Court File and Parties
COURT FILE NO.: CR-19-1699-00 DATE: 2023 12 06 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING -and- NATHANIEL DILLON
Counsel: Igor Osowski, for the Crown Self-represented, for Nathaniel Dillon Douglas Holt as amicus curiae
Heard: October 3-5, 2023
PUBLICATION BANNED UNDER SECTION 486.3 OF THE CRIMINAL CODE WITH RESPECT TO INFORMATION THAT COULD REVEAL THE IDENTITY OF THE COMPLAINANT. THIS JUDGMENT COMPLIES WITH THE BAN AND CAN BE PUBLISHED.
Reasons for Judgment
D.E. HARRIS J.
[1] Mr. Dillon is charged with four counts including assault, forcible confinement, threatening bodily harm and sexual assault committed June 25, 2018 against his then girlfriend, ZK. There were few if any submissions on the forcible confinement and threatening counts. Further submissions from the Crown and amicus on those two counts will be necessary. This judgment only deals with the assault and sexual assault counts.
The Complainant’s Evidence
[2] The only witness who testified in this case was the complainant, ZK. She testified that when she was about 18 years old, she met the defendant on a bus. She was into music, he made music. They bonded. At the time, he told her that he was 25 but she later found his identification and discovered that he was 10 years older than she: i.e. 28 or 29. Their relationship lasted about 2 years and ended with the alleged offences charged in the indictment.
[3] The two became girlfriend and boyfriend in a matter of weeks. She would often go over to his house in Mississauga where he lived with his mother. His house was near her school. Later, she started working at an Amazon warehouse. Mr. Dillon worked there too for a time. In the last part of the relationship, the two lived in ZK’s house with her parents and siblings. This included her father and mother, two sisters, one brother-in-law and two children.
[4] ZK testified that the defendant had an idiosyncratic belief system based on numerology. At the beginning, she did not understand it particularly well. He would become irritated with her for her lack of understanding. He said that she was a “drain”, the word having a formalized meaning for him. Based on their birthdates, she was stronger than him, so he said. For example, if she touched him, he said it would drain him.
[5] About six months into the relationship, if he was unhappy with her, she would have to “give all ten.” This would also be required if she entered a room at a time ending in “27” such as 10:27 p.m. for example. “Give all ten” consisted of sitting down cross-legged with palms facing up on the thighs and closing her eyes for two minutes. If she did not do this, Mr. Dillon would hurt her. He would bend back her thumbs until they could not go any further. This would happen too many times to count, according to ZK, and got worse as the relationship progressed.
[6] There were several incidents before the date of the offences. He hit her on the nose and she retaliated by slapping his face. When they moved to her house, the incidents were less frequent. Mr. Dillon would rarely come out of their room. ZK was apprehensive that he might hurt her family or that her family might snap and hurt him. He and her family did not get along well.
[7] On the day of the alleged offences, the two were arguing in her room at her parents’ house. He accused her of looking at another male in her house at a time ending in 27. He said degrading things to her. According to ZK, he was “ball of fire” angry. There was a verbal back and forth. She grabbed some chargers from the floor and flung them back at him. They accidentally hit his TV and cracked it. ZK apologized to Mr. Dillon and said that she would fix the TV. She went downstairs and looked online to find a replacement to buy for him.
[8] ZK came back to the room about 45 minutes later. Mr. Dillon calmly told her to shut and lock the door which she did. He asked to give him all ten which she also did. Mr. Dillon was playing the game Fortnight and talking with friends on his PS3. When he got off, he mentioned the broken TV and started punching her in the upper chest while she was on the bed. He twisted her thumbs back. She rolled on to her back to prevent him from punching her. She assumed all ten position again for a period of time.
[9] He grabbed both sides of her head and twisted, asking if it hurt. He said that he could just snap her neck and jump out the window: they would never know. ZK was crying and Mr. Dillon told her to “shut the fuck up.” After threatening to kill her and calling her a “dumb bitch”, she fell asleep. She woke to him hitting her with a 3 foot long 2 X 4 on the ankles and feet. He commanded that she look at the TV and started hitting her with a hard karate chop type motion. He warned her against moving. She asked to leave several times but he ignored her. She was too petrified to leave and thought he might punch her if she moved. Her family was downstairs and she asked if she could see them but he said that she could “fucking wait, your life is mine now.” He told her that she had seven to ten days to replace the TV or to give him the money for it.
[10] After some time, he called her a “dumb bitch” again and he bowed his head down, raised his eyebrows and unzipped his pants. She knew that this was a signal that he wanted oral sex. ZK testified that she did not want to do it but she did. It was her evidence that if she had said no, she believed that he would hurt her.
[11] Eventually he told her to stop. He commanded that she turn around on the bed. When she asked why, he said, “Are you really asking me that?” She turned around and lay on her left side with her back to him. She pulled her pants down. In ZK’s words, “I let him have sex with me.” She explained that she pulled her pants down because she thought that she would be beaten otherwise and she was sick and tired of that. ZK did not signal that she wanted to have sex. He did not use a condom and ejaculated inside of her.
[12] Once Mr. Dillon fell asleep, ZK was able to leave the room. She sought out her sister in the home who noticed that her neck was red. ZK begged her sister not to tell their mother. When her mother came home, she was told that ZK had been pushed around and had been bruised. Her mother asked that Mr. Dillon come down and ZK was able to persuade him to do so. ZK was crying. Her mother told them that ZK needed help and that they could later re-address their friendship in two weeks’ time. She did not want them in the same bedroom for now. Mr. Dillon wanted to go upstairs with ZK and talk. He told ZK that he loved her.
[13] After ZK was taken to her uncle’s, one of the people there phoned the police. Eventually ZK told her story to the police, giving a statement on June 27 2018, two days after the incident. Pictures were taken of her. They were entered into evidence at trial.
[14] In cross-examination by amicus, ZK testified that the two had previously broken up for a period of time but got back together soon after. That is when the two moved into her parents’ house. Mr. Dillon had been kicked out of his home. ZK was questioned about why she would invite Mr. Dillon to her home given that he was assaulting her and was dangerous. She said that she did not believe he was a danger to her family although she did believe he was a danger to her. In re-examination, ZK clarified that she thought there was a danger to herself but that no one else would get hurt. Mr. Dillon wanted her to learn. She was hoping for the best.
[15] An important discrepancy was brought out in cross-examination. In her police statement on June 27, 2018, two days after the incident, ZK told the police that she left her bedroom between the oral sex and the sexual intercourse. ZK agreed that most of her family was in the house at the time. She could have reported the oral sex to them. She testified that she did not want to get Mr. Dillon into trouble, she was covering for him. She wanted him to learn a lesson. She thought she was still in love with him and was protecting him. In the end, ZK’s position was that she did not remember leaving the room between the two acts. She did not adopt her police statement. As a result, there was a sharp inconsistency between her police statement and her testimonial evidence.
The Discreditable Evidence Application
[16] The Crown filed a discreditable conduct application to admit the physically abusive conduct of Mr. Dillon which predated the June 25, 2018 offence date. The primary focus of this application was the evidence of the “give all tens” and the assaults on ZK’s hands. There was also evidence outlined in the application about when the complainant and accused worked together at an Amazon warehouse.
[17] Mr. Holt acting as amicus aimed his submissions primarily at the Amazon warehouse evidence. I agreed with him that the relevance of this evidence was minimal and the prejudice was significant. It was inadmissible. Mr. Holt did not strenuously argue the “give all tens” admissibility. I held it was admissible during the trial and will explain my reasons now.
[18] The circumstances must be evaluated in light of the leading case on discreditable conduct admissibility within intimate partner relationships: R. v. F.(D.S.), [1999] O.J. No. 688, 132 C.C.C. (3d) 97 (Ont. C.A.). The evidence is presumptively inadmissible unless its probative value to a live issue outweighs its moral and reasoning prejudice: R. v. Handy, 2002 SCC 56. In F.(D.S.), Justice O’Connor, as he then was, explained that the evidence of prior misconduct was necessary to inform the jury of the nature of the relationship, to demonstrate the accused’s motive and anger towards the complainant, to understand why the accused did what was alleged in the indictment, to demonstrate a pattern of abuse and to assist in explaining the failure to report the alleged offences promptly. The probative value was significant and the prejudicial effect was overborne by it.
[19] The same holds true in this instance. I will detail the value of the evidence as I analyze it below in these reasons. In short, the probative value of the prior evidence is important to show the position of control and domination Mr. Dillon held over ZK. Most importantly, her seeming acquiescence to the sexual acts alleged cannot be properly understood without some understanding of the coercion she was subjected to in the course of their relationship. In my view, the prejudicial effect is outweighed by the positive value of the evidence to an issue other than propensity. I have instructed myself to set aside and avoid the moral and reasoning prejudice emanating from the impugned evidence.
[20] The prior discreditable conduct evidence is much less serious than the conduct charged in the indictment. This has been cited as a major factor in lessening the prejudicial effect in several cases: R. v. D.(L.E.), [1989] 2 S.C.R. 111; Handy at para. 83. Second, the case of R. v. Z.W.C., 2021 ONCA 116 is a cautionary tale which is important to consider in evaluating admissibility of prior discreditable conduct in an intimate partner context. In my opinion, there is nothing in this instance which approaches the prejudicial effect of the evidence in that case: see Z.W.C. at paras 114-119. The evidence here is discreditable but is relatively minor in relation to the charged offences. It does not overwhelm the trial of the two counts on the indictment.
Confirmation of the Truth of the Complainant’s Evidence
[21] Photographs of the complainant taken two days after the alleged offences were made an exhibit. Photograph number 4 shows four distinct bruises on her upper chest. These each appear to be about the size of a fist. The complainant testified that Mr. Dillon at the beginning of the incident punched her in the upper chest repeatedly and that the bruises shown in the pictures were the consequence.
[22] In my view, the photograph of the bruises is critical evidence on this trial. The complainant testified she was punched; the bruises tend to confirm her evidence is true. Bruises are an expected consequence of such an assault. When asked about the bruises in submissions, Mr. Holt said they may be confirmation but only for the assaults. I disagree. The bruising is independent evidence—evidence from a source other than the complainant’s mouth—which bolsters her overall reliability and credibility. It is not only helpful with respect to Mr. Dhillon’s acts of assault. Confirmation need not be direct but can be indirect or circumstantial as well.
[23] This was a legal issue mooted for many years in the appellate courts. In R. v. Vetrovec, [1982] 1 S.C.R. 811 (S.C.C.) at para. 31 it was specifically addressed. The Court endorsed this statement from Wigmore in the context of the confirmation of the evidence of unsavoury accomplice witnesses,
...whatever restores our trust in him personally restores it as a whole; if we find that he is desiring and intending to tell a true story, we shall believe one part of his story as well as another; whenever, then, by any means, that trust is restored, our object is accomplished, and it cannot matter whether the efficient circumstance related to the accused’s identity or to any other matter. The important thing is, not how our trust is restored, but whether it is restored at all ... (Emphasis in original)
[24] The Ontario Court of Appeal recently summed up the law on confirmatory evidence in R. v. J.B., 2022 ONCA 214,
[34] Evidence is confirmatory if it tends to support the truth of the complainant’s account or tends to dispose of alternate hypotheses raised by the defence. Evidence can be confirmatory “even if it does not ‘directly confirm the key allegations of sexual assault’ or ‘directly implicate the accused’”: R. v. Primmer, 2021 ONCA 564, at para. 39, leave to appeal to S.C.C. requested, 40020, citing R. v. Demedeiros, 2018 ABCA 241, 364 C.C.C. (3d) 271 at para. 8, aff’d 2019 SCC 11, [2019] 1 S.C.R. 568. The degree to which confirmatory evidence advances the Crown’s case is a matter of weight for the trial judge to resolve: Demedeiros, at para. 10.
[25] In my judgment, the bruising apparent on ZK is powerful confirmation that Mr. Dillon assaulted her as alleged in the indictment. No alternative evidence or hypothesis has been put forward. Having confirmed her evidence in that regard, the bruising also strongly supports her reliability and credibility overall and on the sexual assault allegations in particular.
The Defence Arguments
[26] Mr. Dillon was self-represented in this trial and did not participate in any substantial way. He relied upon amicus who was granted full adversarial powers pursuant to the recent Supreme Court decision in R. v. Kahsai, 2023 SCC 20.
[27] Mr. Holt made several arguments to argue that Mr. Dillon should be found not guilty. He argued that the most important evidence in the case was that ZK did not testify to being fearful of Mr. Dillon prior to the assaults. What little evidence there was appeared vague and insubstantial. Mr. Holt also argued that ZK’s evidence was implausible as there was an entire house full of her family that she could have complained to at any time if in fact she was being assaulted. She closed and locked the door of her room of her own volition. She left the room several times. ZK was never unlawfully confined; she was free to leave and did leave on three different occasions. Finally, if there was sex, it was not proved that it was non-consensual or that there was coercion involved. It should also be found on the evidence that there was an honest belief in consent especially if it was found that the first act of felatio was found to be consensual.
[28] I would reject these arguments. First, the major importance and probative worth of the discreditable conduct evidence was to demonstrate that Mr. Dillon controlled, coerced and physically abused ZK during the time period leading up to the allegations. The evidence assisted in understanding their relationship. She was under his domination and would do the “give all tens” rather than have her thumbs snapped back by him for falling out of line. She testified that she was in fear of him. This history played a significant role in the offences against her charged in the indictment. It was necessary to a full understanding of the events of June 25, 2018.
[29] The supposed inconsistency between her fear of him and ZK inviting him to live with her and her family is not difficult to explain. His aggression was principally directed towards her rather than at other people, like her family. That and her youth explain why she would invite someone who was abusing her to live in her home. She did not perceive a threat to her family, only to herself. The evidence after-the-fact tends to confirm that despite being talked to and seemingly reprimanded by the family, he never threatened them in any way. Although it may have been thought unusual that ZK invited Mr. Dillon to live with her and her family given the aggressions against her, it was not so inconsistent or implausible as to have any real impact on her credibility or reliability.
[30] I was somewhat troubled by the inconsistency between ZK’s evidence at trial that she did not leave the room between the two sexual assaults and her statement to the police, just a few days after the date of the allegations, in which she did say that she left in between. This was a relatively important point. Ultimately, ZK did not adopt the police statement version and maintained that she did not leave the room after the first incident. I do not find this likely to be the case. First, her memory was much fresher in the police statement than it was over five years later at this trial. Second, the explanation she gave for the original version in her police statement was that she sugar-coated things back then as she was frightened and did not want to be too harsh. This is a strange explanation and does not make a great deal of sense.
[31] In my view, ZK’s adherence to the trial version instead of the more reliable, more likely to be true version given at the time the allegations arose in 2018 does not undermine her credibility. She was attempting to reconstruct things many years after to explain the discrepancy. I do not believe that she was actually drawing on her active, actual memory. The reconstruction was unconvincing but was sincere. There was no attempt to mislead. In any case, if there had been any reservations with respect to this evidence, they would have been thoroughly washed away by the substantial confirmation of her evidence.
[32] Accepting that she did leave the room between the two alleged sexual offences, I must determine the implications of this fact on the charges being tried. There are two aspects: ZK did not take the opportunity she had to report the offences to her family downstairs. And she did not avoid Mr. Dillon but instead went back into the room with him only to be sexually assaulted again. Amicus argued that as a consequence, these circumstances should weigh against her veracity and the allegations being true. Further, if there was sex, it was consensual.
[33] This argument invokes notions with respect to delayed disclosure and non-avoidance of one’s abuser, both subjects that have been commented upon extensively in the jurisprudence: see for the former R. v. D.D., 2000 SCC 43 at paras. 63 and 65 and for the latter, R. v. A.R.D., 2017 ABCA 237 aff’d 2018 SCC 6; R. v. Crouch, 2023 CMAC 11.
[34] With respect to delayed disclosure, the leading statement is from the majority in D.D. where it was said,
63 … The significance of the complainant's failure to make a timely complaint must not be the subject of any presumptive adverse inference based upon now rejected stereotypical assumptions of how persons (particularly children) react to acts of sexual abuse: R. v. M. (P.S.) (1992), 77 C.C.C. (3d) 402 (Ont. C.A.), at pp. 408-9; R. v. T.E.M. (1996), 1996 ABCA 312, 187 A.R. 273 (C.A.).[emphasis in original]
65 A trial judge should recognize and so instruct a jury that there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.
[35] On the subject of non-avoidance said to undermine credibility, this quote from A.R.D. is perhaps the main reason that non-avoidant behaviour must be handled with extreme care,
42 … Just like the failure to make a timely complaint, a failure to demonstrate avoidant behaviour or a change in behaviour “ must not be the subject of any presumptive adverse inference based upon now rejected stereotypical assumptions of how persons (particularly children) react to acts of sexual abuse” [emphasis in original]: R. v. D. (D.) at para 63.
43 The most serious problem with the trial judge’s comparison-based assessment of the complainant’s credibility stems from his impermissible reliance on a myth or stereotype (masquerading as logic and common sense) about how a sexual assault complainant, in general and in this case, is assumed or expected to behave post-sexual assault(s). Put plainly, the trial judge’s reliance on his own “logic and common-sense” about how humans react following sexual assault, is itself highly questionable as to relevance and reliability. But it becomes particularly dangerous when reliance on that “logic” overshadows any resort to or assessment of the actual evidence at trial. The trial judge found reasonable doubt because this particular complainant did not exhibit expected predictive, avoidant behaviour. In our view, it is neither logical nor a matter of common sense to expect a child complainant to behave in any particular manner. (Emphasis added)
[36] There has been much thought and writing about the pernicious intrusion of stereotypes into this area: R. v. Lacombe, 2019 ONCA 938 (Ont. C.A.); R. v. Cepic, 2019 ONCA 541, [2019] O.J. No. 3398 (Ont. C.A.); R. v. A.B.A., 2019 ONCA 124, 145 O.R. (3d) 634 (Ont. C.A.); R. v. J.L., 2018 ONCA 756, 143 O.R. (3d) 170 (Ont. C.A.); R. v. Senthamilselvan, 2019 ONSC 3884, [2019] O.J. No. 3483 (Ont. S.C.J.). There is no need to delve deeply into the subject here. A few comments will suffice.
[37] The stereotypical assumptions invoked here are that after being victimized the first time, if her version was true, ZK would immediately have reported it to her family only a few feet away and, further, that she would not have returned to the bedroom to be with her antagonist. A person attacked as she said she was will immediately report it and will not put herself back in harms way.
[38] Despite its surface attraction, I reject this entire line of reasoning in this case. Stereotyping supplies a ready-made inference and superimposes it on trial evidence with no regard to whether it is appropriate or not. Its currency is generalities. It is reductive. It may well not fit the evidence. The evidence is forced to conform to a preconceived conclusion. It puts assumptions of human behaviour first and evidence second. In the process, it leads away from and distorts a careful examination and consideration of the evidence. As said in A.R.D. in the quote above, the stereotype must not “overshadow” the actual evidence.
[39] The preconceived stereotype pertinent in this case wrongly equates a simple assault with a sexual assault. Alleged victims complain right away and avoid their abusers. That may have some role to play in the case of an assault on a stranger on the street for example but has precious little to do with a sexual assault between intimate partners. Responding to and implementing that stereotype would lead to the relegation of a good deal of ZK’s evidence of the relationship she had with Mr. Dillon to irrelevancy. But it is imperative to understand the relationship between the two in the assessment of guilt or innocence.
[40] On the evidence in this case, there was an obvious imbalance. Mr. Dillon was a lot older than ZK, maybe as much as ten years older. She was young, 19 years old. She was not terribly worldly. That by itself set up a particular dynamic and established an imbalance between them. Mr. Dillon was in charge to a significant extent. ZK testified that she would spend excessive hours with Mr. Dillon and would lie to her parents about it. She said that she was young and stupid and thought she was in love with him. She repeated several times that she thought and hoped he would change. Later in her testimony she said that around the time she complained she felt that she was in love with him and did not want him to be hurt. In cross-examination, she testified that after the offences against her, she did not want him to get in trouble. She tried to protect him; she thought she was still in love with him.
[41] Stereotypes can distract from the relationship evidence in cases of this kind. In my view, the relationship evidence assists us to understand why ZK did not complain immediately and returned to the room in which she had been sexually assaulted. She had strong emotional ties to Mr. Dillon. For a young woman to categorize what might otherwise be normal sexual acts as abusive in the context of a long-standing relationship is not a simple mental operation. At the risk of oversimplification, there was a bewildering mix of emotions, some leading her towards him, and some leading her away.
[42] The stereotype would have it that ZK was a robotic and emotionless actor. But people are not one-dimensional cardboard cut-outs who are either attracted or repelled by their intimate partner. ZK’s evidence makes it clear that she was attached to Mr. Dillon by reason of her youth, immaturity and their long sexual relationship. But she was obviously distraught and badly damaged by his assaults at the same time. Sexual contact can be affectionate and loving or it can be aggressive and abusive. In no other offence is the consent of the complainant pivotal to guilt or innocence. To expect immediate reporting and strict avoidance in light of this context would be blind to the psychological realities. Amongst the emotional conflict, it took some time to disentangle it all. For these reasons, I am not troubled by the delay in reporting and the return to the room. Neither detracts in any significant way from the credibility or reliability of ZK’s evidence.
[43] In terms of the issue of consent, contrary to the submissions of amicus, it cannot be forgotten that this sexual assault took place in an atmosphere of ongoing coercion and physical abuse. That includes the prior history of which the “give all ten” is the most vivid illustration together with what occurred on the night of the offence including the assaults upon her. ZK was frightened of Mr. Dillon. She had been assaulted in the past and was assaulted again in her room before the sexual assaults. It is entirely reasonable and plausible that attempts at preventing or resisting the sexual assaults were likely to be met with physical aggression and more abuse.
[44] This case is a good demonstration of the falsity of the pertinent stereotypes at issue. We know that ZK was assaulted by Mr. Dillon; he left bruises on her body. We also know that despite this and the sexual assault that followed, she left the room only to return shortly after when she was again sexually assaulted. But the reinforcement and confirmation of faith in her evidence brought about by the evidence of bruising tells us that her testimony is true despite the stereotype. The assumptions which some might otherwise make are proved false by the confirmatory evidence.
[45] Moving to the element of consent, from R. v. Ewanchuk, [1999] 1 S.C.R. 330 the law is clear that the only question is whether, when ZK testified that she did not consent, it is proved that she was telling the truth beyond a reasonable doubt. She need not communicate the non-consent to the accused. It was held by the majority,
25 The actus reus of sexual assault is established by the proof of three elements: (i) touching, (ii) the sexual nature of the contact, and (iii) the absence of consent.
26 The absence of consent… is subjective and determined by reference to the complainant’s subjective internal state of mind towards the touching, at the time it occurred: [citations omitted]
27 Confusion has arisen from time to time on the meaning of consent as an element of the actus reus of sexual assault. Some of this confusion has been caused by the word “consent” itself. A number of commentators have observed that the notion of consent connotes active behaviour: see, for example, N. Brett, “Sexual Offenses and Consent” (1998), 11 Can. J. Law & Jur. 69, at p. 73. While this may be true in the general use of the word, for the purposes of determining the absence of consent as an element of the actus reus, the actual state of mind of the complainant is determinative. At this point, the trier of fact is only concerned with the complainant’s perspective. The approach is purely subjective. (Emphasis added)
[46] ZK’s evidence was clear. She did not want to do the things she did but did so out of fear of further assaults. She never agreed to sexual contact in her own mind or outwardly. She never communicated consent. The law is that if she did not say yes, then the answer was no. She need not voice it. It was said in Ewanchuk,
39 The question is not whether the complainant would have preferred not to engage in the sexual activity, but whether she believed herself to have only two choices: to comply or to be harmed. If a complainant agrees to sexual activity solely because she honestly believes that she will otherwise suffer physical violence, the law deems an absence of consent, and the third component of the actus reus of sexual assault is established … The complainant’s fear need not be reasonable, nor must it be communicated to the accused in order for consent to be vitiated. While the plausibility of the alleged fear, and any overt expressions of it, are obviously relevant to assessing the credibility of the complainant’s claim that she consented out of fear, the approach is subjective.
[47] If a complainant does not consent in her own mind, the actus reus of the offence is satisfied. There is no such thing as “implied consent.” It was held in R. v. Barton, 2019 SCC 33,
[98] The “specious” defence of implied consent “rests on the assumption that unless a woman protests or resists, she should be ‘deemed’ to consent” (Ewanchuk, at para. 103, per McLachlin J. (as she then was)). Ewanchuk makes clear that this concept has no place in Canadian law. As Major J. stated for the majority, “a belief that silence, passivity or ambiguous conduct constitutes consent is a mistake of law, and provides no defence” (para. 51, citing R. v. M. (M.L.), [1994] 2 S.C.R. 3; see also J. Benedet, “Sexual Assault Cases at the Alberta Court of Appeal: The Roots of Ewanchuk and the Unfinished Revolution” (2014), 52 Alta. L. Rev. 127). It is also a mistake of law to infer that “the complainant’s consent was implied by the circumstances, or by the relationship between the accused and the complainant” (J.A., at para. 47). In short, it is an error of law — not fact — to assume that unless and until a woman says “no”, she has implicitly given her consent to any and all sexual activity.
[48] I do not see any potential honest belief in consent issue on the evidence. For honest belief to have an air of reality, there must be evidence that Mr. Dillon honestly believed that ZK had communicated her consent: R. v. O. (M.), 2000 SCC 49 adopting the dissent below at , 138 C.C.C. (3d) 476 (Ont.C.A.) at para. 59. In this case, there was uncontradicted evidence of coercion and of assault against ZK and no indication of consent whatsoever. There is no room to circumstantially find an honest belief in consent. Passivity, silence or ambiguous conduct is not consent: O.(M), paras. 51-56.
[49] The sexual assaults were meted out by Mr. Dillon as punishment for ZK’s disrespect and for damaging the TV. I believe ZK when she said that she did not consent but passively acquiesced because of her fear of the accused. I found no substantial problems in her evidence impacting on reliability or credibility. The bruises are strong confirmation of the assault and for her truthfulness with respect to the sexual assaults. There is no contrary evidence. In the end, I am convinced to the high degree of certainty of beyond a reasonable doubt that the complainant was assaulted and then twice sexually assaulted by Mr. Dillon.
[50] As a consequence, Mr. Dillon will be found guilty of the assault and sexual assault. I will endorse it accordingly.
D.E. HARRIS J. Released: December 7, 2023