Court Information

Date: January 24, 2017

Information No.: 4817-15-75008957

Ontario Court of Justice

Her Majesty the Queen v. M.L.V.

Before: The Honourable Justice W. Horkins

Location: Toronto, Ontario, Courtroom 506

Appearances

Counsel for the Crown: E. Evans

Counsel for M.L.V.: E. Rolfe

Reasons for Judgment

HORKINS, J. (Orally):

Mr. M.L.V. is charged on this Information with two offences: one, February the 9th, 2015, an assault of J.F.; and the other charge, as amended, relates to the 6th of February, committing a sexual assault on the same complainant.

At the commencement of the proceedings, Mr. M.L.V. entered a guilty plea to the assault of February the 9th and a not guilty plea to the sexual assault that related to a few days earlier, and the trial proceeded on that count.

Facts

The facts can be summarized with some economy. There is only one witness, the complainant. In my interpretation, she and the accused were winding down a relationship that had already moved down, so to speak, from them having co-habited for a short period of time previously and they were then, at the time of these events, living apart but still having intimate relations from time to time. It would appear clear to me that the accused was interested in rekindling the relationship; the complainant, apparently not so much.

On the afternoon of the 6th of February (it would appear that is the correct date) the accused came over for an afternoon visit and ultimately they had sex on the couch of the complainant's apartment. The issue raised is simply this: the complainant says this happened without her consent, and the accused submits essentially, that it may have taken some coaxing, but that ultimately there was consent, even if not enthusiastic agreement.

The story continues past that event into the events that are the foundation for the assault charge that has been pled to, but formed some of the context and understanding of the analysis of what happened on February 6th.

It would appear that later that same day the complainant discovered through mutual friends that the accused had been badmouthing her amongst this circle of friends. She was upset by this. A few days later when he again asked to come for a visit, she invited him over. Her intent at that point was to make it clear that this relationship was in fact over and that he should leave her alone. He came over; they argued. The argument actually focused on who was to have possession of a sex toy, a vibrator. The debate about that became somewhat physical. He wanted it back. She did not want it used with other partners. At some point, she breaks free from the confrontation and manages to run out into the hall of the apartment and throw the disputed property down the garbage chute. As I said, it is more than likely that there was some minor physicality prior to the tossing of the vibrator down the chute, but the assault complained of occurred when the complainant came back into the apartment after doing so. And as she came back, she could see that her school-age daughter was now up. This was in the evening by design so that this meeting, so to speak, would take place after the daughter was asleep.

Well, things got vocal enough that she was awoken and had now come out into the living area. When the complainant came back into the apartment, the accused was verbally ranting in the most insulting language and basically telling this young girl what a rotten person her mother was. And as the complainant came into the room, the accused hip-checked her, body-checked her into the door frame. This is the assault admitted to and pled to by the accused.

In cross-examination of the complainant, it became very clear when she was cross-examined on her prior statement that when she went to the police with her complaint, there is no doubt her primary concern was the assault. This seems clear both from the chronology of her statement and the content of it as examined in cross-examination. It seemed to me to be fairly clear that the earlier assault, the sexual assault complaint, was only relayed to the authorities initially as context for the assault charge. My clear impression is that the sexual assault alleged was not, relatively speaking, the matter of major concern for this complainant. She was far more concerned that the accused had physically assaulted her into the door frame and spewed these obscene, vindictive insults in the presence of her young daughter. Understandably, this was what really upset her.

As I said, the accused has pled guilty to the assault and taken responsibility for that conduct.

Considering the isolated issue on the sexual assault count requires focusing down a little more closely on the earlier events, the February 6th events. It is clear from the evidence of the complainant that when the accused came over, he was working towards talking the complainant into having sex, and she was telling him no. She was watching her television shows. She was tired. She explained that she has a variety of minor physical ailments and that the one down time she gets during the day is when her daughter is at school. And on this particular occasion, she literally just did not feel like it and was making that clear.

The accused persisted. He tried to pull down her pants. She resisted. To understand the dynamic of this, it is important to understand that she is lying on the couch watching TV, and he eventually ended up lying with her. I think she described it as "spooning". That was certainly the picture that I had. He was trying to coax her into having sex, persistently saying, "Come on. Come on", and she was saying, "No", and significantly at one point actually tightened up the draw string of her track pants so they could not be pulled down. Eventually she said she was just too tired to put him off any further. I interpreted this as her saying she just gave up. He pulled her pants down to her knees and penetrated her from behind, and then there was the act of sexual intercourse at that point.

Her evidence was she did nothing to participate, that she just lay there, that it took five minutes. She was angry and she told him so in effect afterwards by telling him that the sex was, in her words, "disappointing". She said that she said this just to make him feel bad. She described it as, in her words, "an intentional ego blow". The complainant was adamant that she never consented to this act of intercourse.

In cross-examination it was suggested to her directly that she ultimately said, "Oh, fine." Her response to that suggestion was noteworthy because it was not an unequivocal denial of having said that. Her response was, "I don't believe so." She was pressed on that, suggesting that her response indicated some uncertainty. She did concede that she could not be sure that she did not say, "Oh, fine", but she maintained her position that she did not believe that she said anything of the sort. She denied participating at all. She rejected the suggestion that she at least lifted her top leg to facilitate things. She denies doing that. She says she crossed her arms and simply continued watching Days of Our Lives as the act took place. And as I have said, afterwards she told him that it was disappointing, that it was a waste of her time; she could have spent the time napping.

That was the evidence.

Legal Framework

Again, for the benefit of the parties, and I am dealing with an essentially self-represented accused here, just some basic legal framework.

A criminal assault is the intentional application of force to another person without that person's consent. A sexual assault is an assault committed in sexual circumstances such that the sexual integrity of the victim is violated. The test of that asks whether the sexual nature of the contact would be apparent to a reasonable person when viewed in light of all the circumstances.

Obviously sexual assault as defined by the Criminal Code covers a very broad spectrum of offences activity. Everything from an uninvited sexual touching to a brutal rape falls under the one title "Sexual Assault".

In this case, it does not require a very sophisticated analysis. The events as described by this complainant clearly fall within this broad spectrum. The ultimate issue for determination is, does the evidence in this case prove these essential elements beyond a reasonable doubt? The essential issue here being one of consent.

Again, this is basic law, but it is an important understanding of the framework of analysis. The accused is presumed innocent. This is the primary overarching principle in every criminal trial. To be presumed innocent until proven guilty by the evidence presented in court is the fundamental right of every person accused of criminal conduct.

Proof beyond a reasonable doubt is the standard of proof required to displace that presumption. To secure a conviction, the Crown must establish each essential element of the charge against the accused to a point of proof beyond a reasonable doubt. This is a very exacting standard of proof. It is far beyond the civil threshold of proof: on a balance of probabilities.

The law recognizes a spectrum of degrees of proof. Charges are laid by the police on the basis of reasonable grounds to believe. Prosecutions only proceed to trial if the case is screened by the Crown as having a reasonable prospect of conviction. As I have said, in civil litigation the plaintiff need only establish the case on a balance of probabilities. In a criminal case, the standard is far higher, and that is proof to a point beyond a reasonable doubt. Without quoting it verbatim, and for the record, I instruct myself in accordance with the standard jury charge suggested in the case of R. v. Lifchus, [1997] 3 SCR 320.

Another point that should be clear as to how I have instructed myself is with respect to a case where the accused does not testify. Mr. M.L.V. did not testify and called no evidence in the defence of the allegation. It is important to highlight that one of the most important organizing principles in our criminal law is the right of an accused not to be conscripted into the case against him. Every accused facing criminal allegations is entitled to plead not guilty and put the Crown to the strict proof of the charges. The accused has every right to remain silent and call no evidence and seek an acquittal on the basis that the Crown's case fails to establish his guilt beyond a reasonable doubt. No adverse inference arises from his decision to do so in this case.

Having said that, however, the decision to stand mute in the face of clear evidence of culpability has its risks. In this case, the evidence of the complainant stands uncontradicted; tested by cross-examination, but uncontradicted by any other evidence. This witness, this complainant, I found to be particularly articulate and a balanced witness. There was nothing in her evidence that was illogical, inconsistent, or demonstrably exaggerated. On the contrary, she gave her evidence in a balanced and, quite frankly, a business-like manner. I found her to be a credible witness.

The one point in her evidence that gives rise to the need for very careful thought was as I have already referred, when it was suggested to her that she had been eventually coaxed into having sex when she said to the accused, "Oh, fine." To be clear, her evidence was that she did not believe that she had said that. She conceded that it is possible and she could be mistaken about that, but she maintained in her evidence that she did not believe that she ever said it was "fine". She maintained that she never consented to this act of intercourse.

My interpretation of her evidence, taken as a whole, is that she is telling the court that she simply gave up resisting and let it happen.

As I have already referred to, the court appointed counsel to do the cross-examination of the complainant pursuant to section 486 of the Code. Mr. Rolfe did that and did a very thorough job of it. I reserved judgment after hearing the viva voce evidence and Mr. Rolfe also followed up with some brief written submissions which summarized really the submissions that he had made immediately following the hearing of the evidence in the case.

The submission put forward on behalf of the accused, by the accused, is that the complainant's immediate post-event behaviour is inconsistent with having been forced into sex that she did not want.

The courts have been very cautious in assessing the evidence of complainants in sexual assault matters and take a very cautious approach to applying assumptions based on what might be expected in the conduct of a true victim of a sexual assault. Experience has told us that the reasonableness of human behaviour in reacting to the dynamics, especially in an intimate relationship, can be variable and unpredictable. Each individual, each unique scenario has to be assessed according to its own particular circumstances. This is something that has to be born in mind when asked to make assumptions based on how someone should or should not have reacted to a situation like this.

This is why I have referenced initially that the nature of this relationship is an important part of the context. This couple had been very close. They had co-habited. They were still continuing a relationship that involved intimacies from time to time. There is no doubt in my mind that on the occasion in question the accused was there hoping for sex. It is equally clear that the complainant was simply not interested. It is clear, and I make a finding of fact that she made that clear, that she was not interested. She made that clear over and over again. Clearly no reasonable person in this accused's position could have any confusion that she was not interested in having sex.

The law has to recognize the dynamics of intimacies in a relationship, and in a relationship such as this. There is no prohibition on trying to persuade someone to change their mind. There is no prohibition against this accused trying to persuade the complainant to change her mind and to consent. However, when there is a clear "no", let alone a series of consistent "noes", the law is crystal clear that only a very clear "yes" will evidence consent.

The courts and the legislature have gone to great lengths to make it absolutely clear that nothing short of a genuine voluntary "yes" amounts to true consent. Section 273.1 of the Code defines consent in the context of sexual activity. It requires "the voluntary agreement of the complainant." The Code specifically provides that:

No consent is obtained where the complainant expresses, by words or conduct, a lack of agreement to engage in the activity.

The R. v. Ewanchuk case, 131 CCC (3d) 481, Supreme Court of Canada decision, is an infamous case; it is a central case. It is a case on the law of consent in the criminal law in the context of sexual assaults. It provides clearly that consent is subjective; it is determined by reference to the complainant's internal state of mind. What that makes clear is that our law does not recognize any form of implied consent to sexual touching. The complainant either consents or does not. Any conduct on the part of the complainant that might indicate to the accused that there is consent when subjectively there is no consent may go to credibility or to a claim of mistaken belief in consent.

Nothing was put forward in this case by way of a claim that there was any mistaken belief in consent. But the evidence brought out in cross-examination requires me to consider that. I instruct myself that a mistaken belief in consent, if honestly held, results in an acquittal.

An honest belief, in fact, need not be based on reasonable grounds, but it has to be an honest belief. The evidence of an honest mistaken belief in consent need not necessarily come from the accused, and again, this is a case where there was no evidence from the accused. But a consideration of that issue can be based on other evidence, as in this case the evidence of the complainant and the complainant in the context of an ongoing relationship.

Again, I only consider this out of an abundance of caution because I am essentially dealing with a self-represented accused. No express argument was put forward in this case that the Crown has failed to disprove this defence beyond a reasonable doubt. And again, despite the able assistance of counsel, who took on the limited role of cross-examining and assisting in making submissions, I feel I should make it clear that I have at least considered this aspect of the matter before me.

An accused claiming a mistaken belief in consent must have taken reasonable steps to ascertain that there was true voluntary, subjectively-held consent by the complainant. This is especially true in the context of a case such as this where clearly the complainant had initial resistance to the advances of the accused. (Reference: section 273 of the Criminal Code).

The law is clear that a belief in consent founded on silence, passivity, or ambiguous conduct is a mistake of law and provides no defence. Common sense dictates that once a complainant expresses her unwillingness to engage in sexual activity, the accused must take reasonable steps to make certain that she has in fact changed her mind before proceeding with further intimacies. Continuing sexual conduct after someone has said no is at a very minimum reckless and is not excusable. (Reference: the Supreme Court of Canada's decision in Ewanchuk). Taking reasonable steps is not just common sense. Again, it is a statutory requirement where a mistaken belief is relied upon by the accused. (Reference: section 273 of the Criminal Code).

In cases such as that there is clearly a proportionate relationship between what will be necessary in the way of reasonable steps and the totality of the circumstances known to the accused at the time. (Reference: R. v. Darrach, [1998] OJ 397).

Again, going back to the submissions that were made on behalf of the accused, they focused really on the only available argument on this evidence, that the post-intercourse words and conduct of the complainant should raise a reasonable doubt with respect to the issue of consent.

It is submitted that the complainant voiced disappointment; disappointment in the sex; disappointment that it lasted only five minutes, five minutes that she could have been napping; that this was a waste of her time. It is submitted that this, coupled with her concession in cross that it was at least possible that she had ultimately told the accused, "Oh, fine" in response to his continued coaxing, that all of that was more consistent with someone who was simply disappointed rather than someone who had not consented.

I accept completely the evidence of this complainant, that she repeatedly told the accused she was not interested in having sex; that he kept trying to talk her into it; and she kept saying no. She even tightened up the draw string of her pants in response to his continued efforts to pull them down. Her evidence is that she eventually gave up. That is not the same as changing her mind. She simply gave up resisting. I accept her evidence that she did nothing to facilitate the act that took place and was totally passive during the act. I accept her evidence that she was angry after he had forced himself on her, that her words and conduct after the fact are consistent with that anger. Her evidence was that telling him his performance was a disappointment was intended, again her words, as "an ego blow". On the evidence, it would appear that it was.

I find as a fact that the complainant never consented to the act which took place. And again, although not expressly advanced as a defence, I do not have any doubt raised by what evidence there is that there may have been a mistaken belief in consent. I find that the accused knew very well that there was no consent and proceeded despite knowing that. For those reasons, I am compelled to conclude that the Crown has established its case beyond a reasonable doubt and that on this evidence the accused is guilty of the offence as charged. Those are my reasons with respect to the sexual assault.

Released: January 24, 2017

Justice W. Horkins