Court File and Parties

COURT FILE NO.: 17-SA5098 DATE: 20200306 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – STEVEN REDDEN-COX Accused

Counsel: Juliana Martel, for the Crown Steven Redden-Cox, in person

HEARD: January 14, 15, 16, 17, and February 7, 14, 2020.

Publication Ban Notice

THIS DECISION IS SUBJECT TO A PUBLICATION BAN ORDERED PURSUANT TO SECTION 486.4 OF THE CRIMINAL CODE. ANY INFORMATION THAT COULD IDENTIFY THE COMPLAINANT OR ANY WITNESS SHALL NOT BE PUBLISHED IN ANY DOCUMENT OR BROADCAST OR TRANSMITTED IN ANY WAY.

Reasons for Decision

C.T. Hackland J.

Overview

[1] The accused is charged with one count of sexual assault (s. 271 of the Criminal Code) and one count of threatening death (s. 264.1(2) of the Criminal Code) arising from a sexual interaction with the complainant which occurred in the early morning hours on August 29, 2017, in the accused’s room in a condominium he occupied with a friend.

[2] The accused, who represented himself in this trial, testified in his own defence, saying the sexual activity was completely consensual. The complainant said that she was content with the initial kissing and petting but she objected when the accused attempted intercourse against her wishes. There was some important corroborative evidence in the form of bruising and abrasions on the complainant’s neck, which support the complainant’s version that she was held down by the accused’s hand pressing on her neck as he had intercourse with her.

The Facts

[3] On the date of this incident the accused was a 29-year-old single man residing with a friend in a ground level condominium. He has a powerful physique, is at least six feet in height and was employed at a car and tire maintenance shop. Shortly before 1:00 am on August 29, 2017, he answered a knock at his door from the complainant. She asked if she could “buy a beer” from him. He invited her in and the two of them shared a beer downstairs in his room.

[4] The complainant, an 18-year-old student at the time, was in the habit of visiting her close friend Sharon (not her real name), who lived with her mother in an adjacent unit in the same housing development as the accused. A week before this incident the accused met for the first time the complainant and her friend Sharon. He had approached both young women as they sat outside on Sharon’s balcony and asked for a light for his cigarette. They struck up a conversation. They consumed some pizza that Sharon’s mother had ordered and then went over to the accused’s residence next door, where they smoked marijuana and talked for about an hour and a half.

[5] The complainant acknowledged in cross-examination that she realized the accused appeared to be primarily interested in her friend Sharon and she had felt excluded from the conversation to the point where she got up and left, returning next door to her friend’s house. Sharon remained with the accused in his residence for a further twenty minutes and then rejoined the complainant. Subsequent to that the complainant, for some reason she could not explain, returned to the accused’s unit and gave him some leftover pizza, but she did not stay. At some earlier point, when the two young women were at the accused’s unit, he asked if they would like some cocaine and they both declined.

[6] Returning to the evening of the incident, which was a week later, the complainant was again visiting her friend Sharon. They were watching television and drinking wine which they had purchased earlier in the evening. There was a knock on Sharon’s door, which the complainant answered. She found the accused sitting on the front step with his back to the door holding two cans of beer. The complainant testified that the accused was obviously there to speak to Sharon and he seemed disappointed to see her instead. Sharon then came to the door, at which point the accused invited them over to his place next door for a beer. Sharon abruptly declined the invitation and the accused left. Sharon testified the accused looked intoxicated and it was already quite late at night so she was not comfortable with the situation. The complainant testified that for her part, she would have accepted the invitation and joined the accused, but she agreed with her friend that the accused looked to be impaired – his eyes and his movements seemed unusual.

[7] Somewhat later in the evening, after watching more television at Sharon’s residence the complainant decided to go for a walk, messaging her friend on her phone that she was doing so. The complainant explained that she was having an anxiety attack at the time, which she felt was brought on by a television documentary about sexual abuse she watched earlier in the evening. She said she had been sexually abused at a prior time and the television program was on her mind. The complainant also volunteered in cross-examination that she had been diagnosed with Borderline Personality Disorder (“BPD”) and had anxiety attacks from time to time. She explained that her BPD affected her interactions with people which were sometimes inappropriate. She said she was on mood stabilizing and anti-anxiety medications. She said she had consumed three glasses of wine by the time she went for her walk. She took a partially full glass of wine with her on her walk. She was walking in the area for about 15 minutes.

[8] The complainant testified that as she approached Sharon’s residence on her return from her walk she decided “on the spur of the moment” to knock on the accused’s door instead, to see if he would sell her a beer. I did not find this evidence credible. The inference to be drawn from the complainant’s own evidence is that she had an interest in the accused and had decided to take up his earlier invitation to drop over, which she had initially wanted to do.

[9] In any event, the accused answered his door and invited her in. Both the complainant and the accused testified that they went downstairs to the accused’s room and shared a beer and talked. The complainant was not sure whether the accused’s roommate was in his room (down the hallway) or not. The accused at one point started to kiss the complainant and she reciprocated. After a few minutes, he slid her from the couch, onto her back where she lay on a futon on the floor. The kissing continued, he put his hand under her blouse, touching her breasts. The complainant testified she was “ok” with this. He ripped her blouse down the front as he touched her breasts, but she acknowledged this was accidental. To this point the testimony of the complainant and the accused was virtually identical.

[10] Then the stories diverge. The complainant testified at one point the accused stood up or got onto his knees and pulled his pants off, exposing himself. She “curtly” said, “what are you doing?” She said he did not respond and began tugging at her shorts, trying to pull them down as she tried to resist. He then pulled on the loose leg opening of her shorts, managed to expose her vagina, and then penetrated her with his penis for about three minutes. She said that while he was penetrating her, he was pinning her head and shoulders to the floor by forcefully pressing his hand on her mouth and on her neck. This was very painful, and she told him to stop repeatedly and he ignored her. She sensed he was frustrated at not being able to keep his penis inside her. She is not sure if he ejaculated. After the three minutes or so of penetration, he sat back on a nearby couch and pulled her head towards his groin and she performed oral sex on him for about a half minute. She was afraid at this point. He then pushed her onto her back on the futon and performed oral sex on her briefly and made a further unsuccessful attempt at intercourse. She testified that as a way of getting him to stop, she insulted him about his inability to perform sexually – she cannot recall her exact words.

[11] The complainant testified that the accused reacted to the insult by saying maybe she should leave, at which point they both got dressed, he walked her upstairs to the door, she made some pleasant remark about hoping things go well for him at work and then she hugged him. Seconds later, on her own account, she entered Sharon’s unit next door, burst into tears, told Sharon she had been raped and threatened. She asked Sharon to give her time to compose herself and have something to eat. Then Sharon called 911 at 1:32 am. The police attended and paramedics were dispatched and took the complainant to the sexual assault facility at a nearby hospital.

[12] Counsel was appointed under s. 486.3(1) of the Criminal Code to cross-examine the complainant. In cross-examination counsel had the complainant acknowledge that there were a number of discrepancies between her trial testimony and statements made to the police and her testimony at the preliminary inquiry. For example, the complainant recorded in her handwritten statement, given to police while at the hospital, that she tried to put a stop to the assault by “constantly screaming, ‘stop, please stop’, ‘I can’t do this’”. In cross-examination she conceded that she did not scream, but she did tell him to stop several times. She also conceded to giving several somewhat conflicting descriptions of the chronology of events in reference to the intercourse and the oral sex. She pointed out she was in shock and she was doing her best to tell “her truth”. She estimated the sexual assault occurred over a period of about 15 minutes. She said she resisted intercourse and made that clear to the accused.

[13] The accused’s version of events contained some remarkable similarities to the complainant’s. He described the initial kissing and fondling of the complainant’s breasts and believed the complainant to be fully engaged (as the complainant admitted she was). He admitted that there was no discussion of what sexual activity they were going to engage in - it was all spontaneous. He described the intercourse and subsequent brief acts of oral sex in much the same way as the complainant did, with the important difference that in his version, the complainant was not resisting either verbally or in her actions.

[14] He testified that he was having great difficulty maintaining an erection and the penetration was more like a half-minute in duration. The fellatio performed with the complainant was an effort on his part to achieve an erection, but that did not help, and he did not penetrate the complainant a second time. He testified that he was embarrassed. Matters came to an end when the complainant made a disparaging comment about his sexual performance. He agrees that he and the complainant then got dressed, he walked her to his door, she wished him well in reference to his work, they hugged, and she left. He said there was no conversation about their sexual activity other than the complainant’s insult about his inability to perform.

[15] I consider several points to be of particular significance in reference to the accused’s testimony. He admitted to not asking for the complainant’s consent to any of the sexual acts. He denied grabbing or holding the complainant down by her mouth or neck and he denied she had any bruising or abrasions on her neck. However, shortly after this incident bruises and abrasions were observed by the complainant and her friend Sharon and subsequently the sexual assault nurse who photographed the neck bruising and abrasions upon her admission to the sexual assault clinic. The accused is unable to point to anything the complainant said or did (apart from the initial kissing and petting) to indicate consent to the sexual activity, particularly the intercourse followed by the brief instances of oral sex. Further, the accused did not suggest in his evidence in chief that he put on a condom. However, and only when the court asked him why he did not use a condom, he asserted that he in fact did use a condom although he had trouble keeping it on. I consider his evidence to be contrived and untruthful in this regard. In closing argument, the accused acknowledged he should have mentioned the condom but forgot because the proceedings were stressful, and he was not a lawyer.

[16] I accept the complainant’s evidence that the accused did not wear a condom and did not seek any form of consent from her before penetrating her, nor any consent to the subsequent oral sex. I accept the complainant’s testimony that the accused pinned her down by grabbing her neck as he attempted to and succeeded in penetrating her. I accept Sharon’s testimony that when she saw the complainant minutes after the incident, the complainant was disheveled, crying and exhibiting the neck abrasions, which were shortly after identified and photographed by the sexual assault nurse. I regard the neck bruises and abrasions as compelling evidence that the complainant was truthful when she testified she had been forcefully restrained or held down by her neck.

[17] I am satisfied beyond a reasonable doubt that the Crown has proven that the complainant did not consent to the sexual intercourse forced on her by the accused in this incident. The law is clear that consent must be obtained to each of the sexual acts prior to engaging in them. Such consent can be implied by the complainant’s conduct, although not simply by engaging in some intimate foreplay such as kissing. I also am satisfied beyond a reasonable doubt that the accused had no reasonable belief that the complainant was consenting to the intercourse or the oral sex that occurred here. He may have believed the complainant was interested in a sexual encounter when she knocked on his door and when she allowed him to kiss and sexually touch her. However, this was not an invitation to continue to penetrative sex without any discussion or apparent care for the complainant’s wishes. Context is also important here, i.e. the accused barely knew the complainant, was 11 years her senior, he was far larger physically and may well have sensed the complainant’s vulnerability.

[18] Further, the case law requires that before an accused can rely on a defence of what is properly described as reasonable belief in communicated consent, he must have taken reasonable steps to ascertain that the complainant was consenting. Such consent must have been affirmatively expressed verbally or actively expressed by conduct, see R. v. Barton, 2019 SCC 33, 2019 S.C.C. 33, para 106-109. I find on the evidence that the accused took no such steps.

[19] The accused is found guilty of sexual assault, count 1 of the indictment.

[20] The accused is also charged with uttering a death threat. He denies that he made any such remark as that attributed to him by the complainant. The complainant’s evidence was that during the three minutes or so when the accused was having intercourse with her he said something to the effect “marry me… be my girlfriend…if you ever have sex with anyone else I will kill you or have you killed.” The complainant testified that when she said, “are you serious?” he replied “I’m deadly serious”.

[21] The accused denied that he said anything like this. I have a reasonable doubt that the accused said anything intended as a threat. The alleged statement does not fit in any way with the context of the situation. Why would the accused threaten to kill someone he was in the process of having intercourse with? The complainant conceded the remark made no sense to her. Further, the accused hardly knew the complainant and the alleged narrative would have been senseless. Even if he made a remark along these lines, any reasonable listener would not have taken it seriously. Lastly, the complainant was quite vague and unsure as to what the remark actually was.

[22] The accused is found not guilty on the threatening charge, count 2 of the indictment.

Mr. Justice Charles T. Hackland Released (Orally): March 6, 2020