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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: 2016-11-16

Court File No.: Cobourg 15-0514

Between:

Her Majesty the Queen

— and —

J.D.L.C.

Before: Justice S. W. Konyer

Heard on: July 7, September 30 and October 7, 2016

Reasons for Judgment released on: November 16, 2016

Counsel:

• M. Moorcroft — counsel for the Crown
• P. Leckey — counsel for the defendant J.D.L.C.

KONYER J.:

[1] Charge and Issues

[1] J.D.L.C. is charged with committing a sexual assault on A.D. on July 21, 2015. At the time, they were co-workers at S[...] in Port Hope. The sexual assault is alleged to have occurred in the cab of J.D.L.C.'s pickup truck during a lunch break. A.D. testified that J.D.L.C. kissed and groped her without her consent. J.D.L.C. testified in his own defence and said that they kissed one another consensually. He denied groping her. If I find that A.D. did not consent to being sexually touched, the defence argues that J.D.L.C. honestly but mistakenly believed that she did consent.

[2] It is not disputed that J.D.L.C. touched A.D., and that he did so for a sexual purpose. This means that the only issues I must decide in this trial relate to consent. First, I must decide whether I am satisfied beyond reasonable doubt that A.D. did not consent to being touched in a sexual manner by J.D.L.C.. If I am not satisfied beyond reasonable doubt that she did not consent, that is the end of the matter. If I am satisfied that she did not consent, I must go on to decide whether the Crown has proven beyond reasonable doubt that J.D.L.C. did not have an honest but mistaken belief that A.D. consented.

[3] In addition to the testimony of A.D. and J.D.L.C., I also received evidence from four other co-workers. One testified as part of the defence case, and the evidence of the other three was provided on consent by way of a transcript from earlier proceedings where a mistrial had been declared. I also received records of calls and text messages sent and received from A.D.'s cell phone. In order to resolve the matters that are at issue in this trial, it is necessary to review the evidence in some detail.

Summary of the Relevant Facts

[4] On July 21, 2015, the date of the alleged offence, J.D.L.C. had worked as a dismantler for S[...] for about 15 years. A.D. had been hired about three weeks earlier as an assistant to the General Manager. J.D.L.C.' sister G. worked in an office next to A.D.. Shortly after A.D. was hired, G. invited her to eat lunch with her brother and A.M., another dismantler who worked in the bay next to J.D.L.C.. The four shared lunch several times in the area where the dismantlers worked, and by July 21, 2015, had become friendly with one another.

[5] J.D.L.C. was married with children, and A.D. had a boyfriend. Each was aware of the others relationship status. Despite these facts, J.D.L.C. formed the belief that A.D. was flirting with both A.M. and himself, based on the tenor and content of many of their conversations. In fact, at around 2:00 a.m. on July 21, the date of the incident, J.D.L.C. testified that A.D. sent him an invitation on Facebook to become her "friend" on this social media site. He accepted her invitation, and said that she promptly sent him a message stating "you make me feel so special".

[6] J.D.L.C. had been sleeping, and just happened to wake up at the time the Facebook invitation was sent. He said that he immediately deleted the message for fear that his spouse would discover it. He was contradicted on this point by A.M., who was called by the defence as a witness. A.M. said that J.D.L.C. showed him the Facebook message on his phone from A.D. later that same morning at work. A.D. acknowledged sending a Facebook invitation to J.D.L.C., but denied sending him any further Facebook messages beyond the invitation to become Facebook friends.

[7] On July 21, 2015 at 8:03 a.m., A.D. sent a text message from her phone to J.D.L.C.' phone which said "Morning! Was on my way to say hi but S.C. came in". S.C. is a reference to the General Manager, S.C.. J.D.L.C. responded at 9:05 a.m. by texting "Ok morning u forget your apple", an apparent reference to the fact that he had offered her an apple at lunch the day before. She responded at 9:19 by texting "Yes I did and I'm starving! Lol". At this point in their text conversation, J.D.L.C. said that he showed the messages on his phone to A.M. to prove to him that A.D. was flirting.

[8] The next text message was sent from J.D.L.C.' phone one minute later and stated "You can have me to eat for lunch lol". J.D.L.C. initially testified that A.M. typed this message on his phone, but then agreed that he may have typed the message himself as dictated by A.M.. A follow-up message was sent one minute later that stated in part "joke only". For his part, A.M. agreed that he had been shown text messages and that he and J.D.L.C. "joked around" about how he should respond. He denied typing any messages on J.D.L.C.' phone. A.M. interpreted this message as being a reference to fellatio.

[9] These messages, which led to the arrangement of the lunch date, are of critical importance to the issue of consent. For ease of reference, I reproduce this exchange in its entirety below.

Text Message Exchange

Morning! Was on my way to say hi but S.C. came in	A.D. 8:03
Ok morning u forget your apple	J.D.L.C 9:05
Yes I did and I'm starving! Lol	A.D. 9:19
You can have me to eat for lunch lol	J.D.L.C 9:20
[smiley face emoji]	A.D. 9:21
Joke only u can have the apple and chips	J.D.L.C 9:21
I need a nap at lunch lol up until 230 last night	A.D. 9:22
You can take nap on my car	J.D.L.C 9:23
Lol	A.D. 9:23
You're too sweet!	A.D. 9:23
[smiley face emoji]	J.D.L.C 9:24
What time u take your lunch	J.D.L.C 9:26
I don't really lol just eat at my desk when I'm hungry	A.D. 9:27
Soo do u want something to eat or drink I my be going out	J.D.L.C 9:28
Yeah let me know where you're going. I'll come with or send my debit card with you	A.D. 9:31
Ok	J.D.L.C 9:32
Any were u want	J.D.L.C 9:46
Doesn't matter. I'm easy	A.D. 10:09
Ok what time u take your lunch	J.D.L.C 10:30
Whenever you want	A.D. 10:32
1 to 2 is that ok	J.D.L.C 10:48
Sure	A.D. 10:48
Pok	J.D.L.C 10:52
Ok	J.D.L.C 10:53
You ready to go? G.'s hungry	A.D. 12:16
You tell G. were going	J.D.L.C 12:24
Let's go	J.D.L.C 12:36

[10] J.D.L.C. testified that he could take lunch breaks whenever he wanted, since he was paid piecework and not an hourly rate. He said that the lunch break for hourly employees like A.D. was from 12:00 to 1:00 only. He also said that she came to his bay around 12:45 p.m. to go out for lunch, which is consistent with the timing of the text messages. He drove them in his pickup truck to a nearby pizza shop where they each purchased a slice of pizza. They took the food in his truck and drove to a secluded parking area close to the shore of Lake Ontario. She said this was at his suggestion, while he said it was her idea. J.D.L.C. did agree, however, that he was the one who knew the spot, as he had eaten lunch there previously with A.M. and another friend.

[11] They both agreed that he parked the truck, and that they ate lunch in the truck. J.D.L.C. initially said that it was very hot in his truck because his air-conditioning was not working. He wanted to eat at a bench by the lake, but said A.D. insisted on eating inside the hot cab of the truck. Later in his testimony, J.D.L.C. said that he had picked the truck up that morning from a dealership where it had been serviced, and that the engine had been smoking on the drive to work. He said that he was concerned about his truck, because the engine continued to smoke every time he started it.

[12] They both agreed that at some point J.D.L.C. told A.D. that she had some food near the corner of her mouth, which he offered to wipe off using a tissue. They also agree that she declined his offer, and wiped her own mouth. A.D. says that at this point he leaned towards her, cupped her face with one hand and attempted to kiss her. She leaned away and said no. He continued to try to kiss her, and began fondling her body with his hands. She said that she reminded him that she had a boyfriend. He said "I have a wife, what's your point?" He continued groping her with his hands and trying to kiss her until her phone went off, signalling that she had received a text message. The message was from S.C., the general manager. A.D. used this message as a pretext to persuade J.D.L.C. that she had to return to work immediately.

[13] J.D.L.C. testified that A.D. looked and smiled at him repeatedly as they ate lunch together. After she wiped the food off her own face, they stared into each other's eyes for several seconds, and he slowly leaned in towards her and kissed her on the lips for about two to three seconds. Initially, he said that she then looked up, "like she was inviting me to kiss her on the neck", which he also did for about two seconds before breaking it off. Later in his testimony, he said that he only kissed her lips before breaking it off. Either way, he broke off the kiss because he realized that what they were doing was wrong. He apologized, and said that he had a wife and children. She responded by saying that she had a boyfriend. She made this statement in a tone suggesting that his relationship status was a non-factor to her. He denied that he groped or fondled her body in any way, and insisted that the only sexual touching was the kiss or kisses on the lips and neck.

[14] He agreed that after the physical contact she received a text message from S.C.. He said that she appeared to be upset by it because she knew she was in trouble for being late back from lunch. The text was sent at 1:09 p.m. and reads "Come see me as soon as u r back please" to which A.D. immediately responded "Trust me I will be." She followed this up by texting "I planned to be back way before this….." at 1:10 and "I'll tell K.G. in case I cry haha haha" at 1:11. A.D. explained that this last message was a reference to the fact that S.C. had made it known to her that he was uncomfortable dealing with emotionally upset female employees. K.G. is K.G., a co-worker. She also texted K.G. at 1:11, stating "I want to talk to you when I get back." K.G. was not called as a witness.

[15] After returning to work, A.D. was discovered crying quietly in her office, alone, with the lights off, by a co-worker D.L.. [1] When asked if she was okay, she told him that something had happened at lunch that she needed to discuss with "the boss". He told her that S.C. was in his office, and that she should go see him.

[16] S.C. acknowledged that he sent a text message to A.D. asking to see her when she returned from lunch. He could not recall whether A.D. was late returning from lunch that day, but agreed that hourly employees were expected to clock out if they left the premises for lunch. He said that he next saw A.D. through an interior window to his office, and that he knocked on the window to signal her to enter. He was meeting with other people in his office at the time, but A.D. slipped him a note which prompted him to ask everyone else to leave. He said that A.D. looked upset, and that she began to cry as she described what happened between her and J.D.L.C. at lunch. [2]

[17] After receiving this information from A.D., S.C. alerted L.H., the company's human resource officer. A.D. related much the same information to L.H.. [3]

[18] S.C. and L.H. next arranged to interview J.D.L.C. later that same afternoon. The company president, D.G., was also present at this meeting by way of conference call. They confronted J.D.L.C. with A.D.' allegations and asked for his side of the story. L.H., who was called as a defence witness, took detailed notes of the meeting.

[19] According to S.C., J.D.L.C. related the following information: "He said that they went out for lunch; it was mutual; she had been flirting with him for days and they went to the same – the same idea – they went to get pizza, then they went and parked and then she had something on her lip and he was kind of like being, I guess, like flirtatious with her as well and said "Oh, let me get it for you" and he gave her a kiss and she said she didn't, you know, want a kiss and he just said, "Oh", you know, "I thought that – you know, that's what you wanted from, you know, the last few days of flirting" I guess, so – and he said that was it, then he brought her back and apologized to her for, you know, making the move on her when he thought it was appropriate and, you know, she said it wasn't." [4]

[20] According to L.H., J.D.L.C. acknowledged kissing A.D. and said that she responded to being kissed by telling him that she had a boyfriend. He then apologized to A.D.. He told L.H. "I really messed up in thinking we had the same feelings for each other." [5]

Issue 1: Has the Crown Proven Beyond Reasonable Doubt That A.D. Did Not Consent to Being Sexually Touched?

[21] Like any person charged with a criminal offence in our system of justice, J.D.L.C. is presumed innocent. He must be found not guilty unless the Crown proves his guilt beyond a reasonable doubt.

[22] The prohibited act on a charge of sexual assault is unwanted sexual touching: see R. v. Ewanchuk, at para. 23. This requires proof of three elements – touching, the sexual nature of the touching, and the absence of consent. The first two elements are conceded in this case. Therefore, I must decide whether the Crown has proven an absence of consent to the sexual touching beyond a reasonable doubt.

[23] To do so, I must consider the evidence of both A.D. and the other evidence I have heard about her words and actions before and during the incident. In Ewanchuk, supra, the Supreme Court held that "[w]hile the complainant's testimony is the only source of direct evidence as to her state of mind, credibility must still be assessed by the trial judge, or jury, in light of all the evidence. It is open to the accused to claim that the complainant's words and actions, before and during the incident, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place": para. 29.

[24] To be clear, it does not matter at this stage whether J.D.L.C. believed that A.D. was consenting to the sexual touching: see Ewanchuk, supra, at para. 30. What matters at this stage is her state of mind, not his.

[25] She testified that she did not consent to any sexual touching, including being kissed by J.D.L.C.. He testified that there was no sexual touching beyond kissing, and the defence argues that I should have a reasonable doubt that there was a lack of consent to the kissing based on all of the evidence, particularly the evidence of A.D.' words and actions in the pickup truck before and during the kiss.

[26] J.D.L.C. testified that A.D. spoke and acted in a manner that was inconsistent with her claim that she did not consent to being kissed. He said that she suggested driving to a secluded area to eat lunch alone with him, that she kept stealing glances at him and smiling at him as they ate, and that they looked at one another intimately for several seconds immediately before he kissed her. He also said that she did not resist being kissed, and that her words immediately afterwards confirm that she had desired the kiss.

[27] If I believe the testimony of J.D.L.C. about A.D.' words and actions immediately before, during and immediately after he kissed her, this is capable of leaving me with a reasonable doubt that she did not want to be kissed. Even if I do not believe his testimony, I must consider whether it leaves me with a reasonable doubt as to the lack of consent. Further, even if his testimony does not leave me with a reasonable doubt on this issue, I must go on to consider whether I am satisfied that the Crown has proven a lack of consent based on the evidence which I do accept.

[28] I found the testimony of J.D.L.C. to be largely contradictory, inconsistent and illogical. First, it would have been illogical for him to have driven his truck to a secluded area and to have shut down the engine if he had real concerns about the engine. It was never even suggested to A.D. that the engine was smoking in the manner he described. It is difficult to imagine that these two people would have sat inside a hot truck cab reeking of smoke from the engine to eat their lunch rather than stepping out to a nearby bench. I simply do not believe the testimony of J.D.L.C. that his engine was smoking on this day.

[29] Second, his evidence as to the timing of A.D.' lunch break was inconsistent and illogical. He testified that all hourly employees were required to take lunch between 12:00 and 1:00, and that the reason she was upset when she returned to the office was because S.C. had discovered that she was away from the office past 1:00. Yet S.C. made no mention, in either the text message he sent to A.D. nor in his testimony of A.D. being late. In fact, it was J.D.L.C. himself who suggested in his text messages to her that they take lunch beginning at 1:00. The only logical conclusion I can draw is that J.D.L.C. deliberately attempted to mislead me on this point in an effort to convince me that A.D. had some other reason for being upset and crying when she returned to work.

[30] Third, his evidence about where he kissed A.D. was inconsistent. At first he said he kissed her on both the lips, then on the neck, both with her apparent consent. Later, he said that he kissed her only on the lips. In a case that turns on whether A.D. consented to being sexually touched, this is not a minor inconsistency.

[31] Fourth, his claims about the flirtatious nature of the text messages sent to him by A.D. are inconsistent with the actual messages. He testified that he showed the text messages that she sent him after arriving at work to A.M. as proof that she was flirting with him, prompting one of them to send her a message with a veiled reference to oral sex. Yet the only messages received from A.D. prior to this message being sent are completely banal and not in the least flirtatious. If J.D.L.C. truly believed that A.D. was flirting with him by sending these messages, then his belief was not reasonable. It is likely that he would have considered any communication from her to be flirtatious. In fact, it is clear from a review of this exchange in its entirety that it was J.D.L.C. who was pressing A.D. to come for lunch with him, while she appeared to be indifferent. If anyone was flirting during the text message exchange, it was J.D.L.C. and not A.D..

[32] Fifth, his testimony contradicts the statements he made to his employers shortly after the incident. He told S.C. and L.H. that he kissed her because he thought this was what she wanted based on her pattern of flirting with him, that she immediately expressed her displeasure, and that he immediately apologized to her for his actions. He expressed to them that he had misunderstood her interest in him. This is completely contrary to his testimony that he broke off the kiss after realizing he was being unfaithful to his spouse, and that A.D. expressed displeasure because he had stopped kissing her.

[33] The only reasonable conclusion that I can draw from a consideration of all the evidence is that J.D.L.C.' testimony is not credible or reliable. His evidence is internally and externally inconsistent, illogical and defies common sense. I do not believe his testimony, nor does it leave me with a reasonable doubt on the issue of consent.

[34] On the other hand, I do accept the testimony of A.D. that she did not consent to any sexual touching by J.D.L.C., including kissing. Her testimony on this point was coherent, logical and not shaken by any contradictions. Her claim that she did not consent to any sexual touching is consistent with her apparent indifference to his sexual innuendo in the text messages, as well as the fact that she was seen by multiple witnesses to be upset and crying immediately after the incident.

[35] It is clear from all of the evidence that she was not particularly interested in going out to lunch with J.D.L.C. on the date of the incident, that he persuaded her to accompany him, and that she was emotionally upset by something that occurred during the course of their brief time together over the lunch break. On all of the evidence, the only logical conclusion I can reach is that some sexual touching occurred during the lunch break without A.D.' consent.

[36] Accordingly, I am satisfied beyond reasonable doubt that A.D. did not consent to being touched in a sexual manner by J.D.L.C.. I reject his evidence that the only sexual touching was a kiss, and I reject his claim that A.D.' words and actions support an inference that she did consent to being kissed. I believe the testimony of A.D. that she was kissed and groped by J.D.L.C., and that she did not consent to being touched in this manner.

Issue 2 – Has the Crown Proven That J.D.L.C. Did Not Have an Honest but Mistaken Belief in Consent?

[37] To prove the charge against J.D.L.C., the Crown must not only prove that A.D. did not consent to the sexual touching, it must prove that he knew she was not consenting, or that he was reckless or wilfully blind to the absence of consent. J.D.L.C. "may raise the defence of honest but mistaken belief in consent if he believed that the complainant communicated consent to engage in the sexual activity": R. v. A.(J.), 2011 SCC 28, at para. 24. The issue is not what J.D.L.C. believed A.D. wanted, but rather whether he believed that she communicated consent. As the Supreme Court stated in Ewanchuk, supra, "[a] belief by the accused that the complainant, in her own mind wanted him to touch her but did not express that desire, is not a defence. The accused's speculation as to what was going on in the complainant's mind provides no defence. For the purpose of the mens rea analysis, the question is whether the accused believed that he had obtained consent. What matters is whether the accused believed that the complainant effectively said "yes" through her words and/or actions": para. 46-47.

[38] By operation of section 273.2(b) of the Criminal Code, J.D.L.C. cannot rely on the defence of honest but mistaken belief in consent if "he did not take reasonable steps, in the circumstances known to [him] at the time, to ascertain that the complainant was consenting."

[39] In this case, it is clear that J.D.L.C. failed to take any steps to ascertain that A.D. was consenting to being sexually touched. He assumed that she was flirting with him by virtue of the fact that she sent text messages to him. He ignored the fact that she did not reciprocate his sexual innuendo. He repeatedly pressed her to join him for lunch, and expressed dismay when she suggested that his sister might join them. I have no doubt that what he told his employers later that same day was the truth – that he had "messed up in thinking we had the same feelings for each other."

[40] I accept that J.D.L.C. probably believed, in his own mind, that A.D. had a romantic interest in him, and that she wanted him to kiss her. What the law requires, however, is that he take reasonable steps to ascertain that she was actually consenting. J.D.L.C. did not take any steps to find out if A.D. wanted to be kissed or sexually touched. Instead, he gambled that his feelings towards her were reciprocal. Unfortunately, they were not. In those circumstances, I am satisfied beyond reasonable doubt that J.D.L.C. was reckless or wilfully blind to the fact that A.D. did not want to be kissed by him or touched in a sexual manner.

[41] He offered to wipe some remnants of the food she had been eating from her cheek, a request she politely declined. Despite this express refusal of his request to touch her face, J.D.L.C. proceeded to kiss and then grope her, stopping only when she expressly made it clear to him that she did not consent to these acts. I accept that he probably thought she wanted to be kissed and touched by him. He was not, however, entitled to act on this belief without taking reasonable steps to ensure that A.D. communicated her consent.

[42] I am therefore satisfied, beyond reasonable doubt, that J.D.L.C. was reckless or wilfully blind to the fact that A.D. did not consent to being sexually touched, and that he did not operate under an honest but mistaken belief that she had consented to the sexual touching.

Conclusion

[43] Accordingly, I am satisfied beyond reasonable doubt that J.D.L.C. touched A.D. in a sexual manner without her consent, and that he was reckless or wilfully blind to the absence of consent. He is found guilty of sexual assault.

Released: November 16, 2016

Signed: "Justice S. W. Konyer"

Footnotes

[1] As mentioned earlier in these reasons, D.L. did not testify before me. He gave evidence at a previous trial on February 25, 2016, which resulted in a mistrial. On consent, I received a transcript from his testimony at the earlier proceeding as evidence on this trial. The same holds true for the evidence of S.C. and L.H..

[2] Because S.C. did not testify at the trial before me, neither counsel addressed the admissibility of A.D.' statement to him about the alleged sexual assault. This is a prior consistent statement which cannot be used to support A.D.' credibility. The limited use that can be made of this statement, in my view, is to assist me in understanding the unfolding of the narrative: see R. v. Dinardo, 2008 SCC 24, at para. 37. This is necessary because, as detailed below, J.D.L.C. was subsequently confronted by D.L. and others about A.D.' claims, and he made statements in response to these allegations.

[3] This statement is also used only for the purpose of understanding the narrative, and not to support the credibility of A.D., for the reasons outlined in footnote 2.

[4] Transcript of Proceedings, February 25, 2016, p. 92, ll. 12-23.

[5] Transcript of Proceedings, February 25, 2016, p. 105, ll. 13-14.