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(3) of the Criminal Code. This subsection and subsection 486(5) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (3), read as follows:

486.— (3) Subject to subsection (4), the presiding judge or justice may make an order directing that the identity of a complainant or a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way, when an accused is charged with

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,

(ii) an offence under section 144, 145, 149, 156, 245 or 246 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 section 146, 151, 153, 155, 157, 166 or 167 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), (ii) and (iii).

(5) Every person who fails to comply with an order made under subsection (3) or (4.1) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: December 1, 2015

Court File No.: Sioux Lookout, Ontario 146122 00

Between:

Her Majesty the Queen

— AND —

K.M.

Before: Justice Peter T. Bishop

Heard on: June 23, 2015 and August 25, 2015

Reasons for Judgment released on: December 1, 2015

Counsel:

• Peter Keen, counsel for the Crown
• Kevin Romyn, counsel for the defendant K.M.

BISHOP J.:

Charge

[1] K.M. of [indian reserve omitted], Ontario has been charged on or about October 22, 2014 at the [indian reserve omitted][indian reserve omitted] in the said region, did commit a sexual assault on S.L. contrary to Section 271 of the Criminal Code.

[2] The Crown proceeded by way of indictment and the accused elected to be tried by this court.

Evidence of S.L.

[3] At the time of the occurrence Ms. S.L. was employed as an Economic Development Assistant with [indian reserve omitted], First Nation. At trial she was unemployed.

[4] Ms. S.L. was the former partner of the accused and they have one child together.

[5] The relationship ended in June, 2014. The accused came back for a visit with his son and shared accommodations with Ms. S.L.

[6] Mr. K.M. usually slept in the living room and had been staying there for a couple of weeks.

[7] Ms. S.L. had been drinking with her brother-in-law J.B.

[8] It appeared that the accused was annoyed when she and her brother-in-law came back from D.

[9] Ms. S.L. had become involved with another man, M.S. of [indian reserve omitted] and on October 22, 2014 she received a phone call from him. The accused was walking back and forth in the residence and appeared agitated when she was talking to Mr. M.S.

[10] Ms. S.L. and the accused were arguing, the gist of it being that she had given up on their family.

[11] She sleeps in her own bed with her son. He asked if he could bring a bed into her bedroom and she said okay. Mr. K.M. wanted to lay down and hold her. She kept telling him that she didn't want to and she didn't like feeling crowded.

[12] She eventually just laid down and let him hold her like he wanted to and one thing led to another. He started kissing her and she just let him do it. And that's what led up to having sexual intercourse.

[13] Mr. K.M. took her clothes off and she felt angry. She just had her eyes closed. He had sexual intercourse with her.

[14] She was crying throughout and began crying when this encounter happened.

[15] She did not want to have sex with Mr. K.M. After he was finished he just got up, got dressed and walked out and she laid there.

[16] She asked if it was okay if she got dressed and he said that he didn't care go ahead.

[17] She again asked him to leave her alone and he just kept telling her that she was giving up on the family.

[18] She sent a message to her brother-in-law J.B. on Facebook and told him to call her Dad to come and get her. J.B. answered in five or ten minutes and later her Dad showed up. She and her son left and she went to her parent's place and on the way there she told her Dad what had happened. Her mother called the police and she was interviewed.

Evidence in Cross Examination

[19] She admitted that she had consumed some beer. She had one beer on the way back from D. and her brother-in-law had a couple and she drank a couple with her brother-in-law before getting on the phone with M.S. She estimated that she had four to five beer and she was on her fifth one when she finally stopped drinking. She recollects that she may have had a couple of percocets at home mixing beer and percocets.

[20] When she went to bed she was wearing capris pants and a tank top on and does not wear a bra when sleeping.

[21] She did not tell Mr. K.M. to get out of the bedroom because when she is around him she goes weak and she just can't. She just lets it happen. It took her two and one-half months after this incident to get son to stop talking about what he saw.

[22] Throughout the sexual encounter she just kept her mouth shut.

DNA Evidence

[23] Mr. K.M. gave a sample of his blood from which a DNA analysis was conducted.

[24] The conclusion was that K.M. cannot be excluded as the source of the samples of DNA found on Ms. S.L.'s vaginal and external genitalia.

[25] The probability that a random sample unrelated K.M. would coincidently share the observed DNA profile was estimated to be one in sixteen trillion.

[26] A lengthy DVD statement was taken from the accused and a transcript was prepared with the accused being interviewed by Acting Detective Sergeant Michael Ceci. The last piece of evidence submitted by the crown was an iPod message from K.M. to S.L. The statement was filed as Exhibit T4 and revealed that at 6:41 p.m. on October 22, 2014 K.M. stated "I'm very very sorry I miss you guys..and all I been doing to wondering around in the bush..and thinking about what happened this morning and how selfish I am, I am very sorry for being that way..love you".

[27] And later in the evening at 7:03 p.m. "ohh and I didn't make any of the calls I said I was going to make..kay give our baby a hug and kiss for me tell him I miss him and love him so much". Concluded at 11:18 p.m.

Evidence of K.M.

[28] Mr. K.M. is thirty eight years of age and originally from [indian reserve omitted], First Nation. He has lived with S.L. in [indian reserve omitted] for approximately six years.

[29] In the spring of 2014 he was experiencing difficulties with addiction issues and went to D., Ontario for treatment.

[30] In his mind, when he returned in October, 2014 they were still a couple. He was away at treatment for eight weeks. He stayed in contact with Ms. S.L. and called the child from time to time.

[31] In his mind, S.L. never said they were finished. He stayed in D. with his Aunt for two weeks after the counselling and S.L. came to pick him up. He wanted to have his son for a weekend visit in D. but she wanted him to come back to [indian reserve omitted].

[32] He had a great deal going for him as he had a support network established there.

[33] When he returned home he and S.L. hardly talked but he looked after his son. On October 21 S.L. went to D. with her brother-in-law J.B. He stayed in [indian reserve omitted] and looked after their son. S.L. and J.B. got home about 10:30 p.m. and they seemed to be high or hyper on something. He dried the dishes.

[34] Ms. S.L. and Mr. J.B. started crushing percocets, drinking beer and snorting. They each had three to four beers.

[35] He was invited to try percocets and he had snorted one quarter of a pill, or one line.

[36] J.B. left the residence about 1:00 a.m. and S.L. began talking on her iPod. Their son was in bed.

[37] Ms. S.L. started screaming and yelling at him and he did not want this yelling to wake up their son.

[38] He stated that she undressed him and he tried to pull away but she was on her back and crossed her legs over him. She had no clothes on and screamed at him "this is the way you always want it; do it now, don't stop" and this sexual intercourse went on for about twenty minutes.

[39] He tried to stop but she kept pulling him towards her on the bed. He ejaculated. After the encounter she chased him around and he went to sleep on the couch. She got dressed and went outside for a cigarette and she messaged J.B. to call her Mom. Her Dad showed up and the child did not wake up when this was going on. She was high during this encounter and he did not want to wake up their son.

[40] The morning after he left she sent him a text on Facebook.

Evidence in Cross Examination

[41] He maintained that they were still a couple when he got back from treatment and they had not broken up. He stated that she was addicted to her iPod and they were bickering when they would leave the house. He was going to leave and was concerned about her drinking and drug use and also was concerned that she was in a relationship with someone else.

[42] He was more confused than hurt when she was sleeping with someone else approximately one week after he left for treatment. She ignored his questions about Mr. M.S.

[43] He continued to maintain that he was not upset with her but was more concerned about his son and worried that she may move from [indian reserve omitted].

[44] He wanted to talk about their family situation and she ignored him.

[45] He remained calm and not angry but she was not responding to his questions and was talking to the man that she was having an affair with.

[46] He stated that he did not want to have sex with her and she took off her clothes and got him undressed. And yelled at him to come to bed. He denies being high and was not drunk. She was in control. He did not call the police nor did he take his son out or go anywhere else. She kept yelling at him to come to the room and she pulled him onto the bed.

[47] He stated that she enjoyed sex the whole time and that she was screaming before they started.

[48] At the end of the sexual intercourse she was crying and pulled herself up. He was evasive about how he got an erection if he did not want to have sex. He admitted that he told the police a lot of things that were not true in the videotaped statement and that he got an erection by thinking about baseball and then admitted that this was not true.

Decision

[49] I have reviewed the case of R. v. W(D.), 63 C.C.C. (3d) 397 which is summarized as follows:

1. If the accused is believed, the judge must acquit.
2. If the accused is not believed, there may still be a reasonable doubt as the result of the accused's testimony.
3. Even if the accused testimony does not raise a reasonable doubt, there may be a reasonable doubt on the evidence that is accepted.

[50] I accept that Mr. K.M. and Ms. S.L. had sexual intercourse. I accept Ms. S.L.'s evidence that she did not want to have sex nor did she consent to sexual intercourse for the following reasons:

1. She was intimately involved in a relationship with another man.
2. She was concerned about protecting her son and it was highly unlikely she would have sex when her five year old son was in the room.
3. Immediately upon the sexual intercourse taking place Ms. S.L. asked if she could get dressed which is a control question needing the permission of the accused.
4. I accept that she kept her eyes closed and blacked certain things out and was too intimidated to resist. The fact that she's not verbally saying no is only one aspect of the situation which was perpetrated by the accused.
5. Immediately after the sexual intercourse finished she texted her brother-in-law and summonsed her father and told both her father and mother what happened. The police were immediately called. This is inconsistent with consensual sexual intercourse and consistent with non-consensual intercourse.
6. Mr. K.M.'s text apology is consistent with having sex without consent as there is no other reasonable explanation for the apology.

[51] Mr. K.M.'s evidence that he was separated and took counselling and that he wanted to have his family reunited and felt that they were still a family unit. This was unrealistic in light of all of the evidence and I reject his evidence and conclusion.

[52] This evidence is not accepted in light of Mr. K.M.'s knowledge of Ms. S.L.'s relationship with another individual and her body language and her protests of not wanting to have sex was inconsistent for proceeding to consensual sexual intercourse.

[53] His evidence overall makes no sense in that he was thinking about baseball to obtain an erection when somebody is forcibly causing him to have sexual intercourse. On many occasions he told the police statements that were not true and he admitted that he was untruthful in cross examination.

[54] Both Ms. S.L. and Mr. K.M. were consuming alcohol and percocets but I find that the amount consumed was relatively small and both individuals had the ability to recollect what happened. Mr. K.M.'s statement that she was high when sexual intercourse took place, if believed, should not have led him to the conclusion that she consented to sexual intercourse. I reject that assertion.

[55] At the beginning of the cross examination Mr. K.M. denied that Ms. S.L. was crying but by the end of the cross examination he admitted that she was crying when he was finished.

[56] Throughout the cross examination, he denied that he was upset when the reality was that Ms. S.L. was on the phone with her lover and he still wanted to have her and this did in fact upset him to the point of having forcible sexual intercourse.

[57] Based on all of the evidence, I am finding that the crown has proven its case beyond a reasonable doubt. Mr. K.M. took no reasonable steps to ascertain that Ms. S.L. was consenting and I find that she did not consent to this sexual interaction.

[58] For all of the reasons a conviction will enter.

Released: December 1, 2015

Signed: Justice Peter T. Bishop