WARNING

The court hearing this matter directs that the following notice 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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 Region

Date: February 4, 2014

Ontario Court of Justice

Between:

Her Majesty the Queen

M. Savage, D. Steinberg for the Crown

— And —

A.V.

P. Connolly for the accused

Heard: July 5, 6, November 22, 23, 2012, June 7, 14, July 12, 2013

FELDMAN J.:

Introduction

[1] A.V. entered a not guilty plea to a charge of Sexual Assault. The Crown proceeded by way of Indictment.

[2] The Crown called the complainant, her fiancée, now husband, and her brother in support of its case. A.V. testified in his own behalf. I am mindful of the burden of proof on the Crown.

[3] A.V. is a distant relative of the complainant, A.N., and a close family friend. It is alleged he had sexual intercourse with the complainant against her will. The defendant admits having had sexual relations with A.N., but with her consent.

[4] In the event the Crown proves a lack of consent, the defence says the evidence should nonetheless leave the court in reasonable doubt about his guilt for the reason that the accused honestly believed the complainant was consenting and that this belief was reasonable.

[5] This is the second trial. Near the end of the first, it became apparent that while the defendant appeared fluent in English, his use of language in his own defence was at times stilted and his choice of some words in describing his relationship with the complainant questionable. He claimed he did not need the services of an interpreter.

[6] I accepted that he had a good understanding of English, but given his prior testimony I felt he might be unable to express himself fully with regard to the subtleties and nuances of human and sexual relations. I declared a mistrial. Counsel for the parties proposed that at the new trial both the complainant and accused testify again while being subject to cross-examination. They suggested, and I agreed, that the prior testimony of the complainant's brother and fiancée be admitted into evidence.

The Complainant's Evidence

[7] A.N. was 21 years old at the time of these events. A.V. was 27 years of age, married and had an infant child. Their two families were close, lived near to each other and got together regularly.

[8] The accused's family moved to Toronto from Montreal in 2008. While she has known him since she was 10 years old, the complainant told the court that she would see the defendant more often since his arrival here and became closer to him, although she had no romantic interest in him. She says he and her father are very close.

[9] While not sure of the date, A.N. testified that on a day in mid-July 2010, she was home alone, her parents being away in the country and her brother out somewhere. Her father had asked the defendant to check up on her. He called around 4 p.m. He asked why she didn't go with her family and she explained that she did not want to be with certain family members. She invited him over but he said he was unable to visit as he had to be at work at 5 p.m.

[10] A.N. told the court she was surprised that the defendant showed up just before 5 p.m. holding a beer can and seeming, in her words, to be a little tipsy. She indicated he said nothing but proceeded to hug her and grab her buttocks. He had hugged her before but this time she said she had a feeling something untoward would happen.

[11] The complainant said she tried pushing the accused away on his chest but he held her tight and told her that he wanted to do it with her and that he didn't get it from his wife. She smelled alcohol on his breath. She said she was in shock and continued to push against him, but he was too strong. She gave evidence that he carried her to the sofa, although she does not recall precisely how he did that. She told him to let her go and said she resisted but to no avail.

[12] A.N. testified that the accused put her down on the couch on her back and unbuckled his belt, letting his pants and underwear fall to his knees. In her statement to the police she said similarly that the defendant did not take off his pants completely. However, in prior testimony she testified that he took off his pants, but explained at this proceeding that she had then been unclear and meant part way.

[13] She said he slid her underwear to the right although she did not indicate this to the police. He held on to her shoulders and legs. She was screaming and crying. The complainant told the court he entered her vaginally for about two minutes after which he went to the washroom. She remained there, crying. When he returned, she said he told her not to tell anyone as it could ruin his child's life. He left to go to work.

[14] A.N. told the court that she did not initially tell anyone or call the police as she had been the victim of a similar violation a couple of years earlier by an older friend of her father. She said she told others about it, but nothing was done.

The Fiancée's Evidence

[15] Prior to becoming the complainant's boyfriend, S.S. had learned of this prior assault from a mutual friend. He became her fiancée on July 8, 2011.

[16] A.N. confided in her fiancée about this allegation about a month after becoming engaged when she was travelling with her family in Europe. She did so after S.S. confronted her in a phone call about why prior to the trip she appeared to be acting strangely and would not smile in the accused's presence. She then told him about being violated by the defendant.

[17] In this regard, in the prior proceeding, A.N. testified that the accused was only together with her and her fiancée once at a tattoo parlour. She now says her fiancee had other opportunities to observe the defendant at her home.

[18] She was still on the line from Europe when her fiancée called the defendant who denied having sex with her. She recalls that when S.S. challenged him to swear on his child that he did not have sex with A.N., the accused asked him if he wanted his kid to die. She agrees her fiancée raised his voice.

[19] The complainant also agrees that the families continued to socialize after July 2010. Photos were tendered that show her attending a birthday party for the accused's daughter after the confrontation. She also told the police that prior to July she had become "tight" with A.V.

[20] A.N. denies, however, frequently visiting the defendant at the family restaurant where he worked, that she often showing up by herself to bring him beers, or sitting alone with him outside the restaurant in his car and kissing him. She agrees she discussed personal matters with him. No family members were called by either party to clarify these contentious facts in issue.

[21] Although S.S. is not an independent witness, his testimony tends to support the evidence of the complainant. He told the court about his suspicions concerning his fiancée's relationship with the defendant. Prior to the trip he had observed that when A.V. told A.N. she was beautiful or looked good she was silent and seemed uncomfortable. He testified that he confronted her about this in a long distance phone call in August. He said she confessed to him that A.V. had sex with her against her will.

[22] S.S. gave evidence that he then organized more than one call with the defendant in which the complainant from Europe and A.V.'s wife in Toronto were initially silent participants. He said the accused at first denied having sex with A.N.. He asked him to swear on his son's life that he didn't rape the complainant, an almost sacred oath in the culture of the Tamil community. In his testimony, he conceded he did not use the 'rape' word, but meant it and felt the accused knew to what he was referring. He said A.V. asked him if he wanted his son to die and his family ruined. The witness took this as an incriminating admission.

[23] S.S. was cross-examined on two occasions, months apart. On the first, he said he only spoke to the accused once in which A.V. denied doing anything untoward. The witness did not remember calling a second time.

[24] When cross-examined several months later he testified that he spoke to the defendant 2-3 times and then remembered for the first time an earlier call in which he asked A.V. why he grabbed the complainant's ass and front to which, he said, the defendant responded that A.N. was not like that. It was his evidence that while the accused admitted sexually assaulting the complainant in the first call he denied the allegation in the second until asked to 'swear on his kid'. The incongruity in his evidence is apparent.

[25] I am mindful that while memory is affected by the passage of time and cannot be held to an unrealistic standard, these inconsistencies bear upon the objective reliability of the witness's evidence on the material issue of whether the defendant admitted to having sex with the complainant with or without her consent.

The Brother's Evidence

[26] The complainant's brother, N.N., told the court that after the criminal charges were issued, the defendant called and begged him to persuade A.N. to drop the charges. N.N. said he would but had no intention of doing so.

[27] He recorded the second call, which he provided to the police. In it he asked the accused, 'Why would you do something like that. I don't get it'. The transcript of the call indicates that A.V. responded, in part, 'I can't say anything now. I don't know what to say. I feel so ashamed. I feel like a dog. This is my life now. If you see me you will know'. He also said, 'I know what I did is wrong. I will do anything you say. Just don't hurt the child'.

[28] While tending to support the evidence of the complainant, these admissions are also consistent with an admission of consensual sex outside of marriage that in the Tamil community would be unacceptable and reflect a violation of trust.

The Defendant's Evidence

[29] In his testimony, A.V. admitted having intercourse with A.N. but says it was with her consent. He submits that in the alternative he was in the circumstances honestly mistaken about its absence.

[30] The defendant is 32 years old. He is married and has an infant son. He came to Toronto from Montreal in 2009 and works at his family's restaurant. He is close with the complainant's family.

[31] He has in the past committed offences of dishonesty. On April 26, 2007, he was convicted of possession and fraudulent use of a credit card. On January 5, 2010, he received a conditional sentence of 2 years less a day for possession of a credit card forgery device.

[32] He told the court that after his move to Toronto he gradually had more contact with the complainant, visiting her family once or twice per week and speaking with her on the phone 2-3 times a week.

[33] He told the court that in late 2009, A.N. began to visit him more frequently at the restaurant, mostly alone and at least three times a week during 2010. He said that on occasion he would leave work to meet her as, for example, when she brought beer for him. He said she sometimes came in pajamas and called him out to the car. He agrees he was attracted to her. He claims things just developed between them, that they discussed sex and having something together and that they hugged and kissed in her car two or three times in the months prior to July. He agreed this crossed the line given his married status.

[34] He described how they became more than friends and talked about personal matters involving her own family and even discussed her boyfriends. She told him about her having been a victim of a prior sexual assault. He said she continued calling him after he was charged.

[35] As noted earlier, the fact-finding process concerning the nature and frequency of contact between the accused and complainant is made more difficult in the absence of evidence from others employed in the family business.

[36] A.V. testified that on the day in July during which they had sexual relations, A.N. invited him over. He usually left for work between 5-5:30 p.m., but instead went to her house between 4:15–5:00 p.m. He denied having a bottle of beer with him. He said she was wearing a tee-shirt and pajama bottoms. She called her brother to find out where he was and when he would be back but got no answer.

[37] The defendant told the court that A.N. invited him to sit down on the sofa and talk. He said they then started caressing and kissing each other after which the complainant suggested they go upstairs to her bedroom in the event her brother came home.

[38] He gave evidence that while standing in front of the bed they again began touching each other and that they both pulled down their pants. He said the complainant pulled up her top a little, turned and bent down on the bed. He then entered her.

[39] A.V. went on to testify that prior to receiving a phone call from A.N.'s fiancée in late August, he had been in his company once 4-5 months earlier when the defendant went to get a tattoo done. He recalls everything being normal.

[40] He told the court that in not wanting to cause problems for the complainant's family he initially didn't respond when accused repeatedly in that call by S.S. of having sex with A.N.. He said the fiancée was screaming and told him to swear on his son's life, a gravely serious oath in Tamil culture, that he didn't have sex with the complainant. He understood the implication was that it was against A.N.'s wishes but of significance would not swear on his son's life claiming he did know what the complainant told her fiancee. He later suggested S.S. wanted him to promise he didn't do anything with A.N., a self-serving assertion not borne out by the evidence. He said there was a second call during which the fiancée seemed angrier and threatened to kill him.

[41] A.V. also indicated to the court that when he denigrated himself in response to A.N.'s brother remonstrating with him for "doing something like that", he said he understood this to mean he had broken his trust with N.N. by having sex with the complainant. He claims that in his reference to 'drinking' when speaking to the brother he was not referring to himself. On the evidence, these are questionable assertions.

[42] A.V. says that he and the complaint had consensual sex. In the event the court is not left in reasonable doubt on the issue of consent, the defence submits that such a doubt exists on the alternative basis that the accused had an honest but mistaken belief in that regard. This defence is discussed in the following authorities.

Mistake of Fact

[43] The defence of honest but mistaken belief in consent is understood as simply a denial of the mens rea of sexual assault: R. v. Davis (1999), 29 C.R. (5th) 1, at p. 27 (SCC).

[44] In this regard, in determining the issue of honesty, the mistaken belief need not be reasonable or reasonably held. However, the presence or absence of reasonable grounds for the belief are relevant in this analysis: R. v. Bulmer (1987), 58 C.R. (3d) 48, at p. 56 (S.C.C.). In essence, as indicated by Lamer C.J.C. in Davis, at p. 27, there must be an 'air of reality' to the defence arising from the totality of plausible evidence: see also R. v. Esau (1997), 7 C.R. (5th) 357, at para. 14 (S.C.C).

[45] However, a mere assertion that the complainant consented is insufficient to raise the defence. Rather, while the evidence relied on may come from the accused, it may also emanate, as part of his evidential burden, from the complainant's testimony, other sources or a combination of all three: R. v. Davis, supra, at p. 29. Of significance, other sources may include relevant and admissible background facts, including earlier acts, gestures or incidents: R. v. Park (1995), 39 C.R. (4th) 287, at p. 301.

[46] In describing the nature of this evidence, the Chief Justice approved the statement by McLachlin J. (as she then was), in dissent, in Esau, at para. 63, as follows:

[47] "There must be evidence not only of non-consent and belief in consent, but in addition evidence capable of explaining how the accused could honestly have mistaken the complainant's lack of consent as consent. Otherwise the defence cannot reasonably arise. There must, in short, be evidence of a situation of ambiguity in which the accused could honestly have misapprehended that the complainant was consenting to the sexual activity in question."

[48] Importantly, as set out in Davis, at p. 29, there will be no air of reality where the evidence shows that the accused was reckless or wilfully blind as to whether the complainant consented. As Lamer C.J. pointed out, "in those circumstances, the accused has subjectively adverted to the absence of consent, and therefore cannot have an honest but mistaken belief that the complainant consented". In such a case, there would be no ambiguity to support an inference of misapprehension about consent.

[49] In determining the essential elements of the offence, including the viability of this defence, the onus of proof rests with the prosecution on the basis of reasonable doubt.

Reasonable Doubt

[50] The standard of proof beyond a reasonable doubt is bound up with the fundamental principle in criminal trials of the presumption of innocence. This standard has been described as proof to a near certainty: R. v. Starr, 2000 SCC 40. The burden of proof rests on the prosecution throughout the trial and never shifts to the accused: R. v. Lifchus (1997), 118 C.C.C. (3d) 1 (S.C.C.).

[51] Reasonable doubt is to be applied where credibility is at issue. In R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.), Cory J. laid down a 3-step analysis. With regard to the first two elements, the trial judge must acquit if the evidence of the accused is believed or if he or she is left in reasonable doubt by it even if the judge does not believe that evidence. The third element obliges the judge to ask him or herself, even if not left in reasonable doubt by the accused's evidence, whether on the balance of the evidence he or she does accept that the court is convinced to the requisite standard of the guilt of the accused.

[52] In this analysis, rejection of an accused's evidence may be derived from "a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence", but not on the basis of preferring the worth of one over the other: R. v. J.J.R.D., [2006] O.J. No. 4749 (Ont. C.A.); R. v. Maharaj (2004), 186 C.C.C. (3d) 247 (Ont. C.A.).

[53] The trier of fact is entitled to assess an accused's testimony in light of the whole evidence, including the testimony of the complainant, and in doing so comparing the evidence of the witnesses: R. v. Hull, [2006] O.J. No. 3177 (Ont. C.A.). In fact, the court made reference in this regard to the "positive duty to carry out such an assessment", given the possibility that the judge may be left in doubt about the guilt of the accused.

Findings of Credibility and Fact

Prosecution Evidence

[54] I view the evidence in the context of the prior family history and nature of the relationship between the accused and complainant. This context is relevant in assessing evidence on consent and the defence of mistake of fact.

[55] In this regard, I weigh the evidence of the complainant that she became "tight" with the defendant and discussed personal and intimate matters with him, that she visited him at his place of work, although it is unclear how often or what the nature of their interaction there was, and that they attended family events after the incident giving rise to this charge. The failure to call other family members to add to the narrative did not assist the fact-finding process.

[56] The narratives of the two parties with regards to the allegations were diametrically opposed. The complainant alleged that A.V. forced her onto the living room couch where he confined her and forced her to have intercourse. She was not ambiguous in describing her resistance to being violated in a manner that if accepted would not permit an inference of possible misapprehension by her assailant that she was consenting. By contrast, the defendant said he experienced no resistance and that at the complainant's behest they went upstairs to her bedroom and had consensual sex.

[57] A.N. was straightforward in discussing the closeness she had developed with her defendant cousin and in admitting she had invited him over to an empty house on the day of the alleged incident. On all the evidence, I found the complainant's testimony credible, subject to some reliability concerns. Her evidence was corroborated by that of her brother and fiancée, at least to the degree of establishing that intercourse occurred, as well as enhanced by elements of unreliability in the defendant's testimony, about which more will be said later in these reasons.

[58] Defence counsel raised a number of inconsistencies in the complainant's recounting of the material allegations. These included her not recalling how the defendant carried her to the sofa, if she resisted, although she says she was screaming and crying, or how he confined her on the couch. She testified that the accused took off his pants but had earlier told the police he let them fall to his knees. She did not tell the police that A.V. moved her panties to the side before entering her.

[59] I consider these discrepancies to be of a more peripheral nature given the inevitable impact on memory of the passage of time in relation to quick and apparently unexpected intimacy. The complainant's explanation for not complaining until confronted by her fiancée because she was not believed when she complained about an earlier sexual assault is plausible. Her telling her fiancée of this earlier assault but not the more recent one is less so.

[60] As noted earlier, S.S., demonstrating interest rather than objectivity, testified in service of proving the Crown's case by initially suggesting that in a phone call the defendant admitted raping the complainant, later conceding otherwise. A.N. admitted he was aggressive with the accused in the calls in relation to which I found a number of material inconsistencies. It is possible he threatened the accused.

[61] As a result, I would accord diminished weight to this witness's evidence. At the same time, it was sufficient to support the probability that A.V. was aware of the allegation about which he was confronted concerned non-consensual sex. In addition, in perceiving his fiancée's seeming discomfort in the defendant's presence, he was prescient.

[62] N.N.'s testimony tended to support the evidence of his sister, as well as permit the inference, given the accused's entreaties to him, that the accused probably forced intercourse on the complainant.

The Defendant's Evidence

[63] A.V.'s testimony was unimpressive. It was subject to a number of material inconsistencies. On the evidence, his assertion, that when he showed up at her door, A.N. was immediately amorous and open to having instant sex, lacked plausibility. As well, his post-offence discussion with the complainant's brother asking that he interfere in the criminal process raised questions about his character, as did the nature of his prior criminal antecedents.

[64] Some of his material inconsistencies are of a self-serving nature and include the following. At the first trial, A.V. said that when A.N. came to the restaurant where he worked they had to keep their distance to avoid physical contact like kissing that would attract the attention and disapproval of family members working there. At the second trial, by contrast, he contended that they left 2-3 times to go to his car where they would hug and kiss each other, self-serving evidence tending to indicate building intimacy.

[65] At the first trial, the defendant testified that he and A.N. discussed sex generally but never about having intimate relations together, while at the second proceeding he said they discussed having sexual relations with each other, an assertion conveniently supportive of the defence of honest mistake of fact.

[66] At the second trial, A.V. told the court that on the day of the alleged assault he only found out the complainant was alone when he got to her home. He seems to have forgotten that at the first trial he said that in inviting him over A.N. indicated to him that she was alone. In going over there just prior to work he had only a narrow window of opportunity to be with her. His shift on this issue of fact at the second proceeding served to provide a more innocuous cover for showing up at her door. It did not help his credibility.

[67] As well, there are other elements of the accused's evidence that weigh against his testimonial reliability. For example, contrary to the evidence of the complainant, A.V. denied having consumed alcohol and carrying a beer bottle when he showed up at A.N.'s door. Of significance, he later explained to the complainant's brother that he had been "drinking" at the time and was a "total dog".

[68] There is more. He pleaded with the brother to help make the charge go away by arranging for the complainant to avoid testifying. This wilful attempt to interfere in a criminal proceeding raises additional questions about A.V.'s character and therefore reliability as a witness.

[69] Finally, it is open on the evidence to be inferred that when in a phone call with S.S. he was unable to swear on his son's life that he did not have sex with the complainant he was aware the implication was without her consent.

[70] For these reasons and on all the evidence I would not rely on A.V.'s evidence concerning the material allegations in this case, in particular, the issue of consent.

Conclusion

[71] This is a troubling case. The accused and complainant were related and close. The impact of the events on the two families and the individuals involved is profound. But on this evidence, there can be no doubt that sexual intercourse took place. Did A.N. consent?

[72] In weighing the evidence, as noted earlier, I found the complainant's evidence on the material issues of fact credible and supported in part by other evidence, in addition to that of the accused including his admission to others that intercourse occurred, that at least impliedly he knew it was morally wrong and that he feared the social consequences, all of which in my view informed the self-serving nature of his testimony and its inconsistencies. In this context, I accept A.N.'s evidence that following intercourse, A.V. implored her not to tell anyone, in the words, "don't ruin my life", permitting the inference of motive to be less than forthright in his testimony.

[73] For reasons given earlier, I would not rely on the defendant's evidence that intercourse occurred by mutual consent, nor on all the evidence am I left in reasonable doubt by his evidence in relation to this material issue of fact. This rejection of his evidence tends to enhance the reliability of that of the complainant in this regard: see R. v. Hull, supra.

[74] I return to the question of inconsistencies in the testimony of the complainant. While she was unclear on certain details of the encounter, I found the purported inconsistencies by her to be peripheral in nature and of a kind in relation to this relatively young woman that point to the effect on perception and memory of fast-moving events, in this case of a traumatic nature, as well as the passage of time.

[75] I accept that her hesitation to complain was related to a number of factors, including embarrassment and shame, concern about family cohesion, the defendant's plea about his son and importantly, the fact that it appears her complaint about her violation by her father's friend years before came to naught.

[76] Upon a weighing of all the evidence, I am satisfied to the requisite standard that the complainant did not consent to intercourse and that she was unambiguous in her rejection of and resistance to the accused's sexual advances.

[77] The remaining question concerns whether or not there is a reasonable doubt on the evidence that the accused had an honest but mistaken belief that the complainant consented to intercourse.

[78] There is a basis in the evidence for this defence. The two parties had a long family connection and had more recently become closer. They had spent some time together in family gatherings and on a few occasions at the family restaurant. A.N. confided in the accused on personal matters. It was clear A.V. was attracted to the complainant, although he was married with child.

[79] I draw the inference that the defendant, possibly fuelled by alcohol, took advantage of a window of opportunity to act as he did. As indicated earlier, I am not left in reasonable doubt that the complainant was clear in expressing and demonstrating her resistance to what was imposed on her. In the circumstances, on the evidence, I am not left in reasonable doubt that A.V. was at least reckless in responding to A.N.'s unambiguous objections and resistance. Given that finding, I am not left in reasonable doubt that the accused had an honest but mistaken belief in consent and that this belief was reasonable.

[80] In the result, A.V. will be found guilty of sexual assault.

Released: February 4, 2014

Signed: "Justice L. Feldman"