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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Ontario Court of Justice

Date: 2016-09-20

Court File No.: Central East - Newmarket 4911-998-14-06739-00

Between:

Her Majesty the Queen

— and —

S.C.

Before: Justice Peter C. West

Evidence heard on: August 16 and 17, 2016

Oral submissions heard on: August 17, 2016

Reasons for Judgment released on: September 20, 2016

Counsel:

• Mr. R. Scott — counsel for the Crown
• Ms. D. Pledge — counsel for the defendant S.C.

WEST J.:

Introduction

[1] Mr. C. was charged that on September 7, 2014 he did commit a sexual assault on N.T. He entered a not guilty plea upon being arraigned on the charge of sexual assault. At the commencement of the trial the Crown requested an order pursuant to s. 486.4(1)(a)(i) banning the publication of any information that could identify the complainant.

[2] The Crown elected to proceed by way of summary conviction and called the following witnesses: P.C. Jason Pampena, the arresting officer; N.T., the complainant and D.C. Khoshandish, a YRP officer who interviewed S.C. The defence called N.T.'s mother, V.T., as a witness. S.C. did not testify.

Factual Background

[3] Mr. C. first met N.T. when she was working as an exotic dancer at a strip club, The Landing Strip. A friendship developed over time such that the accused and N.T. saw each other at their homes and at the accused's restaurant. The relationship between the accused and N.T. was purely platonic and lasted approximately 12 to 13 years. N.T. is now working as a real estate agent since 2010.

[4] N.T. lived with her mother and in 2014 she purchased a new home, which was not completed when she sold the house she lived in. As a result of their friendship, S.C. invited N.T. and her mother to live with him while her new house's construction was finished. The complainant and her mother lived with S.C. from sometime in June 2014 until they moved into their new home on September 7, 2014.

[5] N.T. also stored all of her furniture and belongings in Mr. C.'s garage. S.C.'s house was in Woodbridge and the new house was about 20 minutes away in Kleinburg. On the morning of September 7, 2014, the movers were at S.C.'s house to load up N.T.'s belongings to move N.T. into her new house. Mr. C. assisted the movers bring out boxes until he had to leave to go to his restaurant around 11 am. He also arranged for food to be prepared for the movers for lunch and N.T.'s aunt picked it up.

[6] N.T. was at the new house with other family members putting things away. S.C. arrived at the new house after he finished work and he brought food for dinner. S.C. also brought a bottle of champagne to celebrate the move. After dinner N.T.'s family members who had helped with the move began to leave and this left N.T, her mother and S.C. in the house. N.T.'s mother went to her bedroom on the second floor to go to bed and N.T. and S.C. were sitting beside each other on a loveseat watching Big Bang Theory on TV. The loveseat was a two-seater couch.

[7] N.T. testified she was tired as she had been up since 7 a.m. helping with the move and unpacking boxes. She put her head on the arm rest of the loveseat with her feet towards S.C. N.T. testified she had changed into a pink V-necked shirt, a pink bra and black jogging pants. She could not recall if she had on underwear. She fell asleep while they were watching TV and was awakened by feeling S.C.'s finger or fingers being in her vagina.

[8] She and S.C. had never engaged in any kind of sexual activity previously and there had not been any discussion between them earlier about them having any sexual contact. Prior to falling asleep S.C. had been massaging N.T.'s feet while she had her head on the arm rest of the loveseat.

[9] N.T. testified she could not recall if she had asked S.C. to massage her feet but she had no objection to him doing that. S.C. was sitting on the loveseat beside her while he was massaging her feet after she put her head on the arm rest. Her feet were in his lap. She only recalled him touching her feet and did not want him to touch her anywhere else. She testified she did not ask him to touch her anywhere else.

[10] Her shirt was on when she awoke and her pants were pulled down. S.C. was on top of her when she woke up. She was shocked by what he was doing. She looked at him and said, "You need to get out of my house right now!" S.C. said he was sorry. She did not recall him saying anything else.

[11] Exhibit 1 is the jogging pants N.T. was wearing September 7. She gave these pants to P.C. Pampena when she complained to the police.

[12] After S.C. left the house N.T. went to her mother's bedroom. She stood at the doorway. When her mother woke up and saw her, N.T. went and lay beside her mother on the bed. N.T. testified she was crying and her mother held her. She told her mother what happened and her mother told her to take a bath, which she did. The next day she stayed home.

[13] She received a text from S.C. the next day. She did not recall the text verbatim. She recalled S.C. saying he was sorry, he could not sleep all night and he wanted her to call him. He was so, so, so sorry. She kept the text message S.C. had sent. Exhibit 2 is the text message sent by S.C. on the morning of September 8, 2014. It reads:

Hi babe. I'm so, so, so sorry. I don't know what I was thinking. I'm so, so, so sorry didn't sleep all night love you

N.T. did not respond to S.C.'s text. She did not have any discussion with him in words or text. It was not unusual for each of them to call each other "Babe" or to end conversations, "Love you."

[14] At some point she called the police. She spoke to her lawyer who closed her house transaction. He referred her to a psychotherapist, Tony Greco. She had never met Tony Greco before her first and only appointment. The session cost her $210.

[15] Prior to going to the police N.T. testified she never had any problems or issues with S.C. She is currently 37 and S.C. is in his 50s. They did not have a romantic relationship, they were just friends. N.T.'s mother met S.C. through N.T.

[16] In cross-examination N.T. testified she first met S.C. through her work as an exotic dancer. S.C. came to the Landing Strip a number of times when she was dancing. She and S.C. would go out to dinner together. They would text each other.

[17] She did not recall exactly how long she worked as an exotic dancer. Prior to being a real estate agent she worked as an E.A. at an advertising agency and also as a teller at RBC. S.C. has lent N.T. money on a number of occasions. She had money issues over the time she knew S.C. and he helped her out. After the sale of her house she paid some money back to S.C., $2000, and she and her mom paid rent for the time they stayed at S.C.'s house.

[18] N.T. could not recall if S.C. also massaged her back on September 7. He did massage her shins or her legs on previous occasions. N.T. did not recall if she gave S.C. cream to use when he massaged her feet. She has done that previously.

[19] N.T. did not agree she did not doze off while S.C. was massaging her feet and legs. N.T. agreed she asked S.C. to rub her feet and legs as she lay on the loveseat. She did not recall S.C. rubbing her back or her lower back. She did not recall asking S.C. to rub her back. She did not recall S.C. rubbing her tailbone or her buttocks. She did not recall if she was lying on her side. She did recall waking up on her back with S.C. on top of her. She woke up to the sensation of being penetrated. N.T. testified her vagina was sore the next day.

[20] Her pants were half way down. They were not past her thighs. She remembers S.C. was on top of her when she woke up. S.C. was on her chest, face to face with her. His upper torso was on her chest and his arm was extended down to finger her. She does not know where his legs were.

[21] N.T. is sure her pants were on fully when she was sitting on the loveseat. When she woke up they were down at her thighs but she does not how far down they were. Her sweat pants were quite large on her. She does not recall how she was laying on the loveseat. S.C. had his hand down inside her sweat pants with his fingers in her vagina. She believed S.C. had more than one finger inside her vagina because it was sore the next day. N.T. agreed S.C. had to have his fingers inside her vagina for some time, doing something, in order for her vagina to be sore the next day. As soon as she woke up feeling she was being penetrated she told S.C. to leave. It did not continue after she told him to leave.

[22] N.T. denied the suggestion she was awake the entire time S.C. was massaging her and that while he was massaging her buttocks his finger or fingers accidently came close to or went into her vagina. N.T. testified she did not recall if she had commented to S.C. how strong his fingers and hands were when he was massaging her.

[23] N.T. denied talking with her mother about getting money from S.C. to pay for the psychologist. She agreed she and her mother met S.C. in a Walmart parking lot. She wanted to resolve whatever happened and she would resolve it through therapy. She wanted S.C. to pay for the therapy. She told S.C. he had ruined her life. Her mother asked S.C. for money to pay for the psychologist. She agreed she asked her mother to ask S.C. for $10,000. She did not recall if she told her mother if S.C. did not pay the money she would go to the police.

[24] N.T. testified she did not know if S.C. had paid the money whether she would have gone to the police. She testified she did not want to go through this. N.T. did not know if her mother called S.C. several times on the day she did go to the police.

[25] N.T. was asked a number of questions concerning her police video statement. She testified she had problems remembering everything she said to the police on September 10, 2014. She agreed she was trying to tell the truth to the police when she gave her statement. She agreed she may have told the police she saw her lawyer before coming to make her complaint but she no longer remembers that.

[26] In her testimony the previous day she testified she could not recall if she saw the psychologist before or after she went to the police. In her statement she told the police she saw her lawyer, the psychologist and her family doctor before she spoke to the police. Hearing her statement helped her a little bit but not too much.

[27] She did not recall telling the police S.C. was at work the day of the move when they asked if S.C. helped the movers the day of the move. She recalls S.C. helping the movers move boxes in the morning before he went to work at his restaurant around 11 a.m.

[28] After hearing her police statement she remembered asking S.C. to stay after her family left because she had just broken up with her boyfriend.

[29] She did not recall telling the police she was wearing a grey V-necked shirt with a pink bra. She recalls her shirt was V-necked. She has both a pink and grey V-necked t-shirt and she agreed she could have been wearing her grey one.

[30] She agreed she did not tell the police S.C. was massaging or rubbing her feet and legs. In her statement the officer asked her if S.C. was touching her before she fell asleep and she said no.

[31] She did not recall telling the police her pants were not pulled down. S.C. was on top of her with his fingers in her vagina when she woke up. She testified she is a heavy sleeper and she had had a long day of moving and unpacking boxes. She was exhausted. She agreed she told the police she did not know if S.C. had raped her. At no time did she see S.C.'s penis.

[32] She agreed she did not tell the police she was very sore down there after waking up to find S.C. with his fingers in her vagina. She assumed he put more than one finger inside her vagina because she was so sore. She went to see her doctor because of this.

[33] The incident happened on September 7 around 11 p.m. and she was in a daze, all messed up and confused the next day. She did not know what to do.

[34] Her mother did not want her to call the police. N.T. agreed she did not tell the police in her statement she asked S.C. for money. It was agreed by the defence and the Crown that N.T. did not tell the police she had met S.C. in the Walmart parking lot and asked him for money.

[35] S.C. provided a video-taped statement to the police, which was filed as Exhibit 2 and 2A (transcript).

[36] P.C. Pampena attended at S.C.'s home on September 10 at approximately 23:10. S.C. invited the officers into his home and said to them:

I know why you're here, I made a mistake, I'm sorry. I called my lawyer already.

At 23:13 S.C. was arrested. When S.C. was enroute to the police station he told the police he was being extorted by N.T. and her mother for $10,000.

[37] In his police video-taped statement S.C. described how he and N.T. were sitting on the couch watching TV and she asked him to massage her feet with some cream. N.T. kept asking him to massage other parts of her body, her thighs or calves, her shins and her back. He told the police N.T. was commenting on how strong his hands are and he told her they were strong because he used to be a pitcher and when you have to hold the ball tight your fingers become really hard.

[38] He then describes how his fingers ended up in N.T.'s vagina (P. 49 line 21, transcript):

So as I'm – as I'm massaging her, you know, I – I moved down - the way down to, like, down to this part here, and started massaging, like, her – her tailbone. And then I started massaging, like, down like that, and – and – and then started to, like go down to her like, her assbone – her ass – her cheekbones, right. And, um, I guess when I was massaging her cheekbones, or, I mean, her ass, um, it was kind of like, it was kind of moist, and I – and my fingers were, like, going in there. And then she turned around and said to me, "What are you doing? Stop!" and I stopped. And she said to me, "You got to leave now." I said "I'm sorry. Like, I don't know – I don't know what got into me." I said to her, right. "Oh, I think you should leave," so I left. And then I got home and I sent her a text message saying, "I'm so, so sorry." Like, I don't know, I never did that, ever, ever, ever giving her a massage, and – I'm thinking, that stuff that I ate – like, they gave me some stuff first, and then I – and then I had that other jelly stuff and when I had that jelly stuff, and I don't know if it was because maybe that champagne that I had, and together, and maybe I was tired. I wasn't maybe thinking. I don't know. Like, it was just- it was like, really weird. You know, like and that's – and that's what happened,

[39] S.C. told D.C. Khoshandish that N.T. commented on how strong his hands were when he was massaging her. It was because of these comments S.C. believed N.T. did not fall asleep when he was massaging her. D.C. Khoshandish asked S.C. if N.T. was talking to him while his finger was in her vagina and S.C. responded, "No." (PP. 58-59, transcript)

[40] The officer then inquired where S.C. was massaging when N.T. made the comment about how strong his hands are. (PP. 59-61, transcript)

S.C.: Naw, I don't really remember, I could've – it could've been in the middle – I'm – I don't remember.

D/C KHOSHANDISH: When you say middle, you mean middle back or middle…

S.C.: I could've been – I could've been over here.

D/C KHOSHANDISH: Okay.

S.C.: Middle back and I was goin' up and down.

D/C KHOSHANDISH: From the time she made the comment about your hands being strong, and the time…

S.C.: When -- when I was massaging her down there, …

D/C KHOSHANDISH: Yeah, this is important. From the time that she made a comment about your hands and the time you had your finger in her vagina, how long was that? How – how long – how long of a time ago?

S.C.: How long of a gap was it?

D/C KHOSHANDISH: Yeah. Would you say, obviously, approximately, I know you didn't have a timer with you…

S.C.: You know, I – I don't really want to say, like I – I – like, I don't really remember, like, I can't say how long I – I was – I wasn't there a lot. I was there, like minutes.

[41] S.C. describes and demonstrates how N.T. is lying on the couch in his police statement (P. 62 line 5 to P. 63 line 9, transcript);

S.C.: She's lying down. She's lying down like this.

D/C KHOSHANDISH: On her side.

S.C.: On her side.

D/C KHOSHANDISH: With her back to the couch? Like to the back rest of the couch, or how?

S.C.: I was down like that, and I was massaging her like this.

D/C KHOSHANDISH: I see. And she's lying the same direction?

S.C.: Yeah, and she's like tilted.

D/C KHOSHANDISH: And where is her legs? Where are her legs?

S.C.: Her legs are way up – up almost beside my legs. I can't remember, really.

D/C KHOSHANDISH: Okay. Are – are her legs on the – on the – on the table in front of the ottoman or something or is it on the ground?

S.C.: No, her – I think her legs were – I don't remember. I think the legs were over my legs or – that I – I – I don't remember that.

D/C KHOSHANDISH: Is she – do you know what she was wearing on the bottom half?

S.C.: She was wearing track pants.

(P. 63 line 12, transcript) D/C KHOSHANDISH: And does she have underwear on?

S.C.: Um, I don't think so.

D/C KHOSHANDISH: Okay. So when you started massaging her – her buttocks area, I guess…

S.C.: I just want to say something, like, um, I don't know if I should answer this question.

D/C KHOSHANDISH: Okay. So the reason why I'm asking you these questions is 'cause I wanted to get some sort of timeline.

S.C.: Yeah.

D/C KHOSHANDISH: And I – I want to put – kinda put two and two together.

(P. 64 line 5, transcript) S.C.: I wasn't – I wasn't there…I wasn't there long. It's not that – it's not that I was there – I was there, like – like goin' at it, goin' at it and then she said, "Stop."…I just got there, you know, I – I just got there.

D/C KHOSHANDISH: You - you mean when you had your finger in her vagina?

S.C.: Yeah, I just – I just had – I just got there – and she stopped me…."What are you doing? Stop." You know what I mean. It's not that I was – it's not that I was, like, playing around in there and, you know what I mean, it was – it was in there and then it stopped there.

[42] When S.C. was describing how N.T. was lying on the couch, he demonstrated that N.T. was lying with her head on the right arm rest of the couch (loveseat) with her legs towards the left side of the couch (loveseat). S.C. said in his statement that N.T.'s legs were on top of his legs as he was sitting on the left side of the couch (loveseat) but leaning towards the right side of the couch behind N.T. so he was in a position where he could massage her back under her top. He said N.T. was wearing track pants, which he did not move or push down.

[43] At the conclusion of the Crown's case, the defence called V.T., N.T.'s mother as a witness.

[44] After moving into the new house on September 7, V.T. went to bed and N.T. and S.C. were in the living room watching TV. At some point N.T. came to V.T.'s bedroom, woke V.T. up and N.T. was standing in the doorway crying. N.T. told V.T. S.C. had done something to her which upset her. N.T. would not tell her mother what S.C. had done to her.

[45] The next morning V.T. called S.C. and asked him what had happened the night before. S.C. told V.T. he could not tell her. V.T. asked S.C. if they could meet because she wanted to know what was going on. S.C. told V.T. he could not meet on that day as he was working.

[46] Two days later V.T. went to the Walmart parking lot with N.T. and met S.C. During the meeting V.T. told S.C. that N.T. was very upset and needed money to pay for therapy, $200 per hour. S.C. asked how much money. V.T. testified she said to S.C., "Maybe about $10,000." S.C. did not talk about when he would pay this money. In his police statement S.C. said he told V.T. in the Walmart parking lot he could not get that kind of money at that time.

[47] V.T. agreed she texted S.C. after the meeting. V.T. did not want N.T. to go to the police. She wanted S.C. to pay for therapy. N.T. was saying, "I'm going to kill myself Mom." She did not remember what she texted to S.C. Her phone number at the time was 416-885-3948. Exhibit 4 is V.T.'s text to S.C. on September 10 at 1:32 p.m. It reads:

Hi is mama pls let me know how is going I stop [N.T.] don't go to police and her friend tell her to go to police. But I try to stop her for that. Pls call me I'm at wrk now

[48] V.T. testified there was no other communication between S.C. and herself.

[49] In cross-examination V.T. testified she had known S.C. for a number of years. N.T. is a close friend of S.C. She did not know if S.C. lent N.T. money but he was very good to her over the years.. S.C. let them live at his house while their new house was being finished. N.T. went to S.C.'s restaurant to pick up food. V.T. liked S.C. as he is nice. S.C. helped them with unpacking during the move. He brought food and a bottle of champagne.

[50] N.T. was very upset about something S.C. did to her and wanted to kill herself because of what he did. V.T. asked S.C. and he would not tell V.T. what he did. V.T. could not recall if S.C. apologized.

[51] When N.T. came up to V.T.'s bedroom she was crying. N.T. said she was hurt because S.C. did a thing to her, she was burning. V.T. told N.T. to have a bath in cold water, which she did. N.T. was very upset and cried all night.

[52] V.T. did not want N.T. to go to the police because N.T. would have to go through so much trouble and V.T. wanted to talk to S.C. to find out what had happened. N.T. told V.T. she wanted to go to the police. V.T. told her to wait, just wait.

[53] At the meeting in the Walmart parking lot, V.T. went into S.C.'s car and asked him for money. She asked S.C. for money because N.T. had told her the therapy was very expensive, so V.T. told N.T., "We can ask S.C. to help you." N.T. did not talk to S.C. N.T.'s friend told her to ask S.C. for money for therapy.

[54] V.T. did not know why she asked for $10,000. S.C. told her that he did not know and he would call V.T. When they left Walmart V.T. went to work and N.T. went to Toronto. V.T. did not speak to N.T. until the next day when N.T. told V.T. she had gone to the police and the police wanted to interview V.T.

Position of the Parties

[55] The defence argues I should have significant concerns about the credibility of N.T. because of the several inconsistencies between her police statement and her testimony in court. Ms. Pledge submits I should accept S.C.'s version of what happened, which is contained in his police video-taped statement or, at the very least, I should be left with a reasonable doubt after considering the totality of the evidence, given S.C.'s version of events in his police statement is more probable than N.T.'s version.

[56] Ms. Pledge argues the attempted extortion of $10,000 from S.C. by N.T. and V.T. is evidence which supports why I should be suspicious of N.T.'s version of events as to what happened that night. It is the defence position I should have a reasonable doubt after examining the totality of the evidence.

[57] The Crown argues the evidence proves beyond a reasonable doubt S.C. sexually assaulted N.T. Mr. Scott submits S.C. admits he sexually assaulted N.T. on three occasions; first, in his text message sent to N.T. the next day; second, his comment to the arresting officer, when the police attend at his residence to arrest him; and, third, his comments concerning why his finger entered N.T.'s vagina, in his video-taped police statement.

[58] It is the Crown's position the request for $10,000 to pay for counselling is a red herring, which plays no role in assessing whether S.C. sexually assaulted N.T.

The Law of Sexual Assault

[59] Sexual assault requires the Crown to prove beyond a reasonable doubt that an unwanted sexual touching occurred and that the accused intended to touch the complainant, knowing that the complainant did not consent to being touched or being reckless or wilfully blind to a lack of consent.

[60] In R. v. Hinds, in paras. 10-18, Fairburn J. succinctly sets out the law of sexual assault and what is required to be proved by the Crown:

10 The actus reus requires the Crown to prove the following beyond a reasonable doubt: (a) there was a touch; (b) the touch was of a sexual nature; and (c) the touch occurred in the absence of consent. The first two factors are determined by reference to objective criteria. The Crown has to prove that the actions were voluntary. As sexual assault is a crime of general intent, the Crown need not prove that the accused had intent with respect to the sexual nature of the touch: R. v. Ewanchuk, [1999] 1 S.C.R. 330, at paras. 24-25.

11 The court examines it from a strictly objective basis and asks whether, in light of all of the circumstances, a reasonable observer would perceive the context of the touch as sexual in nature, such that the sexual integrity of the complainant is violated. In assessing this question, among other things, the court may look to factors like, "[t]he part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats which may or may not be accompanied by force": R. v. Chase, [1987] S.C.J. No. 57, at para. 11. The accused's craving for sexual gratification may be a consideration in determining whether the touching was of a sexual nature, although the Crown need not prove that the accused sought such gratification: R. v. V.(K.B.), [1993] 2 S.C.R. 857, at paras. 2-3, aff'g (1992), 8 O.R. (3d) 20, (C.A.).

12 The third element of the actus reus of sexual assault involves the absence of consent. This involves an assessment of the complainant's "subjective internal state of mind" about the touching at the time that it occurred: Ewanchuk, at para. 26. The complainant's evidence will often be the only direct evidence as to whether a touch is in sexual circumstances and was without consent.

13 Consent is statutorily defined under s. 273.1(1) of the Criminal Code. It involves a "voluntary agreement of the complainant to engage in the sexual activity in question". The complainant must consent to the activity "at the time that it occur[s]": Ewanchuk, at para. 26; R. v. J.A., 2011 SCC 28, at para. 34 [J.A.]. No consent is obtained in a variety of circumstances, some of which are statutorily defined in s. 273.1(2) of the Criminal Code. For instance, a voluntary agreement to engage in sexual activity cannot be obtained where the individual is "incapable of consenting to the activity": s. 273.1(2)(b). This is because consent involves the engagement of a conscious and operating mind: J.A., at para. 36. In J.A., at para. 66, McLachlin C.J. expressed this concept in the following way:

The definition of consent for sexual assault requires the complainant to provide actual active consent throughout every phase of the sexual activity. It is not possible for an unconscious person to satisfy this requirement, even if she expresses her consent in advance. Any sexual activity with an individual who is incapable of consciously evaluating whether she is consenting is therefore not consensual within the meaning of the Criminal Code.

14 Individuals can consent to some sexual activity and not others. Consent for one purpose is not consent for all purposes. And consent is not consent forever. A person can consent and then withdraw consent. Once withdrawn, there is no consent.

15 The complainant need not express her lack of consent or revocation of consent for the actus reus of the offence of sexual assault to be made out: J.A., at para. 37; Ewanchuk, at paras. 48-49. Focusing on the actus reus, the Crown simply has to prove beyond a reasonable doubt that the complainant, in her own mind, did not want the sexual touching to take place.

16 When considering consent for purposes of the actus reus, the court must assess the complainant's credibility on this issue. Her evidence must be considered in light of all of the evidence in the case. A complainant's words and actions, both before, during and after the impugned conduct, can raise a reasonable doubt about her claim that she did not consent to the touching: Ewanchuk, at para. 29.

17 As for the mens rea of sexual assault, and as above, it is a crime of general intent. The Crown must prove beyond a reasonable doubt that the accused intended to touch the complaint without the complainant's consent: Ewanchuk, at para. 42. If the accused knows that the complainant is not consenting to the touch or is reckless or wilfully blind to this fact, he has the necessary mens rea for sexual assault.

18 A person typically intends the natural consequences of his acts. In the context of sexual assault, a person who sees the risk that the complainant has not consented, but persists with the touch, is reckless. The person who sees the need to inquire about whether the complainant is consenting, but deliberately turns away from making the inquiry, is willfully blind.

[61] Consent is the "conscious agreement of the complainant to engage in every sexual act in a particular encounter": R. v. J.A., 2011 SCC 28, [2011] S.C.J. No. 28, at paras. 31 and 66. McLachlin, C.J. held:

31 The provisions of the Criminal Code that relate to the mens rea of sexual assault confirm that individuals must be conscious throughout the sexual activity. Before considering these provisions, however, it is important to keep in mind the differences between the meaning of consent under the actus reus and under the mens rea: Ewanchuk, at paras. 48-49. Under the mens rea defence, the issue is whether the accused believed that the complainant communicated consent. Conversely, the only question for the actus reus is whether the complainant was subjectively consenting in her mind. The complainant is not required to express her lack of consent or her revocation of consent for the actus reus to be established.

66 The definition of consent for sexual assault requires the complainant to provide actual active consent throughout every phase of the sexual activity. It is not possible for an unconscious person to satisfy this requirement, even if she expresses her consent in advance. Any sexual activity with an individual who is incapable of consciously evaluating whether she is consenting is therefore not consensual within the meaning of the Criminal Code.

Analysis

[62] As in any criminal case, S.C. is presumed innocent until proven guilty. I have reminded myself that I need not firmly believe or disbelieve any witness and that I can accept all, some or none of a witness' testimony. I have also reminded myself that the Crown must prove the essential elements of the offence beyond a reasonable doubt, as this term has been defined and explained by the Supreme Court of Canada in R. v. W.(D.), 63 C.C.C. (3d) 397 (S.C.C.), R. v. Lifchus, 118 C.C.C. (3d) 1 (S.C.C.) and R. v. Starr, 2000 SCC 40, 147 C.C.C. (3d) 449 (S.C.C.). Proof of a probability of guilt does not amount to proof of guilt beyond a reasonable doubt. Proof of guilt to a near certainty is required in criminal proceedings.

[63] I recognize that the rule of reasonable doubt applies to the issue of credibility. Accordingly, I must acquit the defendant if I accept his evidence or if it raises a reasonable doubt after considering it in the context of the evidence as a whole. If I reject his evidence, or it does not leave me with a reasonable doubt, I must go on to ask whether the evidence that I do accept convinces me of the guilt of the defendant beyond a reasonable doubt.

[64] A determination of guilt or innocence must not, however, devolve into a mere credibility contest between two witnesses. Such an approach erodes the operation of the presumption of innocence and the assigned standard of persuasion of proof beyond a reasonable doubt: W.(D.) supra, at 409 per Cory J.; Avetsyan v. The Queen, 2000 SCC 56, 149 C.C.C. (3d) 77 (S.C.C.) at paras. 20-22, per Major J.

[65] As the Ontario Court of Appeal in R. v. Hull, [2006] O.J. No 311 at para. 5 noted:

W.(D.) and other authorities prohibit triers of fact from treating the standard of proof as a credibility contest. Put another way, they prohibit the trier of fact from concluding that the standard of proof has been met simply because the trier of fact prefers the evidence of Crown witnesses to that of defence witnesses.

[66] I must assess the evidence of the complainant and the defendant in light of the totality of the evidence, which includes and permits comparing and contrasting the evidence of those witnesses. The Court of Appeal in Hull continued:

However, such authorities do not prohibit the trier of fact from assessing an accused's testimony in light of the whole evidence, including the testimony of the complainant, and in so doing comparing the evidence of the witnesses. On the contrary, triers of fact have a positive duty to carry out such an assessment recognizing that one possible outcome of the assessment is that the trier of fact may be left with a reasonable doubt concerning the guilt of the accused.

[67] Proof beyond a reasonable doubt means what it says. There is thus nothing illogical in rejecting the defendant's evidence but still not being sufficiently satisfied by the complainant's evidence to find that the case has been proven. A state of uncertainty at a trial like this, where the court has heard two conflicting versions from the two parties involved, is not uncommon. Ultimately, if I have a reasonable doubt on the whole of the case that arises from the evidence of the Crown witnesses, the evidence of the accused or the evidence of any other defence witness, or the absence of evidence, the charge must be dismissed: Lifchus.

[68] This is basically a "he said - she said" sexual assault and an allegation between two friends. The one significant difference is S.C.'s text message sent the next day to N.T., as well as S.C.'s comments to the police upon his arrest and in his police video-taped statement respecting how and why his finger was inserted into N.T.'s vagina.

[69] There is no doubt that S.C.'s finger or fingers were inserted into N.T.'s vagina. I find this conduct is clearly a touch by S.C., which is sexual in nature. The remaining issue respecting the actus reus is whether this touch was with N.T.'s consent.

[70] It is N.T.'s evidence she fell asleep while S.C. was massaging her feet and legs. She was awakened by S.C. putting his finger or fingers in her vagina. It was N.T.'s evidence that she woke up because she felt S.C.'s fingers in her vagina. N.T. testified she immediately said to S.C., "What are you doing? Stop! You need to leave now." N.T. testified she did not ask S.C. to insert his fingers into her vagina and she did not consent to his putting his finger or fingers into her vagina.

[71] S.C. in his police video-taped statement indicated N.T. lay down on the loveseat away from him, put her feet on his lap and asked him to massage her feet. She gave him some cream and asked him to also massage her legs and her back. In his police statement S.C. explained his finger slipped into N.T.'s vagina because when he was massaging her "cheekbones, or, I mean, her ass, it was kind of like, it was kind of moist, and I – and my fingers were, like, going in there." S.C. never specifically tells the police officer in his statement it was an accident when his finger went into N.T.'s vagina but his counsel argued, based on S.C.'s statement, S.C. did not intentionally put his finger into N.T.'s vagina; it just slipped in because of the cream. It is S.C.'s position N.T. never fell asleep, that she was awake during the time he was massaging her.

[72] In my view, N.T.'s evidence of falling asleep as she and S.C. were watching TV and S.C. was massaging her feet and legs makes perfect sense. N.T. was up early to help with the movers. She moved her belongings all day and unpacked boxes into the early evening. She had a bath before coming down to watch TV with S.C. She testified she was tired and I accept her evidence on this issue. S.C. says in his police statement that N.T. was complaining how tired she was when they were sitting on the loveseat. She then asks S.C. to massage her feet and legs and cannot recall if she asked him to massage her back after she rested her head on the arm rest. I agree with the Crown, this "sounds like a recipe for falling asleep" and I find N.T. fell asleep.

[73] I find S.C. continued to massage N.T. in areas N.T. had not asked him to massage her after she fell asleep. In fact, S.C. does not even assert in his police statement that he was asked by N.T. to massage in areas that I find would clearly be sexual or intimate areas of N.T.'s body. Both N.T. and S.C. describe their relationship as a platonic friendship that had continued for at least 12 years. There had never been any romantic or intimate relationship between N.T. and S.C. throughout their friendship. I find based on S.C.'s statement to the police he admitted to committing a sexual assault on N.T. when he described moving his massage from N.T.'s back to her tailbone and "assbone" or "cheekbones" or N.T.'s ass or her buttocks. In S.C.'s statement he does not say N.T. asked him to massage her in those intimate areas of her body nor did he say he obtained her consent to massage her in those areas.

[74] I find N.T.'s immediate reaction and response to what S.C. was doing to her clearly demonstrates her lack of consent and the fact that S.C. inserted his finger or his fingers into N.T.'s vagina while she was sleeping without N.T.'s knowledge or consent. In my view N.T.'s immediately telling S.C. to stop what he was doing and that he needed to leave her house, speaks to her state of mind and the lack of her consenting to S.C.'s conduct.

[75] I find N.T. could not consent to S.C.'s inserting his fingers into her vagina because she was asleep or unconscious. As indicated in J.A., supra, at para. 66: "Any sexual activity with an individual who is incapable of consciously evaluating whether she is consenting is therefore not consensual within the meaning of the Criminal Code."

[76] I find N.T. did not consent or request S.C. to continue to massage her in the area of her tailbone or her "assbone" as S.C. describes it or her "cheekbones" or her "ass" or anywhere near N.T.'s vagina. As S.C. confesses in his text message, "I don't know what I was thinking" or when the police came to arrest him when S.C. said, "I know why you're here. I made a mistake. I'm sorry. I've called my lawyer already." I find these comments by S.C. are admissions he touched N.T. in a sexual manner for a sexual purpose without her consent. If he touched her by accident then it is my view he would have said so in the text he sent the next day. In fact, the time for S.C. to say what he did was an accident was when N.T. asked S.C. what he was doing and told him to stop. Instead, S.C. said nothing except "I'm so sorry" and then he left immediately. I find S.C. left the house because he knew what he had done, massaging her tailbone or cheekbone or buttocks and then inserting his finger or fingers into N.T.'s vagina had all been done without N.T.'s consent and were wrong.

[77] In his statement to the police I find S.C. admits to sexually assaulting N.T. As I indicated above, S.C. does not say N.T. asked him to massage the private areas of her body: her tailbone area or her buttocks or her vagina. In fact, he did not massage N.T.'s vagina, he inserted his finger or fingers. His only attempted justification for what he did was he did not do it for very long.

(p. 64 line 5) S.C.: I wasn't – I wasn't there… I wasn't there long. It's not that – it's not that I was there – I was there, like – like goin' at it, goin' at it and then she said, "Stop."…I just got there, you know, I – I just got there.

D/C KHOSHANDISH: You - you mean when you had your finger in her vagina?

S.C.: Yeah, I just – I just had – I just got there – and she stopped me…."What are you doing? Stop." You know what I mean. It's not that I was – it's not that I was, like, playing around in there and, you know what I mean, it was – it was in there and then it stopped there. (Emphasis added)

[78] Earlier in his statement S.C. admitted he had his finger or fingers inserted into N.T.'s vagina for "like, minutes" (P. 61 transcript). S.C. told the police after N.T. asked him to massage her back he continued to massage N.T. lower and lower and said, "I don't know what got into me." He also told the police in the same passage, "I never did that, ever, ever, ever giving her a massage." In my view both of these comments reflect S.C.'s awareness that he did not have N.T.'s consent to touch her sexually.

[79] S.C. then tried to explain the reason why he put his finger or fingers into N.T.'s vagina was because of the jelly dessert her family gave him earlier or maybe it was the champagne he brought, which everyone had a glass of to celebrate N.T.'s new house. Finally, his explanation for why he engaged in the conduct he did was because maybe he was tired. I do not accept S.C.'s explanations in his police statement as justification for his touching N.T. in a sexual manner without her consent. Further, his police statement does not cause me to be in a state of reasonable doubt. As I have indicated above, I find S.C.'s text message, his comments to police when he was arrested and his voluntary police statement are all admissions he touched N.T. sexually without her consent.

[80] I do not view the request for $10,000 by V.T., N.T.'s mother, as changing or affecting S.C.'s admission of sexually assaulting N.T. First, S.C.'s text message to N.T. was sent before the meeting in the Walmart parking lot. S.C. testified this was the first time V.T. asked him for money. Second, S.C. did not respond to this request by saying why should he pay any money as he had done nothing wrong. No, what S.C. says in his police statement and what V.T. testified he said, he could not "get that kind of money at that time." I find this is a further admission he knew he had done something wrong to N.T., that he had touched her in a sexual manner without her consent. It was V.T.'s evidence and what is reflected in her text message to S.C. that she was trying to stop N.T. from going to the police but N.T.'s girlfriend was encouraging her to report the incident to the police.

[81] I further find N.T.'s waking of her mother, crying and distraught, supports S.C.'s conduct was without N.T.'s consent. Further, N.T. would not tell her mother what S.C. had done and when V.T. asked S.C. what he had done to N.T. to have upset her so much, S.C. refused to tell her. In fact, he told V.T. he could not tell her what had happened. I find this evidence also supports my earlier finding that S.C. touched N.T. in a sexual manner without her consent.

[82] In my view it does not matter whether S.C. had one finger or more than one finger in N.T.'s vagina. He admits to having at least one finger in N.T.'s vagina for "minutes" without her consent. Consequently, based on the totality of the evidence I find the Crown has proven the charge of sexual assault beyond a reasonable doubt.

Released: September 20, 2016

Signed: Justice Peter C. West