WARNING
An order restricting publication in this proceeding under ss. 486.4(1) of the Criminal Code has been made. The penalties of violating this order are set out in 486.6. These sections of the Criminal Code provide:
486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences;
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
486.6 (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.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
Court Information
Date: October 17, 2018
Ontario Court of Justice Old City Hall - Toronto
Between: Her Majesty the Queen — And — D.G.
Counsel:
- C. Agatiello for the Crown
- J. Khou for the Defendant
Heard: March 12, April 12, August 1, 3 and 23, 2018
Reasons for Judgement
MELVYN GREEN, J.:
A. INTRODUCTION
[1] The defendant is charged with sexual assault. He and the complainant met at a street car stop in downtown Toronto in the spring of 2016. They were soon involved in a "non-exclusive" intimate relationship. The complainant says she never coveted or signaled any interest in a deeper, more committed or monogamous relationship with the defendant. The defendant says that, over time, they both expressed and pursued such interest. They broke up rather abruptly in November 2016. Apart from an intermittent exchange of text messages and a single social outing in January, they had no further contact until February 11, 2017 when their paths crossed. At the defendant's invitation, the complainant joined him at bar that same evening and, later, accompanied him to his home and then his bed.
[2] The complainant initially fully consented to engaging in sexual activity with the defendant in the early hours of February 12th. At the complainant's request, he first donned a condom. At some point in their exertions they both noticed that the condom had slipped off the defendant's penis. The defendant says that despite some initial hesitancy, the complainant ultimately urged him to resume sexual intercourse without a condom, which he did. The complainant says she withdrew her consent to any further sex in the absence of "protection" and did not subsequently renew her consent. The defendant, however, persisted, penetrating her and thereby committing, as charged, the offence of sexual assault. The complainant firmly maintained that her consent to sexual intercourse was contingent on protection. The defendant just as strenuously maintained that he only resumed intercourse with the complainant with her consent.
[3] In response to 911 calls from both parties, Toronto Police Service (TPS) officers attended the defendant's apartment an hour or so after the incident. The officers' testimony is uncontentious and has little bearing on the result. The case, then, is very much a she-said/he-said contest of credibility. To be clear, and as later more fully elaborated, the legal burden rests solely on the Crown, and the "contest" is not resolved on the basis of whose evidence I prefer. At bottom, there can be no finding of guilt unless the Crown establishes, to a standard of proof beyond reasonable doubt, the core allegation – that the defendant continued to have sex with the complainant despite knowing or being willfully blind or reckless to whether she had withdrawn her consent.
[4] An order prohibits publication or broadcast of "any information that could identify" the complainant in these proceedings. In the circumstances, identification of the defendant may here realistically compromise the anonymity afforded the complainant. Accordingly, his name, while a matter of public record, is not set out in these reasons. For narrative ease, I refer to the defendant and complainant, when not so styled, as "D.G." and "S.", respectively. ("S.", to be clear, is an abbreviation of S.'s pseudonymous forename, not her family name.) For the same reasons, a girlfriend of the complainant's is here renamed "M.". It is of some importance to the varying accounts to note that S. is South Asian and D.G. Caucasian. Of some further narrative relevance, the complainant has a post-graduate degree. The defendant worked in construction at the time. Both are in their twenties.
B. EVIDENCE
(a) Introduction
[5] I first summarize the evidence preceding February 11, 2017, noting the more relevant differences in the complainant's and defendant's accounts. I then canvass their testimony pertaining to February 11th and 12th and their respective 911 phone calls. Finally, I turn to the police attendance at the complainant's home in response to these calls. The nature of the central allegation and the exhaustive testimony bearing on the disputed event mandates close attention to evidentiary detail and nuance.
(b) Background
[6] S. and D.G. first met in the neighbourhood of Queen and Spadina around May of 2016. At his request, S. and her female friend joined D.G. and his male friend at D.G.'s home for a few drinks. They exchanged numbers before S. left. Text exchanges followed as did, within two or three days, their first sexual encounter. Soon D.G. and S. were having sex at each other's homes several times a week. They would occasionally go out together but, in S.'s words, they were "not dating". They were, rather, in a "non-exclusive consensual sexual relationship" in which the "only things they had in common were sex, marijuana, watching movies and going out to eat". In cross-examination, S. allowed that there were several restaurants they attended more than once, a few bars at which they "hung out" together and that they had once attended a concert at the Sony Centre.
[7] S. described a relationship in which she and D.G. could and did have other sexual partners. There was, she said, no emotional involvement and she denied developing any "feelings" for D.G. beyond those integral to a such relationship. She denied, in particular, ever being jealous of D.G. or otherwise resenting his sexual relations with others.
[8] They had, said S., a "fairly active sex life" during their six-month relationship. Each told the other what they wanted by way of sexual activity. S. says she never performed oral sex on D.G. but that he would sometimes spank or choke her after first securing her consent. She later agreed there may well have been occasions when he spanked her without first requesting her express consent. Later, in cross-examination, she volunteered that D.G. "slapped her bottom" every time they had sex. Prior to February 12, 2017, D.G. had never physically or sexually touched S. without her consent. However, D.G. was on occasion "verbally abusive" (describing S. with words like "bitch") which, they both testified, he tended to characterize as no more than humourous "banter".
[9] D.G., she said, was not interested in an exclusive relationship and she too was not looking for one of any permanence. She testified she never discussed or otherwise contemplated moving in with D.G., had any conversation with him about living together and, in particular, that he had never invited her to move in with him. D.G. did at some point tell S. that a room at the three-bedroom house he shared was about to become vacant and invited her to rent it. The vacant room was immediately adjacent to D.G.'s. S. said she declined the offer as she had a lease on her one-bedroom apartment and was content to remain there.
[10] D.G.'s description of the trajectory of their relationship is only skeletally similar to S.'s emotionally impassive account. In D.G.'s recall, he and S. developed strong feelings for each other. They socialized and talked about travelling and having a future together. D.G. says that in October 2016 he did ask S. to move in with him, sharing his bedroom and the adjoining living room. (D.G.'s two housemates' rooms were on a different floor.) S., he says, welcomed the prospect. She had already moved her suitcase into his basement, both because she was spending so much time at his home and in preparation for her relocation. S. testified that the suitcase in D.G.'s basement belonged to her friend M. who had been temporarily staying with her. M., she says, left the suitcase at D.G.'s while she sought more permanent lodgings. D.G. agreed that M. had been looking for a new residence at one point, but insisted the suitcase in his basement was S.'s and not M.'s.
[11] According to D.G., he and S. at some point agreed to stop seeing others. Despite this commitment, and despite his initially "good intentions", within a couple of weeks he had succumbed to "opportunities" for sexual relations with two other women. As D.G. explained it, he was in an exclusive relationship with S., but he was also occasionally unfaithful to that commitment. Meantime, he says S. became increasingly jealous, including of his friendship with M.
[12] Their relationship ended in November 2016. In S.'s account, she went to D.G.'s home and told him it could not continue, that it was not going to work. Following a verbal altercation, D.G. threw water on her and she, in turn, poured a can beer on him. S. said she had been contemplating ending the relationship for some time. She realized she wanted a more sharing, personal life with someone – one she viewed as unattainable with D.G. She decided to assertively announce the dissolution of their relationship to avoid any risk of D.G. misunderstanding its finality.
[13] D.G. had a different recall of their break-up. S., he says, was growing increasingly jealous. One day, when he failed to respond to her text, S. came to his house after he returned from work. Exhausted, D.G. was napping on his couch when S. poured a beer on him and angrily reprimanded him for disrespecting her by not "even text[ing her] back". The inevitable argument ended with D.G. telling S. to get out of his house. He could no longer abide her incessant jealousy, he says. He denied ever throwing water at S. He says that he, not S., "ended the relationship".
[14] S. knew D.G. had several sex partners. She says she was concerned about contracting STDs or becoming pregnant. D.G. had told her that he preferred sex without a condom, but S. insisted on protection throughout their relationship. D.G., she testified, always honoured her wishes in this regard. Indeed, prior to February 12th she believed they had a "mutually respectful relationship". S. denied ever having STD-testing before or during her relationship with D.G.
[15] D.G. sometimes used protection and sometimes not. While he agreed he preferred sex without a condom, it "depended on the situation" – meaning his assessment of risks associated with his sexual partner. Prior to the events of February 12th, D.G. says he only had protected sex with S. on one or two occasions. He was not concerned about S. becoming pregnant as he understood she routinely conducted pregnancy tests. It also appears (at least on D.G.'s account) that he refrained from ejaculating inside S. as he referred to one occasion when he accidentally did and, as a result, they had purchased "Plan B", the proprietary name for a post-coital contraceptive. D.G. testified that he had never had an STD and had not turned his mind to the risk of transmission when he had sex with S. on February 12th.
[16] Following their November break-up, it appears that D.G. and S. next communicated sometime in January. They met at a bar where they talked and D.G. played darts. But for a brief exchange of texts or a telephone call in early February, they did not have any further contact until coincidentally attending the same marijuana dispensary on February 11th.
(c) February 11-12, 2017
(i) The Parties' Accounts
[17] The defendant's and complainant's accounts of the events of February 11th and 12th closely parallel each other's until midway through their sexual encounter that evening.
[18] S. and D.G. spotted each other at a downtown marijuana dispensary on the afternoon of February 11, 2017. D.G. later texted S., inviting her to meet him that evening at a bar on King Street. S.'s cellphone battery had died, so she did not respond. However, to D.G.'s surprise she did turn up at the bar sometime after 8pm. He and S. had a couple of drinks (beer and cider, respectively), talked for a couple of hours, and then went outside to share a joint. S. could recall almost nothing of their conversation. At D.G.'s suggestion, they went to a second bar, stopping at D.G.'s house on the way so he could pick up some cash. It was after midnight when they ordered drinks at the second bar.
[19] Among other things, D.G. told S. that he was then seeing another woman (one he says he had told her about when they met in January) and that they were in an "open" relationship. D.G. says that S. told him she was seeing a guy from work but that, compared to D.G., he was sexually boring. This exchange, D.G. testified, occurred at the first bar, as did some flirting, kissing and "talking dirty" when they went outside to smoke a joint. S. says D.G.'s discussion of his new girlfriend did not annoy her. In cross-examination, she denied seeing someone from her work or telling D.G. she was, denied saying she missed being with D.G., and denied no longer having sex with him. She agreed they had a flirtatious conversation, and touched each other and shared compliments, kisses and "dirty talk" – although she restricted this exchange of intimacies to the second bar. They ordered food and a final round of drinks before last call. At D.G.'s invitation, they returned to his nearby home sometime around 2am.
[20] Once in D.G.'s living room, he rolled a joint as they surveyed the Netflix options. Minutes later, at his invitation, they were undressing in his bedroom. S. asked D.G. if he had "protection". He said, "yes". She asked him to wear it and he did, retrieving the condom from a container on top of his bedside locker. (When testifying, D.G. explained that S.'s request that he wear a condom made sense given the lengthy hiatus in their sexual relations and their intervening partners.) They adopted several sexual positions, including coitus and D.G. slapping S.'s buttocks. Both were very sexually aroused when they noticed that D.G.'s condom had slipped off. S. asked if D.G. had more protection. D.G. said, "no". It is at this point that their accounts begin to materially diverge.
[21] S. testified that she then rolled off D.G.'s face and withdrew her consent to further sexual contact: "then we can't do it anymore". They lay together on the bed until, S. says, D.G. wanted her to fellate him. She said, "no". He did not, says S., force her to perform oral sex. In D.G.'s recall, he kissed S. after the condom was displaced and soon began to perform cunnilingus. After she declined oral sex, D.G. says S. pulled him on top of her. "Are you sure?", he asked, reminding her that he had no protection. "Fuck me", says D.G., was S.'s reply, and she put his left hand around her own neck and asked him to choke her as they had sexual intercourse. S., he says, asked D.G. to "come inside" her when he vocalized that he was approaching his climax. Instead, he withdrew and ejaculated on S.'s stomach. He did not, he explained, want to risk impregnating her.
[22] D.G. says they cuddled after sex. Nothing was said about unprotected sex. Everything seemed fine until S. inquired about Valentine's Day. According to D.G., he said he had plans, that he was taking his girlfriend out for dinner. "So why did we do this? Why did we just have sex?", S. asked. "It's just sex", said D.G., "It's not a big deal. Relax". S. was getting upset and angry. She asked where his girlfriend was from. D.G. identified a Caribbean island. "Why do you like black girls?", she demanded; "they're crazy". "Black girls are crazy", D.G. agreed, "but brown girls are worse". He and S. were both upset at this point. He left the room and went to the backdoor to smoke a cigarette.
[23] S.'s account is markedly different. After she declined to perform fellatio, D.G., unbid, put his hand around her neck as he reinserted his penis in her vagina without her consent. She also says he slapped her once on her facial cheek while thrusting in and out. (D.G. agreed he slapped S.'s buttocks but denied slapping her cheek.) S. says she was "almost frozen", that she "could not do anything", and that she did not say anything as she was being choked. (She volunteered in direct examination that her prior sexual relations with D.G. were "assertive", including choking and spanking.) Ultimately, as D.G. testified, he withdrew and ejaculated on her stomach.
[24] S. says she wanted to leave after D.G. rolled onto his side. She looked for her clothes and her credit cards when D.G. stepped out of his bedroom for a smoke. She opened a drawer or cupboard and saw a single wrapped condom. Shocked, she loudly accused D.G. of lying to her about not having a condom. She was very upset, nearly hysterical, and repeatedly demanded an explanation from D.G. He kept telling her not to yell, to "shut the fuck up" as she'd wake his housemates. Finally, when she refused to stop yelling, he told her to get out, to leave his house. S. refused to leave until he told her "why he did this to" her. It is at this point, she says, that D.G. remarked that, "Black girls are crazy but brown girls are worse" – a rejoinder that, she explained, left her feeling sexually assaulted and marginalized at the same time.
[25] S. denied the suggestion that her anger and distress was in any way attributable to learning that D.G. had Valentine's Day plans. She insisted there was no mention of Valentine's Day during their evening together. In re-examination, she testified she had her own plans for Valentine's Day. Pressed, she said that, "I usually just go out somewhere".
[26] Other than the sequencing of the "Black girls"/"brown girls" exchange, D.G.'s account of their post-coital descent into threats and recriminations is not substantially different than S.'s. When he returned to the bedroom, D.G. says S. repeatedly accused him of lying about not having "another condom". He repeatedly denied her accusation. (D.G. insisted that, at the time, he believed – indeed, was a "100% sure" – that he did not have any other condoms, which is why he told S. he did not and why he did not look for one. After his release on bail, he testified to carefully searching his room and finding a single condom inside his bedside locker.) S. was inconsolable. She was upset about the condom. She was upset that he was taking his new girlfriend out for Valentine's Day. She was upset that she had been "played" and disrespected". She demanded an apology. D.G. refused to apologize. "I'm not apologizing", he said, "we just had sex", nothing bigger than that.
[27] S. continued yelling. She refused to calm down. D.G. feared she would wake his housemates. He told her she would have to leave if she did not keep quiet. S. said she would not leave until she located all her stuff, particularly her bank cards. They both searched the room. D.G. found one in S.'s cardigan pocket, but it was not the card she said she wanted. S. remained upset and very loud.
[28] They agree that D.G. eventually said he was going to call the police to have her escorted from his home. "You should", said S. And he did. D.G. had no concerns about the police attending his residence and speaking with S. They would, he assumed, soon straighten it out and help remove S. He never imagined he would be viewed as a "suspect".
(ii) The 911 Calls: In Real Time and Retrospectively Parsed
1. The First Call
[29] D.G. placed the first of two 911 calls at 4:07am. He opens by telling the dispatcher that he has "a girl at [his] house and she won't leave". S. can then be heard saying, "He tried to force fuck me". D.G. provides his address. He identifies S. as "an ex-girlfriend". At S.'s request, he hands her the phone. She explains that she "came over to his place" and he "acted inappropriately". S. further explained that she "did not want to be involved in anything that was not protected" but "he was strong and he did not behave right", and that he thinks her demand for an apology "is the wrong thing". She "feel[s] wronged". Asked by the dispatcher if she too wants the police to attend, S. appears uncertain. Asked, "did he assault you, did he force himself on you?", S., rather than immediately answering, repeats the question to D.G., as though requesting his input. D.G.'s response is inaudible, but S. ultimately responds, "Yes, that's how I felt". D.G. can be heard laughing in the background as S. says, "you're laughing at me". D.G. can then be heard saying, "we had sex", to which S. responds, "No, … we had consensual sex until I said no". The line is disconnected within a few seconds thereafter.
[30] When testifying, S. could not explain why the call ended abruptly. Asked in cross-examination why she sought D.G.'s assistance in answering the dispatcher's "did he assault you?" question, S. first replied that she did not know, and then (in my view, somewhat disingenuously), that she had "just been raped" and therefore one "can't expect a coherent, logical answer". She later attributed some inconsistencies or incoherence to being "temporarily mentally disabled". While hardly determinative of her emotional state, I note that throughout both 911 calls S. does not sound hysterical or even upset.
[31] D.G. testified the first call ended because S. disconnected it. He explained the sound of his laughter as his response to S.'s "lies" about his assaulting her.
2. The Second Call
[32] Twenty minutes passed between the first and second 911 calls. S. says the verbal rancour with D.G. continued, as did his demands that she "just leave". She had expected the police to attend promptly and was still waiting for them.
[33] At S.'s request, and without issue, D.G. gave her his cellphone so she could place a second 911 call. This was at 4:31am. S. tell the dispatcher that she "want[s] to know … the procedure". She explains, that she and "this person … were having a physical relationship but I said no and this person did not stop". Further, "he does not want to apologize for his behaviour so I feel violated". Asked her name, she replies "S.". She spells it. In the background, D.G.'s voice can be heard saying, "She won't leave my house. Go". S. continues: "I feel violated. I'm not sure what to do". Asked to describe "the problem", S. explains that she "said no" and "was not considered". "Specifically, she continues, she said "no to unprotected thing" and "was not giving consent".
[34] She asks for the dispatcher's suggestions, making clear that she is "not making an emergency call, [that she] is open to negotiation [or] mediation". "All I want", she says, "is an apology for how I was treated". She is, she continues, being yelled at, abused and called a "psycho bitch". She is fine with leaving, but "my problem is I cannot be treated like this. I am a woman". Asked if she had sexual intercourse, S. answers, "Yes, and I asked him to stop. And it did not go the way I want it to". She could not say no, she advises the dispatcher, because "he was choking me". Asked several times and separately for her first and last names, S. consistently replies "S.", ultimately agreeing that her first and last names "are the exact same" and that S. is "the name that shows up on [her] birth certificate". Twice asked her age, the phone is disconnected before S. answers.
[35] S. testified that D.G. took the phone from her, ending the call. D.G. denies retrieving his phone or otherwise disconnecting the call; he was, he says, "happy the police were coming".
[36] S. explains that she identified herself on the phone solely as "S.", her middle name, because that is the name she uses at work and in her social media profiles; it's "what I go by". (Contrary to her answer during the 911 call, it is not the name on her birth certificate.) Asked why she persisted in using the name in the face of repeated requests for clarification from the dispatcher, S. replied that she, "was intoxicated" that night, a characterization inconsistent with both her own account of her limited alcohol consumption and the descriptions of her sobriety tendered through the attending police officers a few minutes after the second 911 call.
[37] In so far as S.'s reports to the 911 dispatchers deal with the issue of the absence of her consent to unprotected sex, they are clearly consistent with her core testimonial allegation. Her 911 reports are not, of course, independent evidence of that allegation.
(iii) The Police Accounts
[38] In response to a radio call, TPS constables Armstrong and Hoy attended D.G.'s apartment about 4:30am on February 12th. Armstrong met with S. in the TV room while Hoy spoke with D.G. in his bedroom.
[39] According to Armstrong, S. "appeared to be" emotional, upset, a "little shaky" and somewhat confused about what had taken place. However, she had no difficulty explaining what happened. She had no complaints about any injuries and Armstrong did not notice any bruising. S. may have been drinking, but she was not intoxicated. Both officers assessed D.G.'s relative sobriety as basically the same as S.'s.
[40] D.G.'s narrative, as conveyed through his answers to Hoy's questions, was essentially consistent with, if far less detailed than, his testimonial account. At the officer's request, D.G. produced a used condom from a pocket in his shorts. The wrapper was on the floor near the bed. Hoy spoke with Armstrong about the latter's interview with S. when he left D.G.'s room about 5:15am. At about 5:30am, he returned to D.G.'s bedroom. D.G. was already asleep. (D.G. worked in construction and, he testified, needed some sleep before his early morning call.) Hoy woke and arrested D.G. He described D.G. as calm, collected and forthcoming – a "gentleman" – throughout their interaction. While Hoy recalled D.G. saying he'd had "seven" drinks at the first bar, D.G. testified that he only had five or six over the course of the entire evening and had said "several", not "seven", in his exchange with the officer. D.G.'s very heavily accented English could well have led to Hoy having misheard the word.
C. ANALYSIS
(a) Introduction
[41] As already noted, the defendant is presumed innocent. This presumption remains inviolible unless and until displaced by proof beyond reasonable doubt of the criminal offence with which he is charged. The presumption of innocence is fundamental to our criminal law. It is a cardinal tenet of universal and abiding application. It matters not the offence, the locale or the temperament of the times. What matters is the consistent application of legal principle to the totality of the evidence so as to achieve an individually just and case-specific result. The evidence here is essentially that of two witnesses in which one, the defendant, denies the criminal allegations of the second. In such circumstances, as the Court of Appeal recently reminded trial judges in R. v. H.C., 2018 ONCA 779, at para. 11:
One does not begin the assessment of an accused's evidence from the premise that he might be telling the truth. One begins from the premise that the accused is presumed innocent. It is for the Crown to prove beyond a reasonable doubt that the accused's denial is false.
[42] There are here two primary domains of jurisprudential concern, one substantive and the second evidentiary. The first deals with the law governing the offence of sexual assault. The second addresses the assessment of credibility where, as here, the evidence of the complainant and defendant are fundamentally at odds on critical issues. I address each in turn, and then the application of these controlling principles to the evidence led at this trial.
(b) The Governing Legal Principles
(i) Sexual Assault
[43] The allegation that grounds this prosecution is that the defendant D.G. had sexual contact with the complainant S. without her consent. In law, any non-consensual physical contact amounts to an assault. Where the nature of the contact or the ambient circumstances lend a sexual dimension to the contact, the absence of consent renders the event a sexual assault. There is here no issue as to whether there was physical contact or the sexual nature of that contact. The issue devolves entirely to that of consent or, more exactly, whether the Crown has established to the requisite standard that the defendant knowingly or recklessly acted without the complainant's consent.
[44] In R. v. Ewanchuk, at paras. 61 and 63-65, the Supreme Court summarily set out the governing principles as they apply to prosecutions akin to that before me:
In sexual assault cases which centre on differing interpretations of essentially similar events, trial judges should first consider whether the complainant, in her mind, wanted the sexual touching in question to occur. Once the complainant has asserted that she did not consent, the question is then one of credibility. In making this assessment the trier of fact must consider the totality of the evidence, including any ambiguous or contradictory conduct by the complainant. If the trier of fact is satisfied beyond a reasonable doubt that the complainant did not in fact consent, the actus reus of sexual assault is established and the inquiry must shift to the accused's state of mind.
Turning to the question of mens rea, it is artificial to require as a further step that the accused separately assert an honest but mistaken belief in consent once he acknowledges that the encounter between him and the complainant unfolded more or less as she describes it, but disputes that any crime took place … . In those cases, the accused can only make one claim: that on the basis of the complainant's words and conduct he believed her to be consenting. This claim both contests the complainant's assertions that in her mind she did not consent, and posits that, even if he were mistaken in his assessment of her wishes, he was nonetheless operating under a morally innocent state of mind. It is for the trier of fact to determine whether the evidence raises a reasonable doubt over either her state of mind or his.
In cases such as this, the accused's putting consent into issue is synonymous with an assertion of an honest belief in consent. If his belief is found to be mistaken, then honesty of that belief must be considered. As an initial step the trial judge must determine whether any evidence exists to lend an air of reality to the defence. If so, then the question which must be answered by the trier of fact is whether the accused honestly believed that the complainant had communicated consent. Any other belief, however honestly held, is not a defence.
Moreover, to be honest the accused's belief cannot be reckless, willfully blind or tainted by an awareness of any of the factors enumerated in ss. 273.1(2) and 273.2 [of the Code]. If at any point the complainant has expressed a lack of agreement to engage in sexual activity, then it is incumbent upon the accused to point to some evidence from which he could honestly believe consent to have been re-established before he resumed his advances. If this evidence raises a reasonable doubt as to the accused's mens rea, the charge is not proven.
[45] The contest before me is narrow. It is undisputed that the complainant initially consented to sexual congress with the defendant. It is equally undisputed that she requested the defendant don "protection" as a condition of such consent and that she withdrew her consent when she and defendant realized that the condom had been displaced. Sexual activity resumed. First, says the defendant, by way of his performing cunnilingus on the complainant, an activity the complainant does not acknowledge having occurred. However, the parties do agree that the defendant effectively requested that the complainant fellate him. The complainant declined, the defendant did not force the issue, and no real-world objection is advanced in the complainant's testimony or would otherwise find legal purchase. The defendant then placed his unsheathed penis into the complainant's vagina. It is this sexual conduct to which the complainant says she objected and, most importantly, to which she says she never expressed, by words or conduct, consent. The words of L'Heureux-Dubé J. in R. v. Park, [1995] 2 S.C.R. 836, at para. 39, as adopted by the majority in Ewanchuk, at para. 45, are here salient:
. . . the mens rea of sexual assault is not only satisfied when it is shown that the accused knew that the complainant was essentially saying "no", but is also satisfied when it is shown that the accused knew that the complainant was essentially not saying "yes".
The defendant's position is directly contrary to that expressed by the complainant: he says she consented to the resumption of sexual intercourse, both through her conduct and by verbalizing her consent even after he reminded her of the absence of protection.
[46] Consent, or its absence, need not be expressed in words. It may be explicit or conveyed through gesture or conduct. Consent, if granted, may be withdrawn at any time. Once withdrawn, it may be restored. However, the question of consent must be examined with particular care where a resumption of sexual activity follows its retraction. The following passage from R. v. Ewanchuk, at para. 52, is here particularly apposite:
Common sense should dictate that, once the complainant has expressed her unwillingness to engage in sexual contact, the accused should make certain that she has truly changed her mind before proceeding with further intimacies. The accused cannot rely on the mere lapse of time or the complainant's silence or equivocal conduct to indicate that there has been a change of heart and that consent now exists, nor can he engage in further sexual touching to "test the waters". [Emphasis added.]
Absent unambiguous consent, as the Court makes clear in the next sentence, "[c]ontinuing sexual contact after someone has said "No" is, at a minimum, reckless conduct which is not excusable". (See Criminal Code, s. 273.2(a)(ii).)
(ii) Credibility
[47] Like many cases of this nature, a careful evaluation of the credibility of the witnesses on both sides of the central divide is essential. The resolution of this contest in a criminal trial must be reconciled with the presumption of innocence and the collateral burden on the Crown to establish the physical and mental elements of the offence charged beyond any reasonable doubt. The question is not which of two conflicting accounts to believe or whose evidence is preferred. The question, rather, is whether there is any reasonable basis to doubt the inculpatory force of the Crown's case.
[48] The scaffolding for such adjudications is well settled. R. v. W.(D.), [1991] 1 S.C.R. 742 remains the germinal decision. That case, as said by the Supreme Court in R. v. J.H.S., 2008 SCC 30, 231 C.C.C. (3d) 302, at para. 9, "simply unpacks what reasonable doubt means in the context of evaluating conflicting testimonial accounts". Like most experienced trial judges, I have had ample occasion to set out the appropriate analytical framework. R. v. Santos-Medeiros, 2015 ONCJ 396, at paras. 62-65, affords one illustration of this project. The relevant passages (if somewhat abbreviated, modified for the task at hand, and denuded of their reference to the authorities initially cited) follow:
[49] An evaluation of the credibility of the narrative witnesses is crucial to the disposition of this prosecution. "Credibility" comprehends two distinct facets or dimensions of creditworthiness – honesty and reliability. The former, "honesty", speaks to the truthfulness, sincerity and candour of a witness' evidence while the latter relates more to factors that bear on a witness' perception, memory and communication. Both considerations impact on the trustworthiness – the accuracy and believability – of a witness' testimony.
[50] It matters not that the account of a complainant is preferred or found more probable than that advanced by an accused. The immutable standard is that of proof beyond reasonable doubt. Whatever its moorings, the Crown's failure to crest this hurdle necessarily translates into acquittal. R. v. W.(D.) and its many progeny make clear that, irrespective of its source, so long as there remains a basis for reasonable doubt respecting the veracity or correctness of a vital element of an inculpatory account an accused must be acquitted even if he does not testify or his evidence is entirely rejected.
[51] A judge presiding at a judge-alone trial must, like every trier of fact, assess the credibility of the complainant and, where, as here, he testifies, the defendant in the context of all other evidence and not in isolation. A judge may, with reason, accept none, some or all of the evidence of any witness and accord different weight to different parts of the evidence that he or she does accept.
[52] A foundation for reasonable doubt may be found in the evidence of any witness or combination of witnesses or in the absence of probative evidence. So too, a finding of guilt may be safely grounded on the evidence of a single witness – if sufficiently credible and persuasive to meet the requisite standard for such verdict. Reasoned acceptance of an inculpatory account may itself afford a proper basis for rejecting exculpatory defence testimony.
(c) Applying the Law
[53] The complainant's narrative of the pertinent events is coherent, logical and inherently sensible. Assessed through the twin credibility lenses of honesty and reliability, and divorced from any contradictory account, there is no reason to reject either the complainant's integrity or the cogency of her evidence. Again: the complainant's consent to sexual intercourse was contingent on the defendant's use of protection. Consistent with this posture, she both agreed to engage in intercourse once he complied with her request and withdrew that consent when protection was no longer available. As the defendant never advanced a prophylactic replacement or alternative, there was no basis for the complainant to renew her consent. Absent her subjective consent, and absent (on her testimony) any evidentiary premise for the defendant to realistically believe otherwise, the offence of sexual assault is made out.
[54] Even apart from the defendant's antagonistic account, there are reasons to at least question the veracity of that advanced by the complainant. Her reliance on intoxication as an explanation for some awkward responses in the 911 calls (the closest independent evidence of the complainant's state of mind) is both forced and contrary to her own recall of her alcohol consumption and the descriptions of the officers who observed her relative sobriety. Her testimonial explanation for refusing to identify herself to the police dispatcher and insisting that she bore a single-word name is unconvincing; her evasion of the 911 operator's questions speaks more, I find, to an effort to extricate herself from an uncomfortable situation of her own making. Similarly, her evidence as to her naiveté about the workings of western justice systems, her mental disarray and the traumatic impact of the alleged sexual assault on her capacity to afford coherent explanations to the dispatcher do not readily correspond with her advanced education or patent intelligence, her composed manner on the phone, or the fact, as fairly conceded by Crown counsel, that she presents as a "sophisticated" witness.
[55] There is also a question as to the motive for the complainant's allegation or, put somewhat differently: was the complainant's undeniable animus toward the defendant predicated on his forcing his unprotected self on her without her consent or was it a product of her belief that he had lied to her about not having a condom and, as a result, had been tricked or punked by him? On the first theory, she had been effectively raped. On the second, her consent to resume sexual activity was the product of a deliberate misrepresentation to which she would never have acquiesced had she known the true facts. Put otherwise, her consent (if such it was), was vitiated by fraud. Either way, the complainant would reasonably feel, in her own oft-repeated word, "disrespected". I note, however, that (on the evidence of both parties), the complainant's first verbal expression of anger and resentment did not occur until after the defendant left the bedroom for a smoke and she, in his absence, located the condom that, she believed, afforded incontrovertible evidence of his deceit – that is, the second basis for her being wronged.
[56] In my view only the first of these two theories has legal traction to negative consent. If the defendant persisted in copulating with the complainant while knowing or being reckless or willfully blind as to the absence of consent, then he is clearly guilty of sexual assault. If, however, he honestly believed that he had no alternative protective device and the complainant, having been so informed, agreed to resume sexual intercourse, then no misrepresentation impaired the integrity of her consent. I have no doubt, to be clear, that the complainant, having found a single still-wrapped condom, was convinced that the defendant had deceived and taken advantage of her. But although less certain, I am also of the belief that the defendant was not at the time aware that he had this device. He professed such ignorance under oath. The complainant testified to the defendant's immediate denial of having any additional condoms when she first confronted him with her discovery. The defendant had unhesitatingly agreed to clad himself with a condom at the complainant's initial request. While he expressed an historical preference for having sex without protection, he testified, without contradiction or challenge, that his decisions in this regard were situational and, as the complainant, testified, he had always respected her sexual boundaries. In the cumulative light of this evidence, I find it most unlikely that the defendant would pursue unprotected sex with the complainant had he known that a replacement rested but a few feet away, or that he would have fabricated ignorance in this regard. Of course, even if, as I find, the defendant did not know of the second condom, there remains the question of whether, in all the circumstances, he was criminally liable for proceeding without one.
[57] None of the aforementioned concerns are ruinous to acceptance of the complainant's account. However, the complainant's testimony does not stand alone. That of the defendant, when combined with the cautions affecting the complainant's narrative, is ultimately fatal to the prosecution.
[58] In this two-person drama, the defendant is by far the less attractive protagonist. Even on his own evidence, he presents as self-absorbed, insensitive and, frankly, loutish. Nonetheless, his account, like the complainant's, is coherent, consistent through direct- and cross-examination, and internally rational. He obliged the complainant's request for protection. On his account, he "went down" on the complainant when the condom slipped off his penis. He then, without coercion or avail, invited fellatio. He did not, he says, try to force intercourse. Rather, the complainant pulled him on top of her, indicating consent by conduct. He demurred. He made the situationally appropriate inquiry commanded by the Supreme Court in Ewanchuk: "Are you sure?", reminding the complainant that he no longer had protection. "Fuck me", she verbally responded. And he did.
[59] In considering the totality of the evidence I am mindful that, on both parties' accounts, the defendant's hand was on the complainant's neck during their unprotected intercourse. The defendant says he acted at the physical and verbal urging of the complainant. The complainant's rendition of the event is, again, very different. I note, however, that the complainant never mentions being choked in her communications with the 911 operators until she advances it late in the second call and only in answer to the dispatcher's questions regarding her verbal response to the alleged sexual assault. Even then, choking does not form part of the complainant's grievance but, rather, is offered as a less than convincing explanation (at least in my view) for why she did not tell the defendant to stop. I note, further, that the complainant characterized her intimate relationship with the defendant as an "assertive" one in which each told the other what they wanted sexually, and that these preferences included routine spanking and choking.
[60] Where, as here, the ultimate determination rests on an assessment of credibility, the formulation prescribed by R. v. W.(D.), at para. 28, must be applied. Framed as jury instructions, the first two directions read:
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
To be very clear, I do not believe – in the sense of unqualifiedly accept – the defendant's evidence. It does, however, leave me with a reasonable doubt to whether the complainant did in fact refuse to consent to renewed sexual contact and precludes my fully crediting her denial that she communicated such consent to the defendant. I am not, in the end, persuaded that the defendant knowingly, recklessly or willfully blindly ignored the complainant's wishes. Most importantly, I am satisfied that the defendant's account of the consensual nature of his unprotected sex with the complainant on February 12, 2017 might reasonably be true. In the result, an acquittal must follow.
D. CONCLUSION
[61] Consistent with these reasons, I find the defendant not guilty of the single count of sexual assault on which he was arraigned.
Released October 15, 2018; Revised Reasons released October 17, 2018
Justice Melvyn Green