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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(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: October 23, 2017

Court File No.: Ottawa 16-SA5082

Between:

Her Majesty the Queen

— and —

J.O.

Before: Justice P.K. Doody

Heard: September 11-12, 2017

Reasons for Judgment Released: October 23, 2017

Counsel:

• Stacey Siopis, counsel for the Crown
• Cedric Naum, counsel for the defendant

DOODY J.:

Part 1: Overview and Issues

[1] The defendant is charged with sexually assaulting the complainant on June 10, 2016. The complainant testified that the defendant came to her apartment and asked her to come up to his apartment on a higher floor of the same building so that he could give her a mug which the complainant's friend had left there. She testified that she did so, and when she was in his apartment he showed her a $100 bill and gave her the mug. He then hugged her, kissed her, and rubbed her back as if he wanted something sexual. He told her he loved her. She said the defendant then received a telephone call from his girlfriend, and that while he was talking to his girlfriend she left his apartment and went to the elevator to return to her apartment on the lower floor.

[2] She testified that he followed her, and when they were alone in the elevator the defendant again kissed her, hugged her and rubbed her back. He continued to tell her he loved her and asked when he could see her again. As soon as they got to her floor, she left the elevator and walked to her apartment. She said that the defendant continued to walk with her to her apartment door, asking her when he could see her. She responded that she did not know, repeating this until she entered her apartment.

[3] She testified that she was very uncomfortable with what he was doing to her. She was very tense and had her hands by her side. She said that the defendant never asked her whether he could hug or kiss her, and she did not give a signal that she wanted it. She testified that she did not want anything to do with him. She testified "I did not consent. My body was telling him no."

[4] The only issue argued by defence counsel was mistaken belief in consent.

[5] Defence counsel's cross-examination raised the issue of identification. I will deal with that in these reasons.

[6] The Crown tendered a statement from the defendant in which he denied ever being alone with the complainant and denied the accusation that he had sexually assaulted her. Consequently, I must conduct the analysis mandated by R. v. W. (D.), [1991] 1 SCR 742, and determine whether, after considering all the evidence, I believe the defendant. If so, I must acquit. Even if I do not believe him, I must consider whether, on all of the evidence, his statement leaves me with a reasonable doubt. If so, I must acquit. Finally, even if his statement does not leave me with a reasonable doubt, I must consider the balance of the evidence and determine whether the Crown has proven its case beyond a reasonable doubt. When I do that, I may not treat my disbelief in the defendant's statement (assuming I do disbelieve him) as making the Crown's case stronger. Only if I determine that the balance of the evidence proves all elements of the offence beyond a reasonable doubt may I find the defendant guilty.

Part 2: The Law

[7] The actus reus of sexual assault is unwanted sexual touching. It is established by proof of three elements: touching, the sexual nature of the touching, and the absence of consent.

[8] The first two of these three elements are objective. The Crown need only prove that the defendant's actions were voluntary – that he intentionally touched the complainant. The Crown does not need to prove that the defendant knew that the touching was sexual in nature. That issue is determined by an objective analysis of the circumstances.

[9] The absence of consent is purely subjective on the part of the complainant. The Crown need only prove that the complainant was not, in her internal mind, consenting to the touching. In determining whether the Crown has proven that the complainant did not consent, a trial judge or jury is required to consider all of the evidence, including whether the complainant's words and actions, before and during the incident, raise a reasonable doubt as to whether she was, in fact, consenting. If the trier of fact believes the complainant's evidence that she was not consenting, that ends the question of consent for the actus reus. There is no such thing as "implied consent" in Canadian law. The defendant's subjective belief as to whether the complainant was consenting is not relevant to this issue. It is relevant, if at all, only to the question of whether he had a mistaken belief in consent – an assertion that the mens rea has not been proven by the Crown.

[10] The mens rea consists of the defendant intentionally touching the complainant, knowing of, or being reckless or wilfully blind to, the lack of consent by the complainant.

[11] Consent requires that the complainant had affirmatively communicated by words or conduct her agreement to engage in sexual activity with the defendant. A defendant cannot assert that he believed that the complainant was consenting solely on the basis of her silence, passivity, or ambiguous conduct. (R. v. Ewanchuk, [1999] 1 SCR 330)

[12] The defendant's belief that the complainant has consented, however, need not be reasonable. (R. v. Osolin, [1993] 4 SCR 595 at p. 649, cited in R. v. Esau, [1997] 2 SCR 777 at para. 14; R. v. Darrach, 38 OR (3d) 1, 122 CCC (3d) 1 at para. 90 (C.A.))

[13] The defence of honest but mistaken belief in consent (or, to be more accurate, that the Crown has not proven beyond a reasonable doubt that the defendant knew that the complainant was not consenting) requires that the defendant meet an "evidentiary burden" or show an "air of reality" to his belief by being able to point to evidence upon which a properly instructed trier of fact could form a reasonable doubt. (Ewanchuk, at para. 56)

[14] If there is an air of reality to the defence of mistaken belief in consent, I must decide whether the Crown has proven beyond a reasonable doubt that the defendant knew that the complainant was not consenting.

[15] If I conclude that the Crown has not done so, the provisions of s. 273.2(b) of the Criminal Code come into play. That section provides:

273.2 It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where

(b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.

[16] This provision does not shift any onus onto the accused. It places an evidential burden on him, to adduce or point to some evidence capable of raising a reasonable doubt as to whether he took reasonable steps in the circumstances known to him at the time. It does not require him to determine all the relevant circumstances – the issue is what he knew, not what he ought to have known. Nor does the section provide that the defence does not apply where the accused did not take "all" reasonable steps. That would be more onerous than the section requires. Nor does it require that a mistaken belief in consent be reasonable. (R. v. Darrach (1998), 122 CCC (3d) 1;, 38 OR (3d) 1 at paras. 88-90 and 94)

[17] To summarize, the law requires that I determine whether the Crown has proven beyond a reasonable doubt:

(a) that the complainant was intentionally touched in a sexual manner without her consent;

(b) if so (using the analytical approach described in R. v. W.(D.)) the defendant was the person who touched the complainant in a sexual manner without her consent (the identification issue);

(c) if so, whether there is an air of reality to the defence of mistaken belief in consent; and

(d) if so, that the defendant knew that the complainant was not consenting to him touching her (or was reckless about or wilfully blind to that fact)[1]; and

(e) if not, that the defendant failed to take reasonable steps, in the circumstances known to him at the time, to ascertain that the complainant was consenting.

Part 3: Analysis

1. Was the Complainant Intentionally Touched in a Sexual Manner Without Her Consent?

(a) The Complainant's Evidence Was Straightforward and Her Demeanour Was Consistent with Truth-Telling

[18] The complainant was a vulnerable witness. She testified that she had some mental health issues and disabilities. She said that she suffered from anxiety disorder and has learning disabilities. When asked to read a statement she had given to the police, she testified that she was a slow reader. She also said that she sometimes gets her numbers mixed up, suggesting that she was dyslexic.

[19] Nevertheless, her evidence was given in a straightforward manner. I recognize that a witness' demeanour is of limited utility in assessing a witness' credibility. To the extent that it is of some use, she presented as a witness doing her best to tell the truth. When she did not know the answer to a question, she said so. She was careful with her answers, taking the time to think about them when she was not immediately sure of the answer.

(b) The Complainant's Evidence Was Internally Consistent

[20] The complainant did not contradict herself. To the contrary, she continued to testify consistently despite intensive cross-examination.

(c) The Complainant's Evidence Was Corroborated

(i) By Her Friend

[21] The complainant's friend, who lived in the same apartment building, testified to a number of things that corroborated the complainant's evidence. Her evidence was not challenged on cross-examination. I accept it as truthful and accurate.

[22] She testified that on June 10, 2016 she had been in the complainant's apartment with her, watching television. She said that approximately two days earlier she had been in the defendant's apartment, the apartment beside hers on a higher floor, and had left the complainant's coffee mug there. On June 10, the defendant knocked on the door of the complainant's apartment. The complainant's friend said she was sitting on the couch and had a clear view of the door to the apartment. She testified that the defendant asked if the complainant could come to his apartment to get her coffee mug back.

[23] This was consistent with the complainant's evidence in two ways – that her friend had left the complainant's mug at the defendant's apartment, and that the defendant knocked on her door while she was watching television with her friend, and told her that he had her mug and asked her if she would come upstairs and get it.

[24] The complainant testified that she asked the defendant to bring it down later, but that he wanted her to come upstairs and put his foot in the doorway, preventing the door from closing. Her friend testified that she heard the defendant say that he wanted her to come to his apartment to get the cup, but the complainant said something along the lines of she would come to get it later. As she said that, the complainant started to close the door, but the defendant put his foot in the door so she could not close it, saying he wanted her to come get it now. While the evidence of the two women was not exactly the same, it was identical on a number of points.

[25] The complainant's friend testified that she got into an argument with the defendant when she asked him why he was blocking the door, during which the defendant said to her "this is not your f-ing apartment". The complainant testified that her friend started arguing with the defendant, asking him why he was blocking the door. As a result, the complainant said, she decided to avoid the argument by going up to the defendant's apartment to get the mug.

[26] The complainant's friend testified that the complainant had been smiling and happy when the defendant knocked on the apartment door. She said that when the complainant returned, she was not happy, and looked very upset, like she was going to cry. This is consistent with something happening to upset her while she was with the defendant. It is also consistent with the complainant's evidence that she had been in a good mood before the defendant knocked on her door but that she felt tense, scared, and shocked when she returned.

[27] The complainant's friend testified that just before the complainant returned to her apartment, she heard her and the defendant yelling in the hallway. The defendant asked the complainant when he could see her, and the complainant told him "I don't know". This is the same as the complainant's evidence that as she was walking to her apartment, the defendant kept on saying "when will I see you again" and she kept on saying "I don't know, I don't know, I don't know".

(ii) By the Video

[28] Two videos were entered into evidence after the complainant testified that they accurately showed what had happened that day at her apartment building. Continuity of the videos was admitted by the defence.

[29] The first video is a long shot of the hallway outside the complainant's apartment. The complainant's apartment is at the top of the screen, a significant distance from the camera. Consequently, the resolution is not good. However, figures can be made out at the complainant's apartment door. The second video is from a camera mounted just outside the elevator on the complainant's floor, showing the elevator doors and, when open, the interior of the elevator. The resolution on this video is much better.

[30] The first video shows a man coming to the complainant's door and stopping. It then shows the complainant coming out of her apartment and walking away from the camera toward the elevator with the man, with her hand on the man's back.

[31] The second video showed the complainant and the defendant arriving at the elevator. They are shown entering the elevator. 13 minutes and 32 seconds later, they are shown leaving the elevator. The complainant has a coffee mug in her hand. The defendant can be seen talking to someone outside the camera's view. The defendant is then seen entering the elevator alone, 33 seconds after he and the complainant had left it.

[32] This evidence is consistent with the complainant's evidence about leaving her apartment with the defendant, going up to his apartment in the elevator, returning with him and the mug, and then having an argument with him in the hallway.

(iii) By the Defendant's Statement

[33] When the defendant was questioned by the police, he denied being ever being alone with the complainant or ever having hugged and kissed her. His statement did, however, corroborate the complainant's evidence in a number of ways. He said:

(i) The woman who lives beside him, who he identified by the same first name as the complainant's friend, visited him at his apartment and left a teacup;

(ii) Shortly after this happened, he met a woman he identified with a diminutive of a first name which is a diminutive of the complainant's first name, who told her that her friend had forgotten the cup; he said:

So I came back the next day, I came back, the next day I came back and I reached the cup, (unintelligible), I … I knew for her to give her the cup. I didn't see her. So I told her I'm looking for you to see your cup. I'm gonna go and get it for you. I rushed and get the cup for her and give it to her. That was … that was it. That was all our business. So when I give her the cup … cup, because, um, I … I say what's her name, the girl on living next to me next time don't … why do you leave your cup on my place instead of you to come by yourself and take it.

(iii) He lived on an upper floor, and the woman whose cup he returned lived on a lower floor.

(d) The Complainant Was Not Swayed by Cross-Examination

[34] Defence counsel vigorously cross-examined the complainant, to no significant avail.

[35] Defence counsel attempted to trick the complainant twice into testifying that she had given false evidence. Neither attempt was successful.

[36] Counsel played the video showing the man at the door of the complainant's apartment, telling the complainant to watch the man's feet. He then put to the complainant that the man on the video never put his foot in the apartment door, but that the complainant had been certain in her evidence that he had done so. (The video does not show any portion of the man's body in the apartment door.) The complainant initially responded that the man had been blocking the door from closing, but that perhaps it had been his body. Counsel responded that the video showed that the man's body was never in the apartment door. He said to the complainant "You disagree with what is in the video?" The complainant responded "That is not the whole video so how do you know?" She repeated that the defendant had had his foot in the door.

[37] In fact, the complainant was right. The video played in court and entered as an exhibit was not "the whole video". It does not show the entire time the man was at the complainant's door. As submitted by Crown counsel in closing arguments, admitted by defence counsel, and confirmed by me on reviewing the video in my chambers, there is at least a 13 second gap in the video during the time the man is standing in front of the complainant's door. The video does not contradict the complainant's and her friend's evidence that the defendant put his foot in the door, because it does not show everything that happened while he was at the door.

[38] Defence counsel also vigorously cross-examined the complainant about whether she had nodded while the defendant was talking to her that day. She testified "I remember when we were in the elevator going up to his apartment I was nodding but I don't think I was nodding in his apartment." Defence counsel then asked the complainant if she testified that she was nodding in the elevator because she had seen herself nodding in the video. The complainant immediately correctly responded "There is no video in the elevator – the video is outside the elevator."

(e) Conclusion – The Complainant Was Intentionally Touched in a Sexual Manner Without Her Consent

[39] I accept the complainant's evidence.

[40] The defendant told police that he had never been alone with the complainant. That evidence is contradicted by the video, which shows the defendant getting onto the elevator alone with the complainant, and some 13 minutes later shows him getting off it, alone with the complainant. (I conclude that the man in the elevator is the defendant, for the reasons set out in the next section.)

[41] The defendant's statement that he took the mug to the complainant is also contradicted by the video, which shows the complainant going up the elevator with the defendant, neither of whom has a mug, and returning with a mug in her hand.

[42] The evidence is also contradicted by the evidence of the complainant and the complainant's friend, whose evidence I accept, for the reasons I have already set out.

[43] Furthermore, there is no evidence supporting the defendant's statements. They are uncorroborated.

[44] For these reasons (which include my acceptance of the complainant's evidence and the complainant's friend's evidence), I do not believe the defendant's statement that he has never been alone with the complainant, and that he never touched her in the manner described. Nor am I left with a reasonable doubt as a result of his statement, for the same reasons.

[45] I find that the Crown has proven beyond a reasonable doubt that the complainant was hugged, kissed, and had her body rubbed both in the man's apartment and in the elevator returning to her own floor. I also find that the Crown has proven beyond a reasonable doubt that the hugging, kissing, and rubbing was of a sexual nature. Furthermore, the touching was intentional. There can be no suggestion that it was accidental.

2. The Man Who Touched the Complainant Was the Defendant

[46] The issue of identity, while the subject of cross-examination, was not argued by defence counsel. Nevertheless, I will review the evidence which, in my view, establishes that the man who touched the complainant was the defendant.

[47] The complainant's friend had a previous acquaintance with the defendant, having been in his apartment just a few days before for drinks. She lived in the apartment right beside the defendant's apartment. She identified him in the courtroom as being the man who had come to the complainant's apartment on June 10, 2016. While courtroom identifications are not normally entitled to much, if any, weight, and the defendant was the only African-Canadian male in the courtroom, she had a prior relationship with him. That strengthens the courtroom identification.

[48] More importantly, she testified that the man who came to the complainant's apartment asking about the mug was the man in whose apartment she had left the complainant's mug. When the complainant went to what she identified as the defendant's apartment, which had the same number as had been identified by her friend as the defendant's apartment, she was given her mug by the man who lived there.

[49] The complainant also identified the defendant in the courtroom as the man who had assaulted her. Like her friend, she was familiar with the defendant from interactions with him on a number of occasions.

[50] The defendant himself admitted, in his statement, that he lived on the same floor and apartment as identified by both the complainant and defendant, and that he had returned a mug left in his apartment by the complainant's friend to the woman who lived in the apartment identified by the complainant's friend as the complainant's apartment.

[51] I have no doubt in concluding that the Crown has proven beyond a reasonable doubt that the defendant is the man who touched the complainant.

3. There Is No Air of Reality to the Defence of Mistaken Belief in Consent

[52] The defendant points to the following evidence as supporting a reasonable belief by the defendant that the complainant was consenting to the touching:

(a) The complainant admitted to giving him her telephone number shortly after they first met;

(b) He had discussed problems with his girlfriend and she suggested to him that he should break up with her;

(c) When he suggested he accompany her upstairs to get her mug she was happy and in a good mood;

(d) She put her arm on his back (as can be seen in the video) as they walk along the hallway and even though she testified that she was just pushing the defendant toward the elevator to get him away from the argument he was having with her friend, it could be seen by the defendant as an indication that she was happy to be with him;

(e) While the defendant was talking to her she was nodding, even after he says that he loves her – as defence counsel put it, instead of asking him to clarify what he is saying, she nods.

[53] In my view, this is not evidence upon which a properly instructed trier of fact could form a reasonable doubt. As was established almost 20 years ago by the Supreme Court of Canada in Ewanchuk, silence, passivity, or ambiguous conduct is not consent. Consent requires an affirmative communication by words or conduct that the complainant is agreeing to engage in sexual activity with the defendant. The words and conduct set out above are, at their highest, ambiguous. They are better described as passive. They do not suffice to establish that the defendant believed that the complainant was consenting to being embraced, kissed, and rubbed. Nor do they suffice to leave the trier of fact with a reasonable doubt on the issue.

4. In Any Event, the Defendant Failed to Take Reasonable Steps to Ascertain Whether the Complainant Was Consenting

[54] The defendant has not pointed to any evidence capable of raising a reasonable doubt as to whether he took reasonable steps in the circumstances known to him at the time to ascertain that the complainant was consenting. Nor, in my view, is there any such evidence. Even if the complainant's nodding was enough to ground a reasonable doubt that the defendant knew that the complainant was not consenting (and I have found that it is not), there is no evidence that he took any steps to ascertain whether she was consenting. The nodding by the complainant is not evidence of steps taken by the defendant. There is no evidence of what the defendant said to the complainant before the nodding, other than that he loved her. Telling someone you love him or her is not a way to determine if they are consenting to sexual activity.

[55] I conclude that, even if I am wrong about whether there is an air of reality to the defence of mistaken belief in consent, the provisions of s. 273.2(b) have not been met.

Part 4: Conclusion

[56] I find the defendant guilty of sexual assault.

Released: October 23, 2017

Signed: Justice P. K. Doody

[1] Crown counsel did not submit that any of the circumstances set out in s. 273.1(2), which, if present, prevent consent from being obtained, applied in this case. Nor do I see any basis for their application. Consequently, I will not address them further.