Court File and Parties
Information No.: 2811-998-17-27037-00
Date: April 27, 2018
Ontario Court of Justice
Her Majesty the Queen
v.
K.C.
Publication Ban
INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED pursuant to section 517(1) of the Criminal Code of Canada by order of Justice of the Peace C. McIlwain, Ontario Court of Justice, dated March 31, 2016 and pursuant to sections 486.5 and 486.4(2) of the Criminal Code of Canada by order of the Honourable Justice M.S. Felix, Ontario Court of Justice, dated November 27, 2017.
Proceedings at Reasons for Judgment
Before the Honourable Justice M.S. Felix
on April 27, 2018 at Oshawa, Ontario
Appearances
- T. Jackson – Counsel for the Crown
- S. Jaffer – Counsel for K.C.
Table of Contents
- I. Introduction
- II. Assault (Count 2) and Sexual Assault (Count 3)
- A. The Sexual Assault: Summary of Two Versions of Events
- B. Background of the Relationship
- C. Defendant's Evidence
- D. Complainant's Evidence
- III. Core Factual Findings
- A. Credibility and the Criminal Burden of Proof
- B. General Observations and Overall Conclusion: The Complainant
- C. General Observations and Overall Conclusions: The Defendant
- D. The Defence: Actual Consent and/or Honest But Mistaken Belief in Consent
- E. Consent and Honest But Mistaken Belief in Consent
- F. Other Arguments
- IV. Assault (Count 1)
Reasons for Judgment
FELIX, J: (Orally)
I. Introduction
This is a case about consent and honest but mistaken belief in consent.
The defendant is charged with assault and sexual assault in relation to one incident and a separate count of assault in relation to a separate incident. The prosecution has addressed multiple allegations of assault and sexual assault in a single count of sexual assault and a single count of assault between the 30 April 2017 and the 7 May 2017. The defendant's position is that complainant consented to all of the activity characterized as sexual assault and/or he was honestly mistaken as to her consent. He denies assaulting the complainant in concert with the sexual assault.
I find that the defendant committed a series of assaults, sexual assaults, and aggressive actions over a few hours prior to the complainant "voluntarily" yielding to full sexual intercourse. I find that the complainant did not consent to any sexual contact with the defendant and that her ultimate acquiescence was achieved through a series of coercive acts perpetrated by the defendant upon her person.
The aim of this judgment is to rigorously analyze the evidence at trial and to avoid stereotypical or sexist reasoning. This approach, with a healthy regard for the context of the circumstances, will show why the prosecution has established the absence of consent beyond a reasonable doubt and why the defendant may not have resort to honest but mistaken belief in consent.
The defendant is found guilty of all charges.
II. Assault (Count 2) and Sexual Assault (Count 3)
A. The Sexual Assault: Summary of Two Versions of Events
The defendant's version of events outlines an evening of conflict ending in consensual sexual intimacy. The defendant relies on a predominant staged cycle in the relationship that he has participated in many times. The first stage was conflict. The second stage involved his efforts to placate, mollify, and otherwise provide attention to the complainant. The third stage involved eventual forgiveness provided by the complainant (sometimes hard fought). The final stage was a return to intimacy including sexual intimacy. I have characterized this core theme described by the defendant as the "cycle" of the "on-again, off-again" relationship.
The defendant testified that he never assaulted the complainant. The defendant's perspective is that the circumstances surrounding the sexual assault allegation followed this typical cycle. Specifically, the defendant's perspective is that the complainant provided consent by words and gestures in that she kissed him encouraged him to perform oral sex on her, and specifically told him to have intercourse with her in graphic terms. Defence counsel argued, in the alternative, the defendant's version of events supported a finding that he had an honest but mistaken belief in consent.
The complainant's version of the events concerns a night of aggression, assault, coercion, and pressure, commencing with the un-announced and un-invited defendant attending her apartment late at night. The defendant was intoxicated by alcohol, aggressive and assaultive. The defendant forced his way into the complainant's apartment. Over several hours he repeatedly rebuffed the complainant's requests that he leave her apartment. He assaulted the complainant. On several occasions he touched the complainant sexually. These initial sexual assaults ultimately culminated in sexual intercourse. The complainant acquiesced and "voluntarily" engaged in sexual intercourse with the hope that this would put an end to the defendant's overtures.
It is this culmination of the events that night that requires careful analysis, context, and findings. I will explain in detail why the climate of oppressive conduct produced by the defendant vitiated any notion of true consent in law, and why the defence of honest but mistaken belief in consent is not available.
B. Background of the Relationship
Some features of the background of the relationship are commonly accepted as between the complainant and the defendant. The complainant and the defendant were in an intimate partner relationship "on again - off again" for two years. They were not married. They did not live together. The defendant did not have stable housing and would sometimes stay over at the complainant's apartment.
The complainant had two small children from a prior relationship. The defendant had one child from a previous relationship. Both witnesses testified that the relationship was not stable and constant. The complainant testified that they broke up a lot because of issues associated with the defendant's infidelity and the defendant's excessive use of alcohol. For much of the relationship the defendant was battling issues with alcohol and had even taken medical treatment to assist on more than one occasion.
C. Defendant's Evidence
The defendant is a 29 year old adult male with a nine year old son. He graduated from grade 10 and worked in landscaping on and off for five years.
The defendant commenced his testimony by addressing his struggle with addiction issues. He described being addicted to alcohol for approximately 10 years and how he accessed residential treatment facilities to assist with detoxification and relapse prevention.
The defendant explained how he became involved with the complainant. They spoke online for months, spoke on the telephone for hours, and finally became romantically involved in the winter of 2015. At first the relationship worked well and it was clear that they loved each other. After a while, the complainant became insecure and focused on a perception that he was always cheating on her which put a big strain on the relationship and broke the trust. This caused weekly arguments.
The day of the sexual assault allegations the defendant and complainant had communicated electronically throughout the day. They used Facebook video chat to communicate in an intimate manner. Thereafter, the complainant invited him to come to Bowmanville so he could have "the real thing" - meaning sexual intercourse. The defendant testified that he told the complainant that he was not going to come to Bowmanville to visit her, even though he planned to do just that, as he wanted to surprise her.
At around 5:00 p.m. the defendant, holding his duffle bag of personal possessions, went to the Beer Store and picked up a six-pack of Canadian beer in bottles. He sent a text to a male person who was the neighbour upstairs in the same building as the complainant. He texted this male person that he was coming up to Bowmanville, that he had some marijuana and a couple of beers, and asked if he wanted to hang out for an hour. This male neighbour was home and was receptive to the defendant's suggestion.
At around 6:00 p.m. the defendant caught the GO bus to Bowmanville and arrived at the complainant's apartment building at around 7:00 p.m. or 7:15 p.m. He attended the male neighbour's apartment. The defendant testified that he sent text messages to the complainant inquiring about whether the kids were going to bed soon and then the complainant responded that she would let him know when she had completed putting the kids to bed. About an hour after this text conversation the complainant texted him to come over. He told the male neighbour he was leaving to go to the complainant's apartment.
The defendant testified that he went to the complainant's apartment and placed his iPhone under her door. He tried to record her with his iPhone because of insecurities and suspicions he had about her cheating on him. He left the phone under the door and went downstairs for about 10 minutes or so and had a smoke. He came back and retrieved the phone and there was nothing audible on the recording for him to discover. He replaced the phone and went back downstairs to let it record again for the second time at around 9:00 p.m. At this time he left for a longer period of time and finished another bottle of beer, and smoked cigarettes. He finished his cigarette and beer went back upstairs to the front door of the complainant's apartment and noticed his iPhone was gone. Panicked, he knocked on the door. The complainant opened the door, held up his phone to his face, smirked, and confronted him regarding a female contact known as "S" (in this judgment) who she had retrieved from his phone.
The defendant asked for his phone back and the complainant refused and told him to leave. He stood in her doorway and told her he didn't want to leave without his phone. He described the complainant as being difficult with him and upset about the revelation concerning the other woman "S". The defendant says that he entered the apartment and shut the door behind him. Again the complainant asked him to leave. Again he refused to leave without his phone. He described the complainant shoving him and refusing to release his phone. He then took his duffel bag and went on the balcony of the apartment and the complainant followed him. They engaged in a conversation about the other woman "S", the circumstances surrounding his surreptitious surveillance of her with his phone, and the status of their relationship.
The defendant described professing his love for the complainant although she was not receptive to this overture at first and her retort was for him to go be with the other woman. The defendant testified that the complainant said she was calling him a cab and asked him to wait downstairs. He did not leave the apartment and said the cab driver would call when he arrived. He decided to wait on the balcony. He also told the complainant that he had no money for a cab.
The defendant testified that he remained on the balcony for some minutes until the complainant said that she was tired, the kids were going to be up early in the morning, and she wanted to go to bed. She also said that if he wanted to stay he could stay on the couch. He stayed on the balcony, had a couple of cigarettes, and let the complainant go to her bedroom. He felt that he was giving her a little bit of space. He reasoned that her permitting him to stay on the couch was helpful and that he would not have to return to Oshawa in the middle of the night. Further, this would facilitate them being able to talk through their issues and resolve their differences like they always did.
Then he went to the complainant's bedroom where he described the complainant lying down in bed facing away from him towards the wall. He reached out and touched her shoulder and gave her a little rub and asked if she could come out and talk. He testified that he said to her it was not good to go to bed at night with arguments unresolved. The complainant asked him what he wanted and on his version of events told him no, that she did not want to go out into the living room with him. He then left and went back out onto the balcony. While he was feeling defeated, he was resolute in his mindset that the complainant would to want him to give up. She wanted him to keep trying. So he gave her another bit of time had a few more cigarettes, and another beer and then he came into the bedroom again. This time he tenderly grasped her hand and again entreated her to come out to the living room and talk. The complainant got up and he helped her get out of the bed grasping her hand and permitting her to walk in front of him out to the living room.
The complainant went to sit on the couch and he grabbed the blanket and she snapped at him and told him she's not sleeping out here with him. She started to head back to the bedroom and he begged her to "please, just give me this chance". The defendant testified that she relented and returned to her position on the couch. At the couch they commenced a discussion about the relationship. The sticking point was her contention that he had been unfaithful with another woman. At this point, coincidentally, she advised him that her leg was sore. He wanted to be nice. Thinking that he might convince her of his true feelings and mindset, he went to get the treatment cream and applied cream to her leg with her permission.
Thereafter there was further conversation about their relationship and the defendant's involvement with another woman. The complainant was on the couch and told him that she was getting tired and she wanted to go to bed. He told her that he loved her and then he kissed her on the lips. He called her baby and the complainant remarked that he never called her "baby". He then kissed her cheek. Things began to get warmer and the passion arose. The defendant described being able to feel the passion arising within both of them.
The complainant took her hand and rubbed the back of his head. He then kissed her cheek and kept going down her neck and then kissed down the middle of her chest and then the complainant pushed his shoulders down towards her vagina and he performed oral sex on her while she placed her hands on his head and was massaging his scalp. The complainant was arching her back and pulling him in closer. The complainant then said: "K., I'm horny. Just fuck me." and then he left her nether region to kiss her on the lips. The complainant helped him undo his belt and assisted him and he took off all his clothes and then they engaged in consensual sexual intercourse.
Afterwards the complainant went to the bathroom to clean herself and he got a bowl of chips and turned on the television. The complainant came back out and told him that she was tired and could not sleep on the couch because it hurt her leg. They said good night to each other and she went into her bedroom to sleep.
D. Complainant's Evidence
The complainant commenced her evidence with some testimony about the defendant's struggles with alcoholism. She described trying to be supportive but the defendant's struggles cycled between efforts at treatment and binge drinking. The complainant described having to kick him out of her apartment at times and even having to go and obtain the help of neighbours to remove him from her residence because of his alcohol-related demeanor.
The complainant was asked questions about her mental health. She acknowledged that she took medication for mental health issues including obsessive-compulsive disorder, post-traumatic stress disorder, and a compulsion to pull her hair out in circumstances of high anxiety.
The complainant provided some background to the relationship. She described conflict over perceived infidelities in the relationship. She acknowledged that his was a mutual concern at times and eventually the issue would get worked out. The complainant also acknowledged that the defendant would apologize, say that he loved her, ask for forgiveness, and do nice things for her to make up. Sometimes she tried to make him earn her forgiveness - work for it. At times she told him later that he should not simply leave and should try harder to repair the relationship. This approach on her part (based on her testimony) assumed that he was not heavily intoxicated and aggressive.
Turning to the day and night of the sexual assault allegations the complainant described electronic communications earlier in the day including Facebook communications but she testified that there was no plan for the two to meet that day.
At approximately 10:30 p.m. the complainant was getting ready for bed and turning out the lights in her apartment. She had already put the children to bed. She was dressed in her nightgown ready to retire for the evening when she noticed something odd at her front door. The front door was a larger than normal gap at the bottom of the door because there is no dirt flap affixed to the bottom of the door. She saw something black sticking out from under the door. She investigated and discovered that it was a cell phone. When she examined the phone she recognized it as the defendant's Apple iPhone. Notably, it was unlocked and "taping" (i.e. that is to say it was on record). She noted that no one had knocked or rung the doorbell to her apartment.
The complainant started going through the defendant's phone because she was nosey and he always kept it locked. As she was perusing the phone she noted a contact named "S" in the defendant's phone. This was a female person that they had argued about. The complainant believed that the defendant was cheating with "S" and this had been the source of some conflict.
At this point the defendant appeared at her front door for the first time. He banged at her front door. She opened the door after looking at him through the peephole. She did not see where he had come front. She did not want his banging on the door to wake up her children.
The complainant described the defendant as being intoxicated and aggressive. He was not slurring his words but he could not walk straight. The complainant immediately confronted him with the phone contact "S" showing him his phone. The defendant grabbed the phone back from the complainant and thereafter she described that they started pushing and shoving each other at the doorway. The defendant was trying to come into the apartment, and the complainant was telling him he was not coming in. She was holding onto the door trying to keep him out. Eventually the defendant pushed her with two hands and was able to force his way into the apartment, he then stumbled and fell in the hallway inside the complainant's apartment due to his level of intoxication.
In the hallway outside the kitchen there was a further argument during which the complainant threatened to call "S" and the defendant aggressively raised his fist and told her not to contact this person. The complainant described them pushing each other in the kitchen and the defendant being mad because she was repeating the phone number that she had evidently memorized for "S". During this discussion the complainant told the defendant to leave several times and he refused.
The complainant denied that there was any conciliatory discussion at this point. The defendant did not apologize and attempt to convince her that she was the one he wanted. The complainant testified that it was the exact opposite - he was trying to upset her and was describing his interaction with the other woman and how they met through his treatment program. He then went on specifically, he told her that he had "...fucked T" which is short in this judgment for another woman. This was a revelation to the complainant who had only suspected him of cheating with "S". The complainant testified that the defendant went on the balcony for a smoke and she did not join him there. He went into the kitchen and was playing some music on his cell phone, and was trying to get her to listen to the music when he dropped his phone due to his level of intoxication. He became angry and upset and began as a result of this and began pushing the complainant from the kitchen to the living room couch.
On the couch he started pulling her leg back and it hurt her. He tried to touch her vagina. The complainant concluded that the defendant was trying to sleep with her (i.e. have sexual contact with her). She shoved the defendant, using two hands, away from her and crawled on the floor towards the television in an effort to get away from him. The defendant forcefully came on top of her and physically pried her legs open while she was positioned on her back. He then lay on top of her but could not produce an erection. He was trying to kiss her and she was moving her head and would not reciprocate. The complainant testified that she did not want to have sexual relations with the defendant. Ultimately she was able to physically remove herself from his grasp.
The complainant described the defendant as frustrated that she would not sleep with him. There was a discussion about getting a taxi so the complainant pretended to call a taxi from the bathroom because she did not want to alert the defendant to the location of her cell phone. It was hidden. The complainant believed that he wanted access to her phone and the tax conversation was a ruse. When she came out of the bathroom and told him the taxi would be downstairs the defendant told her "never mind about the taxi" which confirmed her suspicion.
She told the defendant that she had to get up in the morning and she was going to bed. She went into her bedroom. Thereafter the defendant came into the bedroom pulled her by the left leg attempting to pull her out of the bed. This was hurting her leg. She eventually got up and walked out of the bedroom rather than risk waking the sleeping children in the room.
The defendant then put her back on the couch and pushed her down. During cross-examination the complainant stipulated that he pushed her down on the couch with his arms, kept her on the couch, and restrained her. He again pushed her leg up. The complainant told him she was not going to sleep with him. She just wanted to go to bed. She was tired. And at this point she told him he could sleep on the couch as she just wanted to go to bed. She told him to sleep it off (referring to the alcohol) on the couch and she knew from their relationship that he would be sober in the morning.
She went back to her bedroom to go to sleep for the second time. The defendant entered the bedroom, grabbed her bible, he threatened to rip pages out of her bible if she did not come back out to the living room. She relented and went to the living room. At the couch there was a struggle over her bible. The complainant described trying to get her bible back, and pushing the defendant, punching him, and grabbing his hair. Eventually she was able to get her bible back.
The defendant went out to the balcony. The complainant went to her front door, opened the door, and began calling out for a neighbour who has helped her in the past calm the defendant down. But he defendant pulled her back into the apartment by grabbing her arm. He then maneuvered her back to the couch.
At the couch the defendant started telling the complainant that he loved her. He called her "baby". He was making efforts to try to have her calm down. Then he started trying to rub her vagina. She felt that he was once again trying to get her in the mood to have sex. He digitally penetrated her and she pushed his hand away. At some point he tried to perform oral sex on her and she pushed him away with her hands. At a later point she pushed his hand away and touched herself rather than let him do it. He grabbed her leg and jerked it back. She told him that she was in pain and he went and got numbing cream from the kitchen and applied it to her leg. Thereafter he resumed touching her vagina. She tried pushing him off of her, touched herself, and ultimately let him use his fingers in her vagina.
She acknowledged in cross-examination that he tried to perform oral sex on her but she pushed him away. She denied she was running her hands through his hair, pulling him towards her, or that she told him that she was horny and he should fuck her. The complainant testified: "...I voluntarily slept with him when he did get hard. I wanted him to just stop." After he put on the numbing cream the complainant testified: "[a]nd again he started to touch me and I - at that point, I did voluntarily sleep with him." When asked what her reason was to sleep with him at this point the complainant testified: "It was 2:30 a.m. in the morning and I just wanted - you know, I still loved him at that point. I was frustrated. I was angry and you know - I - I just wanted to go to sleep, I was so tired." The complainant also testified that from previous experience she knew that he would generally pass out after having sex. The sexual intercourse did not last long. The defendant ejaculated. She went to the bathroom, cleaned herself off. When she returned he was passed out on the couch. She returned to her bedroom and slept.
In the morning, things were awkward. She had to get the children ready for school and did not want to talk in front of the children. Later she was getting ready in the washroom and they had a discussion about his infidelity with the female contact "S" listed in his iPhone. She testified that the defendant was crying and upset. She described being confused about their relationship given the revelation of the infidelity and whether she was the girlfriend or the "side girl".
III. Core Factual Findings
A. Credibility and the Criminal Burden of Proof
A trial judge has a duty to set out reasons clearly so that the pathway to conviction or acquittal is clear. This case turns on the analysis of credibility issues and the application of the criminal burden of proof. As the trial judge I had the opportunity to carefully evaluate the complainant and the defendant first-hand. I must analyze their evidence in the context of all of the evidence and explain what evidence I accept, what evidence I reject, and what weight I put on the evidence I have heard.
When assessing credibility, a trial judge must consider all of the evidence and may believe and accept all, none or some of a witness' evidence: R. v. Francois, [1994] 2 S.C.R. 827, at para. 14. A trial judge is entitled to accept part of a witness' evidence while rejecting other parts enroute to determining the weight to be accorded those individual parts of evidence: R. v. Howe, [2005] O.J. No. 39 (C.A.) at para. 44. The trial judge need not believe or accept the defendant's evidence completely or comprehensively in order to have a reasonable doubt: R. v. Minuskin, [2003] O.J. No. 5253 at para. 22.
I am guided by the instruction in W.(D). v. The Queen (1991), 63 C.C.C. (3d) 77 (S.C.C.) [W.(D)] in analyzing whether the prosecution has proven any of the allegations beyond a reasonable doubt:
1. First if I believe the evidence of the defendant I must acquit him. The defendant's position is that the complainant consented or he honestly but mistakenly belief in her consent given the circumstances. The prosecution must prove the complainant did not consent beyond a reasonable doubt. If I believe the evidence of the defendant then consent has not been proven beyond a reasonable doubt. The defendant need not prove honest but mistaken belief in consent. If I find any foundation for this defence in the evidence at trial then the prosecution would fail due to the absence of mens rea.
2. Second, if I do not believe the testimony of the defendant, but I have a reasonable doubt on the issue of consent I must acquit him. Further, even if I do not believe the defendant if there is any foundation for honest but mistaken belief in consent, I must acquit him.
3. Even if I am not left in doubt by the evidence of the accused, I must still examine the evidence at trial and determine whether that evidence establishes the guilt of the defendant beyond a reasonable doubt. In other words, if I reject the evidence of the defendant there is no "knee-jerk" conviction as a consequence.
4. In cases such as this I believe that a fourth instruction is appropriate "If, after a careful consideration of all the evidence, you are unable to decide whom to believe, you must acquit.": R. v. S.(J.H.), 2008 SCC 30.
In this way, W.(D.) helps to sharpen the proper focus in this trial - there is no such thing as a pure credibility contest between the complainant and the defendant. The focus must remain fixed on the criminal burden of proof and whether or not the evidence adduced by the prosecution establishes guilt.
B. General Observations and Overall Conclusion: The Complainant
The complainant testified for approximately two days in total in this trial. My overall view of this witness (for the reasons expanded upon and detailed in this judgment) was that she was credible on the core issues to be resolved around the sexual assault allegation and the assault allegations. The complainant presented as a challenged individual given some of her mental health issues outlined. Without intending any disrespect to the complainant, her demeanour was infused with insecurity. She was a simple, straightforward, direct witness - not proud or self-confident.
It was clear that the complainant had significant feelings for the defendant and at the time wanted to maintain a relationship with him. She did not present as a manifestly egotistical or biased notwithstanding the specter of infidelity. At bottom, I honestly accepted her evidence. I found her to be a quiet, credible, strong, sincere, and reliable witness on the important issues.
C. General Observations and Overall Conclusions: The Defendant
The defendant was ably assisted by his counsel in the elicitation of his version of events. The submissions provided by defence counsel were focused, on-point, and helpful to me. But it is my considered finding that overall the defendant was not a credible witness. Frankly, defence counsel's submissions were very helpful in tempering my initial negative impression of the defendant's evidence. But notwithstanding insightful assistance from defence counsel, I conclude that I do not believe some of his evidence, and I seriously question other areas of his evidence. Finally, I do have some reliability concerns about his evidence.
Part of this conclusion is driven by demeanour evidence - evidence that I accorded minor weight given the frailties associated with that category of evidence. But it was still a factor. I could not ignore that the defendant had difficulty answering questions directly at times unless specifically focused on the question or provided direction by the Court. At other times the defendant provided lengthy responses to focused simple questions. At still other times the defendant provided answers far beyond the scope of the question asked. In my view these problems were more pronounced in cross-examination. After several efforts by the Court to address these issues the Court had to make a decision to simply stop trying to intervene because it was not helping. In addition, there was some variance in some answers provided in direct examination and cross-examination.
Given the prominence of these features of the defendant's presentation defence counsel acknowledged addressed each issue squarely during submissions. Defence counsel submitted that the defendant treated his testimony as if it was cathartic therapy session. His answers provided deeper illumination of his personal challenges of alcoholism and the stressors of his relationship with the complainant. Defence counsel submitted that the defendant's intent was not to obstruct and obscure. I accept these submissions provided by defence counsel to a degree and the argument presented by defence counsel diminished the impact of the defendant's poor performance as witness and the weight that I placed on this issue. Nevertheless, objectively speaking, the defendant presented as remarkably self-absorbed, and narcissistic. In the remainder of this judgment I will explain how his perspective informed his actions and why I did not believe his evidence on core points.
D. The Defence: Actual Consent and/or Honest But Mistaken Belief in Consent
1. Introduction
At the outset of the analysis let me clearly summarize my conclusions. I accept the evidence of the complainant. She did not consent to any of the sexual contact with the defendant that night. She did not kiss the defendant, direct him to perform oral sex on her, or tell him in lustful terms to have intercourse with her. That she "voluntarily" had sex with the defendant requires perspective and context. She did not consent to any of the sexual acts that night. She acquiesced, gave up, and capitulated, as a direct result of the aggressive, oppressive, persistent, drunken, sexual and assaultive conduct of the defendant that night.
I reject the defendant's evidence generally about the sexual contact with the complainant. Furthermore, I specifically reject as untrue, his assertion that the complainant directed him to perform oral sex on her and to have intercourse with her. His evidence does not leave me in a state of doubt. The Crown has proven beyond a reasonable doubt that the complainant did not consent. The defendant may not rely on a defence of honest but mistaken belief in consent.
2. The Foundation for the Defence of Consent and/or Honest But Mistaken Relief in Consent
Analyzing nuanced personal relationships requires a comprehensive analysis routed in context and perspective. The defence in this case has two main related pillars in support of consent and honest but mistaken belief in consent: (1) the defendant's commitment to the relationship with the complainant; and (2) the prevailing "cycle" previously described in the two year relationship.
The first pillar concerns the defendant's testimony that notwithstanding his conduct and the circumstances he was committed to trying to work out the difficulties in the relationship with the complainant. The defendant testified that he was committed to the complainant and wanted a sustained relationship because he loved her. This is important context for the second pillar - what I have coined the "cycle" of the relationship. The defendant testified that the complainant and he would have conflict followed by his efforts at mollification and pacification. He had learned from past experience that he had to be persistent and continue his efforts to seek forgiveness from the complainant in such circumstances otherwise the conflict would worsen. In prior similar situations he had been specifically told by the complainant that he should not give up easily. In this context, the historical cycle of the relationship followed a predictable course - conflict, placation, begging, sweet words, eventual forgiveness, and then potentially sexual intimacy.
The specific details of the sexual intimacy associated with this cycle was addressed by defence counsel in a s. 276 application that I dismissed on its merits. That being said, I still considered this argument as part of the overall defence. It was not necessary to minutely examine the specific details of prior sexual acts to understand the cycle of the relationship described by the defendant. Defence counsel's point (as expressed during submissions on the s. 276 application) was that the cycle of the relationship provided needed context to the actions of the defendant that night. Defence counsel submitted that the implications of the defendant's true commitment combined with the cycle of the relationship contributed to a state of mind held by the defendant. These twin pillars informed his refusal to leave the apartment despite being told to leave several times by the complainant. These twin pillars informed his persistence in placating the complainant, seeking her forgiveness, and in the course of events that lead to consensual sexual intimacy.
I accept the evidence of the defendant insofar as it pertains to this "cycle" of the relationship. when describing this nuanced cycle I thought the defendant was introspective and compelling. I also find support for this "cycle" in the evidence of the complainant. Notwithstanding my acceptance of his views in this regard, my analysis of the circumstances that night leads me to a markedly different conclusion about the events.
a) The defendant's commitment to the relationship
I doubt the sincerity of the first pillar - the defendant's testimony wherein he profusely pronounced his true love for the complainant and described how that sentiment motivated his actions on the night in question. First of all, the defendant's repeated syrupy self-absorbed pronouncements in this regard did not accord with what I found were his actions that night. I did not believe these tortured pronouncements entwined with verbose rambling answers to simple direct questions. Second, after the revelation that the defendant had the contact information for "S" in his phone and the complainant confronted him about this fact, the defendant told the complainant that he had "fucked ["T"]". Clearly, the intent was to hurt the complainant.
The defendant is not on trial for being a womanizer. This is not a moral assessment of his character but it is an assessment as to whether his actions over all support the proposition that he claimed at trial - his commitment to the complainant. The complainant had just received confirmation from the defendant that he was cheating on her with two other women. I am entitled to critically evaluate his professed true love and commitment to the complainant given he has made this a prominent feature of his defence.
b) The defendant's purpose in attending the complainant's residence
I find that there was no pre-existing plan for the defendant to come over to the complainant's residence that night. I accept the evidence of the complainant that there was no pre-existing plan for the complainant and the defendant to meet that night. The defendant attended the complainant's residence unannounced and uninvited to spy on her given mutual insecurities about infidelity, to measure the prospect of obtaining sexual relations with her that night, and to have a place to lay his head that night. There are several reasons why I find this to be so.
The defendant testified about four potentially corroborative electronic sources:
That he had communications with the complainant's male neighbour around going to his residence and consuming alcohol and marijuana;
That while at the neighbour's residence he and the complainant were keeping in touch regarding timing for his arrival;
That he had Facebook video chat communications with the complainant during the day wherein he and the complainant were "intimate"; and
He had communications with the complainant where she invited him over for "the real thing".
There were no corroborative electronic communications put into evidence. In particular, these sources were not available to corroborate the defendant on crucial aspects of his version of events. Think about this for a moment. Communications from the complainant around arrangements to come over to her apartment after the kids were put to bed would have been probative concerning credibility.
In any event, the defendant was mildly inconsistent on this point. While he advanced the information about Facebook intimacy and an invitation extended by the complainant to come over for actual physical intimacy implying that she was aware of his intentions (see his testimony where he described text messages asking her if the kids were in bed yet), but he also testified that the complainant was completely unaware he was coming over. He also testified that he wanted to surprise her. That he was intent on checking up on the complainant without her knowing.
Finally, this position taken by the defendant is inconsistent with actions he subsequently performed. He used his iPhone to conduct surreptitious surveillance of the complainant on two occasions. His explained rationale for this action only makes sense if the complainant was unaware of his impending arrival at the apartment building.
While it is true that the defendant is not required to prove anything in a criminal trial and in particular he is not required to produce corroboration, my respectful view is I am entitled to critically examine his testimony and observe that the absence of this evidence is unavailable to corroborate him on a key issue. In a similar manner I note the absence of corroborative evidence in relation to the complainant's evidence about the defendant ripping her bible further on in this judgment. In sum: the evidence was unavailable, the defendant was inconsistent on this point, and his version does not accord with the actions he did take (i.e. surreptitious surveillance).
c) Surreptitious Surveillance
The defendant surreptitiously surveilled the complainant on two separate occasions that night by placing his recording iPhone at the base of her door. He testified that he did this because of his insecurity about infidelity.
This invasion of the complainant's privacy is relevant to other findings I have made in this trial including his level of intoxication, the fact that he was jealous and possessive of the complainant, and the fact that he needed a place to stay, and that he was interested in sexual intimacy.
d) The defendant was an uninvited guest
As I said there was no pre-existing plan to attend the complainant's residence that night. The complainant was getting ready to go to sleep at approximately 10:30 p.m. and had put her children to bed. The defendant did not check in with the complainant when he arrived at the apartment building earlier on that evening before going to the neighbour's residence.
If the discovery that he was conducting electronic surveillance on the complainant did not render him an unwelcome guest, other factors certainly did. Once the complainant discovered his surveillance and took the opportunity to snoop in his phone and confirm her suspicions about him consorting with another woman "S" there was conflict at her front door wherein she expressly and clearly indicated to him that he was not welcome in her residence. Furthermore, I find that the defendant was under the influence of at least alcohol if not alcohol and marijuana.
The defendant went to the complainant's apartment building unannounced and uninvited to conduct surveillance on her, to have a place to stay for the night as evidenced by the presence of his duffle bag, and to ascertain the possibility of sexual contact with the complainant.
e) Assault upon entering the complainant's apartment
I find that the defendant physically pushed and shoved the complainant with both hands in his effort to force his way into the residence against the complainant's wishes. He had no legal justification to assault the complainant.
I categorically reject defence counsel's submission that he reasonably believed he was justified in using this force to regain control of his instrument of surveillance that he abandoned at her front door. I find that having taken back his phone from the complainant at the doorway, he nevertheless engaged in mutual pushing and shoving with the complainant that culminated with him pushing the complainant and forcing his way into the residence against her wishes. In this circumstance it is of no consequence that the complainant also pushed him. She was entitled to refuse him entry particularly when she told him he was not welcome inside of her apartment and he was forcing his way into the apartment in an intoxicated aggressive state.
f) Intoxication by Alcohol and/or Drugs
I do not believe the defendant's recount about the volume of intoxicants he consumed that night. The defendant testified at length about his difficulties with the disease of alcoholism and described how he could consume enormous quantities of alcohol before there would be an impact on his functioning. He specifically cited the large volumes he could consume before being intoxicated.
The defendant's reliability as a witness - that is to say his ability to recall and recount events - was impacted by my finding that he was indeed intoxicated that night. I accept and I believe that he fell down in the hallway inside the apartment just like the complainant described. He frequently went out to the balcony to smoke - something he described that he liked doing when he was drinking. He testified himself to consuming alcohol during the bus ride to the complainant's apartment and at various times around the apartment building while smoking prior to even approaching the complainant's apartment.
Of note his testimony on the assault counts addressed his use of alcohol as well. With respect to alcohol consumption and the impact on his memory the defendant vacillated depending on the question in the context. On the one hand he professed an ability to drink enormous quantities of alcohol before being intoxicated (e.g. two cases of beer), on other occasion (such as the assault on the mattress incident) approximately 12 beers provoked memory loss. I find that where convenient, the defendant cited phenomena of flashbacks as an aid to helping him to piece together events. For example, during direct examination he testified that he pinned the complainant on the mattress relevant to the assault count, during cross-examination he testified that due to alcohol consumption he did not have a recall of pinning her on the mattress. The defendant professed a specific positive memory that he did not spit in the complainant's face yet he evaded answering focused cross-examination questions on point.
I do not have to definitively resolve the issue of what volume of intoxicants the defendant consumed. His record as to his consumption is either false, underreported, or unreliable. An alternative could be that the combination of alcohol and marijuana produced the effect. On any construction of his evidence he would have displayed minimal or no indicia of intoxication. I further question the defendant's sincerity and/or reliability when he described bringing four grams of marijuana for the male neighbour and only partaking himself of "a little puff". He did not even have enough money to fund a taxi ride home that night. I don't believe that he was in a position to gift quantities of marijuana in such a selfless manner.
The complainant knew the defendant well at the time of these events. I accept her evidence that he was intoxicated and that this physical state contributed to his aggressive demeanour, the fact that he fell down in the hallway near her kitchen, and the fact that he dropped his cell phone in the kitchen trying to listen to music. Frankly, giving some benefit of the doubt to the defendant I suspect but I do not know that his level of intoxication informed some of the more boorish features of his conduct that night (e.g. his invasion of the complainant's privacy).
In the end, this issue was relevant to a minor degree, to his credibility as a witness. It lent greater force to reliability considerations as a witness in that I cannot be 100 per cent sure that he was deliberately underreporting his consumption of intoxicants, but in the end his evidence at a minimum made me question his reliability and ability to recall details of the event.
g) Assaults within the apartment
Having forced his way into the complainant's apartment the defendant engaged in further aggressive and assaultive conduct. Once inside the apartment I find that the defendant raised his fist in a threatening manner when the complainant told him that she would contact "S" and repeated the phone number for "S" in a provocative manner. The defendant also pushed and manoeuvred the complainant from the front entrance area to the couch area in the living room.
The complainant told the defendant to leave several times and he refused to do so. I accept the complainant's evidence that the defendant at this juncture the defendant was not engaged in placating her and apologizing for his conduct.
h) The First Sexual Assault
Once the defendant manoeuvred the complainant to the couch he started pulling her leg back and it hurt her. He tried to touch her vagina. The complainant concluded that the defendant was trying to initiate sexual contact with her. I find this to be easily objectively sustainable as a sexual assault. The complainant had not consented to any of the conduct including the sexualized touching. There was no discussion foundational to issues of consent and no action on her part that conveyed to him reasonably that she was consenting.
I find that the complainant was able to shove the defendant, using two hands, away from her and she crawled on the floor towards the television to get away from him. The defendant then moved on top of her, positioned her on her back, and forcibly pried her legs apart. He then lay on top of her. He started to try to kiss the complainant. She resisted by turning her head to the side and would not kiss him back. She noted that he could not produce an erection.
I find the complainant's recount of this interaction probative and telling. She testified that she had just found out that he had in fact cheated with her on one woman she suspected -- ("S") -- and one woman she did not even know about -- ("T"). She was not interested in sexual intimacy given these revelations. She told him to go and sleep with one of the other women and not her. She told him that she did not want to sleep with him. Notwithstanding these circumstances the defendant did not cease his efforts.
i) Assault #1 in the Bedroom
The complainant described the defendant stopping for a period of time – frustrated that she would not sleep with him. She told the defendant that she had to get up in the morning and she was going to bed and she went into her bedroom.
Thereafter the defendant came into the bedroom and physically assaulted the complainant by pulling on her left leg to cause her to alight from the bed and return to the living room. This action hurt her leg. She eventually got up and walked out of the bedroom rather than risk waking the children.
j) The Second Sexual Assault
Having physically compelled the complainant to return to the living room couch the defendant then sexually assaulted her for the second time. I find that he physically placed the complainant on the couch, pushed her down and restrained her by holding her arms. He once again forced her leg up and the complainant told him she was not going to sleep with him. Tired and wanting to go to bed she relented somewhat and told him he could sleep it off (referencing the alcohol) knowing from experience that he would be better behaved in the morning.
k) The Third Sexual Assault
The defendant entered the complainant's bedroom again and damaged her bible to cause her to return to the living room. He was ripping out the pages of her bible. The complainant pursued him back to the living room to try to get her bible back. I found the complainant to be balanced in that she acknowledged that she physically assaulted the defendant at this juncture enroute to getting her bible back. I note as well that there was no objective evidence corroborative or in support of the complainant's evidence that her bible pages were ripped (e.g. by producing bible in evidence or the ripped pages) but I also noted that the defendant did not dispute this in his testimony.
The complainant went to her front door and began calling for the neighbor to assist her – a neighbor who had assisted in the past when the defendant was intoxicated and aggressive. The defendant pulled her back into the apartment by the arm and once again maneuvered her to the couch using physical force.
I accept that at this juncture the defendant was saying reassuring things to the complainant and seeking her forgiveness. But his focus was on sexual touching. He started rubbing her vagina trying to get her in the mood for sex. She pushed his hands away. He tried to perform oral sex on her and she pushed him away again.
l) Sexual Intercourse
The defendant and the complainant had sexual intercourse that night. There are two significant features of the complainant's conduct that night that require clear and rigorous analysis. First, when the defendant, yet again, began to touch her vagina she pushed his hand away and touched herself rather than let him do it. Second, she ultimately succumbed to his advances and engaged in sexual intercourse with the defendant "voluntarily". Notwithstanding this testimony and these circumstances, I am satisfied beyond a reasonable doubt that the complainant did not consent in law. Furthermore, the defendant may not avail himself of the defence of honest but mistaken belief in consent.
E. Consent and Honest But Mistaken Belief in Consent
The law of consent and honest but mistaken belief in consent is a challenging area of law. I am indebted to the submissions of both counsel seeking to assist me with this nuanced and difficult analysis. In my respectful view the summary of the law and analysis by Mr. Justice C. Hill in R. v. Wylie 2012 ONSC 1077, [2012] O.J. No. 1220 (S.C.) at paragraph 91 provides the most comprehensive and helpful guidance in 25 concise paragraphs.
Consent/Honest but Mistaken Belief in Consent
91 The governing principles relating to consent and the defence of honest but mistaken belief in consent may be summarized as follows:
...we must accept that the mens rea for sexual assault is also established by showing that the accused was aware of, or reckless or wilfully blind to, the fact that consent was not communicated. In other words, 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".
(Park, at para. 39)
(10) "[t]he defence of mistake is simply a denial of mens rea": Ewanchuk, at para. 44; Davis, at p. 794
If there is no evidence permitting an inference that the accused honestly believed in consent, then the accused in assuming consent must be taken to have closed his eyes to whether there was real consent, i.e., he must have been wilfully blind or reckless as to whether there was consent. In such a case, the required air of reality on the element of the honesty of the accused's belief will be lacking.
A man who assumes that equivocal acts such as these amount to consent to intercourse is assuming consent not on the basis of the circumstances, but as a result of recklessness or wilful blindness. The fact that the girls had an opportunity to leave the car before there was any indication that the accused had sexual intercourse in mind does not give rise to an inference of consent. The fact that Valerie did not scream although the car windows were open does not lend an air of reality to the defence: the two men were twice Valerie's age.
Non-consensual sexual touching is criminal unless, at the least, the accused honestly believes that consent has been communicated with respect to that touching. Thus, as a practical matter, the mens rea of the offence does not relate so much to the complainant's frame of mind as it does to the complainant's communication of that frame of mind and to the accused's perception of that communication. Furthermore, although consent may exist in the mind of the woman without being communicated in any form, it cannot be accepted by a reasonable finder of fact as having been honestly perceived by the accused without first identifying the behaviour that led the accused ostensibly to hold this perception. If the accused is unable to point to evidence tending to show that the complainant's consent was communicated, then he risks a jury concluding that he was aware of, or reckless or wilfully blind to, the complainant's absence of consent.
(Park, at para. 45)
In order to cloak the accused's actions in moral innocence, the evidence must show that he believed that the complainant communicated consent to engage in the sexual activity in question. A belief by the accused that the complainant, in her own mind wanted him to touch her but did not express that desire, is not a defence. The accused's speculation as to what was going on in the complainant's mind provides no defence.
For the purposes of the mens rea analysis, the question is whether the accused believed that he had obtained consent. What matters is whether the accused believed that the complainant effectively said "yes" through her words and/or actions.
(Ewanchuk, at paras. 46-7)
...the absence of conduct or language on the part of the complainant negativing consent is no longer sufficient to make out a defence for honest but mistaken belief. Rather, the respondent must honestly believe that by her words or conduct the complainant was communicating her consent to engage in sexual activity.
(R. v. M.O. (1999), 138 C.C.C. (3d) 476 (Ont.C.A.), at para. 14 per Finlayson J.A. (rev'd on a different basis, 2000 SCC 49, [2000] 2 S.C.R. 594))
His own evidence was that his belief as to consent arose only after initial sexual contact. That alone justified a finding of sexual assault, as he could not have had a mistaken belief as to consent at the time of the initial sexual contact.
(Dippel, at para. 17)
(23) section 273.2(b) speaks to circumstances where there is not unequivocal communication of consent:
The purpose of these provisions is to ensure that there is clarity on the part of the participants to the consent of the other partner to sexual activity. The legislative scheme replaces the assumptions traditionally -- and inappropriately -- associated with passivity and silence. Someone in Mr. Cornejo's circumstances takes a serious risk by founding an assumption of consent on passivity and non-verbal responses as justification for assuming that consent exists.
(Cornejo, at para. 21)
As observed by Justice Wood of the British Columbia Court of Appeal in R. v. G.(R.) (1994), 53 B.C.A.C. 254, 38 C.R. (4th) 123 at para. 29:
... s. 273.2(b) clearly creates a proportionate relationship between what will be required in the way of reasonable steps by an accused to ascertain that the complainant was consenting and "the circumstances known to him" at the time. Those circumstances will be as many and as varied as the cases in which the issue can arise, and it seems to me that the section clearly contemplates that there may be cases in which ... nothing short of an unequivocal indication of consent from the complainant, at the time of the alleged offence, will suffice to meet the threshold test which it establishes as a prerequisite to a defence of honest but mistaken belief. [emphasis added]
The respondent, by his evidence and his submissions at trial, seemed to suggest that it was entirely reasonable for him to rely on the complainant's failure to resist one level of sexual assault as a means of determining whether she was consenting to a higher level of assault. That is neither a reasonable step nor a tenable position. Doing nothing to ascertain that a person is consenting to sexual activity does not constitute a reasonable step. And committing a less serious sexual assault as a test of whether the person affected "consents" to more serious sexual activity is not a reasonable step either.
(emphasis in original)
The prosecution has established the intentional application of force and the sexual nature of the touching in respect of all three sexual assaults. The evidence of both witnesses clearly establishes sexual touching and sexual intercourse: R. v. Ewanchuk, [1999] S.C.J. No. 10 at para. 25. The remaining issue concerns consent and the "defence" of honest but mistaken belief in consent.
1. Consent
The prosecution has established the absence of consent beyond a reasonable doubt. This issue is examined from the subjective perspective of the complainant and is informed by my assessment of the complainant's credibility: Ewanchuk, at paras. 26, 29-30.
Consent is limited by both the common law and statute. The proper analysis of consent requires nuanced context and attention to the details and features of the relationship without falling into a trap of stereotypical sexist reasoning.
I believe the complainant's testimony that she did not want any sexual contact with the defendant that night. The complainant communicated a lack of agreement to engage in sexual contact several times and the defendant persisted with sexualized contact (see the first and second sexual assaults). Some attention to context is key. The defendant showed up intoxicated and unannounced. He surreptitiously surveilled the complainant. He pushed his way into the complainant's residence and refused to leave. The complainant was angry and upset with the defendant that night. She had just confirmed that he had contact information for "S" – a woman about whom they had argued. A woman who she suspected he was cheating with. Compounding that revelation was the defendant's hurtful statement that he was also "fucking [T.}" This was not known to the complainant. The complainant testimony that on the heels of the revelation that the defendant was cheating with not one, but two other women, she was not interested in any sexual intimacy with the defendant is believable. I believe her.
Having regard to the credibility and reliability determinations at large outlined in this judgment I specifically reject the defendant's evidence that the complainant encouraged him to provide oral sex on her person. I believe the complainant's evidence that she did not so encourage the defendant and in fact pushed him away when he attempted to perform oral sex on her person. I reject specifically the defendant's evidence that the complainant said "Fuck me K. I'm horny" or words to that effect. The complainant did not express anything of the sort. Whether the defendant has fabricated thee core pieces of his evidence or he is relying on his self-professed alcoholism "flashbacks" to assist his memory and is therefore unreliable I don't know, but I do not believe for a moment that this happened.
I find that the defendant was responsible for producing a climate of coercion and oppression punctuated by surveillance of the complainant, assaults committed against the complainant, and persistent sexual overtures over a period of a few hours. This climate was exacerbated by the defendant's refusal to leave when directed to by the complainant and his level of intoxication.
That the complainant ultimately gave up and had intercourse with the defendant does not conclusively determine the issue of consent. In such circumstances, that the complainant ultimately capitulated, acquiesced, or "gave up" after a few hours of this conduct is not consent. The defendant created a coercive environment that vitiated any notion of true voluntary consent: See Ewanchuk, at paras. 26, 29, 30, 36-40.
2. Honest But Mistaken Belief in Consent
The defendant's assertion of honest but mistaken belief in consent contemplates does not impose a burden on him to prove the defence enroute to the negation of mens rea. It is focused on the circumstance where the person (the accused) relied innocently upon a flawed perception of the facts: Ewanchuk, at paras. 42-44. The evidence must show that the defendant honestly believe that the complainant communicated consent: Ewanchuk, at para. 46. In essence, the so called "defence" is really about the absence of criminal moral blameworthiness – the mala fides or mens rea.
The defendant, mired in his focus on the cycle of the relationship, pursued and persisted in his assaultive behaviour and sexual advances and thereby manufactured a coercive sexualized climate. I reject the suggestion that the complainant by word or gesture invited sexual contact, the complainant acquiesced and succumbed to the defendant's efforts. The defendant cannot say his mistake is honest in such circumstances. Furthermore, the defendant cannot say that he took any steps to ascertain the complainant's consent. Given her refusal to engage in sexual intimacy (see the first and second sexual assaults) he was required to take reasonable steps to ascertain consent to sexual intercourse. Instead, he simply ignored her perspective that she did not want him in her residence and she did not want sexual contact with him. As explained by the Supreme Court of Canada in Ewanchuk at paragraphs 51 and 52:
51 For instance, a belief that silence, passivity or ambiguous conduct constitutes consent is a mistake of law, and provides no defence: see R. v. M. (M.L.), [1994] 2 S.C.R. 3. Similarly, an accused cannot rely upon his purported belief that the complainant's expressed lack of agreement to sexual touching in fact constituted an invitation to more persistent or aggressive contact. . . .
52 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". Continuing sexual contact after someone has said "No" is, at a minimum, reckless conduct which is not excusable. In R. v. Esau, [1997] 2 S.C.R. 777, at para. 79, the Court stated:
F. Other Arguments
The analysis of two other arguments made by the defendant does not move me from my findings.
1. Motive to Fabricate
The defendant argues that the complainant had a motive to fabricate sourced from (1) the revelation that notwithstanding the defendant's stated commitment to her he was still consorting with "S"; (2) her emotional response to finding out that the defendant was cheating; and (3) the fact of police contact after an interaction between the complainant, the woman "S", and the defendant at a Tim Horton's "drive thru".
I accept the defence evidence sourced from cross-examination that the complainant confronted "S" and the defendant at the Tim Hortons "drive thru". I have no doubt that the complainant was hurt and angry as a result. Finally I do accept the defence contention that this circumstance signaled to the complainant that she and the defendant were definitely broken up. However I do not find that the complainant fabricated the foundation for the criminal offences she reported to the police as a result of these circumstances. In other words I did not make the logical leap that the complainant was a scorned lover seeking revenge by fabricating the absence of consent.
2. Post-Offence Contact with the Defendant
In the days following the sexual assaults the complainant and the defendant had contact including electronic contact and direct physical contact. These circumstances of contact between the parties after the sexual assault does not cause me to doubt that the complainant was sexually assaulted.
There is currently a huge debate in our society about sexual assault and at times that debate turns to the reaction or conduct of the complainant after the event. In my respectful view the task of the trial judge is to refrain from engaging in stereotypical reasoning about how a complainant (or a defendant for that matter) should react: (See generally the recent discussion in R. v. Barton 2017 ABCA 216). Complainants and defendants are peculiar human beings with unique characteristics. The challenge for a trial judge is to recognize that there is no proscribed manner for people to act in the aftermath of an event.
The complainant explained that in the aftermath she was confused about the status of their relationship and she was confused about him continuing to contact her. Defence counsel's position is that the revelation that it is over and he is favouring "S" might have coloured her perception and led her to being more hurt and angry. I think there is some force to that submission. But, in the end, I return once again to context, context is key. This is not a "stranger on stranger" sexual assault. It is a sexual assault involving the participants in a troubled two-year "on again, off again" relationship with lots of challenges. Take two committed partners who are married for example, one could easily conceive of circumstances where there would be a complete break in the relationship after a sexual assault. But one could also easily conceive that there are persons in committed relationships who decide to continue a relationship after such an event while trying to determine the future of the relationship. That is just one example.
If it is true that the complainant had contact with the defendant or even that she sought to be competitive with "S" does not speak logically to the issue of consent. There is no proscribed way for any complainant to act. The law does not demand that the complainant be pristine and perfect. In a perfect world every complainant treated in this manner would provide a clean break in the relationship and immediately go to the police and report it. This is a sexual assault in the context of a relationship - not a crime committed by a perfect stranger. In the end, I see a conflicted, angry, hurt complainant seeking answers in the aftermath. I find there to be nothing startling or unusual about such circumstances.
The defendant is found guilty of assault and sexual assault.
IV. Assault (Count 1)
With respect to the first count of assault the defendant pled guilty but did not accept the facts as alleged by the prosecution. It was agreed that a sort of Gardner hearing would occur and the facts would be heard during the trial and determined by the Court.
The complainant described an assault that occurred within approximately 90 days prior to the sexual assault even that I have already addressed. The assault occurred in her living room where she and the defendant were to sleep on a mattress (i.e. that is to say away from her children who would sleep in the bedroom). She and the defendant had prepared food and were sitting on the mattress. the defendant was intoxicated and was aggressive with her. She described how he was pulling her head towards him using the crux of his arm. The complainant pushed him away. The defendant slapped her leg with an open hand. The complainant said that contact was not hard. She told him if he hit her again she would call the police. The defendant became angry and shoved her off of the mattress and punched the back of both of her legs more than once such that it hurt her. He then took up the food and water and dumped it on her. Then the defendant ordered her to clean it up. She went and got a towel and began cleaning up. He stood there with his arms crossed and told her she was too slow and that she should clean faster. He then pushed her again on the mattress, pinned her down, spit in her face, and slapped her in the face. He then squeezed her neck with a quick squeeze. Finally, he took her heating pad and put it on her face for what I find to be a few seconds.
Defence counsel properly conceded that the defendant's testimony ultimately supported much of the complainant's version of events. There was a minor difference concerning the food that the defendant said he dumped on the complainant and he denied that he spit on her face.
I am satisfied beyond a reasonable doubt that the defendant assaulted the complainant. He is found guilty of count one.
Released: April 27, 2018