Information and Parties
Information No.: 16-RA19522
Ontario Court of Justice
Her Majesty the Queen
v.
Ibrahima Bah
Decision
Heard Before: The Honourable Justice P.K. Doody
Date: Tuesday, July 12, 2016, at Ottawa, Ontario
Publication Ban: Information contained herein cannot be published, broadcast or transmitted pursuant to a s. 486.4 order of Justice P.K. Doody, Ontario Court of Justice.
Appearances
Marie Dufort – Counsel for the Crown
M. Martin – Counsel for the Accused
Decision
Doody, J. (orally):
Ibrahima Bah is charged with the sexual assault of the complainant, who was a 19-year-old student at Algonquin College, on January 16, 2016, the date of the events giving rise to this charge. She had never met Mr. Bah before that day. She lived in residence at the college and returned to the campus by bus shortly at 11:00 p.m. that evening. She had injured her right foot and was walking with a crutch. She had to walk through a number of campus buildings and then cross a road to get to the door of her residence.
Mr. Bah, a 21-year-old University of Ottawa student who had immigrated to Canada from Guinea in 2013, was on the Algonquin College campus that evening for the purpose of meeting a woman for a one night sexual relationship. He hoped to have such a relationship with the complainant. He walked beside her as she hobbled through the buildings. At one point, he touched her buttock. This touching constituted the actus reus of the offence of sexual assault. He touched the complainant in a way which viewed objectively was sexual in nature. The complainant did not consent to that touching. These points are conceded by the defence.
Mr. Bah asked the complainant a question before he touched her buttock. It was his evidence that as a result of the complainant's verbal and non-verbal response to that question, he believed that the complainant consented. The complainant testified that she made it clear that she did not consent.
The defendant is presumed to be innocent and the Crown must prove beyond a reasonable doubt each and every element of the offence. It is not sufficient that I simply choose which of their evidence I find more believable. Furthermore, it would not be proper for me to find the defendant guilty solely as the result of a finding by me that I do not believe his evidence, if I were to make such a finding.
What I'm required to do, as per R. v. W.(D.), [1991] 1 S.C.R. 742, is determine whether I believe evidence which, if true, would be inconsistent with the defendant's guilt. If I do, I must acquit him. Even if I do not believe such evidence, I must acquit him if the evidence leaves me in a state of reasonable doubt. If I'm not left in doubt by the evidence, I must determine whether on the basis of the evidence which I do accept, I'm convinced beyond a reasonable doubt of the defendant's guilty. If not, I must acquit.
The Law
Consent requires that the complainant had affirmatively communicated by words, or conduct, her agreement to engage in sexual activity with the defendant. A defendant cannot assert that he believed that the complainant was consenting solely on the basis of her silence, passivity, or ambiguous conduct, R. v. Ewanchuk, [1999] 1 S.C.R. 330, at paragraph 49.
The defendant's belief that the complainant has consented, however, need not be reasonable, R. v. Osolin, [1993] 4 S.C.R. 595, at page 649, cited in R. v. Esau, [1997] 2 S.C.R. 777, at paragraph 14, R. v. Darrach, 38 O.R. (3d) 1, 122 C.C.C. (3d) 225, at paragraph 90, Court of Appeal.
The defence of honest but mistaken belief in consent - or to be more accurate that the Crown has not proven beyond a reasonable doubt that the defendant knew that the complainant was not consenting - requires that the defendant meet an "evidentiary burden" or show "an air of reality" to his belief by being able to point to evidence upon which a properly instructed trier of fact could form a reasonable doubt, Ewanchuk, at paragraph 56.
Frequently, as in this case, the evidence of the defendant and the evidence of the complainant are diametrically opposed. An "air of reality" can be found in such cases where the defendant can point to some evidence given by him and some other evidence, including that of the complainant, which together meet the "air of reality" test - whether there is evidence upon which a properly instructed trier of fact could form a reasonable doubt.
As Justice L'heureux Dubé held in R. v. Park, [1995] 2 S.C.R. 836, at paragraph 25:
"... we must bear in mind that neither the version of the facts given by the complainant nor that given by the accused is necessarily a full and complete account of what actually took place and, as such, a jury may decide not to believe certain parts of each person's testimony. Thus, the question is whether, in the absence of other evidence lending an air of reality to the defence of honest mistake, a reasonable jury could cobble together some of the complainant's evidence and some of the accused's evidence to produce a sufficient basis for such a defence. Would the acceptance of one version necessarily involve the rejection of the other? Put another way, is it realistically possible for a properly instructed jury, acting judiciously, to splice some of each person's evidence with respect to the encounter, and settle upon a reasonably coherent set of facts, supported by the evidence, that is capable of sustaining the defence of mistaken belief in consent? If the stories cannot realistically be spliced in such a manner, then the issue really is purely one of credibility -- of consent or no consent -- and the defence of mistaken belief in consent should not be put to the jury."
To summarize, when the complainant and the accused give similar versions of the facts, and the only material contradiction is in their interpretation of what happened, then the defence of honest but mistaken belief in consent should generally be put to the jury, except in cases where the accused's conduct demonstrates recklessness or wilful blindness to the absence of consent. On the other hand, courts have generally refused to put the defence of honest but mistaken belief in consent to the jury when the accused clearly bases his defence on voluntary consent, and he also testifies that the complainant was an active, eager or willing partner, whereas the complainant testifies that she vigorously resisted. In such cases, the question is generally simply one of credibility, of consent or no consent.
If there is an "air of reality" to the defence of mistaken belief in consent, I must decide whether the Crown has proven beyond a reasonable doubt that the defendant knew that the complainant was not consenting.
If I conclude that the Crown has not done so, the provisions of subsection 273.2(b) come into play. That section provides:
"It is not a defence to a charge under s.271, 272, or 273 that the accused believed that the complainant consented to the activity that forms the subject matter of the charge where...(b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting."
This provision does not shift any onus onto the accused. It places an evidential burden on him to adduce or point to some evidence capable of raising a reasonable doubt as to whether he took reasonable steps in the circumstances known to him at the time. It does not require him to determine all the relevant circumstances. The issue is what he knew, not what he ought to have known. Nor does the section provide that the defence does not apply where the accused did not take "all" reasonable steps. That would be more onerous than the section requires. Nor does it require that a mistaken belief in consent be reasonable, R. v. Darrach, 122 C.C.C. (3d) 1;, 38 O.R. (3d) 1, at paragraphs 88 to 90 and 94.
To summarize, the law requires that I determine whether using the analytical approach described in R. v. W.(D.) a) there is an "air of reality" to the defence of mistaken belief in consent and whether b) the Crown has proven beyond a reasonable doubt, 1) that the defendant knew that the complainant was not consenting to him touching her buttock, and 2) that the defendant did not take reasonable steps in the circumstances known to him at the time to ascertain that the complainant was consenting.
The Evidence
The complainant and the defendant are in agreement about almost everything that happened on the evening in question. They disagree about what was said by the defendant just before he touched her buttock and what the complainant said and did as a result.
Before the Touching
The following facts are clearly established by the evidence of both the complainant and the defendant.
The complainant was returning to campus by bus. The defendant was at the campus hoping to attract a woman with whom to have sex.
The complainant got off the bus and proceeded through a number of buildings which were connected to the bus station. Because of her foot injury, she could only walk at about half her normal speed. After she walked up a set of stairs, the defendant approached her from behind. He slowed down to walk at her pace. They walked across an internal bridge and at the end of the bridge, he put his arm out as if to help her walk. She smiled politely and said "no, it's okay" and he put his arm down.
They then went into an elevator. He asked her name and she gave him a false name. He asked what she did to her ankle and she said she hurt it without giving specifics. She walked up a ramp. He chose to take the shorter route of the stairs, but waited for her at the top of the stairs. She had a piercing on the bridge of her nose. He pointed at the piercing and said "Ow". They then went up an inclined hallway. It is there that the touching occurred.
Complainant's Evidence as to the Touching
The complainant testified that before the touching incident occurred, he was not being flirtatious. She said that she did not perceive that he was "hitting on her". While he was walking beside her, he asked if he could touch her. She said no and in her evidence made it very clear that she did not want to be touched. About five seconds later, he asked "so, can I touch your butt?" Without waiting for an answer, he grabbed her buttock. She then took her crutch and placed it in front of her and said "don't touch me" and he backed off.
When asked to describe the touching in detail, she said:
"He used his right hand and he grabbed the right side of my butt. I was already turning. So, he didn't actually like fully grab it, but he had his hand there. And I could feel like he was actually trying to grab. But then I turned and said, no, don't touch me. So, I didn't really give him much time to do anything else."
She also testified that he did not squeeze her buttock. She said that there was "pressure" and: "It was not an accident. He was not brushing up against it." She testified: "There was no aggression at all...it was almost like a joke...like, he just kept walking like he was a friend like to me. It seemed like a huge joke like I was being pranked or something."
In cross-examination, she testified that there was no aggression from him throughout the whole incident other than the touching.
In cross-examination, the complainant was asked if the defendant had asked "do you mind if I touched you?" She denied it, saying that her no was not "in response to a permission question" and that there was no room for misinterpretation.
Defendant's Evidence as to the Touching
The defendant testified that they were having a "nice conversation" and she was "acting friendly". While they were walking along the ramp, he said to her "do you mind if I touch you?" She said "no, I don't mind" and moved her left arm in a way which indicated to him that she would not mind if he touched her. He understood that she agreed to him touching her. So, he reached out and touched her buttock. She reacted immediately and said to him "with an angry face" "don't touch me". He immediately stepped away and told her he was sorry. He testified that he was shocked. He then started walking with her again. There was no more conversation until they got to the door of her residence.
In cross-examination, he denied asking her if he could touch her "on the butt". He was adamant that he had said "do you mind if I touch you?" without specifying what part of her body he wanted to touch. He also denied that she asked him to go away or leave her alone. He was confronted in cross-examination with the evidence of a security guard who had questioned him that evening after the complainant had complained to campus authorities. The security guard had testified that he asked the defendant whether the complainant had at any time asked him to leave her alone and that the defendant had replied that she did. But because she was on crutches, he was helping her to her residence. The defendant denied telling the security that. The security guard did not have a verbatim note of the conversation.
I note that the complainant was not asked by Crown counsel whether she had asked the defendant at any time to "leave her alone".
Video Evidence as to the Touching
Two video cameras, one facing in each direction, recorded the walk along the ramp and the incident in issue. The touching occurred in the middle of the ramp hallway and the cameras were at either end. So, the details cannot be easily made out. By the timer on the screen, the touching incident took less than three seconds from the point at which the defendant began to move his hand until he pulled away from the complainant. He can be seen walking on her left side about a foot away. Her crutch is in her right hand between her and the wall. The defendant can be seen moving his hand across her buttocks. He does not appear to stop his hand at any point. His hand moves up so that it is just above her beltline on her back. The defendant then visibly moves away from her so there's about three feet or more between them. He then moves back somewhat closer as they continue to walk up the ramp hallway. At one point, about 24 seconds after the touching, the complainant's face is clearly visible. She does not appear upset.
The video is not clear enough to see whether the complainant moved her left arm. It is apparent, however, that the complainant did not place the crutch between her and the defendant after he touched her. To do that, she would have had to lift it from her right side and move it across her body. She did not do that. She continued to walk in the same rhythm using the crutch before, during, and after the touch.
After the Touching
I find that the following facts have been established by the evidence of the complainant and the defendant. After the touching, the defendant did not touch the complainant or attempt to do so. The complainant and the defendant continued to walk together through some more campus buildings. While they walked through the buildings, they did not talk. They then left the buildings and crossed a road to get to the residence building. The defendant said that it was cold out and the complainant said nothing. He asked her name again and she said "it does not matter". He asked how old she was and she said "it does not matter". He asked her what year she was in and she replied that she was in third year, although she was actually in first year. They stopped in front of the front door of the complainant's residence building. This took about five minutes. The defendant asked her if he could come up with her. She told him no. He asked if she would give him her phone number. She said no. He asked why not and she replied "because I do not want to". The complainant then went into her residence building.
The defendant testified that when they exited the buildings before crossing the road, he held the door for her. She was not asked about this.
Analysis
"Air of Reality"
Before I determine whether the Crown has proven beyond a reasonable doubt that the defendant knew that the complainant had not consented to being touching, I must determine whether there is an "air of reality" to his claim that he was mistaken. As I have explained, the question is whether there's evidence upon which a reasonable jury, properly instructed, could be left with a reasonable doubt on this issue.
The complainant testified that the defendant asked her if he could touch her and she responded with a clear no. The defendant testified that he asked the complainant whether she minded if he touched her and she said no and made a hand gesture which indicated to him that she consented to being touched.
In such circumstances, I am required to decide whether the evidence of the complainant and the defendant can be "spliced" or "cobbled together" to produce evidence which could leave the trier with a reasonable doubt.
It is clear that the defendant asked the complainant for permission to touch her. The two versions disagree only about the form of the words used and the number of questions asked.
Although the defendant denied asking the complainant whether she would mind if he touched a particular part of her body, the complainant testified that he asked her if he could touch her butt. It is an odd thing for a young man to ask a young woman in a public place, who he had never met before and with whom he had made only very small talk for less than five minutes, whether he could touch her. It is even odder for him to ask to touch her butt. It is hard to understand how the complainant could be mistaken that such words were used or that she could be fabricating such evidence.
In my view, it would be open to a jury to splice or cobble together the evidence of the defendant and complainant together and find that the complainant was correct when she said that the defendant had explicitly asked her for permission to touch her butt, and the defendant was truthful when he asked her permission by asking her if she would mind that he did so. I have no hesitation in finding that such a jury could be left with a reasonable doubt that the request was made in such a way by the defendant asking the complainant if she minded that he touched her on the butt.
Furthermore, it would be open to such a jury to accept the defendant's evidence that the complainant responded by saying no, which he interpreted as agreeing to the touching, or at least to be left with a reasonable doubt as to whether that was what happened.
Crown counsel submitted vigorously that I could not conclude that there was an "air of reality" to a potential finding that the events occurred in this way because a) the defendant's evidence was that he did not specify where he wanted to touch her and a request to be touched anywhere on the body was not inherently sexual, b) the complainant's evidence was that he had asked "can I touch your butt" and not "do you mind if I touched your butt?", and c) the trier of fact was required to choose whether to accept the evidence of either the defendant or the complainant. For the reasons set out above, I do not accept that submission.
W.(D.) Analysis
I am not able to conclude that the interaction between the complainant and the defendant occurred in the "spliced" or "cobbled together" way described above. Neither of them testified that that was what happened. I am, however, left with a reasonable doubt as to whether the defendant believed that the complainant consented to being touched on her buttocks. I reach that conclusion for a number of reasons.
It is certain that the defendant asked the complainant for her permission to touch her. We know that because both the defendant and the complainant testified that that occurred. As I have said, that is not a normal request for a man to make of a woman who he has never met before and with whom he has only been walking beside for five minutes or less.
The complainant testified that he also asked if he could "touch her butt". That is even more unusual. It is difficult to believe that she could make this up or misremember it. I cannot conclude that his request did not include a reference to touching her buttock.
The defendant testified that he had asked the complainant whether she would mind if he touched her. She denied that the request had been framed in that way. Both agreed that she said no or words to that effect. If the request had been to touch her buttock and worded as the defendant described it, a response of no could well have been interpreted as an affirmative response and his belief that she was consenting need not be reasonable.
The defendant gave his evidence in a straightforward manner. He freely admitted that he was there that night to find a woman with whom to have a one night stand. In the course of an intense cross-examination, he was asked very personal questions in a hostile and accusatory manner, questions which went so far as to ask whether his penis was erect and at which times while he walked beside the complainant. He did not get upset about these questions. He appeared to be thinking carefully about his answers. While I appreciate that demeanour is not the best tool to judge credibility, the way in which he gave his evidence enhances my analysis of his credibility.
Crown counsel submitted that I should conclude that the defendant was not credible because he did not acknowledge that the complainant had told the defendant to leave her alone and he failed to do so, as the security guard testified the defendant had told him.
I have two difficulties with that submission. The first is that Crown counsel did not ask the complainant whether she told the defendant to leave her alone. If Crown counsel wished to rely on this, she should have asked the complainant. Secondly, the notes the security guard made did not purport to be verbatim. The security guard was not clear in his evidence. I'm not convinced that the conversation between him and the defendant was exactly as he testified.
The video of the incident makes clear that the defendant was very surprised when the complainant reacted in the negative fashion after he touched her. He immediately backed right off. When his face can clearly be seen sometime after when they reached the end of the hallway, he is holding his head and looking confused. This is consistent with him having believed that the complainant consented and now coming to grips with the reality.
The video also shows that the complainant's memory is not completely accurate to what happened that evening. She testified that after he touched her, she brought her crutch up and held it between them. The video makes it clear that that did not happen. While I have no doubt that the complainant recalls doing that, her error gives me reason to doubt her reliability.
Furthermore, the behaviour of the defendant both before and after the touching was consistent with someone who was trying to deal with the complainant in what he thought was an appropriate way. He was not aggressive. He was not flirtatious. The complainant said that he walked with her as if he was a friend and that she thought it was a huge joke. He opened the door for someone. This behaviour combined with the fact that he did ask for her consent is consistent with someone who wanted to ensure that he acted appropriately.
On all of the evidence, I'm left with a reasonable doubt. The Crown has not proven beyond a reasonable doubt that the defendant knew that the complainant was not consenting to being touched on the buttocks.
S.273.2(b)
The defendant asked the complainant if he could touch her. That was a reasonable step to ascertain whether the complainant was consenting. As I have already indicated, I'm left with a reasonable doubt as to whether he asked her "do you mind if I touch your buttocks?" If he had and she replied no, that would have been a reasonable step to ascertain whether the complainant was consenting. He could have done more. He could have reworded the question and asked it again. That may have been what he would have done if he had taken "all" reasonable steps. His belief may not have been reasonable, but neither of those are what the section requires.
The Crown has not proven beyond a reasonable doubt that he did not take reasonable steps to ascertain whether the complainant was consenting.
Verdict
I find the defendant not guilty.
Released: August 9, 2016
Doody, J.
Certificate of Transcript
Form 2 – Certificate of Transcript (Subsection 5(2))
Evidence Act
I, Lynne Johnson, certify that this document is a true and accurate transcript of the recording of Ibrahima BAH in Courtroom #4 held at 161 Elgin Street, Ottawa, Ontario K2P 2K1 taken from Recording 0411-04-2016-07-12, which has been certified in Form 1.
August 9, 2016