confused that she didn’t remember. The text message indicating as much contrasts with the one relating to the breast touching, where Mr. Kelly states that S.W. was asleep.

[74] S.W. herself acknowledged that it was possible she didn’t remember because of the consumption of alcohol, rather than because she had been asleep. She could not be sure that she was in fact unconscious at the relevant time.

[75] I accept that it is at least possible that they were both conscious and actively engaging in this activity when it occurred – and that S.W. simply had no recollection of it.

[76] As for whether she consented to it, S.W. “believed” that she would not have consented given her digestive issues.

[77] On Mr. Kelly’s account, this activity took place during a lengthy sexual encounter that followed the consumption of cocaine and some alcohol. This could explain greater disinhibition that may have led S.W. to consent to something she would not normally consent to.

[78] The Crown argues that an adverse inference should be drawn from the fact that it was never suggested to S.W. that the anal touching occurred during the same incident as the choking, in contravention of the rule in Browne v. Dunn, (1893), 6 R. 67 (H.L. (Eng.)).

[79] The rule is rooted in considerations of fairness. It provides that if a party intends to impeach a witness called by an opposite party, the party who seeks to impeach must give the witness an opportunity to provide any explanation the witness may have for the contradictory evidence: R. v. Quansah, 2015 ONCA 237, at paras. 75 and 77.

[80] The rule is not a fixed one. The extent of its application lies within the discretion of the trial judge and depends on the circumstances of each case: Quansah, at para. 80. Compliance with the rule “does not require that every scrap of evidence on which a party desires to contradict the witness for the opposite party be put to that witness in cross-examination. The cross-examination should confront the witness with matters of substance on which the party seeks to impeach the witness’ credibility and on which the witness has not had an opportunity of giving an explanation because there has been no suggestion whatever that the witness’ story is not accepted”: Quansah, at para. 81.

[81] In this case, S.W. did not recall if there was any sexual activity going on before the anal touching, or how this interaction came to an end. She agreed with defence counsel that she would not be able to say anything about the nature of that touch given that she had no recall of it.

[82] The defence also canvassed the issue of non-prescription drugs with S.W. S.W. agreed that she had taken drugs and drank at that time in her life. She did not concede that the quantity of drugs taken or the nature of the substance itself was problematic, but believed her reasons for using were problematic. She later turned her lifestyle around and stopped using in the way she had been during this period in her life.

[83] S.W. also admitted to the possibility that she had been drinking the night in question, and that that could explain why she did not recall.

[84] Suggesting to S.W. that the anal and choking incidents occurred on the same night, and that this was a night where cocaine had been consumed and a lengthy sexual encounter had taken place, could potentially have served to refresh S.W.’s memory to some extent. But in the context of the evidence just referred to, I am not satisfied that the rule was violated, nor am I prepared to draw an adverse inference from this omission.

[85] While it may have been of assistance to me to know how S.W. would have responded to the suggestion, I cannot find that the defence failed to put to her contradictory evidence aimed at impeaching her. The extent of S.W.’s memory of this incident was probed. And based on what she could say about the possibility of alcohol having been consumed, and whether she was taking her prescribed blood pressure medication during this time or not, it is unlikely that S.W. would have recalled whether she had also consumed drugs or not that night.

[86] Additionally, the extent of S.W.’s lack of recall of events around that period in her life extended to how they met and the type of things she and Mr. Kelly would do when they went out. While she had some recall of the latter, it was vague and lacking in specificity. She had no recall of the former.

[87] Altogether then, I find that I cannot exclude beyond a reasonable doubt the possibility that S.W. in fact consented to the anal touching that night. S.W. admitted to the possibility she had been drinking. Her account does not contradict that of Mr. Kelly that she was, and leaves open the possibility of cocaine having also been involved, as testified to by Mr. Kelly.

[88] I therefore cannot exclude the possibility that this was an instance of S.W. simply not recalling the sexual activity that she may well have consented to in the moment, rather than being an instance of S.W. having been unconscious. In other words, there is insufficient evidence of her subjective lack of consent arising from either her evidence or his, or considering the evidence as a whole.

[89] Given the lack of recall on both their parts about how this occurrence unfolded, I am of the view that it would be unsafe to convict.

Count 2: Sexual assault – Breast touching

[90] Mr. Kelly admits to touching S.W.’s breasts in February 2017. However, he explains that he initially placed his hands on S.W.’s breasts as he regularly did as part of their bedtime routine, wherein, according to him, they would fall asleep in a spooning position, with his arms wrapped around her and his hands on either of her breasts.

[91] The difference was that on this occasion, and because she had been complaining of breast pain that entire week, he proceeded to massage her breasts in a clinical or therapeutic manner, as he described it. He testified that it was not sexual but rather intended to relieve S.W. of her breast pain. After he realized that she had fallen asleep, he went on to massage her lower back for approximately ten minutes.

[92] I do not accept Mr. Kelly’s version of events or his explanation of this breast touching. It is contradicted by the subsequent text messages and is non-sensical. Mr. Kelly did provide an explanation for the text messages, but I do not deem it credible.

[93] Firstly, Mr. Kelly states that he did not raise the pain that S.W. had been complaining of and the resulting massage he gave her in the text exchange because it was too sensitive a subject – he did not want her to get upset by raising the prospect of the pregnancy.

[94] And yet, on Mr. Kelly’s own evidence, the breast pain had been a “constant” topic of discussion all week. Despite S.W. having spent the week complaining about the pain, it was suddenly too fraught a topic to mention it in this exchange – which was precisely about her seeking an explanation for why her breasts were in such pain. It would have been easy and most natural for him to explain that he had tried to relieve that pain by massaging her breasts, and evidently failed.

[95] Instead, on his version, it was more appropriate – in the face of a week of breast pain complaints and now a renewed complaint about even more significant pain – to inform her that he had been “playing” with her breasts, “a lot”, while she was sleeping. This makes no sense.

[96] The messages also reflect him asking whether both of her breasts hurt, and her indicating that they hurt now. Neither comment suggests that there had been ongoing discussion about the breast pain all week.

[97] Further, Mr. Kelly’s explanation touches on the issue of S.W. having potentially been pregnant at the time. This was not put to S.W.

[98] The Crown also raised this as a breach of the rule in Browne v. Dunn, arguing that the week-long conversations about her breast soreness and the potential of her being pregnant being put forth as the reason for massaging her breasts ought to have been put to S.W. This constituted an important part of Mr. Kelly’s defence that she should have had the opportunity to address.

[99] I agree. S.W. testified that she got pregnant following intercourse that took place in Florida – and thus after the breast pain incident. This is inconsistent with the version later proffered by Mr. Kelly. One can infer from her testimony that she would have denied that she was already pregnant at this time, though it may well have served to refresh her memory. Regardless, it was also an important point to put to her given her indication in the text messages that she did not want him to touch her breasts until she got her period. This suggests that she expected her period. If the pregnancy and related discussions had been put to her, it seems she would have had something to say. This should have been done before the accused presented contradictory evidence on the issue.

[100] It is true that the defence did canvass the fact of any bedtime routine with S.W. She did not recall whether they had any, but she did not believe they did. She did not recall whether they often “spooned” when falling asleep, or whether he would fall asleep with him arms around her, touching her breasts. She also did not know whether the breast touching that would have resulted in the breast pain could have started before or as she was falling asleep.

[101] Still, the point about the breast touching having potentially been therapeutic was central to Mr. Kelly’s defence on this point. On his version, S.W. was potentially still awake at least when he began this massage. The fact of several discussions having taken place over the course of the week about her breast pain – which pain would’ve prompted Mr. Kelly to massage her – is also something that she could have provided evidence on. Yet none of this was put to S.W. in cross-examination. While counsel did not need to “descend into the muck of minutiae” (Quansah, at para. 86), in my view the prospect of more-than-normal lingering breast pain or of massage-like touching intended to help relieve that pain ought to have been put to her at least in some general manner. The point contradicted the tenor of S.W.’s testimony on a significant issue.

[102] As both parties agree, I am entitled to draw an adverse inference from a failure to abide by the Browne v. Dunn rule: R. v. Giroux, [2006] O.J. No. 1375 (C.A.), at paras. 41-49. While there is no single or exclusive remedy to such a breach, in my view, given the importance of the point to the accused’s defence, I deem it appropriate to place less weight on the evidence of Mr. Kelly that was not put to S.W.

[103] In any event, I also do not deem Mr. Kelly’s account of giving S.W. a 10-minute back massage after he realized she was asleep to be credible. To clinically massage someone while they are sleeping to address pain they have been complaining of does not make much sense. They are unable to provide any guidance on whether the massage is relieving or increasing pain.

[104] On Mr. Kelly’s version, he decides to move from the breasts to the back as soon as he realizes S.W. is asleep. In my assessment, this account is aimed at explaining his message to S.W. that she was sleeping when he was touching her.

[105] The messages tell the following story: that Mr. Kelly was “playing” with S.W.’s breasts while she was sleeping. She asked why they were hurting her – evidently not being aware of what had happened – and he provided an explanation.

[106] There is no suggestion in S.W.’s messages – or in Mr. Kelly’s – that she had already been experiencing breast tenderness that week. If, as Mr. Kelly suggests, S.W.’s breasts had been tender and in pain all week, one would expect a negative reaction on her part to being informed that he had nevertheless taken the liberty of “playing” with her breasts while she was sleeping. In cross-examination, Mr. Kelly surmised that S.W. did not mention in the texts the fact that her breasts had been hurting all week because she was avoiding the underlying issue – the pregnancy. This is entirely non-credible given his account that they had been discussing the pain “constantly” all week.

[107] Mr. Kelly also indicated that he and S.W. were very open with each other. On his version, they had discussed her breast pain all week. It is simply not credible to me that he would not have been honest with her in that context. Indeed, in my view, he was. He had been playing with her breasts, a lot. To the point that they were very sore the next day.

[108] To constitute a sexual assault, the touching must have occurred “in circumstances of a sexual nature”, such that the complainant’s sexual integrity was violated. This is determined objectively. The touching takes place in circumstances of a sexual nature if, in light of all the circumstances, the sexual or carnal context of the act would be apparent to a reasonable observer: see R. v. G.F., 2021 SCC 20; R. v. Litchfield, [1993] 4 S.C.R. 333; R. v. Chase, [1987] 2 S.C.R. 293 at 302; R. v. B.J.T., 2019 ONCA 694, at para. 55.

[109] In my view, there can be no doubt that the breast “play” was sexual, as the tenor of the texts make clear. The part of the body touched is itself highly indicative of the sexual nature of the act.

[110] I reject Mr. Kelly’s massage explanation and find beyond a reasonable doubt that he touched S.W.’s breasts in a sexual manner while she was asleep. She did not consent to this touching, nor could she have given her lack of consciousness.

[111] S.W. did agree that in her message, she did not outright refuse breast play, but rather set a limit in relation to certain points in her cycle to help limit the pain. But I find that she was sleeping at the time such that she could not have consented.

[112] Nor could Mr. Kelly have ascertained consent – yet he proceeded anyway. There is also no viable defence of honest but mistaken belief in consent given my finding that S.W. was asleep when Mr. Kelly “played” with her breasts. The Crown has proven this count beyond a reasonable doubt.

Count 1: Assault – Choking

[113] Mr. Kelly and S.W. agree that choking took place at S.W.’s home in the context of a consensual sexual encounter. Despite this sexual context, the choking was charged as an assault simpliciter. The offence of assault by choking (s. 267(c) of the Criminal Code) did not exist at the time of this incident.

[114] To constitute an assault, Mr. Kelly must have applied the force intentionally and against S.W.’s will.

[115] S.W.’s consent to any touching requires her voluntary agreement that Mr. Kelly do what he did in the way in which he did it, and when he did it. Consent may be limited. S.W. may consent to physical contact of a certain kind or to a certain extent, but not to physical contact of a different kind or to a greater extent. Where the physical contact exceeds that to which S.W. agreed, S.W. does not consent to that additional physical contact.

[116] In my assessment, the evidence of subjective non-consent rests on unfirm ground. First, S.W.’s evidence left open the possibility that she did consent to engaging in choking during sex, at least on the first occasion. And while S.W. ultimately indicated that she would not have consented to choking to the point of unconsciousness, her testimony on the point was initially less categorical. Her best recollection is that she would not have agreed to being choked until she passed out.

[117] I accept that neither Mr. Kelly nor S.W. expected her to become unconscious when she did upon being choked the first time. S.W. consented to the choking act itself, and while at that point in time, she may not have consented to choking to the point of becoming unconscious, I accept that on this first occasion, Mr. Kelly did not purposely render her unconscious. In other words, he did not intentionally exert the type of pressure that he would have thought would be sufficient – or prolonged enough – for S.W. to become unconscious. Said differently, he did not intentionally depart from the kind of choking that S.W. had consented to, if indeed that limitation was in her mind at the time.

[118] An accidental touching is not an intentional application of force. Intentionally means “on purpose”. While the choking was intentional, the extent of the choking – which went beyond the level of force that S.W. would have consented to – was not. This finding however is limited to the very first application of force by choking.

[119] Once S.W. lost consciousness the first time, after what Mr. Kelly recounts was an application of pressure for approximately three seconds, he knew the risk and repeated the same action. Indeed, Mr. Kelly testified that the same pattern repeated itself three to five times: S.W. promptly lost consciousness after he applied pressure to her neck.

[120] If S.W. was still not consenting to choking to the point of unconsciousness, then Mr. Kelly would at minimum have been reckless in repeating the choking. Indeed, by the second time, he would have been aware that there was a risk that she was not consenting to the force that he applied but went ahead anyway.

[121] The question is whether from that point on, S.W. did in fact consent to those subsequent acts of choking, knowing that – like the first time – it may again result in her losing consciousness.

[122] On S.W.’s version, after she first regained consciousness, she and Mr. Kelly continued having sex. She had no recollection of any discussion regarding the choking that had just taken place. He then just did it again.

[123] According to Mr. Kelly, he asked S.W. if she wanted to do it again, and he ascertained that she did before doing it again.

[124] I do not accept Mr. Kelly’s version of events.

[125] Mr. Kelly testified that S.W. became unconscious within seconds, and that this was unexpected. He “freaked out” when she first lost consciousness. He describes this as “hoping she wakes up as quick as possible because I don’t know what was going to happen”. He indicated it was “scary”, enough to shock it into memory.

[126] If that were the case, why would he immediately ask if she wanted to do it again? Mr. Kelly does not claim that S.W. is the one who requested that he choke her again, and that he merely complied. Rather, he was the one who proposed doing it again. And again. With S.W. each time rapidly losing consciousness.

[127] In cross-examination, Mr. Kelly also emphasized the duration of three Mississippi seconds before S.W. lost consciousness – to make the point that she would have had time to give him the signal to stop. I find this to be inconsistent with him stating in examination in chief that S.W. would lose consciousness almost instantaneously.

[128] Ultimately, I do not accept Mr. Kelly’s account of S.W. providing express consent.

[129] However, just as I was left in some doubt regarding the extent of any consent to the anal touching given the reliability issues with S.W.’s evidence, so too am I left in some lingering doubt regarding her consent to the subsequent choking. Indeed, although I do not accept Mr. Kelly’s version of events, I have a lingering doubt about whether, in the moment, S.W. did consent to the subsequent acts of choking, knowing that it may be of such a nature as to render her temporarily unconscious – as had just occurred.

[130] This is not the end of the matter. Even if there was consent, it can be vitiated where bodily harm is caused and intended. Indeed, the principle from Jobidon, at p. 766, is that there are limits on the types of assault to which a person can lawfully consent. In a sexual context, a person cannot consent to force being applied that causes bodily harm, as defined in the Criminal Code, in sado-masochist circumstances: R. v. Quashie, [2005] O.J. No. 2694 (C.A.), at paras. 53-55, citing R. v. Welch; R. v. Zhao, 2013 ONCA 293, at paras. 69-70, 74-75, 79.

[131] Bodily harm is defined in s. 2 of the Criminal Code as “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”.

[132] The defence in this case argues that the temporary unconsciousness occasioned to S.W. in this case, in the range of approximately two to three seconds each time, was of a “trifling” nature such that it may be consented to.

[133] I do not have evidence from S.W. regarding the duration of the loss of consciousness beyond the fact that it was sufficiently long for her to lose full consciousness and be wholly unaware of how long she was out. Mr. Kelly testified that S.W. began stirring after two to three seconds and was alert after five seconds. While I do not accept his evidence on how this interaction transpired, I do not have any evidence that it was any longer than that and must therefore proceed with the bodily harm analysis on that basis.

[134] In R. v. Cooper, [1993] 1 S.C.R. 146 at 150, the Supreme Court held that choking someone for only a few seconds “might or might not” constitute the infliction of bodily harm.

[135] Later, in J.A., the Court addressed the issue of advance consent to sexual activity while unconscious. The majority held that a person cannot provide such advance consent, and that “an individual must be conscious throughout the sexual activity in order to provide the requisite consent”: para. 3.

[136] The Court in J.A. however did not directly address the issue of whether one can consent to unconsciousness at all (or whether loss of consciousness constitutes bodily harm): see para. 21.

[137] The majority in the Ontario Court of Appeal did consider but ultimately did not determine whether choking to the point of unconsciousness constituted “bodily harm”: R. v. J.A., 2010 ONCA 226, at paras. 94-5, 113. The Court left open this possibility, indicating that the trial judge ought to have considered not only whether the loss of consciousness was “transient” in nature, but also whether it was “trifling”.

[138] While the Court of Appeal’s majority judgment was overturned by the Supreme Court, this statement aligns with the Supreme Court’s earlier decision in Cooper, which suggests that whether choking results in the infliction of bodily harm is dependent on the facts of each case. Some acts of choking may fall on one side of the line, while others may fall on the other side.

[139] As has been stated by other courts, it would generally be preferable for the Crown to call expert evidence on the issue: see, for instance, J.A. (Ont. C.A.), at para. 108. I do not have any such evidence in this case. For instance, and while I appreciate that it is an inherently risky activity, I am unaware of any medical implications or lingering effects of a temporary loss of consciousness, when that is what results.

[140] In my view, the loss of consciousness certainly constituted a “hurt or injury” that interfered with S.W.’s health or comfort. The question is whether, in this case, this was more than merely transient or trifling in nature.

[141] I find that the state of unconsciousness was transient, in that it was short-lived. But was it trifling?

[142] S.W. did not testify to any marks or injuries resulting from the choking or loss of consciousness. However, the loss of consciousness was sufficient for her to slump over Mr. Kelly. Her functionality was entirely impaired. Mr. Kelly described having to hold up the weight of her limp body. She also experienced confusion and had no sense of how long she had lost consciousness or what may have occurred while she was unconscious.

[143] “Trifling” is defined as “Of little moment or value; trumpery; insignificant, petty”: R. v. Dixon at paras. 44-45, citing the Shorter Oxford English Dictionary, 3rd ed., vol. II, at p. 2362; R. v. Moquin, 2010 MBCA 22, at paras. 23-26, 31; R. v. Breau, 2019 ONCJ 749, at paras. 50-52.

[144] As stated by the British Columbia Court of Appeal in Dixon, at para. 45, transient and trifling “import a very short period of time and an injury of very minor degree which results in a very minor degree of distress”.

[145] By contrast, “serious bodily harm” means any hurt or injury, whether physical or psychological, that interferes in a substantial way with one’s integrity, health or well-being: R. v. McCraw, [1991] 3 S.C.R. 72 at 88. A threat of rape can constitute a threat of serious bodily harm: McCraw, at 85.

[146] Here, S.W. did not merely become dizzy or go in and out of consciousness in a way that may have been hardly noticeable or that she barely perceived. The air or blood flow to her brain was cut off to a point where she fell over, having lost complete consciousness. The extent of the loss of consciousness was such that she had no sense of how long she had been out for, or what had happened during the period of unconsciousness. Mr. Kelly himself stated it lasted long enough for him to freak out and be unsure of what was going to happen. He had to hold her body weight as she went completely limp. She began stirring before coming back to, and this happened more than once.

[147] In my view, this passed the point of being an interference with S.W.’s comfort that was of little moment or significance and thus trifling in nature.

[148] The loss of consciousness in this case constituted non-trifling bodily harm such that any consent provided by S.W. was vitiated, provided that that harm was also intended or deliberately inflicted by Mr. Kelly: Zhao, at paras. 85, 88, 95, 107 and 110; Paice, at para. 12; Quashie, at paras. 57-58.

[149] As I have indicated above, while I accept that Mr. Kelly did not initially intend to cause S.W. to lose consciousness, once she had – and on his own account, so rapidly after he began applying pressure – he knew that this harm could readily repeat itself, as it did, another two to four times. At that point, I am satisfied beyond a reasonable doubt that he intended for it to occur.

[150] I must therefore find Mr. Kelly guilty of assault on S.W.

Conclusion

[151] A conviction will be entered on counts 1 (assault – choking) and 2 (sexual assault – breast touching). Mr. Kelly will be acquitted on count 3 (sexual assault – anal penetration).

Released: February 29, 2024 Signed: Justice C. Mainville