WARNING
An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4 (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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of: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).
486.4 (2) 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.
486.4 (3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
486.4 (4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).
486.6 (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.
486.6 (2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
Court Information
Court File No.: 13-1053
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
C.P.
Before: Justice Robert S. Gee
Heard on: December 3rd and December 9th, 2013
Counsel:
- R. Kindon for the Crown
- D. Henderson for the Accused
Reasons for Judgment
Introduction
[1] The accused is charged with sexually assaulting his former girlfriend on May 24, 2013.
[2] Both the complainant and the accused agree they had a sexual encounter on May 24, when the complainant attended the accused's residence to drop off their 4-year-old son. The complainant asserts that this sexual encounter was non-consensual, while the accused contends it was, or alternatively, he honestly believed it was.
[3] The sexual encounter took place in the accused's bedroom. Overall, the act itself as related by both the accused and the complainant is similar; however, there are differences between them in the details as to what occurred. The findings made on these details will determine if the encounter was consensual or non-consensual.
[4] The leading case where an accused asserts the complainant consented to the sexual activity or he honestly believed she had consented is R. v. Ewanchuk, [1999] 1 SCR 330, a decision of the Supreme Court. The Supreme Court in paragraphs 61 to 66 of that case sets out a framework for how to approach this type of case and I propose to follow it.
[5] The first step is to make a determination if I am satisfied beyond a reasonable doubt the Crown has proven the complainant did not consent to the sexual activity. Since the complainant is asserting a lack of consent and the accused is asserting the opposite, this becomes a question of credibility. As such, my assessment of the credibility of the complainant and accused will be determinative of this issue, and in making such an assessment, the totality of the evidence must be taken into consideration. If I am satisfied the complainant did not consent, then the actus reus of the offence has been made out.
[6] If I determine the complainant did not consent, the focus then shifts to a determination of the accused's state of mind. The accused does not have to assert a separate, honest but mistaken belief that the complainant consented. The accused need only make one claim: that based on the complainant's words or conduct, he believed her to be consenting. This claim challenges both the complainant's assertion she was not consenting and posits that even if he was mistaken in that regard, he was operating with a morally innocent state of mind. This leaves it to the judge to determine if the evidence raises a doubt over either the complainant's or the accused's state of mind.
[7] When the analysis turns to a review of the assertion of an honest but mistaken belief in consent, the honesty of that belief must be considered. The first step in that regard is to determine if there is any evidence that would lend an air of reality to the defence. If there is, then the judge must determine if the accused honestly believed the complainant had communicated her consent. Any other belief an accused may have, no matter if honestly held, is not a defence.
[8] To be honestly held, the accused's belief cannot have arisen through his recklessness or his willful blindness. If at any point, the complainant has expressed a lack of consent, then it is necessary for the accused to point to some evidence from which he could honestly believe consent had been re-established prior to resuming his advances.
[9] Since, as noted earlier, there are somewhat different versions of the incident in question, a credibility assessment of those involved must be made. After doing so, I will apply my credibility finding in a manner consistent with the well-known three-part framework set out by the Supreme Court in R. v. W.D., [1991] 63 C.C.C. (3d) 397.
Facts
[10] The accused and the complainant, who were both 31 at the time of trial, have known each other since their teens. At some point they commenced a relationship and began living together in October 2007. At that time the complainant had a son from a prior relationship. That son was 7 when his mother started living with the accused. In July 2008, the accused and the complainant had their son. The relationship between the accused and the complainant was volatile and marked by allegations of abuse and illicit drug use. The couple separated in August 2011. The complainant has had custody of their son since the separation. Access to their son by the accused has been at the complainant's discretion; however, she indicated the problems between her and the accused should not affect their son and as such she did her best to ensure their son remained a part of the accused's life. This has meant the accused has had relatively liberal access, usually seeing their son every weekend.
[11] The day of the incident that led to the charge was one of these access visits. The accused and the complainant had discussed earlier on May 24, 2013 that she would bring their son to the accused's later that evening.
[12] The accused stated the complainant called earlier in the day to ask what time would be good to drop off their son. He stated during this conversation he asked her if she would be staying for coffee. Staying for coffee was code the accused stated, for sex. The complainant denies they had any such code word between them. According to the accused, her response to his request she stay for coffee was that she did not know if she could because she had to drop off her other son at Cadets after dropping off their son. The accused suggested she drop off her other son first.
[13] Shortly after 5:00 p.m. when she finished work, the complainant, along with her friend, dropped her other son at Cadets and then proceeded to the accused's residence to drop off their son. The intention was to drop off the two boys and then the complainant and her friend were going to go for coffee until it was time to pick up her other son.
[14] The complainant's friend waited in the truck while the complainant took their son into the accused's residence. She entered without knocking as was her custom. Their son said "hi daddy" and went to the living room to play with his toys.
[15] The complainant's version of the event begins with her entering the accused's bedroom, where he was when she arrived, to speak to him about their son's day. According to her, the accused asked her to sit beside him on the bed. She said no because her friend was waiting for her. At this point she stated he got up, shut the bedroom door, then pushed up against her and started kissing her. She indicated she said "no" and pushed back against him. He continued to kiss her and say it would not take long. The complainant was not kissing him back and continued to push and struggle with him while saying "no" and that she had to go.
[16] The accused then grabbed her by her jacket, threw her on the bed on her back and got on top of her. He then tried pulling off her top but was not able to get it off, so pulled it and her bra up enough to expose her breasts. She continued to tell him to stop but he would not. He then undid her pants and pulled them down along with her underwear at which time her shoes also came off. He then pulled his sweatpants down just enough to expose his penis and he proceeded to have intercourse with her. The complainant indicated she continued to struggle and dug her nails into his back and scratched him. She continued to say "no" but eventually stopped struggling as he forcefully and roughly continued with the intercourse until he ejaculated. She indicated she did not yell or cry out because she was scared the accused would get angrier and the situation would escalate and she was concerned about startling and exposing their son to what was happening. When it finished, the complainant quickly dressed and left. On her way out she gave their son a hug and kiss and told him she loved him. She indicated at no time did she see the accused's mother, who also resided there.
[17] On her return to the truck, the complainant was upset and in pain from the encounter. Instead of going for coffee as planned with her friend, she indicated she drove home. Along the way her friend could tell something was wrong and kept asking her what it was. The complainant did not immediately tell her. When she got home she went to the washroom. After coming out they got back in the truck and headed to the bank. Her friend continued to ask her what was wrong. At this time the complainant started to cry and she told her what had happened. They then went to her friend's place and talked. It was decided she would go to the hospital but by then it was time to pick up her other son.
[18] While at Cadets picking up her other son, she spoke with an off-duty OPP officer and sought his advice. He told her she should attend the hospital to have a sexual assault kit completed, which is eventually what she did. After dropping off her other son, she and her friend attended Brantford General Hospital where she was examined by a sexual assault nurse and a sexual assault kit was completed. The police were also called and an officer attended to investigate.
[19] Shortly after she left his residence, the accused began texting the complainant. These text messages were reviewed and some were recorded by the investigating officer in her notebook. These text messages will be discussed in more detail later in these Reasons. The investigating officer arrested the accused at about 4:15 a.m. on May 25, 2013. During his arrest he made a statement in which he admitted kissing the complainant and that when he did she said "no" and tried pulling away. However, he said she eventually changed her mind and gave in.
[20] The complainant's friend testified that she waited in the truck outside of the accused's residence for what seemed longer than necessary to drop off their son. So long in fact that she was starting to become impatient. She stated when the complainant returned, she was a completely different person from the one who entered the accused's residence shortly before. According to the friend, when the complainant entered the house she was her normal, helpful self. When she came back out her mood was completely different. She was upset, silent and appeared in shock. The friend asked her what was wrong and she did not answer. Instead of going for coffee as planned, they returned to the friend's house. The friend kept asking what was wrong, and as they were getting out of the truck, the complainant told her what happened.
[21] After the complainant used the washroom they returned to the friend's residence to discuss what to do. It was decided that after picking up her other son, they would attend the hospital, which is what they did.
[22] When examined at the hospital, several bruises were noted in the complainant's genital area, on the right side of her groin, above her pubis area and another in her pubis just above the vaginal area. They ranged in size from 2 cm by 2 cm to 3 cm by 7 cm.
[23] The accused's version of the incident is somewhat different. He stated that when she arrived she came in his bedroom where he was having a cigarette. He stood and smiled and she responded by saying she did not have time because her friend was waiting for her. He responded by saying he has waited many times for her friend. She again responded she really did not have time but had a big smile on her face. He testified he then kissed her and that she was kissing back and there was no resistance on her part. They then moved together to the bed and lay down. He was kissing her and he undid her coat and pulled up her shirt, trying to get it off. He could not get it off so he pulled it and her bra up to expose her breasts. He was then kissing her breasts and rubbing between her legs over her jeans. Throughout this she was moaning so he got up and removed her shoes and pulled off her pants. He then pulled his sweatpants down only far enough to expose his penis. He then commenced intercourse with her and as he is doing so he stated she pulled him in for a kiss.
[24] According to the accused, during the intercourse he is going quickly and the complainant has an orgasm before he does. She then starts to say "fuck me, fuck me" which he interpreted as her admonition for him to hurry up. He finished a few minutes later and got up. She sat up and noticed a wet spot on the sheets and seemed a bit embarrassed by it but he told her not to worry about it. She then puts her clothes on quick, kissed him and left the bedroom, on the way out she gave their son a quick kiss and left the house. He also indicated at the time this was happening his mother was home.
[25] Notwithstanding his admission to the investigating officer on his arrest that the complainant initially said "no," the accused did not mention this aspect of the encounter in his initial recitation of his version. It was not until later in his testimony when he was relating what happened on his arrest that he mentioned this part of the encounter. At that time he testified when advised he was being arrested for sexual assault for having non-consensual sex with the complainant he stated that at first she said "no", she didn't have time but then once he started kissing her she was kissing back and that is what he took as the "go ahead."
[26] Also, the fact she had dropped her other son off first at Cadets like he had suggested, was according to the accused a sign she was receptive to a sexual encounter.
[27] As well, the court heard that on his arrest, one of the arresting officers viewed the accused's back and did not observe any injuries or scratch marks.
Analysis
[28] In assessing the accused's credibility, as stated earlier, his evidence is not to be viewed in isolation, but must be considered in relation to the totality of the evidence in the case, including the evidence of the complainant. The same considerations apply when assessing the complainant's credibility.
[29] A series of text messages from approximately one month before the incident were presented at trial. These messages for the most part consisted of a series of texts from the accused to the complainant. The complainant did not respond to the bulk of these texts and when one reviews the content of the messages she was receiving, it is easy to understand why.
[30] These messages provide a window to the accused's character and reveal him to be a very angry, vindictive and manipulative person. The complainant's claim that he is emotionally abusive to her is easily borne out in these texts.
[31] For instance, in the first message of the series the accused tells the complainant he was thinking that the perfect job for her would be to work for the S.P.C.A. putting down puppies. Quoting him directly he stated "killing little puppies suites (sic) the new you perfectly…it could be fun for you…I mean you wouldn't be able to do it slowly and painfully like you would want but I'm sure you could make it work for your (sic) awsom (sic) at improvisation…you see (complainant) even when I hate you I always have your best interests in mind." Not surprisingly, the complainant did not respond to this.
[32] There are also several instances of the accused's manipulative nature. In these he tries to use their son against the complainant. In one series of texts, he was telling the complainant he wanted to see their son that night. Apparently the accused had a court date on an unrelated matter the next morning and he indicated he was considering failing to appear for it. The implication being if he failed to appear in court he may be unavailable to see their son for some time. The complainant did respond to this message. She urged him to be responsible and to attend court and apologized for not being able to let him have their son that night as she already had plans with the kids. This I find is a perfectly normal and rational response to his text.
[33] What was not normal and rational was the accused's response. He responded by urging her to change her plans for him, called her heartless and then ended by saying, and again quoting him directly "you know what fuck it just make sure you tell him I tried to see him your shit was just more important."
[34] There are at least two other instances in the messages where the accused engages in long rants or diatribes where he blames the complainant for their problems and the state of their relationship and in both instances he urges her to tell that to their son. Again not surprisingly, in both these instances, the complainant did not respond.
[35] A further series of texts that provides insight into the accused warrants mentioning. This again is a series of texts he sent to the complainant and again I can do no better than to quote the accused directly. In this series he asks "sooo ya wanna get your hole smashed one last time…we can call it a hate fuck." The accused testified that this was more or less the normal way they conversed during their relationship. The complainant stated he often spoke like this, but she did not.
[36] These are just a few examples of the accused's angry, vindictive and manipulative nature revealed by these texts. In citing these examples, I should not be interpreted as finding that because the accused is an angry, vindictive and manipulative person that he is more likely to have engaged in non-consensual sex. What I am saying is that someone who can be so angry, vindictive and manipulative with someone they profess to care for deeply, causes the court to be concerned about how trustworthy their testimony is.
[37] The accused testified in a self-assured manner. I did not find him to be non-responsive, evasive or overly argumentative. However, there were a number of areas of his testimony that were troubling.
[38] First, as noted, he tried to explain some of the aspects of the earlier noted texts as nothing more than the manner in which he and the complainant conversed. The "hate fuck" epithet is one of the aspects he stated was indicative of how he and the complainant were with each other. I do not accept this. After observing her in court and reviewing these texts and others as well as all the other evidence presented, I find that this was not indicative of how the complainant would speak or behave, as the accused would like me to believe.
[39] Also, the accused was asked about his thoughts concerning a new person the complainant was seeing. He testified he knew she was living with this person, that he himself was seeing other people, and that he did not feel it was a big deal. However this is contradicted in the texts where he blames this person for him losing the complainant, and he states he fights the urge every day to remove him from the situation.
[40] In other aspects of his testimony, the accused seemed to be making it up as he went along. For instance, in cross-examination he was asked how the complainant could have received the bruises she did and why she experienced the pain she felt after their encounter. His explanation for the bruises was that he had particularly bony hips, and that his hurried thrusting could have caused his bony hips to leave the bruises. In terms of the pain she was feeling, the accused explained that he has an uncommonly large penis and that this could have accounted for her pain.
[41] I find these explanations not to be credible, for two reasons. First, the accused did not mention these explanations in his testimony in-chief, notwithstanding he was represented by experienced defence counsel.
[42] Second, there was evidence led regarding a prior pattern of consensual sex between the accused and the complainant since their break up in August 2011. There was no evidence before me that in any other incident of consensual sex between them, did the accused's bony hips cause bruising to the complainant, nor was there evidence that the size of his penis ever before caused her to experience the pain she felt on this occasion.
[43] In terms of the prior sexual activity that was led at trial, I should note this was introduced by the Crown in the evidence in-chief of the complainant. Apparently the Crown and defence counsel discussed this issue prior to trial and the Crown agreed that a s. 276.1 application would likely be successful if brought by the defence. As such, the Crown discussed this with the complainant and she consented to allowing the Crown to lead this evidence.
[44] I should note though, notwithstanding this evidence was led at trial on the agreement of the parties; it still has very limited value. Regardless of how the evidence is led, I am still not permitted to rely on it for the statutorily impermissible purposes listed in s. 276(1)(a) and (b) of the Criminal Code, those being that because of the nature of the prior sexual activity the complainant is more likely to have consented to the sexual activity that is the subject matter of the charge or; that the complainant is less worthy of belief.
[45] Also, there is the matter of the text messages that were exchanged shortly after the incident in question.
[46] The first message was sent by the accused to the complainant at 6:38 p.m., shortly after she left his residence. This message stated "That was your fault. You shouldn't have brought T. She wasn't invited."
[47] The complainant responded to that message at 6:42 p.m. by stating "What you did was wrong and you know that."
[48] The accused texted next at 6:45 p.m. by saying "No it wasn't. You had it written all over your face from the second you walked through the door. You wanted it and you know it. If you didn't I wouldn't have a huge mess all over my bed, so don't give me that."
[49] The complainant responded to this at 6:47 p.m. and stated "I said No! Repeatedly, and fought you."
[50] At 6:48 p.m. the complainant texted again "The only reason you got what you got is because my fucking son was in the next room, and I did not want to cause a scene."
[51] At 6:49 p.m. the accused responds by saying "All I ever wanted was if it couldn't work then show some love once in a while. You could try something new with someone. It hurts. But I never wanted to control you or stop you as long as I knew we still share that, then it's not so bad."
[52] Then at 6:49 p.m. the accused texts again and says "So please don't do this now."
[53] Then he texts her again at 6:49 p.m. saying "It was a good time, just leave it at that."
[54] Again at 6:50 p.m. he texts her and says "But that little bit of love keeps me going."
[55] Then he texts again at 6:51 p.m. saying "I love you."
[56] The complainant texts him back at 6:52 p.m. and states "Listen you got what you wanted. I suggest you leave me alone and quit with all your shit. This is it. What you did was wrong. I did not want it and you chose not to hear my warning. You will suffer the consequences. You have hurt me for the last time! From here on out we are parents of an amazing child and that is it. Have a good weekend."
[57] The accused responded to this message at 7:06 p.m. with "Don't threaten me! Don't fuck this up. Did you not want it when you told me to shut up and pulled me in for a kiss or started kissing me back at the start. Like look how fast and hard you comed. Yes you were saying no at first but you gave in because you wanted it. It was the best quickie ever and you know it. Why are you starting the fight back up."
[58] These text messages are further evidence of the problematic nature of the accused's credibility. On his version of the incident, he and the complainant had a consensual, mutual gratifying sexual encounter. It may have been somewhat quicker than normal but according to him, when the complainant left there was nothing wrong or really out of the ordinary. She kissed him, and their son goodbye and left without any hint anything was wrong.
[59] When asked in light of that why he felt it necessary to send his first text, what he intended by it, and the reason for assigning fault when there was apparently nothing wrong when she left, he stated he was pointing out the reason the encounter had to be rushed was because the complainant brought her friend.
[60] I find that how the messages unfolded after this first text is very telling. The accused wants me to believe that when he sent the first message there was no issue at all in his mind about the consensual nature of the encounter. It was not an issue. The only issue regarding the encounter according to him was that it was rushed and that was the purport of his first text.
[61] When the complainant responds that what he did was wrong and he knew it, the accused's response is very telling. If he truly believed the only issue concerning their encounter was how rushed it was I would have expected a response from the accused relative to that, such as "I didn't do anything wrong, it was your fault it was so rushed, if you hadn't brought your friend we could have taken more time."
[62] However his response is not at all related to the issue of the quickness of the encounter but focussed squarely and exclusively on the issue of consent.
[63] When the complainant responds further that she said "no" and fought him his responses quickly shift into what appears to be an attempt at damage control. He tries in his next series of messages to play to the complainant's emotions concluding with telling her he loves her. When she eventually responds and it is clear that is not going to work, he then gets angry and tells her not to threaten him.
[64] These series of texts lead me to conclude that notwithstanding his explanations in court, the accused was aware the consensual nature of the encounter was in question when the complainant left.
[65] It is for all these reasons that I find that the accused is not a credible witness and I am unable to believe his evidence. Nor, when viewed in the context of the totality of the evidence does his testimony raise a reasonable doubt relative to the issue of consent.
[66] In terms of the complainant's credibility assessment, I found her to be an intelligent and articulate witness. She gave her evidence in an even-handed way, without any hint of vindictiveness or malice on her part for the accused. In fact, given what she alleges the accused did to her, quite the opposite is true. In her testimony she was asked why after their separation she continued to let their son see the accused when he had been abusive to her. Her response was that she knows deep down, the accused is still good. As well, there was evidence that even after he was charged with this offence and while prohibited from having contact with her, the complainant still made arrangements for the accused to see their son, knowing that it was likely a violation of his bail conditions.
[67] I found her to be someone who came to court to give her evidence because it was the right thing to do, notwithstanding the anxiety it must have caused and the private nature of her evidence. I also felt that she fully appreciates the gravity and implications of her allegations.
[68] I also find there were no significant contradictions or inconsistencies in her evidence. The defence has pointed to a number of areas of her evidence that it is contended ought to either individually or collectively cause me to reject her evidence outright or find that it leaves me in a state of reasonable doubt. I do not agree with the defence in this regard.
[69] It is the contention of the defence that the fact the complainant did not scream or cry out during the incident is evidence supportive of the consensual nature of the encounter. I do not accept this. There is no standard or predictable way victims of sexual assault will act during an encounter. Those of us who have not been the victim of such an attack often assume we know how we would react in such a situation. We assume we would yell, scream and fight the attacker to within an inch of our lives and we assume others would act the same. Our knowledge of how victims of a sexual assault will react has evolved over time and continues to do so. What seems clear is that a victim will do what they believe at that moment is necessary to survive the attack. In some cases that may mean screaming or yelling. In some it might mean fighting back. In others it may mean staying silent. For me to make assumptions that I know what a particular victim should have done is not only problematic but impermissible and I decline to do so.
[70] In this case the complainant indicates she did not scream out because she did not want to involve their son and if she had done so, it would have escalated the situation. Given what I have seen of the accused and in particular his text messages, that, I find is a very plausible and reasonable explanation.
[71] The defence also points out the accused did not have any scratch marks on his back when arrested even though the complainant testified she scratched him. I would first note there was no conclusive evidence that the accused's shirt was off during the encounter. The preponderance of the evidence would suggest otherwise. When asked directly, the complainant stated she did not know if his shirt was off. Additionally, the only mention of the accused removing clothing during the encounter by both the complainant and the accused was that he pulled down his sweatpants only far enough to take out his penis. Neither testified he removed any other item of his clothing. It would seem from that the most likely conclusion is that his shirt remained on. If it was and she was scratching him over his shirt, it seems believable he would have no scratch marks.
[72] The complainant did say at the hospital skin was scraped from under her fingernails which could lead me to conclude she was scratching him on his bare skin; however, I would note that there is no mention in the sexual assault kit that skin was found beneath her fingernails. Additionally, the sexual assault nurse never testified about collecting any and, based on that, if anything was scraped from under her nails, I am not prepared on the evidence before me to conclude it was the accused's skin.
[73] The defence also contends that due to the size difference between the accused and the complainant, she being larger than him, that I ought not to believe he had the strength necessary to throw her onto the bed as she claims. On this point I would note the complainant testified that the accused was strong even if he was smaller than her. Additionally, I would note that the accused never testified he was not strong enough to physically handle the complainant as she described. Based on the evidence before me, there is no reason for me to believe the accused was not capable of doing so.
[74] The next two reasons advanced by the defence to reject the complainant's evidence are interrelated. One is that she continued to have a relationship, sexual and otherwise with the accused after their separation and second that after the incident in question, she sought the advice of the off-duty OPP officer she encountered while picking her other son up from Cadets. These factors are of particular significance in this case according to the defence because the complainant went to school and took training for addictions counselling and currently works as a family counsellor. Given her training and work history, the argument goes, she would not maintain any relationship with the accused if it was as dysfunctional as she claims and she would not need to seek advice if she were the victim of a sexual assault.
[75] When confronted with this while testifying the complainant had a very thoughtful response. She indicated that when it is your own personal situation people react differently than when it is in a professional capacity. That answer makes a lot of sense, and I accept it.
[76] A further reason proffered by the defence to reject the complainant's testimony is that she had just commenced a relationship with a new boyfriend and the guilt she felt from being unfaithful could have caused her to claim the encounter was non-consensual.
[77] I do not accept this. As stated earlier, I find the complainant to be an intelligent, articulate and thoughtful person. She did not exhibit any signs of malice or vindictiveness in court and there is nothing in the evidence that would lead me to believe she is the type of person who would choose to falsely accuse the father of her child of a serious crime simply to avoid being exposed as unfaithful to a very recent boyfriend or to assuage any feelings of guilt she may have had.
[78] The next issue pointed to by the defence is that when she left after the encounter, the complainant did not take their son, but left him in the care of the accused. The implication is that if the encounter occurred as she described, she would not leave their son there. Her response to that was plausible and I accept it. The complainant indicated it was a dangerous situation for her but not their son. Additionally, notwithstanding their issues and his problems, there is no evidence the accused was ever violent or a threat to their son directly.
[79] There was also some inconsistency as to when the complainant told her friend what had occurred. The friend stated it was as they were about to enter the friend's house while the complainant stated it was after they had left the friend's house. There is no doubt that the complainant told her friend not long after leaving the accused's place. I find, given the circumstances, whether it was before they went in the house or just after coming out, is of little consequence.
[80] Another inconsistency that I find is of little consequence is whether the complainant saw the accused's mother at his residence on the day in question. In her testimony she indicated she did not see her; however, in a statement to police at the time, she said she did. Given that it is clear that when she arrived, the complainant almost immediately went into the accused's bedroom and then after the encounter left quickly, it is not surprising there may be some confusion about whether she saw the accused's mother. Even in her testimony, the accused's mother stated she was in the kitchen and saw the complainant come and go but did not testify to any interaction between them.
[81] The last aspect mentioned by the defence that I will deal with is that after the accused was charged with this offence he and the complainant continued to have contact. As stated earlier this contact seemed primarily designed to keep their son in the accused's life. It was suggested to the complainant that she had told the accused that the police had changed her statement; she denied this and there is nothing on the evidence to suggest she ever gave any different version of the events.
[82] There is also other evidence supportive of the complainant's testimony.
[83] Prior to entering the accused's residence, the complainant was her normal helpful self. However, her demeanour was markedly changed upon leaving. This change was immediately apparent and concerning to her friend. I find that this significant change in her demeanour is only consistent with something having happened as she described. As well, it is completely inconsistent with the accused's claim that nothing out of the ordinary happened, other than the sexual encounter was rushed.
[84] The same applies to the physical injuries the complainant exhibited and felt. They are consistent with the encounter happening as she described.
[85] Based on all these findings, I am satisfied the complainant is a credible witness. I believe she is telling the truth and I accept her version of the sexual encounter as she described it to be true and accurate.
[86] As a result, based on the evidence which I do accept, I find that the Crown has proven beyond a reasonable doubt that the complainant did not consent to the sexual encounter that took place between her and the accused on May 24, 2013.
[87] As stated at the outset, since the accused is asserting an honest belief in consent the next step according to R. v. Ewanchuk is to determine the accused's state of mind. The initial step in this analysis is to ask whether any evidence exists that would lend an air of reality to such a defence.
[88] I find that there is no evidence that could lend an air of reality to the accused's contention he honestly believed the complainant to be consenting based on the evidence as I found it. The complainant told the accused "no" when he first initiated sexual contact, and told him again, numerous times, after he persisted in his advances. She pushed him and struggled with him before eventually giving up. In these circumstances, I find there is nothing that occurred in the bedroom that would lead the accused to believe the complainant was consenting.
[89] Moreover, even taking his contention at its highest, the accused continued his advances after the complainant explicitly rejected his advances and as the Supreme Court stated in R. v. Ewanchuk at paragraph 52: "Continuing sexual contact after someone has said 'No' is, at a minimum, reckless conduct which is not excusable."
Conclusion
[90] In conclusion then and to be clear, I find that the Crown has proven beyond a reasonable doubt that the complainant did not consent to the sexual activity in question and I am also satisfied beyond a reasonable doubt that the accused was aware of her lack of consent and proceeded regardless. As such, he will be found guilty of the charge.
Dated at Brantford, Ontario
This 17th day of January 2014.
The Honourable Justice R.S. Gee