WARNING

The court hearing this matter directs that the following notice should 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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

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

(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 complainant of the right to make an application for the order; and

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

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

Court Information

Court File No.: Toronto: Metro North Courthouse Date: 2012-10-30 Ontario Court of Justice

Between: Her Majesty the Queen — and — G.R.L.

Before: Justice Carol Brewer

Heard on: February 9 and April 23, 2012

Reasons for Judgment released: October 30, 2012

Counsel:

• Anika Roberts, for the Crown
• Paul Mergler, for the defendant, G.R.L.

Brewer J.:

Introduction

[1] G.R.L. is charged with sexually assaulting C.H. on October 28, 2010. The defendant was also facing a charge of forcible confinement. However, at the close of the case, Crown counsel, with her customary fairness, acknowledged that the latter charge had not been proven.

[2] The crucial issue in this case is the availability of the defence of mistaken belief in consent and, if available, whether the Crown has refuted it.

The Evidence

[3] The complainant and defendant worked at a condominium development. Mr. G.R.L. was a floor installer. Ms. H. was a cleaner, whose task was to ready the finished condominiums for use. During the seven months that they both worked at the condominium building, the complainant and defendant encountered each other about four or five times. During their initial meeting, Mr. G.R.L. asked the complainant for her name and if she had a boy friend. Ms. H. provided her name and advised the defendant that she was married. The complainant declined the defendant's invitation to go for a coffee and she avoided his request for her cell phone number.

[4] During their subsequent encounters, the complainant testified that she tried to cut the conversation short or to get busy in order to avoid the flirtatious defendant. She did not accept his invitations to go for coffee and did not comply with his requests for her phone number. The only meeting where any physical contact occurred was on October 27, 2011, when the defendant caressed her hair and gave her a kiss on the cheek as she was carrying two full pails of water. The contact meant nothing to the complainant. Ms. H. denied feeling any attraction to the defendant. She viewed him as any other worker and did not even know his name.

[5] By contrast, Mr. G.R.L. stated that he and the complainant saw each other quite a few times during the course of their employment. His description of their first conversation accorded with that of the complainant. Their subsequent communications began by briefly chatting as one would with any co-worker. According to Mr. G.R.L., they later exchanged kisses on the cheek, which the defendant said was a common form of greeting among Hispanic people. He did not view these kisses as romantic. The defendant testified that Ms. H. was always flirting with him and that she looked at him with "devilish eyes". About a month prior to the alleged offence, Mr. G.R.L. stated that he kissed the complainant on the mouth and she responded. He confirmed the complainant's account of their contact on October 27, 2011. Despite the complainant's refusal of his offers to go out and her unwillingness to provide him with her phone number, Mr. G.R.L. had the impression that the complainant wanted to have a relationship with him and he was convinced that the complainant would have gone out with him if she was not married.

[6] On the morning of October 28, 2011, the complainant was cleaning a condominium suite. The defendant appeared just as she was about finished. He asked if she was going to bid him farewell, as this was his last day at work. Ms. H. shrugged her shoulders. The defendant approached the complainant and took her hand. The complainant said that he was not supposed to be in the suite when she was cleaning, she did not want any trouble, and he should go. Mr. G.R.L. said that he had locked the door. He moved Ms. H. against the closet door and put his hands on either side of her shoulders. The defendant asked the complainant for a kiss. Despite the fact that she refused, he gave her three open mouthed kisses and put his tongue in her mouth. Ms. H. tried to push the defendant away, but did not struggle beyond that. He kissed her neck and lowered her blouse before asking to kiss her breast. Initially the complainant raised her hands to hold onto her blouse, but dropped them and acceded to the defendant's request, as she perceived that there was not much she could do to get him away from her. Mr. G.R.L. told the complainant, "See what you do to me?" and placed her hand on his erect penis over his clothing. The defendant unzipped his pants and exposed his penis. Mr. G.R.L. took the complainant by the hand and led her towards the bathroom. He said that he had a condom in his knapsack. Ms. H. replied that she did not want to have sex with him.

[7] The defendant entered the washroom along with the complainant. He lowered the toilet lid and sat on it. Ms. H. repeated that she did not want to have sex with him. Mr. G.R.L. then twice requested that the complainant perform oral sex on him. When she refused, he said, "Fine". The defendant asked that Ms. H. masturbate him. She complied automatically and without thinking as she wanted the defendant to go away and was concerned that she would be forced to perform fellatio if she kept refusing him. During the masturbation, Ms. H. said that she felt bored, rather than afraid. At one point in the course of the masturbation, the defendant asked the complainant what she was thinking. Ms. H. responded that she was feeling ashamed of her actions. Mr. G.R.L. told the complainant that there was no reason why she should feel bad. Ms. H. believed that the best way to get out of this situation was to cooperate.

[8] On the other hand, it was the defendant's evidence that he did not seek out the complainant on October 28, 2011. He went into a partially cleaned suite to use the washroom and found Ms. H. there mopping the floor. After they chatted for a while, Mr. G.R.L. asked the complainant to go out with him. When she refused, he asked for a kiss since it was his last day on site. Ms. H. smiled at the defendant and held her arms out at her sides, a gesture that the defendant interpreted as assent. The defendant kissed her, and she returned the kiss. When Mr. G.R.L. went further, and kissed Ms. H.'s neck, she said nothing. The defendant sought permission to kiss the complainant's breasts. Ms. H. said nothing, but lowered her hands to her sides to give him access to her breasts. Mr. G.R.L. said he wanted sexual intercourse with the complainant, and mentioned that he had a condom, but she said she "couldn't". The defendant asked for oral sex. He gave Ms. H. another kiss and when she responded, the defendant exposed his penis. Mr. G.R.L. made a second request for fellatio, which was denied. The defendant asked the complainant to masturbate him and she replied that she would do it "with great pleasure". Mr. G.R.L. took the complainant's hand and she accompanied him to the washroom. During the masturbation, the door to the bathroom was open and Ms. H. was smiling. After the defendant ejaculated and cleaned himself up, he kissed the complainant on the cheek and went back to work.

[9] Later in the day, Ms. H. told a co-worker, the building manager and her boss about this incident. However, the complainant advised them that the defendant had masturbated in front of her, rather than disclosing the full nature of the sexual contact. Ms. H.'s reasons for doing this were that she was shy and embarrassed and her English was poor. Yet, when her husband came to pick her up after work, the complainant also told him that the defendant had masturbated in front of her. After discussing the situation together, they decided to call the police.

[10] J.L., a subcontractor at the building site, was the defendant's supervisor. After being told that there was a problem at the building involving the defendant and a girl who was working there, Mr. J.L. called the defendant. When asked what had happened, Mr. G.R.L. said that he had invited the girl to go out. He said this to "decrease the problem a little". Mr. J.L. advised the defendant that the owners did not want him back at the job site.

The Law

A. The Guiding Principles

[11] In this case, Mr. G.R.L. is presumed to be innocent, unless and until the Crown has proven each essential element of these offences beyond a reasonable doubt.

[12] Reasonable doubt is based upon reason and common sense. It is logically connected to the evidence or the lack of evidence.

[13] It is not enough for me to believe that the defendant is possibly or even probably guilty. Reasonable doubt requires more. As a standard, reasonable doubt lies far closer to absolute certainty than it does to a balance of probabilities. At the same time, reasonable doubt does not require proof beyond all doubt, nor is it proof to an absolute certainty.

[14] In weighing the credibility of the witnesses in this case, I remind myself of the principles articulated by the Supreme Court of Canada in R. v. D.W., 63 C.C.C. (3d) 397.

B. Sexual Assault

[15] The physical elements of the offence of sexual assault are:

• a touching or other form of assault as defined in s. 265(1) of the Criminal Code;
• circumstances that objectively provide a sexual context for the assault; and
• the absence of consent on the part of the complainant.

Consent is defined in s. 273.1(1) of the Code as the voluntary agreement to engage in the sexual activity in question. The absence of consent is to be determined solely on the basis of the complainant's "subjective internal state of mind" at the time that the assault occurred: R. v. Ewanchuk, [1999] S.C.J. № 10 at ¶26-30.

[16] The mental requirements for a sexual assault are:

• intentional touching or threatening to touch; and
• knowledge, recklessness or wilful blindness as to a lack of consent.

[17] A defendant may challenge the evidence that the complainant did not consent to the sexual activity by asserting an honest but mistaken belief in the complainant's agreement to being touched. Once raised, the Crown must refute the defence of mistake in order to prove the necessary mens rea for the offence: R. v. Ewanchuk, supra at ¶44.

[18] Although it is the perspective of the defendant that is crucial in this context, the evidence must support a belief that the complainant affirmatively communicated, by words or conduct, agreement to engage in each and every sexual act with the defendant: R. v. Ewanchuk, supra at ¶46, 49; R. v. J.A., [2011] S.C.J. № 28 at ¶42. Further, s.273.2 provides that:

It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where (a) the accused's belief arose from the accused's (i) self-induced intoxication, or (ii) recklessness or wilful blindness; or (b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain whether the complainant was consenting.

Reasonable steps to ensure that there is consent should be taken before engaging in sexual activity. Further, the defendant's own conduct, such as the initiation of foreplay, cannot be used as a reflection of consent: R. v. Cornejo, [2003] O.J. № 4517 (C.A.) at ¶32.

[19] Accordingly, for a defence of mistake to succeed, not only must the accused believe that the complainant is consenting, he must also take reasonable steps to ascertain consent and must believe that the complainant communicated her consent to engage in the sexual activity in question: R. v. J.A., supra at ¶48.

Analysis

[20] On the defendant's evidence, all of the sexual activity between he and the complainant was consensual. However, when Mr. G.R.L.'s testimony is viewed together with that of the complainant, I am satisfied that there is an air of reality to the defence of honest but mistaken belief in consent.

[21] There are aspects of Mr. G.R.L.'s conduct that I find to be troubling. His impression that the complainant wanted to have a relationship with him was self-delusion, given that he and Ms. H. were virtual strangers; his knowledge that the complainant was married; her refusals to give the defendant her phone number; and her rejection of his invitations to go out together. Further, his conduct in negotiating for sexual contact, albeit of lesser intrusiveness, in the face of the complainant's refusals, and while his erect penis was exposed, was repellent. Ms. H.'s subjective perspective, that she unwillingly yielded to certain sexual requests, as a means of trying to get rid of the defendant as quickly as possible, and to ensure that she was not coerced into doing acts she found particularly repugnant, is understandable.

[22] Yet, from an objective viewpoint, the complainant's choice to move her arms to the side to permit Mr. G.R.L. to kiss her breasts and her actions in masturbating the defendant, support the defendant's belief that he had a willing partner in Ms. H. Mr. G.R.L.'s testimony raises a reasonable doubt in my mind that the complainant appeared to assent to being kissed by him and to masturbating him. Her conduct, by words or actions, gave the defendant the honest but mistaken impression that she was communicating her consent to the sexual activity.

[23] In my view, the defendant's behaviour, in seeking Ms. H.'s permission for each sexual act and his acceptance of her refusals, constituted reasonable steps within s. 273.2(b).

Conclusion

[24] I am not satisfied that the Crown has proven this offence beyond a reasonable doubt. Accordingly, the charge is dismissed.

Released: October 30, 2012

Signed: "Justice Carol Brewer"