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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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
Information No. 10 – 529
ONTARIO COURT OF JUSTICE (at Cayuga, Ontario)
BETWEEN:
HER MAJESTY THE QUEEN
- and -
M.L.
Reasons for Judgment
Counsel:
- Mr. G. Smith for the Crown
- Ms. A. Hilliard for M.L.
An order has been made under s. 486.4 directing that any information that could identify the complainant, A.A., shall not be published in any document or broadcast or transmitted in any way.
NADEL, J.:
Introduction
[1] In the early evening of October 25, 2010 M.L. had sexual intercourse with A.A.. This was not the first time they had engaged in coitus but A.A. promptly alleged that this act was committed by M.L. without her consent. As a result he was charged with and summarily tried on one count of sexual assault.
[2] A.A. was 28 years old on October 25, 2010. She lived in apartment Q[…] Street in Dunnville, Ontario. A.A. suffers from a number of maladies including anxiety, depression and has been diagnosed as having a "borderline personality disorder". As a result of her conditions she both works for and is assisted by True Experience, a supportive work and housing programme for people with mental health issues. She appeared to be cognitively intact and fairly articulate.
[3] M.L. was 43 years old on October 25, 2010. He lived in apartment Q[…]Street in Dunnville, Ontario. M.L. suffers from schizophrenia. His diagnosis was made in 1989. He, too, worked for and was assisted by True Experience. He also presented as being intelligent and articulate.
[4] A.A. met M.L. through her husband, from whom she was separated. A.A. conceded that she and M.L. sometimes engaged in consensual intercourse and on some occasions she did so with him for money. They disagreed about when, prior to October 25, 2010 they had last had sex with each other. A.A. testified that their intimate relationship lasted for about one year and ended in December of 2009 when she told M.L. that she no longer wanted an intimate relationship with him. M.L. said their physical relationship lasted for about three years and the last time they had had sex was in June of 2010. On that occasion while she was involved with B.M. Jr., his testimony was that she approached him and sought to have him pay her for sex. However, he conceded they had not been intimate since that time.
[5] In October of 2010 A.A. was engaged to B.M. Jr.. (despite not yet having been formally divorced from her first husband.) B.M. Jr. visited A.A. during the afternoon of October 25th. They engaged in sexual intercourse and then went for a bicycle ride. A.A. said B.M. Jr. was extremely tired so she sent him home early. As she did not have a functioning telephone or computer she asked her fiancé to call M.L. to have M.L. convey a message to her that he had arrived home safely.
[6] B.M. Jr. made the call to M.L. who walked down the hall to deliver the message. He then visited with A.A. and it was during that visit that the act of intercourse occurred which prompts these reasons.
The Law of Sexual Assault
The Actus Reus
[7] "A conviction for sexual assault requires proof beyond reasonable doubt of two basic elements, that the accused committed the actus reus and that he had the necessary mens rea. The actus reus of assault is unwanted sexual touching. The mens rea is the intention to touch, knowing of, or being reckless of or wilfully blind to, a lack of consent, either by words or actions, from the person being touched."[1]
[8] "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. The first two of these elements are objective. It is sufficient for the Crown to prove that the accused's actions were voluntary. The sexual nature of the assault is determined objectively; the Crown need not prove that the accused had any mens rea with respect to the sexual nature of his or her behaviour..."[2]
[9] "The absence of consent, however, is subjective and determined by reference to the complainant's subjective internal state of mind towards the touching, at the time it occurred... [F]or 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. ... [A]ny intentional but unwanted touching is criminal."[3]
[10] "While the complainant's testimony is the only source of direct evidence as to her state of mind, credibility must still be assessed by the [trier] in light of all the evidence. It is open to the accused to claim that the complainant's words and actions, before and during the incident, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place. If ... the [trier] believes the complainant that she subjectively did not consent, the Crown [discharges] its obligation to prove the absence of consent."[4]
[11] "The complainant's statement that she did not consent is a matter of credibility to be weighed in light of all the evidence including any ambiguous conduct. The question at this stage is purely one of credibility, and whether the totality of the complainant's conduct is consistent with her claim of non-consent. The accused's perception of the complainant's state of mind is not relevant. That perception only arises when a defence of honest but mistaken belief in consent is raised in the mens rea stage of the inquiry."[5] But, it is important to note that "[t]here is no defence of implied consent to sexual assault in Canadian law."[6]
The Mens Rea
[12] "Sexual assault is a crime of general intent. Therefore, the Crown need only prove that the accused intended to touch the complainant in order to satisfy the basic mens rea requirement. ... However ... the common law recognizes a defence of mistake of fact which removes culpability for those who honestly but mistakenly believed that they had consent to touch the complainant. ... As such, the mens rea of sexual assault contains two elements: intention to touch and knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched. ..."[7]
[13] R. v. Ewanchuk, supra, at [43] approved of the following description of the defence of honest but mistaken belief in consent:
"Mistake is a defence ... where it prevents an accused from having the mens rea which the law requires for the ... crime with which he is charged. Mistake of fact is more accurately seen as a negation of guilty intention than as the affirmation of a positive defence. It avails an accused who acts innocently, pursuant to a flawed perception of the facts, and nonetheless commits the actus reus of the offence. ..."
"Consent" in the Defence of an Honest but Mistaken Belief in Consent
[14] "... [T]he mens rea of sexual assault is not only satisfied when it is shown that the accused knew that the complainant was essentially saying "no", but it is also satisfied when it is shown that the accused knew that the complainant was essentially not saying "yes"."[8] "In order to cloak the accused's actions in moral innocence, the evidence must show that he believed that the complainant communicated consent to engage in the sexual activity in question. A belief by the accused that the complainant, in her own mind, wanted him to touch her, but did not express that desire, is not a defence. The accused's speculation as to what was going on in the complainant's mind provides no defence."[9] This is a matter of significance because as Mr. Justice Chipman observed, "[e]very consent involves a submission or lack of resistance but it does not follow that every submission or lack of resistance means consent."[10] Moreover, as McLachlin J. noted, in her dissenting judgment in R. v. Esau,[11] a "[f]ailure to indicate yes or no is no communication at all and hence cannot amount to communication of consent."
[15] "For the purposes of the mens rea analysis, the question is whether the accused believed that he had obtained consent. What matters is whether the accused believed that the complainant effectively said "yes" through her words and/or actions."[12] "...[F]or the purposes of the honest but mistaken belief in consent – "consent" means that the complainant had affirmatively communicated by words or conduct her agreement to engage in sexual activity with the accused" subject to the statutory limitations set out in s. 273.1(2) and s. 273.2.[13]
[16] "… [A] belief that silence, passivity or ambiguous conduct constitutes [a] consent is a mistake of law, and provides no defence ... Similarly, an accused cannot rely upon his purported belief that the complainant's expressed lack of agreement to sexual touching in fact constituted an invitation to more persistent or aggressive contact. An accused cannot say that he thought "no meant yes"." As Fraser C.J.A. stated in her dissent in Ewanchuk, supra, "One "No" will do to put the other person on notice that there is then a problem with "consent". Once a woman says "No" during the course of sexual activity, the person intent on continued sexual activity with her must then obtain a clear and unequivocal "Yes" before he again touches her in a sexual manner."[14]
The Complainant's Evidence
[17] A.A. testified that M.L. came over and delivered the message he had received from B.M. Jr.. He helped A.A. with her dishes and then he began to proposition her stating that he had not asked her for sexual favours in "awhile" and that he had "been good". He asked for her permission to fondle her and to look at her naked body. A.A. said "No" several times. Her testimony continued as follows: "and then next thing I know, I don't even recollect what happened between that point in time, but next thing I know, M.L. is on top of me saying, "A.A., I'm going to come." After getting a towel to clean them with he offered her $50.00 to not say anything about what had just occurred.
[18] A.A. maintained that she had no memory of the events that occured between her rejection of M.L.'s request for sex and his mounting her; viz "I can't remember how any of that happened prior to coming to and him saying the words, "I'm going to come." She testified both in direct and in cross-examination that she suffers from and suffered a kind of amnesic or blackout state, which she attributed to her anxiety condition.
[19] The essence of A.A.'s testimony was that while her recollection of the events was incomplete, she categorically rejected his attempted seduction and never consented to any sexual activity with him on that occasion. She expressly rejected the suggestions put to her by Ms. Hilliard that M.L. offered her $50.00 to allow him to have sex with her. Rather, she confirmed and adopted a note she wrote that same evening before contacting the police in which, among other things, she said, she was too tired to fight with him and that she "tried to say no but he did not listen to me" and so "he helped himself to me."
The Defendant's Evidence
[20] In-chief, M.L. testified that in 2010 he and A.A. were friends who once had had an intimate relationship in which they still engaged "here and there". He confirmed A.A.'s evidence that B.M. Jr. called him wanting M.L. to let A.A. know that he had made it home safely. So, he went down the hall and delivered that message. A.A. asked him to come in. They talked about movies for a bit and then he asked her if they could have sex. M.L.'s testimony about her response to his request was, "Originally, she said, well – sorry – she actually said that was okay. Like she said "Okay, I guess," was her actual response. But I offered her $50 also. … Then we started, I started to, helping her take off her clothes, I took off my clothes, then we had sexual intercourse on the couch." M.L.'s testimony, in-chief, was that A.A. did not say, "no" or object to his request and actions and did not tell him to stop at any point.
[21] However, that testimony was inconsistent with admissions that he made in his police interrogation. During M.L.'s cross-examination Mr. Smith put the following questions and received the following admissions:[15]
Q. …you initially start out by saying that Ms. A.A. has indicated to you that she didn't say anything at, at the outset when you said you wanted to touch her. You remember saying that?
A. Correct.
Q. And then subsequently, when asked again, you said, "She didn't say no."
A. Correct.
Q. And then you went on to say, for example, "may have said no but I don't recall hearing it." Do you remember saying that?
A. Yes.
Q. And you also remember saying that her body language would suggest to you that perhaps she was not consenting to having intercourse with you?
Q. But you said to the Officer, … you knew she was tired and, but, you knew something was wrong as well, …
A. I might have said that. But I'm not sure if she was just tired, or there was something wrong with her, or …..
Q. Exactly. And she, and you've indicated also, I think, is that she might not have wanted to have sex with you, her body language said no.
A. She, she never told me no though. …
[22] Subsequently, at page 38, line 14 and following Mr. Smith suggested to M.L. that A.A. "never told [him] yes." To which M.L. replied that she told him "I guess so, or maybe, or something to that knowledgment. (sic) She never told [him] no." In rejoinder Smith observed that A.A. never gave M.L. an unequivocal "yes" and M.L. agreed that that was accurate.
Reasons for Judgment
[23] Despite the frailty of the "blackout" period in A.A.'s evidence, I find M.L. guilty of sexually assaulting her. I do so for a variety of reasons. First, I believe A.A. when she says that she did not consent to engage in intercourse with him.
[24] I accept that evidence because it accords with the totality of the circumstances and comports with common sense and experience. A.A. was engaged to B.M. Jr. and committed to him. They had just spent a number of hours together and their activities included engaging in consensual sexual intercourse. As they bid each other goodbye, A.A. was concerned about B.M. Jr.'s welfare and so she asked him to get a message to her through M.L. that he had arrived at home safely. Their communion together and her ongoing concern about his well-being makes it improbable that she would willingly "cheat" on him, that she would be unfaithful to him. Moreover, her having satiated any sexual urges with him mere hours before makes it unlikely and improbable that she would want or need or even agree to engage in sex with M.L..
[25] I also accept her evidence of being exceptionally tired and "blacking out" because M.L.'s own description of A.A. is more than merely not inconsistent with her testimony in that regard. He admitted in his police interrogation that he, too, saw that she was not right. I am further fortified in the credence that I accord her evidence because by his admission that he was the one to raise the issue of engaging in sexual activity with her. That is to say, it was a subject on his mind.
[26] I reject the evidence of M.L. that when he approached A.A. and asked her to allow him to engage in sex with her that she acquiesced, "Okay, I guess". I reject that testimony because it is inconsistent with what he said originally to the police. He told them that she did not say anything, at the outset, when he said that he wanted to touch her. That admission is quite inconsistent with his testimony in-chief quoted above at paragraph [20]. Having rejected that evidence I am not left in any state of reasonable doubt about his guilt by virtue of his evidence. On the contrary, on the balance of the evidence, effectively being the evidence of the complainant, I am satisfied to the exclusion of any reasonable doubt that M.L. is guilty as charged.
[27] More analytically, the Crown has satisfied me to the exclusion of any reasonable doubt that the actus reus of sexual assault has been proved. Specifically, the actus reus is unwanted sexual touching. It was established by the proof of three elements: (i) touching, which was alleged by A.A. and admitted by M.L.; (ii) the sexual nature of the contact, which was similarly alleged by A.A. and admitted by M.L.. The third element of the actus reus is (iii) the absence of consent. As noted above at paragraph [9] 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. 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 and I accept the evidence of A.A. on this point.
[28] As noted above at paragraph [10] while the complainant's testimony is the only source of direct evidence as to her state of mind, credibility must still be assessed by me in light of all the evidence. While it is open to the accused to claim that the complainant's words and actions, before and during the incident, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place I have accepted A.A.'s evidence on that point and I have rejected M.L.'s. Since I believe that A.A. subjectively did not consent, the Crown has discharged its obligation to prove the absence of consent.
[29] As noted above at paragraph [11] the complainant's statement that she did not consent is a matter of credibility to be weighed in light of all the evidence including any ambiguous conduct. The question at this stage is purely one of credibility, and whether the totality of the complainant's conduct is consistent with her claim of non-consent. The accused's perception of the complainant's state of mind is not relevant. That perception only arises when a defence of honest but mistaken belief in consent is raised in the mens rea stage of the inquiry.
[30] So far as the mens rea of sexual assault is concerned, I am satisfied to the exclusion of any reasonable doubt that the Crown has proved that M.L. had the necessary guilty mind. Essentially repeating the analysis noted above commencing at paragraphs [12] to [16] I make the following findings.
[31] Sexual assault is a crime of general intent. Therefore, the Crown need only prove that the accused intended to touch the complainant in order to satisfy the basic mens rea requirement. The common law recognizes a defence of mistake of fact which removes culpability for those who honestly but mistakenly believed that they had consent to touch the complainant. As such, the mens rea of sexual assault contains two elements: intention to touch and knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched.
[32] The first element of the mens rea, an intention to touch, is conceded by both the complainant and the defendant. The second element, viz being reckless or wilfully blind to a lack of consent on the part of the person touched was, in my view, conceded by the defendant both in his police interview and during his cross-examination as quoted or referred to above at paragraphs [21] and [22].
[33] As noted above at paragraph [14] the mens rea of sexual assault is not only satisfied when it is shown that the accused knew that the complainant was essentially saying "no", but it is also satisfied when it is shown that the accused knew that the complainant was essentially not saying "yes". The accused's speculation as to what was going on in the complainant's mind provides no defence. As noted previously, this is significanct because as Mr. Justice Chipman observed, "[e]very consent involves a submission or lack of resistance but it does not follow that every submission or lack of resistance means consent" and as McLachlin J. noted, in R. v. Esau, supra, a "[f]ailure to indicate yes or no is no communication at all and hence cannot amount to communication of consent."
[34] For the purposes of the mens rea analysis, the question is whether the accused believed that he had obtained consent. What matters is whether the accused believed that the complainant effectively said "yes" through her words and/or actions. I have rejected M.L.'s testimony that A.A. said words of acquiescence. For the purposes of the honest but mistaken belief in consent – "consent" means that the complainant had affirmatively communicated by words or conduct her agreement to engage in sexual activity with the accused" subject to the statutory limitations set out in s. 273.1(2) and s. 273.2.
[35] As noted above at paragraph [16] a belief that silence, passivity or ambiguous conduct constitutes a consent is a mistake of law, and provides no defence. Similarly, an accused cannot rely upon his purported belief that the complainant's expressed lack of agreement to sexual touching in fact constituted an invitation to more persistent or aggressive contact. An accused cannot say that he thought "no meant yes". As Fraser C.J.A. stated in her dissent in Ewanchuk, supra, "One "No" will do to put the other person on notice that there is then a problem with "consent". Once a woman says "No" during the course of sexual activity, the person intent on continued sexual activity with her must then obtain a clear and unequivocal "Yes" before he again touches her in a sexual manner."
[36] In the result and for the reasons now given I find M.L. guilty of sexually assaulting A.A., as charged.
Dated this 31st day of January 2013 at Cayuga, Ontario
J.S. Nadel (O.C.J.)
Footnotes
[1] R. v. Ewanchuk (1999), 131 C.C.C. (3d) 481 (S.C.C.) at [23]
[2] Ewanchuk, supra, at [25]
[3] Ewanchuk, supra, at [26], [27] and [28]
[4] Ewanchuk, supra, at [29]
[5] Ewanchuk, supra, at [30]
[6] Ewanchuk, supra, at the last line of [31]
[7] Ewanchuk, supra, at [41] and [42]
[8] Ewanchuk, supra, at [45]
[9] Ewanchuk, supra, at [46]
[10] R. v. M.(L.M.) (1992), 78 C.C.C. (3d) 318 (N.S.C.A.) at p. 327
[11] , [1997] 2 S.C.R. 777 at [76].
[12] Ewanchuck, supra, at [47]. The Court went on to note that this is confirmed by the 1992 Code addition of "[Section] 273.1(1) Subject to subsection (2) and subsection 265(3), "consent" means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question."
[13] Ewanchuk, supra, at [49] and at [50].
[14] Ewanchuk, supra, at [51]. A recent application of this admonition can be seen in R. v. Potvin, [2012] O.J. No. 687 (C.A.). Further, as the Court noted at [52] of Ewanchuk, "Common sense should dictate that, once the complainant has expressed her unwillingness to engage in sexual contact, the accused should make certain that she has truly changed her mind before proceeding with further intimacies. The accused cannot rely on the mere lapse of time or the complainant's silence or equivocal conduct to indicate that there has been a change of heart and that consent now exists, nor can he engage in further sexual touching to "test the water". Continuing sexual contact after someone has said "No" is, at a minimum, reckless conduct which is not excusable."
[15] Transcript of M.L.'s evidence at page 36, lines 5 to 19 and page 37, lines 7 to 17