Information and Parties

Information No.: 2811-998-16-35437-00

Ontario Court of Justice

Her Majesty the Queen

v.

Frederick F. Terkelsen

Proceedings and Reasons for Judgment

Before the Honourable Mr. Justice M. Felix

Date: October 28, 2016 at Oshawa, Ontario

Publication Ban Notice: Information contained herein cannot be published, broadcast or transmitted pursuant to Section 517(1) and 486.4 of the Criminal Code of Canada pursuant to an order of Justice of the Peace Ryan in the Ontario Court of Justice dated July 16, 2016.

Appearances

N. Young – Counsel for the Crown

E. Levy – Counsel for F. Terkelsen

Table of Contents

I. Introduction II. Issues III. The Evidence of the Complainant IV. Evidence of the Complainant's Friend – R. B. V. Evidence of the Defendant VI. The Law: Sexual Assault and Consent VII. Findings - Credibility

• A. General Considerations
• B. Events at the Bar
• C. Intoxication
• D. The Allegation of Sexual Assault
  • 1. General Observations
  • 2. Credibility of the Complainant
  • 3. Credibility of the Defendant VIII. Post-Event Emotional State IX. Motive X. Conclusion

Reasons for Judgment

FELIX, J. (Orally)

I. Introduction

The defendant is charged with sexual assault as a result of events that occurred on July 1st, 2016.

The complainant and the defendant met while socializing at a local sports bar. The complainant agreed to go back to the defendant's university residence. While at the university residence they engaged in mutually consensual sexual activity that included the complainant providing oral sex to the defendant, and the defendant digitally penetrating the complainant.

It is what happened after the consensual activity that is an issue at this trial. The complainant alleges that after the consensual sexual activity there were three sexual assault encounters involving vaginal intercourse. The defendant agrees that sexual intercourse occurred during this timeframe. His position is that the complainant consented.

II. Issues

Having regard to the evidence at trial and the submissions of counsel there is one issue to resolve - whether the Crown has proven beyond a reasonable doubt that the complainant did not consent. This determination turns primarily on credibility issues associated with the primary witnesses - the complainant and defendant.

While there was originally some notion of a defence of mistaken belief in consent, this was not pressed during submissions. The defence explicitly notified the Court that recent fabrication or motive to fabricate was not being alleged.

The prosecution called two witnesses at trial: the complainant, and a friend of the complainant who interacted with her that night. The prosecution also relied on video footage captured from the hallway outside the defendant's room. Finally, a 9-1-1 call made by the complainant to the police was played for the Court.

The statement provided by the defendant to the police was received by the Court as part of the Crown's case by agreement between defence counsel and the Crown. While the Crown initially reserved the right to litigate the admissibility of this statement per R. v. Edgar, 2010 ONCA 529, in effect the statement was adduced as a part of the Crown's case without a voir dire and the Crown abandoned this argument during submissions.

Finally, the Court received a will-state concerning one police witness on consent.

The main focus of the case is the evidence of the complainant and the evidence of the defendant. I will focus on this evidence first and then address the probative value of other evidence called.

III. The Evidence of the Complainant

The complainant worked at her place of employment on the day of the incident and made no special plans to go out after work. Two of her friends convinced her to go out and socialize so she went over to visit at two different locations with friends. She then attended a local sports bar to meet up with two other friends.

When she arrived at the sports bar her two girlfriends were socializing with three male persons, one of whom was the defendant. She spent an hour at the sports bar socializing and this is where she first met the defendant. Everyone was getting along well at the bar so the group of adults decided to go a party together. The complainant and two of her female friends accompanied the defendant and two of his friends back to the defendant's university residence so that the males could change clothing. The group then attended the party.

At the party, the complainant and the defendant were getting along very well. She liked the defendant and felt that he was nice. They engaged in consensual intimate physical contact including kissing.

The complainant testified that she had consumed alcohol at the two residences, the sports bar, and the party but that she was not drunk or intoxicated.

The complainant and the defendant decided to leave and go back to his university residence. The defendant drove the complainant and two friends back to the residence. The complainant's friends stayed at the party. During the drive back to the residence there was some discussion about the availability of a condom.

When the complainant arrived at the defendant's residence room the defendant's friends stayed for about five minutes, they socialized within the common area of the defendant's room. Then the friends left and the complainant and the defendant went into his bedroom.

The complainant testified that she and the defendant engaged in consensual sexual contact while lying on his bed. She performed oral sex on him, he digitally penetrated her, and they generally "made out". The defendant did not ejaculate. The defendant was fully clothed but had his pants down. The complainant was fully clothed but had the zipper and the button of her pants undone.

At this point in the evening the complainant told the defendant that "...we were done for the night". And "I need to go to bed". She was feeling tired. She rolled over and went to sleep on the left side of the bed closest to the window. The defendant was on the right side of the bed.

The complainant was awoken by the defendant on top of her. She was on her back. Her pants were pulled down but not fully off. The defendant was penetrating her vagina with his penis. He was positioned over top of her body with his legs against her hips. She pushed him off of her and told him "No" and that she was tired. She told him that she "did not want to right now" and that she was tired and just wanted to go to bed. The encounter stopped when she pushed him off of her. She then rolled over onto her side with her back to him and hoped that that was the end of the encounter. She then went back to sleep.

The complainant was awoken a second time by the defendant. She was on her side, the defendant was on his side behind her, and he was penetrating her again. The complainant was sick, confused, and did not know what was happening. She did not immediately speak because she did not know what to do. She was "freaking out". She then told him no and she did not want to do this right now. The defendant stopped. The complainant then rolled over to go back to sleep a second time. She did not know what to do.

Approximately two or three minutes after this encounter the complainant heard the defendant ask her if she was awake. She did not respond.

The defendant then physically rolled her onto her back, removed her pants completely, physically opened her legs, and penetrated her again. She just lay there with her eyes closed and did not know what to do. The defendant continued to engage in sexual intercourse with her for a period of time that the complainant could not specifically determine. Then the defendant pulled his penis out of her and ejaculated on her lower stomach.

The complainant got up and got dressed. She noticed that her shirt was ripped in the back.

When the complainant left the defendant's room she described attempting to communicate with three friends. She called her friend R.B., and two other friends using her cell phone. She was also sending text messages. R.B. returned the call and ultimately stayed on the phone with the complainant. Minutes later R.B. was in the physical presence of the complainant. The police were called via 9-1-1. The complainant went to the hospital and then provided a video statement to the police.

IV. Evidence of the Complainant's Friend - R.B.

The prosecution called R.B. as the next witness at the trial for the purpose of providing evidence of the complainant's demeanour.

This witness was socializing with the complainant and the defendant earlier in the evening. She was also at the party that they all attended but she was not aware that the complainant had left the party with the defendant and the two other males.

Later on that evening at 1:17 a.m. she noticed a missed call on her cell phone from the complainant. At 1:18 a.m. she returned the call and spoke to the complainant. She noted that the complainant was dry heaving, distraught, and she testified that could not understand everything the complainant was saying over the phone.

As a result of certain things relayed to the witness by the complainant this witness determined to run and find the complainant. She kept the complainant on the phone while she ran. It took approximately five minutes to run to the vicinity of the university residence where she met the complainant in person. The complainant was described by this witness as traumatized, speaking in broken English, and inconsolable. Further, the complainant had dialed 9-1-1 on her cell phone but had not yet activated the call. It is clear that the complainant had a brief exchange with this witness with respect to the events that occurred. The witness directed the complainant to call 9-1-1 and she placed the call.

This witness described herself as drunk that night (at least until she received the call from the complainant). Once she received the call and certain information from the complainant she was impacted by the adrenaline.

V. Evidence of the Defendant

The defendant commenced his testimony by providing some background information concerning his country of residence, his family, nationality, and his employment. The Court learned that he was in the Region for the purposes of organized sporting activities.

The defendant largely provided a similar recount with respect to the early events in the evening. He attended the sports bar, he had socialized with the complainant, her friends, and his friends. He noted that the complainant arrived later on in the evening at the sports bar.

The defendant confirms that the group attended his residence so that they might change into more suitable clothes for a house party.

At the house party he described getting along well with the complainant and that they engaged in consensual kissing and hugging.

The defendant testified that while at the house party the complainant asked him about condoms. The defendant did not have any condoms but indicated that he would ask his friends and he did in fact make inquiries.

The defendant's position is that the complainant asked him if she could go with him back to his place of residence and he agreed. The complainant, the defendant and his two associates from the evening travelled together back to his university residence room.

When they arrived back at the university residence parking lot the complainant again asked if he could find a condom. One of the defendant's friends indicated (from the back seat of the car) that he had some condoms.

The defendant testified that the complainant did not appear to show the effects of any alcohol. She did not stagger. He could understand everything that she said and he felt that she could understand what he was saying.

The defendant and the complainant went into his room. He propped the door open with a chair while his friends who resided across the hall went into their room to obtain some soft drinks. He noted as well that the friends propped their door open.

After approximately 20 minutes of socializing the complainant hinted to the defendant with her eyes that she wanted the friends to leave. The complainant was sitting on his lap and they kissed and hugged.

The defendant testified that the complainant's inquiries concerning the availability of condoms was telling him that she wanted to have sexual intercourse.

So he asked her if they should go into the bedroom and she said yes.

They entered his bedroom and went on the bed. They were "making out". The complainant opened up her pants and grabbed his hand to put it on her vagina. She opened up his pants and pulled them down and began to perform oral sex on his penis. At this point his pants were down around his buttocks but not completely off. He was digitally penetrating her at this time. This part of the encounter took around 15 minutes.

The complainant stopped performing oral sex and they hugged and kissed. The defendant asked if he should go get the condom and the complainant agreed. The defendant took this to mean that she wished to engage in sexual intercourse.

The defendant retrieved a condom from outside of the bedroom and in court he described and demonstrated how he opened the condom while embracing the complainant. Her head was on his arm. He described and demonstrated the manner in which he encircled her with his arms and opened the condom directly in front of her face - inches away from her face. He put the condom on. She was on her back. They were kissing and she pulled her pants further down and they began to have sexual intercourse. They continued to kiss and the complainant participated in the actions associated with sexual intercourse. She never communicated any word or gesture to stop.

The defendant described a point at which they changed positions. The complainant went on her side and he "spooned" her from behind and continued with sexual intercourse. Once again, the complainant was a willing participant. She did not communicate any word or gesture to stop.

Finally the defendant described another change in position whereby the complainant went onto her back and they continued having intercourse. He did not separate her legs. She separated her legs voluntarily and he lay down on top of her. His head was next to hers on the pillow while the sexual intercourse continued. She was looking up. His head was down. Their heads were side-by-side virtually touching.

At some point during this sequence of events the defendant realized that he was about to ejaculate. He pulled his penis out of the complainant's vagina before this occurred. He removed the condom from his penis and ejaculated on the complainant's stomach.

At this distinct point he noticed for the first time that the complainant was asleep.

He wiped off the complainant's stomach with a towel.

He began shaking her shoulder with his hand to wake her up.

He described the complainant waking up, shaking her head a little bit, and said that she looked "weird".

He asked her if "she was okay" and she replied in the affirmative.

He did not ask her if she was awake at any point.

They got dressed and he offered to drive her back to the party. She declined his offer and left.

The defendant was asked in direct examination about his statement to the police and his reference to the complainant being tired in that statement. He testified that while the complainant never told him she was tired she rubbed her eye with the knuckle of her hand once. He noted that she was not drifting in and out of sleep at any time and her physical movements in bed during the sexual intercourse suggested to him that she was awake at all times until the end.

VI. The Law: Sexual Assault and Consent

Given the submissions of counsel the relevant law is not controversial. I will set out the relevant considerations in a summary way because the defendant is not ordinarily resident in Canada and it is my task to ensure that he understands my decision.

The Supreme Court of Canada addressed the criminal burden of proof concerning sexual assault in Ewanchuk, [1999] 1 S.C.R. 330. The Crown must prove:

a. Touching.

b. Sexual nature of the touching; and

c. Absence of consent.

Further the Crown must also prove the defendant's:

a. Intention to touch; and,

b. Knowledge, or recklessness, or willful blindness towards lack of consent.

On the evidence of the defendant alone, let alone the evidence of the complainant, there is no question that the defendant intentionally engaged in touching of a sexual nature when he performed sexual intercourse.

The defendant does not have to prove that the complainant consented. The Crown must prove beyond a reasonable doubt that the complainant did not consent.

The Crown must prove beyond a reasonable doubt that the defendant knew that the complainant did not consent because the defendant actually knew that the complainant did not consent, was reckless, or was willfully blind with respect to the issue of consent.

VII. Findings - Credibility

A. General Considerations

The Crown bears the burden of proof to establish the offence beyond a reasonable doubt.

The criminal burden of proof does not shift to the defendant in a criminal trial. The defendant is entitled to remain silent and challenge the evidence provided by the Crown.

The Supreme Court of Canada in R. v. W.D., [1991] 1 S.C.R. 742 directs trial judges to analyze the evidence through the following considerations.

First of all, if I believe the evidence of the defendant, he must be acquitted. This would mean that the Crown has not proven the case beyond a reasonable doubt. If I believe the evidence of the defendant that the complainant at all material times voluntarily consented to sexual contact - he must be acquitted.

Second, if I do not believe the evidence of the accused but I have a reasonable doubt as a result of the evidence, I must acquit him. Again, this would mean that the Crown has not proven the case beyond a reasonable doubt.

Third, even if I do not have a doubt based on the evidence of the defendant, I must ask myself whether, on the basis of the evidence overall that I do accept, whether I am convinced beyond a reasonable doubt by that evidence that the defendant is guilty.

In cases where the focus is credibility I believe that another consideration is appropriate. If after carefully reviewing the evidence I am unable to decide as between the account provided by the complainant and the account provided by the defendant, keeping in mind the burden of proof, I should acquit: R. v. S.(J.H.), 2008 SCC 30.

The defendant's statement was admitted on consent as part of the Crown's case. As such it forms part of the evidence in this trial. However, a significant segment of that statement is irrelevant. It is not the defendant's task to explain why the complainant has come forward with these allegations. It is not the defendant's task to proffer an explanation for why the complainant would fabricate the sexual assault. This risks reverses the burden of proof in a criminal trial. I have disabused my mind of these parts of the statement.

B. Events at the Bar

With respect to the events earlier on at the party and culminating at the sports bar there is little to assist me with the determination on the issue of consent.

It is not important who initiated the idea of going back to the defendant's residence. The complainant says the defendant asked her back. The defendant says that the complainant inquired. There is nothing much to be made of this evidence. In the end I am satisfied that both the defendant and the complainant mutually attended his residence for the purpose of intimate relations. I am also satisfied that it is reasonable to infer that the defendant and the complainant wished to engage in sexual intercourse at that time.

In our society one adult is free to go back to the residence of another adult without abandoning protection under the law.

Whatever the sequence of events simply agreeing to go back to someone's residence after a night at a bar or party does not translate into consent to have sexual intercourse. It is simply a feature of the overall events that must be considered in context.

C. Intoxication

The complainant testified to a pattern of alcohol consumption leading up to the incident in the defendant's bedroom. While the complainant had consumed alcohol that evening she testified that she was not drunk or impacted by the consumption.

The defendant testified that the complainant displayed no effects of any alcohol consumption when they arrived back at the university residence. He further testified that he could understand her, he felt she could understand him, and she was not staggering when she was walking.

I further accept the testimony of the defendant that he did not consume any alcohol that night.

As a result I am satisfied that alcohol consumption did not play a significant role in this event. It certainly did not appear to impact the reliability of the evidence provided by the complainant or the defendant at trial.

D. The Allegation of Sexual Assault

1. General Observations

The recount by the complainant and the recount by the defendant are largely the same in respect to the overall structure of events that lead up to the incident in the defendant's university bedroom.

There are many areas of the evidence where the defendant and the complainant are in broad agreement. This gives rise to certain general objective conclusions.

First, there is no question that vaginal sexual intercourse occurred between the defendant and complainant. It is also clear that both the complainant and the defendant describe three components to the sexual intercourse encounters.

The first sexual intercourse encounter involved the defendant penetrating the complainant's vagina with his penis while being position over top of her while she was lying on her back.

The second sexual intercourse encounter involved the defendant penetrating the complainant's vagina with his penis from behind while she was on her side.

The third and final sexual intercourse encounter involved the defendant penetrating the complainant's vagina with his penis while being positioned over top of her.

Both the complainant and the defendant agree that the culmination of the sexual intercourse encounters occurred when the defendant ejaculated on the complainant's stomach.

Both the complainant and defendant described this sequence of sexual intercourse encounters in the same broad manner. There were significant differences however.

The complainant describes being awoken by the defendant and that the three sexual intercourse encounters were separated by period of time. The defendant describes these three sexual intercourse encounters as fluidly flowing from one to another with no break in time.

The complainant describes a 15 to 20 minute time span between the completion of the oral sex she performed and the defendant waking her up by penetrating her with his penis. The defendant links this consensual activity (the oral sex) directly to the three sexual intercourse encounters that followed.

The video footage evidence admits of further conclusions. The two associates of the defendant can be observed leaving his room at 00:35 hours. The complainant can be observed leaving the defendant's room and attending the ground floor at 01:15 hours. Thereafter the police are contacted. As such, I can be reasonably confident that the defendant and the complainant were alone together for approximately forty minutes.

Other general conclusions include the fact (as I have already pointed out) that alcohol consumption is not a factor and there is no evidence that drugs played no role in these allegations.

The defendant's position is that sexual intercourse occurred and it was consensual. The complainant's position is that sexual intercourse occurred involuntarily without her consent and commenced while she was sleeping.

There is no question in law that if the complainant's recount is accepted then a sexual assault occurred. There is similarly no question in law that if I believe the defendant, harbour a doubt based on the evidence or find the positions of the complainant and the defendant equally persuasive I am obliged to acquit.

Notwithstanding these considerations I am mindful that a criminal trial is not credibility contest between the complainant and the defendant. A contest between witnesses is inconsistent with the criminal burden of proof.

2. Credibility of the Complainant

The complainant was an extremely emotional witness. Several breaks were provided so that her evidence could be received. She was soft-spoken but answered all questions directly and concisely. Her answers were responsive to the questions asked. Overall, there was nothing significant concerning her demeanor that significantly influenced my findings. While the complainant is owed sensitivity and a safe and comfortable environment in which to provide her testimony, the Court cannot, and was not, swayed by the evident emotional toll the trial took on her.

When witnesses testify there are often inconsistencies. The question for the Court is whether the inconsistencies are significant. Do the inconsistencies degrade the witnesses' reliability, credibility, or both?

During cross-examination it was put to the complainant that told the police that she went to bed clothed and awoke fully naked. The context was in relation to the first sexual assault encounter. When confronted in court on this apparent inconsistency the complainant explained she was referencing the third encounter concerning her clothes being completely removed by the defendant. During re-examination a more fulsome portion of her statement to the police was acknowledged by the complainant wherein told the police that her pants were not totally off during the first encounter. I did not find this to be a material inconsistency.

During cross-examination the complainant acknowledged that she did not use the words "opened her legs" when describing the actions of the defendant during the third and final sexual assault encounter. This is not significant in my mind. While this was certainly physical contact with her it was not conveyed by the complainant as an act of violence or abusive or gratuitous type conduct albeit it was part of the physical contact associated with the third and final encounter. When I reviewed the record of this trial on this issue I was satisfied that the complainant was describing a sequence of events and that this was not a feature of the overall assaultive conduct (i.e. that is to say that the defendant brutally, forcibly, and/or painfully opened her legs).

I did not find this issue to give rise to material inconsistencies.

In this case I found the complainant to be credible. She was forthright. She answered questions directly. She was concise as I mentioned. She described the events at issue in a simple straightforward manner. I found her testimony to be worthy of belief. Corroboration of her testimony is not required in law or in fact in this case. But for reasons I will explain further on this judgment, I also found that the post event emotional state evidence corroborated the complainant's testimony that she was sexually assaulted by the defendant.

3. Credibility of the Defendant

The defendant is presumed innocent and is not required to testify or respond to the prosecution case.

The choice to testify belongs to the defendant and the defendant alone.

Subject to professional rules governing lawyers his legal counsel must permit him to testify if it is his wish. It is entirely his choice.

Overall there was nothing significant concerning the demeanor of the defendant when he testified. It is clear that these circumstances have had an enormous toll on him as well. He was emotional when testifying. Nevertheless he provided clear responsive answers. He is not a native English language speaker but he testified clearly and slowly without need for an interpreter. He did not try to hide behind a language issue or pretend to misunderstand questions when convenient.

The Crown Attorney submits that when the defendant was describing the complainant being tired and rubbing her eye he physically demonstrated these observations in an inconsistent manner. That is to say he rubbed his eye, rather than wiped his eye. I accept the evidence of the defendant that he was simply trying to illustrate what he observed and I do not find his admittedly inconsistent physical demonstration to be significant. I think he was just trying to illustrate his point rather than accurately demonstrate the precise movements of the complainant.

Frankly there were other submitted inconsistencies cited by the Crown Attorney that I need not address given my overall findings in this case.

Where the defendant testifies the Court must contextually analyze the evidence of the defendant with regard to the evidence at trial overall just like any other witness at the trial. Logic, common sense, and experience are available to the trial judge.

Above all, regard for the burden of proof and the principles outlined in R. v. W.D., [1991] 1 S.C.R. 742 govern.

The Court has a duty to clearly, honestly, dispassionately, and fearlessly provide reasons so that everyone understands the process by which the Court came to a legal conclusion. My purpose is not to inflict harm or suffering on the parties or the families present. This is fundamental tenet of the independence of the Court as an institution and our democratic country.

It is with these thoughts in mind that I state that I have serious difficulty with the credibility of the defendant. This caused me to reject his evidence relevant to the issue of consent.

a) The Complainant was Asleep During Sexual Intercourse

The defendant testified that the complainant was asleep at the culmination of the sexual intercourse encounters - his ejaculation upon her stomach. The complainant testified that her eyes were closed during the third sexual intercourse encounter - she did not know what to do.

The defendant testified to a pattern of consensual sexual intercourse with the complainant where was a free, willing and active consensual partner. He described the complainant as being awake during the sexual intercourse encounters with no evidence of her being sleepy, apart from her rubbing her eye.

He testified that she was awake during the sexual intercourse. He also carefully stipulated that she was not drifting in and out of sleep. He pointed out she was kissing him throughout the encounter. The portrayal was that of mutually consenting adults actively participating in sexual intercourse.

Defence counsel argued that the Court should view the complainant's evidence that she was tired with some level of skepticism. But the defendant himself acknowledged that she was tired prior to the sexual intercourse. He also said he was tired. He also testified that she must have fallen asleep during the third sexual assault encounter.

As I have pointed out earlier in this judgment the defendant's evidence mirrors the complainant's evidence and that the last sequence of the sexual intercourse encounter involved what is commonly known as the missionary position. She (the complainant) was on her back. He was on top of her. His head was down on the pillow next to her head. They were both physically participating in the sexual intercourse according to him.

The defendant then testified to what I find to be frankly a bizarre and incredible event. The idea that the complainant was awake and an active willing participant in sexual intercourse one moment, kissing him to be precise, and then moments later at the distinct time of ejaculation she is visibly asleep is simply incredible. The defendant described shaking the complainant to wake her after he ejaculated. Calling her name. I do not believe this evidence.

I accept the complainant's evidence in the two or three minutes time span between the cessation of the second sexual intercourse encounter and the commencement of the third, the defendant asked her if she was awake and she did not respond.

The idea that in a matter of mere moments the complainant went from a willing participating sexual partner to sound sleep is incredible. Further, the idea that the defendant was ill-positioned to notice her apparent state of slumber prior to ejaculation verges frankly on the absurd. His testimony that his head was next to hers on the pillow so he had no vantage point to detect her slumber was precious. He testified that just prior this he was kissing her. There remains no explanation as to why he did not detect the complainant's shift from active lovemaking partner to a state of sound sleep. The defendant was not under the influence of any intoxicants. I have not heard any evidence of any defects in his perception abilities. I have no regard for this aspect of his testimony and I concretely reject it as untrue.

I accept the complainant's evidence that she was in fact asleep and was roused by the defendant's actions on both the first and second sexual encounters. I find with respect to the third counter when she did not audibly respond to the defendant's question as to whether she was awake, he initiated the third and final sexual intercourse encounter.

b. Ejaculation on the Complainant's Stomach

Given the Crown Attorney's submissions in this case I must also address the fact that the defendant testified that he ejaculated on the stomach of the complainant. At the end of the case the Crown Attorney submitted that the manner in which the defendant ejaculated was so peculiar and unusual an act that it required independent consent. It is apparent that this approach to the evidence caught the defendant's counsel off-guard and was not anticipated. The defence position was that it was simply an accident. I will address this issue because the Crown Attorney is relying on this theory.

I have paused to consider the defendant's evidence that he accidentally ejaculated on the stomach of the complainant.

The defendant testified that he held off ejaculating while he removed his penis from the complainant's vagina. He then removed the condom. He then ejaculated on her stomach.

I accept the defendant's position that his practice is to withdraw his penis from the vagina canal prior to ejaculation even while using a condom so that there is no danger of pregnancy (e.g. if the condom is broken). But objectively speaking, he seemingly possessed enough control to stave off his ejaculation and remove the condom. If the impulse to ejaculate was so strong why take the time to remove the condom from your penis prior to ejaculation? Why not ejaculate into the condom? If the ejaculation was by accident, the inference being he could not control it, why was he able to control it while he removed the condom?

Why is it that he ejaculated on the complainant's stomach rather than on himself, or the bed sheets? Or anywhere else for that matter. He told the police that he cleaned her stomach with a towel that he had right there on the floor next to the bed. He specifically noted that the towel was not in the bathroom, it was next to the bed. Why did he not have enough control to use the towel for his ejaculate?

The evidence from the defendant on this point is questionable. I cannot be definitive but I think it was unlikely that it was an accident. That being said, having carefully considered the record in this trial, I find that I do not categorically reject his evidence that it was an accident.

I can be certain that I do not accept the Crown's submission that this act was so unusual that it required independent consent. I acknowledge that given the nature of this sort of conduct it is entirely possible that consenting adults discuss such issues especially given the public health concerns for example. Despite my view that I questioned perhaps whether it was an accident, it could be that this is simply the defendant's ordinary practice.

Having regard to this analysis I reject the implicit subtext of the Crown's submission - the implicit subtext is that the defendant's ejaculation process was somehow a deliberate or gratuitous display for sexual satisfaction. Even if I am wrong in this approach, I note that caution about this evidence is in order as there is no discreet count on the information concerning this specific act. The Crown proceeded with one all encompassing count alleging sexual assault. If the Crown theory was that the manner of ejaculation was a discreet offence then some notice to the defendant should have occurred.

c. The Condom

Defence counsel argues that there is a strong link between the consensual sexual activity and the allegation of sexual assault. It began with the kissing and hugging at the house party. It continued with the complainant asking to go back to the residence and making inquiries about a condom. It was further reinforced by the consensual performance of fellatio by the complainant and her permitting the defendant to digitally penetrate her. He asked her (the defendant did) if he should go get a condom? The complainant said yes. Sexual intercourse occurred. It is in this way that the defence theory is that the prior consensual sexual activity informed the defendant's perception that there was consent.

Defence counsel submits that the evidence of a condom is significant. The complainant (the defence says) denies seeing a condom because this would impact her claim that she had not agreed to sexual intercourse. Defence counsel urges the Court to accept the recount of the defendant wherein he described opening the condom with the complainant in the crook of his arm.

Given the complainant's position that what occurred was a sexual assault it is somewhat sensitive to consider whether at any time prior to the sexual assault she wished to engage in sexual intercourse. The complainant touched on this area. She acknowledged that she conveyed a wish to the defendant that his friends leave prior to the two of them retiring to the defendant's bedroom. I have also considered her inquiries about the availability of a condom. I accept defence counsel's submission that the complainant was interested in sexual intimacy. It is reasonable for me to find that she was interested in sexual intimacy given the context of the incident including her consent to digital penetration and her performance of oral sex on the defendant.

But defence counsel seeks to link the preceding consensual activity to the sexual intercourse encounters as bolstering the defendant's position that it was consensual.

I have some difficulty with the defence submissions on this issue.

First of all, I must recognize that in our modern society the fact that a young woman asks or asked about condoms is perfectly normal behaviour. It does not, and cannot, lead to inferences about her character. At the most it displays a mature approach to the prospect of intimate contact between two strangers. Any number of public health advertisements would counsel the same approach. Safe sex practices are taught in school. There is really nothing significant about the complainant initiating this discussion or addressing the subject. The defendant specifically testified that he interpreted or assumed that the complainant's inquiries concerning a condom represented a consent for vaginal sexual intercourse. These inquiries were earlier in the evening and in the parking lot. He was not entitled to treat these inquiries as irrevocable consent.

Second, I accept that after the consensual digital penetration and oral sex, the complainant told the defendant that she was done for the night. She also testified that he had not yet ejaculated. The complainant testified that she did not wish to engage in sexual intercourse. After performing oral sex on the defendant she told him she was done. Her intention was to go to sleep. I found her recount of this sequence of events to be highly persuasive and cogent. According to the complainant there was a 15 or 20 minute gap between the end of the consensual activity and her being awoken by his first sexual assault. I accept this evidence.

The complainant did not try to avoid the issue of condoms at this trial. She acknowledged making the inquiries. She acknowledged that the defendant went to obtain a condom. But this was before the oral sex. She testified during cross-examination that she told him after the oral sex that she not want to have sex. She did not know if the defendant actually used a condom during the three sexual intercourse encounters because she was awoken from sleep and her eyes were closed. Yet she nevertheless acknowledged seeing a wrapper on the floor of the bedroom at the end of the events. The defendant told the police that he removed the condom and wrapper from the bedroom and placed it in the garbage located in the living room. This is mildly corroborative of the complainant on this point.

The defendant testified to an elaborate procedure whereby he opened the condom while embracing the complainant. Her head was resting on his arm. He demonstrated in court how with his arms encircling her he joined his hands and opened the condom inches away from her face prior to sexual intercourse. The complainant denied that this occurred. When I observed this demonstration in court and the detailed recount on this issue I frankly found it to be overly specific and contrived. The perceived import of this dramatic presentation was the defendant's attempt to convince the Court that the unveiling of the condom was done directly in front of the eyes of the complainant, mere inches away, and she therefore had a non-verbal announcement that sexual intercourse was to commence and must have consented.

The defendant told the police that he applied the condom to his penis with one hand. He then altered his position slightly modified it to say that he might have removed his other hand to affix the condom. This slight modification was an adjustment once he realized that it would be somewhat difficult to affix the condom to his penis given the positioning that he voluntarily described.

d) The Reaction of the Complainant to the Sexual Assault

As properly acknowledged by both counsel during submissions there is not proscribed "normal", or necessary response to a sexual assault. There is no requirement that the complainant subscribe to a particular reaction.

Notwithstanding this observation the defence cites the reaction of the complainant as damaging to her credibility. The defence theory is that the complainant was sexually assaulted in the first and second sexual intercourse encounters and her reaction was to roll over and go back to sleep. The defence submits that if in fact a virtual stranger has sexually assaulted you the appropriate reaction is not to roll over and go back to sleep.

The Crown Attorney responds that there is nothing to be made of this reaction. He submits that if the reaction is simply available to a person it is automatically justified and the Court should not criticize it.

If there is no proscribed or necessary response or reaction to a sexual assault then surely the logical corollary is that all reactions are available.

I must confess that this area of submissions caused me some considerable trouble. I thought it was a strong point for the defence. This is without resort to "rape myths" or sentiments about how complainants should act.

In the end I am left to logic, common sense, my experience and a contextual analysis to determine this issue.

It is true that the complainant was lying next to a virtual stranger - a person she had met that night. This virtual stranger had just violated her. This is not a situation where the complainant and the defendant were domestic partners for example and resided together. In such a circumstance the evidence that the complainant rolled over and went back to sleep would be of perhaps no moment. But context is key in the evaluation of this issue.

As I have already set out I am satisfied that the complainant initially was interested in sexual intercourse. She had contemplated having sexual intercourse with the defendant. But this changed after she performed oral sex. She told the defendant she was done for the night. It is clear that the complainant was interested in the defendant. She was hugging him, she was kissing him, sitting on his lap earlier in the evening. Who knows where the relationship would have gone? While the defendant was a virtual stranger to her I have heard some evidence that they spent some period of time socializing and getting to know each another.

After performing oral sex the complainant told the defendant that "...we were done for the night". And "I need to go to bed". She was feeling tired. She rolled over on the bed and went to sleep.

Her response to the first sexual assault encounter was not just to roll over she pushed the defendant off of her and told him "No" and told him that she was tired. She also told the defendant that she "did not want to right now " and that she was tired and just wanted to go to bed. The defendant stopped his advance then the complainant rolled ever on to her side. She testified that she hoped it was the end of the encounter and she fell back to sleep.

The complainant testified that she did not know to do after this sexual intercourse encounter. She was overcome by the events. She was in a state of confusion. Within two or three minutes within the second sexual intercourse encounter the defendant asked her if she was awake. She did not respond even though she was. And his reaction was to commence the third sexual assault encounter.

Context requires a consideration of the dynamic of the situation and I am not concerned at the end of the day about the complainant's reaction. She did not wish to have sexual intercourse with the defendant that night. This did not mean that it would not occur on another night perhaps but this is irrelevant. Consent must be assessed at the time of the event. Her earlier interest in sexual intercourse does not transfer to later events particularly given her clear communications to the defendant that she did not wish to engage in sexual intercourse.

Finally, I would observe that there is at least one other conclusion that I could reach. Without intending any disrespect to the complainant, without seeking to blame the complainant, I must recognize that the decision to stay could simply have been a bad decision or poor judgment.

I do not find that the reaction of the complainant negatively impacts her credibility.

VIII. Post-Event Emotional State

Separate and apart from my credibility findings I find some degree of corroborative weight from the events that occurred immediately after the events inside the defendant's university room.

The Court received video footage of the university residence including the area immediately outside of the defendant's room, the elevator, and the main floor. This footage was played in open court and reviewed again during preparation of this judgment.

I find that the complainant was visibly upset when she left the defendant's residence room. I also note that I could observe her appearing to button up her shirt.

I find that she was manipulating her cell phone and also appeared to be using her phone.

The second witness for the Crown was called by the complainant immediately after the events in the defendant's bedroom. Her observations of the complainant corroborate the upset that is displayed on the video footage. Finally, the complainant called 9-1-1 after the events and that call heard in court is vivid evidence of her post-event emotional state.

These three areas of evidence are highly corroborative of the complainant's evidence: R. v. A.(J.), 2010 ONCA 491; R. v. Varcoe, 2007 ONCA 194. The video footage is objective evidence that immediately after leaving the defendant's room the complainant was visibly upset. She was buttoning up her shirt. The 9-1-1 call is objective evidence of the emotional state of the complainant - she was inconsolable. The evidence from R.B. (the second witness) also supports the complainant to a degree. She was proximate to the complainant within minutes.

I must observe however that I have a slight degree of caution with respect to the evidence of R.B. because of her understandable bias in support of her friend. I also noted a mild potential collusive aspect in that both the complainant and R.B. described R.B. as not drunk due to adrenaline - (i.e. they used the exact same phrase). But neither counsel made an issue of this, the police were called immediately, and of course R.B. could not provide corroboration of the complainant's version of events in the defendant's bedroom.

I have considered that there could be alternative explanations for the complainant's post event emotional state. For example, the defendant's position might have been that he and the complainant had a fight after consensual sexual intercourse. Or perhaps there was a disagreement after a recognition on the part of the defendant that this was a "one night stand" and the complainant's perception was that it was something more. Another example could be that the defendant was unkind to the complainant in some non-criminal way. These are simply other illustrative examples of alternative ways that I could explain the post event emotional state of the complainant.

But the defendant's evidence is simply that the complainant was confused after he shook her shoulder to wake her up from sleep. He cleaned his ejaculate off of her. There was no conflict. There was no issue. The complainant simply declined his invitation for transportation and left with her clothes.

IX. Motive

The defence does not have to prove a motive to fabricate on the part of the complainant.

The defence position in this case is that the complainant is not being truthful about having had consensual sexual intercourse with the defendant.

When I assess this defence I must also balance this consideration with the fact that there is no apparent motive on the part of the complainant to fabricate.

The complainant and the defendant knew each other for a matter of hours. There was no prior connection between the two parties or even their respective groups of friends.

That being said I must be cautious and recognize that simply because there is no evidence of a motive to fabricate does not mean that there is in fact no motive to fabricate and thus complainant must be telling the truth: R. v. L.L., 2009 ONCA 413 at para 44.

But the objective circumstances here indicate no conflict, no dispute and when I overlay the post event emotional state of the complainant I am even more sure of my analysis.

I have strained my mind seeking alternative explanations. At the end of the day I conclude simply that there is no apparent motive to fabricate - period: R. v. LeBrocq, 2009 ONCA 413. This but one factor in this trial and I place limited weight on this consideration given my findings overall.

X. Conclusion

Consent is analyzed from the subjective perspective of the complainant: Ewanchuk, supra.

There is no such animal as implied consent in Canadian law. Consent must coincide with the sexual activity in issue and the complainant may withdraw consent at any time: R. v. Hutchinson, 2014 SCC 19.

Consent is also confined temporally to the timeframe of the impugned acts. There is no basis in law for the defendant to translate consensual oral sex and digital penetration, or inquiries about a condom to sexual intercourse 15 or 20 minutes later. Particularly when I accept that the complainant was awoken from sleep. When I consider the evidence of the sexual intercourse encounters, the consensual intimate activity, and the "condom issue" even on the evidence of the defendant alone he did not address consent.

The complainant was entitled to make enquiries about a condom without risk that this would be interpreted as a continuing irrevocable consent to have sexual intercourse. The defendant was not entitled to assume that mere inquiries concerning a condom constituted consent for vaginal sexual intercourse.

The Alberta Court of Appeal recently summarized the issue of consent in a case factually similar to this case. In R. v. Adepoju, 2014 ABCA 100 the Court provided a helpful summary at paragraphs 11 and 12:

11. "The Criminal Code makes clear that acquiescence or submission is not consent. As stated in Ewanchuk, to be legally effective, the consent must be freely given. Consent will be deemed to be absent when the ostensible consent or participation is obtained by submission by reason of force, coercion, threats, fear, et cetera. The Court in Ewanchuk stated: "consent is stripped of its defining characteristics when it is applied to submission, non-resistance, non-objection or even the apparent agreement of a deceived unconscious or compelled will." This approach to consent under the law of sexual assault was recently reaffirmed by the Supreme Court of Canada in R. v. Hutchinson. We agree with the Crown's submission that apparent acquiescence to the act of sexual intercourse cannot form the foundation for the finding of consent. This too is an error of law.

12. Moreover, the law requires that reasonable steps be taken to ensure consent after the rejection of sexual advances. See Ewanchuk, supra; R. v. Dippel, 2011 ABCA 129, 505 A.R. 347 (Alta. C.A.); R. v. Flaviano, 2014 SCC 14 (S.C.C.); and most recently, R. v. Hutchinson. In this case, none were taken."

The law requires the complainant to be conscious throughout the sexual activity. As the Supreme Court of Canada explained in R. v. A. (J.), 2011 SCC 28 at paras 65-66:

65. "In the end, we are left with this. Parliament has defined sexual assault as sexual touching without consent. It has dealt with consent in a way that makes it clear that ongoing, conscious and present consent to "the sexual activity in question" is required. This concept of consent produces just results in the vast majority of cases. It is proved of great value in combating the stereotypes that historically have surrounded consent to sexual relations and undermined the law's ability to address the crime of sexual assault...

66. The definition of consent for sexual assault requires the complainant to provide actual active consent throughout every phase of the sexual activity..."

Furthermore, the Supreme Court of Canada has recognized Parliament's intention to require ongoing conscious consent with the purpose that men and women are not exploited sexually and to make sure that individuals engaged in sexual activity may require the activity to stop at any point: A. (J.), para 3.

The defendant cannot merely state that the complainant was consenting. He must also take reasonable steps to ascertain consent and must honestly believe that the complainant has communicated her consent by words or conduct to engage in the sexual activity: A. (J.), paras 36-37, 46, 66; Ewanchuk, at paras 46-49.

The defendant initiated sexual intercourse with the complaint when she was asleep. It is particularly difficult to obtain consent if the complainant is asleep at the commencement of sexual intercourse: R. v. Nikkanen, 1998 CarswellOnt 1842 (Ont. Ct. Gen. Div.) affirmed, [1999] O.J. No. 3822 (Ont. CA), refusing leave to appeal, [1999] S.C.C.A. No 624 (SCC).

Finally, that the complainant closed her eyes and simply acquiesced to the third and last sexual intercourse encounter does not equate to consent: R. v. M. (M.L), [1994] 2 S.C.R. 3.

I reject the evidence of the defendant on the core issue of consent. For the reasons outlined in this judgment I have grave concerns about the credibility of the defendant. The bizarre account of ejaculating and finding the complainant fast asleep taints the reception of his evidence as a whole.

I find that the complainant clearly expressed her lack of consent to sexual intercourse twice by words and gesture. He commenced sexual intercourse three times without inquiring or seeking consent.

His evidence does not raise a doubt in my mind.

I accept the evidence of the complainant. She did not consent to having sexual intercourse that night.

The Crown has proven the absence of consent beyond a reasonable doubt.

I find the defendant guilty of sexual assault.

Certificate of Transcript

Evidence Act, subsection 5(2)

I Tammy Irvine, certify that this document is a true and accurate transcript of the duplicate recording of R. v. Terkelsen in the Ontario Court of Justice held at Oshawa, Ontario on October 28, 2016, taken from Recording No. 2811_408_20161028_090408_10_FELIXMA.dcr, which has been certified in Form 1.

................. .................. (Date) (Authorized Person)

Legend (sic) - Indicates preceding word has been reproduced verbatim and is not a transcription error. (ph) - Indicates preceding word has been spelled phonetically.

Photocopies of this transcript are not certified and have not been paid for unless they bear the original signature of Tammy Irvine, and accordingly are in direct violation of the Ontario Regulation 587/91, Courts of Justice Act, January 1, 1990.