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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 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: 2018-09-28

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

M.S.

Before: Justice A.T. McKay

Heard in: London, Ontario on June 13, 14, 25 and July 31, 2018

Reasons for Judgment released: September 28, 2018

Section 486.4 Order in place

Counsel:

• Charles Yih, counsel for the Crown
• Damon Hardy, counsel for the defendant M.S.

JUDGMENT

McKAY J.:

INTRODUCTION

[1] Mr. M.S. is charged with two counts of sexual assault, one count of threatening, and one count of assault with a weapon. A.L. is the complainant with respect to each of the charges. She and Mr. M.S. were in a relationship at the relevant time.

[2] Mr. M.S. and Ms. L. met in 2011, when Mr. M.S. was either 16 or 17 years old. Ms. L. was 13 years old at the time. Ms. L. boarded her horse at Mr. M.S.'s parents' farm. Over time they developed a friendship, which subsequently turned into a relationship with sexual overtones.

[3] Mr. M.S. suffers from mental health illnesses; specifically mixed depressive and anxiety disorder, as well as a schizotypal personality disorder. He was formally diagnosed with those issues in early 2017, and sees a psychologist and takes medication for those illnesses. Mr. M.S. also suffers from cerebral palsy. It primarily impacts his right arm and right leg. He walks with a limp and has limited use of his right hand.

[4] Mr. M.S. and Ms. L. had very little contact after initially meeting. She would attend at the S. family farm at least once per week, but rarely saw Mr. M.S.. By 2015, when she was 16 years old, they started to have more contact, with Mr. M.S. attending at the barn when she was present. They would talk and they developed a friendship. However, the vast majority of their communication took place by email, text message and social media.

[5] At some point in 2015 and throughout 2016, the nature of their conversations changed, and frequently became sexual in nature. In August 2015, Ms. L. was leaving to spend a year in Thailand on an exchange program. She went to the S. family farm to say goodbye to Mr. M.S., and they kissed. That was the first physical contact between the two of them.

[6] The relationship, to an objective observer, became unhealthy and destructive for both individuals. Topics of conversation often centred on violent sex, rape fantasies, suicidal ideation and the infliction of pain. Ms. L. returned to Canada in June 2016. She resumed tending to her horse approximately once per week at the S. barn. The nature of their electronic communications remained the same.

[7] Ms. L. maintains that during a visit to the S. family barn on September 12, 2016, Mr. M.S. sexually assaulted her by kissing her, and biting her neck and lip. She resisted and told him to stop. When they heard her parents arriving at the farm, he stopped. She and Mr. M.S. communicated by electronic messages about the event between September 12 and September 16.

[8] Ms. L. maintains that when she next visited the S. family barn on September 16, 2016, she was again sexually assaulted by Mr. M.S.. She alleges that he again pushed her against a stall, kissed her and bit her lip and neck, and then ripped open her shirt and bit her breasts. She contends that assault was interrupted when Mr. M.S.'s younger sister attended the barn. While his younger sister was not looking, at one point he took a utility knife out of his pocket and made a slashing motion across his own neck.

[9] The parties again discussed that incident by electronic messages. Their relationship continued in that fashion for some time. However, they began to frequently argue during the exchange of messages. After November 30, 2016, they stopped communicating with each other. On February 22, 2017, Ms. L. reported the criminal allegations to the police, and Mr. M.S. was charged with the offences before the court.

[10] Mr. M.S. takes the position that the sexual activity between the two of them was consensual. In the alternative, he had an honest, but mistaken belief that Ms. L. was consenting to the activity.

Section 276.1 Application

[11] The defence brought an application under section 276.1 of the Criminal Code. In essence, the application took the position that the electronic messages between Mr. M.S. and Ms. L. prior to the September 12, 2016 incident were sexual in nature and constituted prior sexual activity between Mr. M.S. and Ms. L.

[12] In an attempt to avoid the dangers of myths prevalent in reference to sexual activity, the criminal law restricts the use of any evidence related to prior sexual activity which falls outside the subject matter of the charges before the court. Such evidence is not admissible to support an inference that, by reason of the sexual nature of the activity, the complainant is more likely to have consented to the sexual activity that forms the subject matter of the charge, or that the complainant is less worthy of belief. In essence, the relevant section of the Criminal Code is designed to prevent the cross-examination of a complainant on matters which are not relevant to issues at trial. It is an attempt to prevent attempts to lead evidence regarding stereotypes and myths. However, it is not a blanket prohibition on evidence of prior sexual conduct.

[13] The application posited that the defence needed the ability to cross-examine the complainant with regard to the electronic messages in order to make full answer and defence. The information is relevant to the defence of mistaken belief in consent, and necessary to establish the nature of the relationship. The messages were disclosed to the police by Ms. L. and then subsequently disclosed to the defence by the Crown. The parties agreed that the messages exchanged after the events of September 12 and September 16 fell within the subject matter of the complaint, and were therefore admissible. At issue was the admissibility of the messages exchanged prior to the events of September 12, 2016.

[14] The court conducted a voir dire and for oral reasons delivered June 13, 2018, ruled that the evidence was relevant to the defence of honest but mistaken belief in consent. Accordingly, the defence was allowed to cross-examine Ms. L. with respect to those communications.

EVIDENCE

A.L.

[15] Ms. L. was 19 years old at the time of the trial. She described the history of the relationship beginning when she began boarding her horse at the S. family farm. Over time, Mr. M.S. began visiting her in the barn when she was present. That occurred in 2015 when she was 16 years of age. They would simply have conversations. It was a friendship which was based on those conversations, but also extensively on email or text messages. Initially, the communication was fairly normal, centred on topics such as books and art.

[16] The friendship developed into more of a relationship as 2015 progressed, although the two of them did not label it as such or acknowledge it until 2016. The two of them would make comments to each other. Mr. M.S. would make comments about her appearance and her physical development. This happened both in person and by electronic messages. She thought that she was falling in love with Mr. M.S. and was flattered by his attention. Nothing physical happened until she was leaving for Thailand in August 2015. She went to the S. family farm to say goodbye to Mr. M.S. and they kissed.

[17] She left for Thailand in August 2015, and remained there until June 2016. While in Thailand, she communicated with Mr. M.S. by text message and Facebook message. The relationship began to get complicated. Mr. M.S. opened up to her about his mental health issues, including depression. She could relate to that in many ways, because she had her own issues. However, Mr. M.S.'s issues were much more intense than hers. She would attempt to talk to Mr. M.S. of engaging in self-harm. She would simply try to have a conversation with Mr. M.S. to get his mind off of his issues. Many of the conversations by text and Facebook were regarding sexual activity. Mr. M.S. would initiate discussion on sexual topics, and she would respond. She never disagreed with the things he said or argued with him because she wanted to keep him happy. If she did not respond positively, Mr. M.S. would threaten self-harm or become verbally aggressive with her. That made her feel frightened. Most of their conversations were sexual in nature, or depressing, or both.

[18] Ms. L. would tell Mr. M.S. stories about her being involved in sexual activities. At times, if he was drinking, unable to sleep or angry, he would ask her to do so. She told him stories, and he would masturbate and go to sleep. If she did not tell him sexual stories, he would begin talking about self-harm. That frightened her because she did not want to lose Mr. M.S. and felt that it would partially be her fault if he followed through with suicidal ideation. The stories about her sexual activity were not true.

[19] Ms. L. stopped communicating with Mr. M.S. approximately one month before her return to Canada because she was frightened. Mr. M.S. had told her things that made her afraid of him. He told her that he had killed someone and that he had raped five women. She indicated to Mr. M.S. that she was deleting him as a Facebook friend. Mr. M.S. became angry and told her that it did not matter because he was going to kill himself anyway.

[20] When she returned to Canada in June 2016, she resumed attending at the S. family barn, but less frequently, perhaps once per week. It was summer break, and she was busy with a number of things. Shortly after returning to Canada, she also resumed communicating with Mr. M.S..

[21] On September 12, 2016, she attended at the S. family barn to visit her horse and do chores. Mr. M.S. attended at the barn and they talked. Mr. M.S. began running his finger up her back outside of her shirt. He then pressed the front of his body into her back and placed his hands on her hips. He turned her around and pushed her up against a stall door, holding her wrists, and pressing his body against hers. He started kissing her, biting her neck and her lip. She asked him to stop and to get off of her. He took one of his hands and placed it on her neck and started squeezing. However, he was not squeezing so hard that she could not breathe. She asked him to stop again and he did not respond. She took her free hand and placed it on his arm in an attempt to pull his hand away from her neck, but was unable to do so because Mr. M.S. was too strong. He tried to put his hand down her pants but she resisted and kept her legs tightly closed. At that point, they heard her parents drive into the driveway. Mr. M.S. let her go. The two of them walked out of the barn.

[22] The incident left her with red marks on her neck and wrist. She felt betrayed. As they had walked out of the barn together, Mr. M.S. said something about her being lucky. She interpreted that as meaning that if her parents had not arrived he would have done something worse. She still trusted Mr. M.S., so she felt hurt, but thought that he was right, she had been lucky. Later that evening, she and Mr. M.S. exchanged text messages, but she did not believe that they discussed the incident. There were a number of electronic communications between September 12 and 16, but she was unable to recall the content.

[23] On September 16, 2016 she returned to the S. family farm. Mr. M.S. came to the barn to give her a book. He again ran his finger down her back. She began to walk away at that point. He grabbed her and pushed her against the stall door, pinning her with his body. He was kissing her and biting her lip and neck. He ripped open the snap buttons on her shirt and began biting her breasts. One bite broke the skin of her breast. She kept looking away from Mr. M.S. but he would grab her face and pull it back so that she was forced to look at him. During the struggle, Mr. M.S. was saying things to her like "this is what you wanted, just touch me like a human, just touch me like a normal person, no one ever does that". During the incident, she was asking Mr. M.S. to stop. She cannot recall him responding to that. The incident ended when Mr. M.S.'s younger sister S., who was approximately 10 years old, entered the barn.

[24] When Mr. M.S. released her, she walked over to S. and the two of them walked around the barn. At one point she kneeled in front of S. to speak with her. At that point, Mr. M.S. pulled out a box cutter, spun it around in his hand and made a motion as if cutting his own neck. S. tried to turn to look in that direction, but she grabbed S.'s shoulder to prevent that. She asked S. to go check to see if dinner was ready so that S. would leave the barn. She stood close to the barn door so that she was in view. Mr. M.S. was trying to pull her back into the barn, saying "I'll cut you and you'll like it". Mr. M.S. was smiling. She does not believe she responded to that but she felt frightened. She remained in the barn after the incident until her parents arrived. She and Mr. M.S. walked out of the barn together.

[25] After the incident, she felt hurt. Mr. M.S. talked about being violent to other people before, but she thought that she was an exception.

[26] She and Mr. M.S. remained in contact by electronic messages until November 30, 2016. She only attended at the S. farm on two occasions in that interval, and did not see Mr. M.S. on either of them. When they communicated by electronic message, they began to argue more and more. She was angry that Mr. M.S. felt he was entitled to touch her. After the incident, she began to become even more angry. Eventually, she reported the incidents to the police. She provided a videotaped statement and gave police access to the electronic messages between her and Mr. M.S.. The name used by Mr. M.S. in the messages was "The Joker".

[27] In cross-examination, Ms. L. confirmed that the last time she communicated with Mr. M.S. was November 30, 2016. She reported the allegations to the police on February 22, 2017. She indicated that during that interval, she started to realize what happened and started to get more angry. She discussed the incidents with a friend, and the friend helped her to realize that what Mr. M.S. did was not okay. Previously, Mr. M.S. had essentially told her how to feel about the incident: that it was what she wanted, so she followed along and did not want to make a big deal about it. She did not believe that Mr. M.S. ever thought that what he did was wrong. He had told her that he had raped five women and murdered another, and she had believed that. Although the stories that she told him were not true, she thought the stories that he told her were true.

[28] Later in cross-examination, she indicated that she did not think that Mr. M.S. thought that what he did was okay because she had gone along with it. Mr. M.S. talked about rape as "a turn on" for him, and she came to believe that he did not think that he needed permission to touch her; he felt above everyone. After having conversations with her friend and hearing her friend's thoughts on the issue, Ms. L. became angry with Mr. M.S..

[29] Ms. L. agreed that she had a close relationship with the S. family, particularly Mr. M.S.'s mother. The two families became friends over time. Her relationship with Mr. M.S. was never really romantic, it was mainly just sexual. She did talk of love with Mr. M.S., and he expressed that back to her. However, it was not a typical or normal relationship. They never spent any time together anywhere other than the farm, and the relationship was primarily based upon their electronic conversations. They never spoke by telephone, always by text, or other form of electronic message. It is by messaging that they came to know each other, to talk about what they liked and did not like, and what made them emotional. They would spend hour's texting each other, at times all night long. Ms. L. agreed that she had reviewed the text messages between them in preparation for trial.

[30] Ms. L. agreed that there were almost no boundaries as to what they would discuss, no matter how personal the issue, because she trusted Mr. M.S.. They discussed suicide, death, self-mutilation, sex, rough sex, rape, rape role-playing, and feelings of social isolation and not fitting in. That was a sentiment that they shared and bonded over. Both found comfort in the other's discomfort about not fitting in. They joked about a movie "The Suicide Squad" and in their communications adopted the names of the two main characters, Harley Quinn and The Joker. In that movie, the two main characters were in an unhealthy, terribly dysfunctional relationship. The Joker was a psychopath incapable of love. They celebrated the way that their relationship somewhat mirrored the relationship between The Joker and Harley.

[31] One example of the way they celebrated the way their relationship mirrored that of Harley and The Joker was a drawing she created and shared with Mr. M.S. on Instagram for his birthday. The drawing depicts a man standing with a woman on her knees in front of him. The woman is saying "Happy Birthday Mr. J", and the man is saying "Good Girl".

[32] Ms. L. agreed that in the weeks leading up to her departure to Thailand, her relationship with Mr. M.S. began evolving from friendship to a romantic relationship. During the time that she was in Thailand, they frequently communicated by text message, until the last month that she spent in Thailand. The sexual context of the texts began while she was in Thailand. Most of their conversations during that year were sexual in nature. None of the text messages exchanged between the two of them while she was in Thailand was recovered from her phone. By September 2016, they had exchanged a very large number of sexualized texts. She agreed that during the timeframe leading up to September 12, 2016, she was interested in pursuing a sexual relationship with Mr. M.S., and he was aware of that. The drawing exchanged on his birthday was done so in order to keep Mr. M.S.'s attention. They had spoken about a sexual relationship prior to this, and Mr. M.S. was aware that she was interested in engaging in one.

[33] Ms. L. was questioned about a text exchange in which she raised the issue of wearing a bra. At one point in the text conversation she says the following: "Oh when I was in Canada, I went out to the barn once without a bra because I half hoped you would fuck me". She testified that she was unable to help defence counsel understand the significance in telling him about the connection between not wearing a bra and wanting sex from Mr. M.S.. She denied that that she wanted Mr. M.S. to draw a connection between her not wearing a bra and expressing wanting to have sex. She denied that it was likely that he might draw that connection from that text message.

[34] Ms. L. agreed in cross-examination that she really only began "fighting" with Mr. M.S. in mid-November 2016. She maintained that at that point, she still cared for him and wanted him to get healthier. She agreed that she reviewed the statement that she provided to police prior to testifying. She agreed that in the statement she told police the ways that Mr. M.S. had overpowered her and overborne her will. She agreed that she made no mention in her statement of the fact that Mr. M.S. suffers from cerebral palsy. She denied that Mr. M.S. has any significant physical limitations. Ultimately she agreed that he has limited functioning of his right hand. She disagreed with the proposition that he has weakness on the entire right side of his body. She agreed that he walks with a limp. She testified that she was unaware of Mr. M.S. having a deformed right foot. She also maintained that she was unaware that he walks with a cane. She agreed that she walks more quickly than Mr. M.S., and has better motor skills.

[35] Ms. L. was questioned with respect to an exchange of text messages purportedly between her and Mr. M.S. on September 3, 2016. The exchange reads as follows:

Ms. L: No, that's not why.

But that is not true, you're quite bipolar and most of what you're forward about aren't exactly what people consider socially acceptable.

You were never a hassle to deal with. I was in love with you.

Mr. S: Whatever.

I'm getting stoned so if you don't want me being an asshole right now the conversation has to change. High and angry don't mix well for me.

Ms. L: Why did you stop. Why did you leave it after I pushed you off that one day

Mr. S: I don't know, i think because a part of me is always worried about getting caught doing shit to you. the farther I go down this rabbit hole the less likely I'd stop in that situation, especially with you

Ms. L: I was surprised

Mr. S: I'm still surprised really looking back. cuz obviously with the shit I like getting pushed off makes me so horny haha. I guess my paranoia weighed more that day

Ms. L: Probably seeing as what we talked about the day

Mr. S: oh right yup I forgot that was thaaat day. Yeah I was feeling like shit after telling you. I still don't like that I said it.

Ms. L: I already knew

[36] Ms. L. agreed that the texts were talking about an incident predating September 3, 2016. However, she indicated that she had no recollection of ever having to push Mr. M.S. off of her prior to September 12, 2016. She did not agree that it was strange not to recall the first time she had to push Mr. M.S. off of her because he refused to stop sexual advances. She could not recall why, but assumed that she said she was surprised he had stopped because of their previous conversations in which he claimed to have raped five women. She agreed that it would be a scary near miss in that situation, but could not specifically recall the incident. She agreed that she might have been saying in the text message that she did not expect him to stop.

[37] Ms. L. was questioned regarding another exchange of text messages which took place later on September 3, 2016. The exchange reads as follows:

Mr. S: it would be fun

Ms. L: You would destroy me

Mr. S: a part of you likes that idea. i know you've thought about it. and not permanently, It's like a deep cut, but in the mind.

Ms. L: I like being hurt when I am bored. You wouldn't hurt me, you would completely shatter me

Mr. S: yes, and like I said, big part of you craves for me to do that.

Ms. L: No I crave you, that's different

Mr. S: so the negatives outweigh the positives then?

Ms. L: It's not a choice. You won't be the reason for my downfall, I refuse to let that happen

Mr. S: It won't be your downfall, and not at all, quite the opposite.

Ms. L: Don't

Mr. S: oh come onnnnn baby you know you want it.

Ms. L: You want me to admit it daddy? Hmm? Because I won't, you'll never hear me say I want it. Because as soon as I do you'll have the reassurance to go ahead, I won't give it to you. I'll tease you till the end daddy, because we know that's what YOU really want.

Mr. S: Ahahahaha oh baby

Ms. L: you get off to it, you like it

Mr. S: I get off to a lot of things about you hahah but yes you know that's probably at the top.

Ms. L: I know (note: a smiley face emoji follows)

Mr. S: tonight was one of those nights where it is 10 PM link and it is almost 4 AM

Ms. L: Fuck I know

[38] When questioned about the passage in which she indicates that he will never hear her say she wants it, Ms. L. indicated that that was not in reference to a sexual interlude. It was just like a normal conversation that they would have every night. The conversations were all sexual in nature. Later, she conceded that there was a possibility that the comment was related to a possible sexual interlude. However, she denied that she was putting Mr. M.S. on notice that she would never verbalize her consent because that is what he enjoyed. This was simply the way that they would talk to each other. When Mr. M.S. needed to get off, she helped him. That statement was not intended to give Mr. M.S. consent for future sexual acts, but she did send the message because it reflected the message she wanted Mr. M.S. to receive.

[39] A series of text messages dated September 5, 2006 included the following conversation:

Ms. L: Did I ever tell you about that dude I fucked in the bathroom in Thailand

Mr. S: I don't think so, tell me.

Ms. L: I went to a bar and met this Russian guy and he was really aggressive. And so he pulled me into the bathroom and I was sucking his dick, and he started aggressively skull fucking me and I smashed my head off the wall and blacked out for a second and that's the story of how I got a concussion from giving a blow job

Mr. S: hahaha god damnnn.

Ms. L: Yeah he was great

Mr. S: it was probably nice finding white men there eh, they probably were not in high stock in Thailand ahah

Ms. L: Meh, doesn't really matter to me

Mr. S: hahaha anybody will do

Mr. S: haha literally do hah

Mr. S: anybody roughly the least haha

Ms. L: Hahah

[40] Ms. L. agreed that she made up that story, and was therefore free to input whatever detail she wanted in the story. She agreed that she described the experience with the fictitious male as a positive experience. She agreed that the message exchange was part of her wanting Mr. M.S. to know or at least believe that sort of violent, aggressive fictional episode was something that she enjoyed. She agreed that she wanted Mr. M.S. to believe that she enjoyed rough and even slightly violent sex.

[41] Ms. L. was further questioned about an exchange between the two of them which took place September 6, 2016. That exchange involved a scenario in which Ms. L. sent Mr. M.S. a photograph via Snapchat. The photograph was of her having just exited the shower. Prior to entering the shower she had placed a red food colouring in her hair. In the picture, the red food colouring appeared to be blood running from her hair down her face and body. There is an exchange of text messages following the exchange of the photograph which reads as follows:

Mr. S: you were quite right

Ms. L: Haha see. I told you you'd like it

Mr. S: you choking covered in blood, fucking hell baby

Ms. L: (note: the message simply contains a happy face emoji)

Mr. S: yes, good girl.

Ms. L: Now can I clean up?

Mr. S: be a good girl, I'm very close

Ms. L: But I'm cold (a sad face emoji follows)

Mr. S: no not yet let daddy cum 1 st

Ms. L: Hahaha but I should seriously clean up now

Mr. S: great idea really!

And btw you're making daddy extremely horny jesus Christ

Ms. L: Right??

Mr. S: oooooh good idea

Ms. L: When I turn 18 I am gunna be a cam girl

Mr. S: damn right I screenshoted that

Ms. L: Hahahahaha

[42] When questioned about the context of the sending of the photos, Ms. L. testified that she sent the photos because in an earlier text exchange, Mr. M.S. indicated that he was so horny that he could not sleep. In her words, she "was trying to help him finish". Her belief was that the photos would be sexually gratifying to Mr. M.S.. She testified that these were not her fantasies and that she was just playing the part. She rejected any suggestion that she wanted Mr. M.S. to believe that she enjoyed that role, indicating that she simply sent it to him to accommodate his needs at the time.

[43] The following exchange of text messages took place on September 7, 2016:

Ms. L: Do you want me to get you off or do you want to hear something happy?

Mr. S: i don't kniw both maybe

Mr. S: like one then happy I dunno

Ms. L: Then come on daddy, cum for me

Mr. S: everything is amped up to 600% so thisfeels crazy good but everything is getting crazier

Ms. L: I'll send the blood videos I saved. You liked them, right daddy?

Mr. S: loved them

Ms. L: I can't even get myself off

Mr. S: why not

Ms. L: I don't know (note: a sad face emoji follows)

Mr. S: me too bur im horny sorry im fucking crazy right now by the way is there anyway i can hwlp your situation? Come over there n fuck you senseless

Ms. L: You would like that? You want to fuck me, choke me so I can't breathe and cut me up to taste my blood

Mr. S: I'll choke you til you pass out and ill cut you til it wakes you up drinking your blood, choking you more then fucking that cute little face f yours as violently as i can

Ms. L: Make it messy. I'll be begging you to fuck me harder

Mr. S: ill tie you to the bed and bite every inch of you. teasing your young lil pussy with my fingers till you're begging. then slide my cock in as I hit you in the face over and over.

Ms. L: Ill be crying because it hurts but asking for more. A mix of blood, cum, and tears.

Mr. S: mmm good girl, you love when daddy uses your young lil body don't you baby?

Ms. L: I love it. I want bruises and cuts Daddy

Mr. S: blood dripping down you with your makeup smeared down your face, choke you out again, you wake up to me skull fucking you, pulling your hair and take it like the good little girl you are

Ms. L: You won't hear my screams because I'll be taking your cock down my throat. And I'll thank you for treating my like a fucking whore daddy

Mr. S: this is so hot but im having trouble focusing im really losing my fuckin mind

Ms. L: Why is it different tonight? Like why is it worse tonight?

[44] When questioned about this exchange, Ms. L. indicated that she did not specifically recall it but that it was typical of conversations they had every night. Because of that it was impossible to recall specific conversations. Those types of conversations were typical going back to the year that she spent in Thailand. She also could not recall the specific videos referenced, but testified that from time to time she shared videos with Mr. M.S. in which it appeared that she was bleeding. She testified that she enjoyed Mr. M.S.'s attention and that she wanted to be in a monogamous relationship. She viewed her sole role in his life as sexual, and accordingly if she did not sexualize everything, she would lose his attention. She was desperate to keep his attention. Knowing what his sexual preferences and tendencies were, she had a tendency to pretend that she fit into those preferences and enjoyed them. She played along and encouraged his fetishes. She intentionally tried to make it look like she enjoyed this role.

[45] Ms. L. confirmed that there were a large number of messages which contained references to Mr. M.S. cutting her and deriving sexual pleasure from it. She agreed that she played along with this fantasy as if she enjoyed the thought of being cut by him in a sexual context.

[46] In a text message exchange dated September the, 2016, Ms. L. conveyed the following story to Mr. M.S.:

"I had to babysit for my family's friend while I was in Thailand. So I thought I was going to some old couple's house to babysit their kids or whatever. Nope, I go to this nice ass house and the woman is in her late 20s and she is a little Thai woman. And her husband is like a 40-year-old American guy.

So the baby is only like four or five months so this is like the easiest job ever. I just watched TV the entire time. Like 1 AM rolls around, and the dad shows up without his wife, and we talked for like an hour and he's actually pretty attractive and funny.

So anyways we ends up pushing me up against a wall and fingering me hard. And we fuck on the stairs with my hands tied to the railing. And he makes me do all this stuff blah blah blah.

And we hear his wife get home and we can't get my hands from being untied. So he literally had to dress me with my hands tied, dress himself and pretend to try to help me get my hands free. His wife walks in and I tell her that I just tripped and my hands got tangled up and SHE FUCKING BELIEVED IT. like I'm sorry but that's a special kind of stupid".

[47] Ms. L. testified that the story was fictional, and agreed that she could have created any story she wanted. However, she again made up a story involving an aggressive older man in which she was bound. She maintained that she simply made up stories which suited Mr. M.S.'s fantasies.

[48] Ms. L. was questioned regarding the following exchange of text messages on September 8, 2016:

Mr. S: Skip school and come visit me instead. Daddy is extremely horny today.

Ms. L: I would if I could daddy

Mr. S: what I have to fucking punish you?

Ms. L: Teach me a lesson

Mr. S: ill kill you and lube my dick with your blood you fucking slut

Ms. L: You would enjoy that too fucking much

Mr. S: but the problem with dead bodies is no more begging and screaming which i love

Ms. L: You want me to beg? Scream?

Mr. S: beg, scream, cry

Ms. L: Yeah, you would like that

Mr. S: well, yeah and water's wet

Ms. L: Hahahah

[49] Ms. L. described that series of messages as damage control on her part. She did not want Mr. M.S. to get upset because she was afraid that he was going to come after her and kill her. She maintained that she was always afraid that he was going to kill her and that he had told her that he would kill her eventually. She agreed that she told no one of this fear of being killed. Shortly after that testimony, she testified that she nonetheless attended at the barn four days later because she trusted Mr. M.S. not to hurt her. She also wanted his attention and affection. It was important to her to have him in her life and to continue to have a relationship with him. She wanted him to think that she enjoyed whatever topic they were discussing. She thought she was in love with him.

[50] Ms. L. was referred to the following exchange of text messages on September 9, 2016:

Ms. L: I won't deny that I like being around you. And you're in my head, constantly. The devil and angel on my shoulders take the form of you.

But you confuse love with lust or maybe they're just the same thing to you. But the point is, I felt so madly in love with you I would have given up anything. You had me at my most vulnerable state and you didn't take the chance, whether you meant to or not.

When I got left alone, when we stopped talking that's when I slammed that door shut. Because I thought so much about it.

There are days where I would do anything for you. I hate it, but there are days. But there are days where I refuse to allow you in my head. Everything is like rain off a metal roof now, I'm more careful than ever.

I thought you loved me, and that's why I got weak, is because I had wanted you for so long.

I don't know, this whole thing will stay in my head forever. I know it will.

Mr. S: You have to remember, I'm nothing.

I'll pass right through and be gone once you do not need me anymore, that's the role I play in every girls life. I'm just the bad idea. I'm not their boyfriend, or their husband. that's not possible as me, some of them tried that, and when they saw who I REALLY am, they stopped loving me and let me just be someone they could tap into their darker side with.

The funny thing is, each girl breaks my heart, every time, even you

And I think The problem is that you're putting too much weight on it still.

You don't love me anymore but you let everything about me weigh on you as if you still do.

Ms. L: I do love you, that's why I am struggling so hard with everything.

There's still that part that so desperately wants you like crazy.

I just hate that I do, because I know I'll never actually have you. You'll never actually be able to be with me, and it kills me.

I know who you are, or at least I think I do. And I didn't run, and I won't run because some fucked up part still thinks you would be good to me and that it'll work out.

You keep thinking I'm just not going to need you anymore, but you were all I needed for a long time. And even though I learned to adapt, I still need you. It would hurt if you were gone. Everything would hurt

[51] Ms. L. agreed that exchange of text messages captured her mixed state of the emotions and the complications involved in the relationship.

[52] Ms. L. was questioned regarding an exchange of messages during the early morning hours of September 12, 2016. It was later that same day that she testified the first assault took place. The exchange reads as follows:

Ms. L: I'm home now, so what do you want daddy?

Mr. S: anything, I don't know if it'll take almost nothing or a lot. sextibg will be hard wirh how drunk i am. pics vids, a story, im not picky tonight baby

Ms. L: When I was 14 I went to Toronto for the weekend and I met some 15-year-old guy at this really, really getto club. And he took me back to his hotel and made me do all this shit and if I didn't he would whip me with this long cable tie until my back and ass started to bleed a lot. And it was so painful, and he shoved me up against the wall when I was sitting down face fucked me and it left blood marks all over the wall. And he came inside me and I wasn't on birth control so I was like freaking out. And after he was all finished with me he made me walk all the way home with my makeup all messy, blood all over my clothes and cum on my face. Like I was walking out of this really fancy and nice hotel looking like a proper whore.

Mr. S: fuuuuck you just meet daddy so hard

Mr. S: you are such a slutty little girl weren't you

Ms. L: I was biggest fucking slut, all I craved for was to be fucked and sent off

Mr. S: i wish I knew cuz I wanted to fuck can you shoot since i 1stl met yu

Ms. L: I was so shy back then haha

Mr. S: you were so cute with ur little young tits starting to grow mmm

Ms. L: When I used to go to the barn to help and I knew you were going to be there, I would intentionally not wear a bra just in case

Mr. S: mmm good girl you know I always checked you out. even when I didn't come out i jsed to rub my cock to you in the yard when you'd lunge the horses m.

Ms. L: I knew you wanted to fuck me daddy

Mr. S: when did you 1 st know that you were into older men

Ms. L: when I was like 13 or 12 maybe.

Mr. S: you know how hard you're making daddy?? tell me more about that! you were only 12??

Ms. L: Yeah 12 or 13 and I was walking home and he offered to smoke a joint with me and so we stood in the back alley got high and then he just kinda forced himself onto me and held my hands behind my back and felt me up. And then turned me around so I was facing against the wall and pushed his body up against mine and put his hands in my pants haha

Mr. S: fuuuuck i knew you were going to clubs and 14 but didn't know things likr this were happening to you at 13

Ms. L: Hahah eh well

Mr. S: you know how horny that makess me

Ms. L: Daddy likes when I get used by older men?

Mr. S: fyck yes

Mr. S: please daddy needs to cum

Ms. L: Then cum for me daddy

Mr. S: tell me something that'll make me cum so hard, not long, just enough im so close

Ms. L: I had two guys fuck me in Thailand one night and it was the first time I was ever fucked in the ass. And I did not want to but they had me tied down to the bed and one had his dick shoved down my throat so it was just muffled screaming and crying

Mr. S: mmmm how bad did it hurt

Ms. L: It hurt like hell, I was crying and begging him to stop but he had like no mercy. He fucked me so hard and kept slapping my ass until it was bruised and I couldn't sit down for a fucking week

Mr. S: must have been so embarrassing cuz im sure everyone knew why you couldn't sit down

Ms. L: It felt like it, I thought everyone was staring at me and people kept asking if I was okay

Mr. S: mmmm your about to make daddy cum

Ms. L: I want you to cum for me Daddy, please Daddy

Mr. S: and make me cum like all those old men that cum in you?

Ms. L: Yes please, I love it. I love being used and abused, please daddy

Mr. S: mmmm good girl. that felt good

Ms. L: Good

Mr. S: did your job well good night. sleep well baby

[53] When questioned about the exchange, Ms. L. again agreed that, given that she was the author of the fictional story, she could have made up any story that she wished. She agreed that she again chose a theme which involved her and older men generally in which she was subjected to sexual aggression and violence. She agreed that she wanted Mr. M.S. to believe that she enjoyed playing that role, and that she wanted to give Mr. M.S. what he wanted. She agreed that the reference to her not wearing a bra when attending the barn meant in case there was a sexual interaction between the two of them.

[54] Ms. L. agreed that when she arrived at the S. family barn on September 12, 2016, she was alone in the barn. She sent Mr. M.S. a text inviting him to join her in the barn, knowing that the two of them would be alone. She agreed that there had been an earlier conversation about her borrowing a book from Mr. M.S.. She again testified that after a brief conversation in the barn, Mr. M.S. began touching her back. She did not respond to that; then he pressed himself up against her and placed his hands on her hips. She attempted to move away from him because she did not want the physical attention, and because she was afraid of him. She maintained that it was easy to talk about violent sex over electronic messages but that she did not actually want to be injured. She testified that without raising her voice, she asked him to stop. At that point, she maintained her evidence that Mr. M.S. pushed her up against a stall door.

[55] Her evidence was that Mr. M.S. grabbed her wrist with his right hand. She was physically resisting, trying to step away. She recalls saying "stop, we can't do this". She was not raising her voice. Mr. M.S. was kissing her and biting her neck. Mr. M.S. then placed his left hand on her neck, controlling her left wrist by pinning it to the wall with his right hand. Her evidence is that she then said, without raising her voice, "no, seriously, please stop". At some point, Mr. M.S. tried to put his left hand down her pants. She was unable to get free and the incident only ended because her parents pulled into the driveway.

[56] Ms. L. indicated that after the episode, she did not know how to feel. She was confused because she still loved Mr. M.S. and was loyal to him. He had ingrained in her that she should see that kind of thing as acceptable. She felt hurt, but not betrayed. It was only after the events of September 16 that she felt betrayed. She also indicated that she had been concerned about the possibility of Mr. M.S. actually killing her since she had been in Thailand. However, when defence counsel suggested that she would have been afraid after the incident, she indicated that she was not. She testified that Mr. M.S. kept her mind at ease in weird ways. For instance, when he told her that she was lucky, that was him being gentle and that she should be thankful, she was thankful. She maintained that she chose not to tell anyone about the incident because she did not want Mr. M.S. getting in trouble.

[57] Ms. L. was cross-examined regarding an exchange of text messages which took place on September 12, 2016, shortly after the incident in the barn. The exchange is as follows:

Ms. L: You really enjoy pushing the limits don't you

Mr. S: it's fun to do

Ms. L: I know

Mr. S: more proof for you that I'm a psychopath?

Ms. L: No, no You proved me wrong with that

Mr. S: did I? How so?

Ms. L: You just did

Mr. S: well, good I guess, because I don't think I am one. A sociopath? probably. but I dunno, i think i feel too much to be a FULL psychopath. but i dunno, i guess I have to be one to do what I do, so.

Ms. L: My mom's friend asked about "the red marks" on my neck

Mr. S: fuck haha really? What'd you say? or really what'd your mom think because I'm sure she knew you were here.

Ms. L: I told her it was just because I have long nails, she didn't mention it to my mom

Mr. S: haha good good

Ms. L: Haha

Mr. S: I find it thoroughly enjoyable to do that then go have a friendly conversation with your dad haha

Ms. L: Haha yeah, I knew you would probably find that funny

Mr. S: haha yeah

Ms. L: You were pushing it, but at the same time you really weren't

Mr. S: exactly exactly, I knew what I was doing haha

Ms. L: Fuck though

Mr. S: fuck though what?

Ms. L: I don'tt know, I don't know

Mr. S: you were driving me craazy. mm mm mm the look in your eye, the "stop"s god damn

Ms. L: See, if I would just give you what you want then it wouldn't be fun anymore

Mr. S: haha, will, yes and no. I mean yeah you know what I like, i like to take things not be given them.

Ms. L: But you didn't

Mr. S: well I was having enough fun as it was with you. but, it is kind of like you said, once I do it.,

Mr. S: and its more about the power over someone that it is about sex

Ms. L: Well you've got more than enough power over me

Mr. S: I know and I love it.

Mr. S: damn you were getting wet I'm pretty sure I could feel it through your pants by the end haha

Ms. L: Fuck yeah I was

Mr. S: haha good girl

Ms. L: I hate that you knew what you were doing

Mr. S: Hahaha Oh I bet you do, and that just makes it even more fun for me.

Ms. L: I know it does

Mr. S: I was close to actually choking you. out.

Ms. L: I could tell you were holding back

Mr. S: Well of course I was holding back, because I didn't rape you.

Ms. L: Why not? You wanted to fuck me

Mr. S: I dunno, people were here, I mean I saw my mom in the yard. but that's not really much of a reason. I guess I'm having enough fun just teasing you with the thought that I'm gunna rape you.

Ms. L: Fair enough

Mr. S: because I'm basically on the verge of doing something to you the whole time?

Ms L: Yeah, that's part of it

Mr. S: what's the other part?

Ms. L: I'm not really sure

Mr. S: hmmm, interesting

Ms. L: I guess so

[58] Ms. L. explained the text conversation by indicating that she was still in love with Mr. M.S.. She still hoped that he was going to get better one day and that they could just be normal and that they could be together. She thought she could "fix him". She minimized what happened because she loved him and did not want to lose him. In the conversation, she suggested that he was not really pushing it simply because she knew he could have done a lot more. She was attempting to play it off as if it was nothing. At the time, she did not think what had happened was unacceptable. However, when she referred to it not being fun anymore if she simply gave Mr. M.S. what she wanted, she was referring to his fun, not hers. When asked about her agreement about "getting wet", she indicated that was simply a true statement.

[59] Ms. L. was asked whether the series of text messages represented the way she felt at the time the incident in the barn occurred. Her response was that in part they represented how she felt at the time. However, she testified that she said things in the text messages that she would now never say, because she does not "minimize things like this anymore".

[60] Ms. L. further testified in cross-examination that at the time these events occurred, it was her honest belief that Mr. M.S. had murdered at least one person and raped no less than five women. Part of her reason for minimizing the events of September 12 and 16 was fear for her own safety. Additional reasons for the fact that she was still in love with him, and was trying to keep his attention.

[61] On September 13, 2016, the parties exchanged the following text messages:

Mr. S: I think I teased myself more than anything yesterday, ate half my container of meat for the craving

Mr. S: ate today

Ms. L: Oh?

Mr. S: you're a tasty lil thing aren't you like God damn I want to just devour your body completely. eat every inch.

Ms. L: Hmm

Mr. S: I would die to eat a chunk out of your legs

Ms. L: Do I look that delicious?

Mr. S: yes, fuck you really do, look delicious, smell delicious

Ms. L: But you wouldn't

Mr. S: how sure are you?

Ms. L: Not that sure

Mr. S: hahah sounds about right.

Ms. L: My head knows that I should stop talking to you and avoid you completely

Mr. S: but you can't?

Ms. L: But I can't

Mr. S: Good, because I'll always be here for you baby

Ms. L: Don't play nice

Mr. S: hahahaha well it's hard to play rough when you're all the way over there

Ms. L: I don't want to play rough

Mr. S: seemed like you did yesterday

Ms. L: Okay well my body disagrees with my head 90% of the time

Mr. S: it's because it's what you really wanted. you loved having my hands all over you whether or not you told me to stop

Ms. L: I meant it when I told you to stop

Mr. S: maybe you did. but we both know you want me in close

Ms. L: I don't know

[62] When asked about her message indicating that her body disagrees with her head 90 percent of the time, Ms. L. indicated that she was trying to agree with Mr. M.S. while also trying to make it clear that what he did was not okay. She agreed that she was confused about how she felt about what had occurred in the barn.

[63] On September 14, 2016, parties exchanged the following series of messages:

Mr. S: and now when I think of it, I've never had a normal healthy dynamic between me and a female hahaha

Mr. S: well "healthy" hah

Ms. L: We aren't too bad, I mean you and I are dysfunctional as fuck but

Mr. S: yeah we're pretty good, I think because the stuff that we do goes both ways, the two way street, so to speak

Ms. L: yeah

Mr. S: Ay, I can give you some new scars

Ms. L: Haha yeah right

Mr. S: I know you want me to

Ms. L: I like when you touch me but the other day you were being gentle. I don't know if I would like it with you being as rough as you would want

Mr. S: it'd just be the same but more intense. we both know you'd love it if I was rough with you.

Ms. L: I don't know

Mr. S: my hands ACTUALLY around your neck. biting you enough to bleed and licking it up.

Ms. L: You just want to hurt me

[64] Ms. L. testified that she made the comment about the two of them not being too bad because, even though she had been assaulted two days earlier, she was still in love with Mr. M.S.. She did not want to lose him, and she did not want the incident from September 12 to cause problems in their relationship. She wanted a physical relationship with him. She referred to him being gentle because he was being gentle compared to what he could have done to her.

[65] On September 15, 2016, Mr. M.S. sent a text to Ms. L. which read "by the way, when you come tomorrow, bring a knife to throw away after because you're gunna kill me ok?" Ms. L. agreed that there was a prearranged plan for her to see Mr. M.S. on September 16. When asked about why she would agree to that meeting, Ms. L. gave the following evidence: "Because I still wanted to see him. I still loved him. I still wanted to be with him. So, I thought that one incident was going to be just - I don't know, him teaching me a lesson or something and then we could move on from it". Ms. L. agreed that Mr. M.S. had suggested on many earlier occasions that she kill him. She took him seriously, but would never do so. She agreed that she did not take Mr. M.S. seriously when he talked about cutting up her body and eating the parts.

[66] Ms. L. maintains that she did take it seriously when Mr. M.S. waved a knife in front of her at the barn. She agreed that he was laughing while he waved the knife. He said words something to the effect of: I have a knife, I can give you some scars or I can give me some cuts. When asked whether the introduction of the knife resulted in her being more frightened, Ms. L. indicated that she was scared but that she knew Mr. M.S. was not going to do anything. She believed that he was too afraid of getting caught.

[67] Ms. L. agreed that when she arrived at the S. family barn on September 16, she texted Mr. M.S. as soon as she arrived because she wanted him to come out to join her. She expected that the two of them would be alone in the barn. She testified that shortly after Ms. M.S. arrived at the barn, he pinned her to a stall door by pressing his hips against hers and putting his hands on her wrists and then he began choking her with his left hand and biting her neck. She was unable to free herself from the grip of his right hand because he had the weight of his body pressed against her. He ripped open her shirt and bit her breasts, one of them hard enough that it bled later. She asked him to stop. She was not yelling but she was being aggressive with what she was saying and her tone was serious. Ms. L. had difficulty recalling the exact sequence of events in the barn. She recalled shoving him off of her at some point. He put his hands down her pants and digitally penetrated her.

[68] Ms. L. testified that the assault stopped when Mr. M.S.'s younger sister attended at the barn. However, she indicated she was worried for his sister. She agreed that she told police in her statement that she tried to stay with Mr. M.S.'s sister because she knew she would not be assaulted when S. was present. Nonetheless, she maintained in her evidence that she had S. leave the barn because she was frightened for S.'s safety. She asked S. to go to the house and check on dinner approximately 10 or 15 minutes after S.S. arrived. She agreed that she had been inside the S. house a number of times before, and there was nothing that would have stopped her from accompanying S.S. to the house.

[69] Ms. L. agreed that on September 27, she forwarded the text message to Mr. M.S. indicating "You're addictive, I do not know why. If I could just stop I would". A number of hours later, she sent him a text message indicating that she loved him. In addition, she agreed that on October 1, 2016, she indicated by text message that she wanted to see a picture of Mr. M.S.'s penis because he had just affixed a tattoo to his penis. After seeing the picture, she sent a text indicating that it looked good.

[70] Ms. L. agreed that by November 2016, they were often fighting by text message. She agreed that at one point she sent a message with words to the effect of "what if I did go to the police, I could put you in jail so easily". She indicated that that was not a threat, but a suggestion. She made a reference to that possibility in a number of messages. However, she testified that she was not talking about going to the police to report assaults on her. Rather, she was talking about reporting the alleged murder and rapes which she believed he had committed.

[71] Ms. L. was also questioned regarding her Instagram account. She confirmed that by December 2017, she had already reported the allegations against Mr. M.S. to the police. She confirmed that on December 15, 2017, she posted a photo of herself on her Instagram account, with the caption "It was consensual but consequential". Ms. L. explained that by indicating that the post had nothing to do with Mr. M.S. or the assaults on her. It was simply wordplay.

M.S.

[72] Mr. M.S. testified at trial. He confirmed much of Ms. L.'s evidence regarding how their relationship began and evolved. Upon her return from Thailand, he initially saw her near the end of August 2016. At one point, they had an encounter in the barn in which he came up behind her and hugged her. She said words to the effect of "oh, we can't, we can't do this". He stopped and they simply hung out in the barn for a short time. He testified that the email exchange of September 3, 2016 in which Ms. L. asked him why he stopped relates to that event. Later in the exchange of text messages on September 3 he received the message from Ms. L. which reads "you want me to admit it daddy, hmm? Because I won't. You'll never hear me say I want it because as soon as I do you'll have the reassurance to go ahead. I won't give it to you, I'll tease you to the end daddy, because we know that's what you really want".

[73] Mr. M.S. testified that he understood that message to indicate that Ms. L. would withhold her verbal consent as part of the sexual tease of their encounters. He was expecting to have sexual encounters with her, and based upon this message and his experience that day, his understanding was that verbal consent would be withheld because that is what he really wanted in terms of sexual teasing.

[74] Mr. M.S. next saw Ms. L. on September 12, 2016 when she texted him to tell her that she was in the barn. He attended and gave her the book that she wanted to borrow. They spoke for approximately 5 to 10 minutes. At one point, he approached her and hugged her from behind. She said exactly the same thing that she said on September 3: "oh we can't do this". He testified that he then paused and asked her what was the matter. She completely disregarded the question and acted as if he did not say anything to her. He interpreted that as part of the rape role-playing that they had discussed. He ran his finger up her back outside of her shirt and noticed that she was not wearing a bra. She had mentioned in more than one message to him scenarios in which she would not wear a bra because she wanted sexual activity with him.

[75] Ms. L. then turned around to face him, and the two of them started kissing each other. Mr. M.S.'s evidence is he then popped the buttons of her shirt open and played with her breasts. He grabbed them and bit them. Throughout the episode, Ms. L. said "stop" several times. Mr. M.S. thought that he and Ms. L. went into the event with clear expectations based on all the messages that they had exchanged. Those messages included instructions from Ms. L. such as "choke me", as well as stories which were much more in depth and explicit in terms of what Ms. L. wanted sexually. In addition, she had indicated by text message that she would withhold verbal consent as part of sexually teasing him. In addition, even the way that she said stop on that day was very playful and giggly and did not appear to be serious. Physically, she was very receptive to what they were doing. In his view, it was very much a "two way street". His evidence is that in no way did he restrain her or restrict her from moving. He believed that she was consenting to the activity that they engaged in.

[76] He testified that at some point during the interaction on September 12, he put his left hand on her neck. Earlier, Ms. L. had given him instructions by text message to choke her. He did not actually do so, he simulated it. At no time did she say anything to him or give any physical display that indicated a lack of consent. Throughout this interaction, a couple of times she walked away to check messages on her phone when she received notifications. After checking the phone she would return and they would resume the physical interaction. That interaction ended when they heard her parents' car enter the driveway.

[77] He interpreted their text communications after September 12 as indicating that they both had fun during the interaction. During one of the communications, when she indicated "Don't play nice", be interpreted that as a suggestion that Ms. L. wanted him to continue with the rape role-playing. On the same day, he sent the text saying "you were driving me craazy. mm mm mm the look in your eye, the "stop"s god damn". The word "stops" in quotation marks was a reference to the fact that she was saying stop but not meaning "stop".

[78] When asked about the text exchange on September 13 in which Ms. L. indicated "I don't want to play rough", he testified that he responded by saying "it seemed like you did yesterday" because it appeared clear to him that both of them had fun during the September 12 incident. Over the next couple of days, they discussed meeting again in the barn on September 16. On arrival, Ms. L. sent him a message indicating that she was at the barn.

[79] They spoke briefly when he arrived at the barn and then engaged in essentially the same behaviour as they did on 12 September. He approached her from behind and hugged her. She pushed her butt into his lap. He ran his finger up her back, copying what he did four days earlier. She turned around and they began kissing and making out. It was reciprocal. He again opened her shirt and played with her breasts. He had his left hand on her neck. He then slid his left hand down the front of her leggings. He digitally penetrated her. She let out a moan but said nothing. They continued making out until his sister O. came into the barn. O. was eight or nine years old at the time.

[80] After O. arrived, Ms. L. did up the snaps on her shirt and the two of them visited with O. a short period of time. The mood was light and friendly. They were joking around. At one point when his sister was facing away, he pulled a box cutter knife out of his pocket and pretended to cut his throat. He did so because he thought Ms. L. would think it was funny. He did not say anything while he was doing that. After approximately 10 minutes, O.. left the barn and went to the house. He and Ms. L. resumed kissing and touching each other for a short while. Her parents arrived at the farm and so they left the barn together.

[81] His relationship with Ms. L. remained unchanged until November 2016. By that point they were not getting along when they were texting and were often bickering and arguing. By the end of November, they completely stopped communicating. When he was arrested by police in February, he was shocked, because in his mind, everything that had happened between he and Ms. L. was consensual.

[82] In cross-examination, he indicated that the two of them began to develop a romantic interest in each other approximately May 2015. He rejected any suggestion that it was only he who was attracted to stories about violent sex, indicating that both of them were interested. He indicated that during this time frame, he was struggling with untreated depression and was in a very dark place. He and Ms. L. bonded over their interest in violent sexual stories. He indicated that during their conversations, Ms. L. would speak about violent sexual activities much more in depth than he would. He agreed that they exchanged text messages in which cannibalism was discussed. He agreed that in one message he indicated that there will be a time when getting way with what he does would not matter, and that he cared less and less about getting caught. He also agreed that at one point he told Ms. L. that he had threatened the life of an ex-girlfriend. However, he indicated that claim was fictitious.

[83] When pressed on the September 12 incident and Ms. L. asking him to stop, he maintained his evidence that he thought she was not serious. Their earlier exchanges of messages led him to believe that she would never verbalize consent. In addition, her physical actions suggested consent. Similarly, she asked him to stop on September 16, and he did not for the same reasons.

POSITIONS OF THE PARTIES

The Crown

[84] The Crown submits that the main issue in the case is consent. Prior sexual activity is rarely useful in determining consent as one would have to rely upon stereotypes and myths in order to conclude that information is useful. Both incidents raised issues related to consent which should have been explored by Mr. M.S.. As soon as Ms. L. asked him to stop, he was obligated to stop and make inquiries.

[85] The Crown position is that there is no air of reality to the defence of honest belief. The Crown argues that Mr. M.S. engaged in pure speculation as to what was in Ms. L.'s mind prior to both incidents. The entire relationship was a state of fantasy. Mr. M.S. simply chose those portions of her communications which supported his belief in consent. That constitutes wilful blindness.

The Defence

[86] The defence acknowledged that the evidence related to the electronic communications preceding the events was not relevant to the defence of consent. However, it is relevant to the defence of honest but mistaken belief in consent.

[87] The defence took the position that Ms. L.'s evidence was frail and problematic. The defence portrayed her evidence as selective, and at times evasive. For example, she testified that she was in love with Mr. M.S. and desirous of nurturing and protecting the relationship. At the same time, she would testified that she was fearful of him because she truly believed that he was a rapist and murderer. She used those types of concepts to explain away the inconsistencies and contradictions in her evidence. The defence points to her evidence which indicated that, at the time the events happened, she did not think that the events in the barn were unacceptable. It was only after the relationship ended and she discussed the events with a friend that she reached the conclusion that she was not consenting. The defence submits that if that is the case, how could Mr. M.S. know at the time that she was not consenting?

[88] The defence submits that the issue of consent rests in Ms. L.'s mind. However, the court must scrutinize all of the evidence and determine whether a lack of consent has been proven. The text messages following the September 12 encounter suggests that there was consent. Those messages are proximate in time and almost analogous to res gestae. Neither of the parties were expecting those messages to ultimately become evidence in a criminal prosecution. Inconsistencies with respect to the trial evidence should be resolved in favour of the evidence in the text messages. When the text messages exchanged after the event on September 12 are examined in their totality, they indicate a positive reflection on the event by Ms. L. If the events of September 12 were not consensual, why would Ms. L. encourage Mr. M.S. to join her in the barn on September 16?

[89] The defence submits that Mr. M.S.'s evidence is focused, clear, concise and consistent. Further, her obvious significant physical challenges make Ms. L.'s description of what happened in the barn unlikely. In addition, her Instagram post indicating "it was, consensual, but consequential" should, in and of itself, leave the court reasonable doubt on the consent issue.

[90] The defence further submits that, in the alternative, Mr. M.S.'s honestly held belief, based on the communications between the two of them, was that Ms. L. was consenting to the sexual activity that they engaged in. The electronic messaging history between the two of them, the events of September 3, the electronic messaging between the two of them after the events of September 12, and Ms. L.'s own admitted confusion regarding her feelings about the events are all important aspects of the evidence supporting the fact that he honestly held the belief.

APPLICABLE LEGAL PRINCIPLES

[91] The definition of assault is contained in section 265 of the Criminal Code.

Assault

265 (1) A person commits an assault when

(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;

(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or

(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

Application

(2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.

Consent

(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of

(a) the application of force to the complainant or to a person other than the complainant;

(b) threats or fear of the application of force to the complainant or to a person other than the complainant;

(c) fraud; or

(d) the exercise of authority.

Accused's belief as to consent

(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused's belief, to consider the presence or absence of reasonable grounds for that belief.

[92] In order for there to be a conviction, the Crown must prove each element of an offence beyond a reasonable doubt. The essential elements of sexual assault are as follows:

1. that the accused intentionally applied force to the complainant;
2. that the complainant did not consent to that force being applied;
3. that the accused knew that the complainant did not consent to the force that was applied;
4. that the force applied took place in circumstances which were of a sexual nature.

[93] The application of force may be direct or indirect. The force applied may be violent, or gentle. Force includes any physical contact with another person, even a gentle touch. In determining whether the application of force was intentional, the court must consider all circumstances surrounding the application of force.

[94] Consent involves the state of mind of the complainant. It is the voluntary agreement to allow the accused to do what was done, in the way in which it was done, and at the time that it was done. Consent involves freedom of choice and knowledge. A lack of resistance on the part of a complainant is not consent. Consent requires knowledge of the essential nature of the activity on the part of the complainant, and a decision by the complainant, freely made, to allow it to occur. Consent must be ongoing, so that the complainant can change their mind at any point in time. Consent requires a conscious, operating mind.

[95] The Crown must prove that an accused knew that the complainant did not consent to the force that was being applied. The accused must be aware of that fact at the time that the force is applied. The Crown can satisfy that element by proving that an accused had actual knowledge of the lack of consent. Alternatively, the Crown can satisfy this element by proving either recklessness or wilful blindness. To do so, the Crown must establish that the accused was aware that there was a risk that the complainant was not consenting, but the accused applied the force in any event, not caring whether there was consent or not. This element can also be established if the Crown proves that an accused knew that he or she should have made inquiries regarding consent, but did not make the inquiry because the accused did not want to know the truth about the issue of consent.

[96] Finally, the Crown must prove that the application of force took place in circumstances which were sexual in nature. A sexual assault is any intentional application of force, any intentional physical contact with another person, even a gentle touching, which occurs in circumstances of a sexual nature so that the sexual integrity of the complainant is violated. That includes any act which is intended to degrade or demean a complainant for the sexual pleasure of the accused.

[97] When an accused takes the position that he or she honestly believed that the complainant consented to the force that was applied, the burden remains on the Crown to prove that the accused had no such belief. The issue involves an examination of the state of mind of the accused. The belief must be honest, but does not have to be objectively reasonable. However, the reasonableness of the belief may be a factor in determining whether an accused actually had the honest belief which is claimed.

[98] An accused cannot be wilfully blind as to the circumstances. There is no honest belief if an accused perceived a risk that consent might not be given, and proceeded in spite of the risk. There can be no honest belief if an accused does not take the steps that a reasonable person would take in the circumstances known to the accused, to find out whether there was consent to participate in the activity.

[99] The statutory provisions related to consent and belief in consent applicable to sexual assault are set out in sections 273.1 and 273.2 of the Criminal Code:

Meaning of consent

273.1 (1) Subject to subsection (2) and subsection 265(3), consent means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.

Where no consent obtained

(2) No consent is obtained, for the purposes of sections 271, 272 and 273, where

(a) the agreement is expressed by the words or conduct of a person other than the complainant;

(b) the complainant is incapable of consenting to the activity;

(c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;

(d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or

(e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.

Subsection (2) not limiting

(3) Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained.

Where belief in consent not a defence

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

(a) the accused's belief arose from the accused's

(i) self-induced intoxication, or

(ii) recklessness or wilful blindness; or

(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.

[100] With respect to the offence of uttering a threat to cause bodily harm, the essential elements are as follows:

1. the accused made a threat;
2. to cause bodily harm to any person; and
3. the accused made the threat knowingly.

[101] The threat may be spoken, written, or communicated in any way which causes it to be received by another person. It may be direct or conditional. In order to determine whether it is a threat, one considers how it would be perceived by a reasonable person. A reasonable person is someone who is objective, fully informed of the circumstances, right minded, dispassionate, practical and realistic. Would a reasonable person, fully aware of the circumstances in which the communication was made, perceive it as a threat? That includes an examination of the circumstances in which the communication was made, the manner in which it was communicated, the person to whom communication was addressed, the nature of any prior existing relationship between the parties, and the plain and ordinary meaning of the communication.

[102] The essential elements of assault with a weapon are as follows:

1. The intentional application of force by the accused on the complainant;
2. the absence of consent by the complainant:
3. knowledge, on the part of the accused, that the complainant did not consent to that force; and
4. a weapon or imitation thereof was used in committing the application of force.

ANALYSIS

[103] It is clear law that any individual can engage in discussions about sex; can indicate a desire to have sex, and can even initiate a sexual encounter. It is equally clear that same individual can, at any point, withdraw their consent and the other party is obligated to stop. The issue of consent in the area of sexual assault is often a difficult one courts to deal with. The dynamics of relationships and the validity of an apparent consent can be difficult. It is also clear that there is no one way that a victim of crime should be expected to react after the event, particularly a victim of something as deeply personal as a sexual assault. The trauma of being the victim of a sexual assault will result in many different types of reactions, at times depending upon whether the victim is attacked by a stranger, or someone with whom the victim had a relationship.

[104] In this case, there is no issue that Mr. M.S. intentionally applied force to Ms. L. Similarly, there is no issue that the force applied took place in circumstances which were of a sexual nature. At issue is whether the Crown has proven that Ms. L. did not consent to the force being applied, and that Mr. M.S. knew that Ms. L. did not consent to the force that was applied.

[105] On the first issue, the lack of consent, the court has a number of concerns with the evidence. For example, Ms. L. appeared to be reluctant to acknowledge Mr. M.S.'s physical limitations. With some reluctance she agreed that he had limited use of his right hand and that he walks with a limp. In my view, over the course of the trial, Mr. M.S.'s physical limitations were observable by the court. I accept his evidence that he has very limited use of his right hand, weakness on the entire right side of his body and a deformed right foot. Given those limitations, it is difficult to accept any version of the facts which involve Mr. M.S. using his right hand to pin Ms. L.'s wrist to a wall, and between that force and the weight of his body, prevent her from moving.

[106] The court finds itself unable to accept Ms. L.'s evidence that the Instagram posting indicating "it was consensual but consequential" was simply wordplay which had nothing to do with the events involving Mr. M.S..

[107] With respect to Mr. M.S.'s evidence, within the context of the evidence as a whole, there was nothing inherently unbelievable about his evidence. It was consistent. Significant portions of it were consistent with the electronic messaging. It was not shaken in any material way in cross-examination.

[108] It is entirely possible that Ms. L. at some point in the barn on either or both days decided that she would withhold her consent to engage in sexual activity with Mr. M.S.. However, proving that something is entirely possible does not meet the burden of proof in a criminal case. Proof beyond a reasonable doubt is required. There are so many contradictions and inconsistencies in the evidence that the court has no certainty as to which version of the facts unfolded in the barn on either date. Accordingly, the court is unable to conclude that the Crown has proven a lack of consent on the part of Ms. L. In addition, the court is unable to conclude that Mr. M.S. uttered a threat to cause bodily harm to Ms. L. Finally, court is unable to conclude that the gesture which Mr. M.S. made as if to cut his own throat was a gesture to apply force to another person. On that basis, the defence is entitled to an acquittal on all four counts.

[109] Despite the fact that the finding on consent disposes of the charge, I will comment briefly on the defence of mistaken belief in consent. It is obvious that in almost every situation of sexual activity in which one participant asks the other to stop, that puts the party on notice that consent is an issue, and that the other party is expressing a lack of agreement to engage in the activity. The result is that the party put on notice must stop and take reasonable steps to ascertain that the other party is consenting. Normally, Ms. L.'s indication to Mr. M.S. in the barn to stop would obligate him to do so. However, this case is unusual on its facts. If I had not determined the case on the basis that the Crown failed to prove the lack of consent, I would have found that Mr. M.S. had an honest but mistaken belief that Ms. L. was consenting.

[110] I would have reached that conclusion based on the totality of the communications between the parties in which they both, over the course of more than one year, expressed an interest in having a sexual relationship with each other. Both parties expressed a strong interest in violent sex, including rape fantasies. Given the corroborating emails, I accept Mr. M.S.'s evidence that there was a physical encounter between the two of them on September 3. Given the suggestions in the messages that Ms. L. would never verbalize her consent in order to sexually tease or stimulate Mr. M.S., I would have found that the Crown has not proven beyond a reasonable doubt that Mr. M.S. knew that Ms. L. did not consent to the force that was applied.

CONCLUSIONS

[111] There will be a finding of not guilty on all counts.

Released: September 28, 2018

Signed: "Justice A.T. McKay"