WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

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

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

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 OFFENCE

(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: December 12, 2018

Court File No.: Niagara Region 998 17 S2838

Between:

Her Majesty the Queen

— AND —

J. (K.)

Before: Justice J. De Filippis

Heard on: November 1 & 2, 2018

Reasons for Judgment released on: December 12, 2018

Counsel:

• Mr. H. Limheng — counsel for the Crown
• Mr. M. Evans — counsel for the Defendant

Judgment

[1] Charge and Finding

The defendant is charged with incest and sexual assault involving his half-sister. The offences are said to have occurred on July 30, 2017 at the City of St. Catharines. I find the defendant guilty of both offences. These are my reasons.

Agreed Facts

[2] Background and Relationship

The following facts are not controversial: The complainant and defendant have a common father and different mothers. The complainant grew up with her mother and extended family in northern Ontario. On the date of the allegation the defendant was 30 years old and the complainant was 18 years of age. They met two or three years earlier when the complainant decided to visit her "father's side of the family" in Niagara Region. After returning for a brief period to northern Ontario, she moved to Niagara Region to live with the defendant's mother and his siblings. She did so because she was not getting along with her mother's side of the family. The defendant lived elsewhere. The complainant quickly formed a strong bond with the defendant and, as she did not feel comfortable living with his mother and siblings, they decided to rent an apartment together. They found a two bedroom place they could afford with each contributing $425 per month. Both were in receipt of social assistance. The complainant was a full-time student and worked part time at a fast food outlet. The defendant occasionally worked as a day labourer.

[3] The Disputed Encounter and DNA Evidence

It is also not in dispute that on the day in question there was a coerced sexual encounter between the complainant and defendant. The nature of that encounter and identity of the aggressor are at issue in this trial. In any event, after the police investigated the events in question, the complainant was taken to a hospital and samples of bodily fluids were obtained as a result of an "external genitalia swab" and a "vaginal swab". By agreement between the Crown and Defence, the court received a Biology Report prepared by Ms. M. Kell, a Forensic Scientist. According to this report, Ms. Kell concluded that:

[The defendant] cannot be excluded as the source of a DNA profile (STR Profile 1, likely from semen) on the swabs from the external genitalia (2-1) and vagina (4-1) from [the complainant].

The probability that a randomly selected individual unrelated to [the defendant] would coincidentally share the observed STR DNA profile is estimated to be 1 in more than 1 trillion.

Evidence

[4] Complainant's Testimony — Initial Account

The complainant testified that in the beginning, her relationship with the defendant was good but that "it changed when we became intimate with each other". This sexual relationship began before they moved to the apartment together and continued afterward. She added that "things escalated and we were fighting all the time – I didn't see [the defendant] as my brother but as my partner". The complainant noted that their status as half-siblings was known to all their friends but the sexual relationship was "really weird" and remained a secret between them.

[5] Complainant's Testimony — Relationship Deterioration

The complainant described the frequent arguments as silly – "over the smallest things" – and that, on occasion, both parties resorted to physical force. She testified that "we had a strange relationship that really messed with my head, we fought all the time, we would fight, then have sex, with or without my permission, I felt I was being used… [the defendant] had a switch that would go off in his head, the slightest thing would set him off and he would be angry with me". The arguments involved "mutual shoving". The complainant conceded that she once punched the defendant after he pushed her and that on another occasion she kicked a hole in the wall because she was angry with him. She added that they both had "anger issues".

[6] Complainant's Testimony — Days Before the Incident

This went on for several months. Consequently, they discussed going their separate ways. She made inquiries about a place of her own but soon realized that she could not afford to live alone and must find another roommate. She testified that in the days leading up to the incident in question she avoided the defendant as much as possible, returning "only to sleep".

[7] Complainant's Testimony — The Incident

The incident in question is alleged to have occurred in the early morning hours. The complainant testified as follows:

…me and [the defendant] were not speaking to each other…I believe I came home late the day before…the house was hot…the air conditioner was in living room so I pulled my mattress and slept there…the [defendant] was in the living room…then I was awakened about 5 AM…the [defendant] was in my bed without my permission and having sex with me.

[8] Complainant's Testimony — Immediate Aftermath

The complainant continued, now crying quietly:

I was, I froze, I was super confused…. then he ejaculated on me and then I realized….I got up and he got up and I said aren't you going to apologize, for the past few days you have been treating me badly….he looked me in the eyes and said I didn't deserve an apology…I got , upset, I called [the defendant's brother] and told him what happened, I didn't know what to do…he told me to call the police, I spent 10 minutes deciding and then I called the police…

[9] Complainant's Testimony — Further Details

When asked to provide further details, the complainant stated:

As I was waking up, I came into consciousness and realized I wasn't alone in my bed and [the defendant] had no pants on and he was groping me and having intercourse with me…I can't 100% recall every single detail that morning, I just know he was having sex with me…I was on my side and he was pretty much spooning me as he was having intercourse.

[10] Complainant's Testimony — Physical Details

She explained "spooning" as two people lying on their sides with one hugging the other from behind and continued as follows:

He was touching my body, my chest and my breast with his hand, I could feel his penis in between my legs and on my vagina and in my vagina…I believe he grabbed the crouch area [of her underwear] and pulled it aside so he would have access to my vagina.

When asked if he ejaculated, she noted that, "I felt it on my stomach and vagina area and that general area…I don't believe he ejaculated inside of me".

[11] Complainant's Testimony — Lack of Resistance

The complainant testified that she said nothing during these events; "I was frozen, I was confused, I was angry, I was upset…and I felt used…I just let it happen because I was scared of him". She tearfully explained that "there was times where he's hit me….he's dragged me into bedroom, he's made my nose bleed".

[12] Complainant's Testimony — Emotional Response and Aftermath

The complainant said she was devastated on seeing the police take the defendant into custody. She stated that although she "wanted out of this situation", she loved him and did not want him to go to jail. She added that the police took her to a hospital "for the rape kit" and she eventually returned to her family in Thunder Bay.

[13] Complainant's Testimony — Prior Threats and Relationship

The complainant admitted that in March 2017, she sent a text to the defendant threatening to have him jailed if did not leave their apartment and allow her boyfriend to move in. She explained that she did not have a boyfriend; that was just a ruse to persuade the defendant to leave. When asked to comment on her relationship with a particular man, she replied that, "he would come over, we would watch TV, smoke, have sex and he would go home, [but] he was not at all my boyfriend". She added, however, that the jail threat was real as it related to prior incidents when the defendant had sex without her consent.

[14] Complainant's Testimony — Cross-Examination

When asked why she had taken her mattress and pillow into the defendant's presence in the living room at a time she was upset with him, the complainant said, "I wasn't paying any attention to him, it was my apartment, and I can do what I want just like him". When pressed about why, after a sexual assault, she asked for an apology for the manner in which the defendant had acted in the previous days, she replied that it was not limited to that; "in general, I was asking for an apology". She denied fabricating the prior sexual relationship with the defendant. The Defence asserted that she was the sexual aggressor on the day in question and that the defendant, after unsuccessful attempts to push her away, masturbated in an effort to end the encounter. The complainant smiled and said, "That is incorrect".

[15] Defendant's Mother's Testimony

The defendant's mother testified that while the complainant lived with her she saw nothing to suggest an inappropriate relationship. Soon after commencing her testimony, this witness appeared to have a panic attack. She said, "I can't do this anymore" and left the courtroom in tears. Neither counsel sought to question her further.

[16] Defendant's Testimony — Background

The defendant testified that he has no relationship with the father that he and the complainant have in common. He confirmed that he first met his half-sister when she arrived from Thunder Bay a few years ago. Notwithstanding the age difference, they became "best friends" and they decided to share an apartment together. He denied having engaged in any sexual activity with her before the day in question and asserted he is the victim in the matter.

[17] Defendant's Testimony — Relationship Deterioration

The defendant confirmed that his relationship with the complainant deteriorated after they began living together. He said that:

She stopped taking her medication and was throwing things at me and breaking things mainly plates… once she tore my door apart by kicking it… we would argue and something would click off in her brain and she would escalate to point she could not calm herself down… she once punched me, I didn't mind that, I a man and can take it, I would not hit a woman.

He added that the text message in March 2017 was not the first time the complainant had threatened to have him put in jail; "She would call the cops to say I had been violent… they escorted me out of house but I was never charged".

[18] Defendant's Testimony — Account of July 30, 2017

The defendant agreed that he and the complainant were not speaking to each other in the days leading up to July 30, 2017. Like the complainant, he could not afford to live elsewhere on his own and they remained together. With respect to the allegations, the defendant said the following:

I was on the couch playing a video game in living room… she came home, I can't recall the time, she went to her bedroom for two to three hours I imagine …she went to the bathroom and back to her bedroom and then 15 minutes later she is out to kitchen… she was wearing her underwear and bra…I thought this was weird, she never does that and wears pajamas…then she comes out with her mattress, blanket and pillow, she put it [the mattress] right in front of me…she repeatedly tries to get me into her bed… this disgusted me…she sat beside me and feels compelled to put her hand on my leg…I'm shoving her away and saying no, don't, she is saying nothing, just aggressively coming on to me…she was trying to get my hand further up and into my pants…I was wearing long pajamas she got hold of my penis and pretty much rubbing me and getting me excited…I was trying to defend myself but it was pretty hard, she was basically raping me, she was very determined…I thought this is not going to stop…after she was getting me aroused and she got up and I was following her and trying to ejaculate…I knew if I did that it would all be over, so when she pulled me onto the bed, I was on my knees, she was rubbing herself, vaginal area, when she reached out to grab me and I pulled back, that's when I ejaculated on the bed…I was on my knees and she was in front of me on her back…after she wanted me to do it again, she asked me, she said can you do it again, can you get hard…I said no, I got up and went to my bedroom and locked the door…I found this appalling … about 20 minutes later she was pounding on my door saying you raped me … I thought you womanized me…then I was arrested and held in jail for a night and a half

[19] Defendant's Testimony — Conclusion

The defendant tearfully concluded his account by insisting that he did not sexually assault the complainant and have sexual intercourse with her; "I find that appalling, I did not want this to happen and I couldn't convince her otherwise".

[20] Defendant's Testimony — Cross-Examination (First)

In cross-examination, the defendant reiterated that the complainant came to him and put her hand up his pants to stroke his penis. He said, "I was defending myself lightly, I'm blocking to keep her away". He said she succeeded in getting hold of his penis and after she let go, he masturbated and ejaculated.

[21] Defendant's Testimony — Cross-Examination (Second)

When asked if he could explain why the complainant would fabricate the present allegations, he said," …she wanted to get me in trouble… this was her key to get me in trouble". The subsequent cross-examination included the following exchange:

Q: You masturbated yourself to ejaculation during this disgusting appalling incident? Why not go to your room?

A: She was on top of me, she was trying to get her head in my lap… I didn't push her off because I didn't want to hurt her…I didn't want to leave any marks…she bruises easily

Q: How did you get from couch onto your knees on the mattress?

A: I thought this would make it over

Q: Why not go to bedroom?

A: I couldn't…yes, I could, but she would have pounded on the door and would have kicked it in…going to the locked room worked the second time because she had what she wanted

Q: But she didn't have what she wanted as she wanted it a second time…I suggest it was 30 degrees on July 30 at night.

A: I don't know

Analysis

[22] Legal Framework

This case is about the evidence and findings of fact. The law with respect offences in question and the burden of proof is well established and not controversial. I will set it out in summary form.

[23] Incest — Elements of the Offence

Incest is defined in section 155 of the Criminal Code. In this case, the crime is made out if the Crown proves that (1) the complainant and defendant are half-brother and half-sister, (2) the defendant knew about this blood relationship, and (3) the parties had sexual intercourse. The first two elements of the offence are not in issue; the defendant admitted these facts. He denies the third element.

[24] Sexual Intercourse — Definition and Requirements

Sexual intercourse requires some penetration. In this regard, penetration is established, if the defendant's penis was inside the complainant's vagina, even if only slightly. Ejaculation is not necessary. Moreover, it does not matter if the parties consent to the activity. What the law forbids is sexual intercourse between blood relatives. Accordingly, the issue for me to decide with respect to the incest count is whether the Crown has proven penetration.

[25] Sexual Assault — Elements of the Offence

Sexual assault is proscribed by section 271 of the Code. The elements of the offence are governed by subsequent statutory provisions and judicial decisions. The Crown must prove that (1) the defendant touched the complainant, (2) the touching was intentional, (3) the touching was of a sexual nature, (4) the complainant did not consent to the touching, and (5) the defendant knew the complainant had not consented to the touching.

[26] Consent — Definition

Consent means the voluntary agreement by the complainant to participate in all aspects of the sexual activity in question. This means the person must be conscious and capable of consent. The complainant is not obliged to express lack of consent by words or action; that is, silence or non-resistance does not amount to consent.

[27] Burden of Proof and Standard of Review

The defendant is presumed to be innocent. This means that the Crown carries the burden of proving guilt and must do so do beyond a reasonable doubt. As noted by the Supreme Court of Canada, in R v W.D. (1991), 63 C.C.C. (3D) 397 (S.C.C.), this standard of proof means that if the Defence calls evidence there must be an acquittal if the testimony is believed or the testimony is not believed, but nevertheless raises a doubt, based upon reason. An acquittal will follow even if the Defence evidence is not believed and does not leave a doubt, based upon reason, but the remaining evidence fails to prove that the defendant is guilty. In determining if the Crown has discharged its burden of proof, all evidence may be considered. This also means that any Defence evidence should not be viewed in isolation. At the end of the day, the Crown must do more than show the defendant is probably guilty. Proof to an absolute certainty is not required and rarely possible – but the Crown must come closer to this.

[28] Defence Submissions — Credibility Challenges

Defence counsel points out that the charges are restricted to events that occurred on July 30, 2017 and that, to the extent that prior incidents are relevant, the complainant is only source to support a finding of an ongoing sexual relationship. With respect to the events in question, he argues that the complainant's admitted history of violence against the defendant undermines her claim to have frozen in fear while being sexually assaulted. Counsel submits that there is a contradiction between the complainant's assertion that she was avoiding the defendant and her action in bringing her mattress and pillow into his presence. Similarly, it is implausible that she would say nothing during the sexual assault and then demand an apology for prior conduct.

[29] Defence Submissions — Defendant's Evidence

Defence counsel argues that his client's evidence should be accepted or that, at least, it raises a doubt. In this regard, it is noted that the defendant testified that he was "appalled" by the suggestion he committed these offences. He tried to avoid the complainant's sexual advances without hurting her and then "climaxed" to end the encounter, following which he retreated to his bedroom. This, it is said, explains the DNA evidence. Moreover, counsel argues that I cannot conclude the defendant's DNA was found inside the complainant's vagina because there is no evidence to explain what "vaginal swab" means as set out in the Biology Report.

[30] Crown Submissions

The Crown submits that the defendant's evidence makes no sense and cannot be believed. Counsel argues that, by contrast, the complainant's testimony was given with due regard for truth and accuracy. Illustrative of this is the fact that she did not shy away from distasteful issues; her admissions about incest, anger, and violence enhance her credibility because none of it reflects well on her character. The Crown points out that if the complainant was motivated to falsely accuse the defendant about the events of July 30, there was no reason to disclose her own guilt with respect to prior acts of incest. Moreover, if she was consumed by insatiable lust on the day in question, there was no need to bring her mattress, pillow, and blanket to the living room. She could have pressed her desires without this paraphernalia in the privacy of their apartment.

[31] Court's Assessment — Rejection of Defendant's Evidence

I reject the defendant's evidence. There is no reason to conclude he could not have successfully resisted the complainant's advances. In any event, he had a secure bedroom to go to, as he eventually did, failing which he could simply have left the apartment. I can give no credence to his suggestion that, in these circumstances, he tried to resist "lightly" so as not to harm the complainant. It is impossible to believe that a viable solution was to ward her off by masturbation and ejaculation. Even if I were to abandon common sense and assume this strategy to be practical, nothing the defendant said reasonably explains how his DNA ended up around the around and inside the complainant's vagina. His testimony cannot be accepted and does not raise a doubt.

[32] Court's Assessment — Acceptance of Complainant's Evidence

Contrary to the defendant's incredible story, the complainant provided a believable, albeit disturbing, account of a historical relationship that led to the events of July 30, 2017; namely, that the close bond that existed between two newly discovered blood relatives developed into an inappropriate sexual relationship that was soon accompanied by anger and violence by both parties. These unflattering facts about the complainant, volunteered and accept by her, also enhance her credibility. Moreover, they provide a convincing context for what occurred on the day in question.

[33] Court's Assessment — Explanation for Mattress

It is the tension in this unhealthy relationship, rather than the need to be near air conditioning, that may explain why the complainant moved her mattress and pillow into the immediate presence of the defendant. When confronted about this, she said, "I wasn't paying any attention to him, it was my apartment, and I can do what I want just like him". This petulant statement suggests she was willing to provoke another argument – but nothing more. In any event, I am confident that it is in these circumstances and against the background as described by the complainant that the defendant had sexual intercourse with her on the day in question. Her testimony was not undermined and I agree with the submissions by the Crown about why it should be accepted.

[34] Court's Assessment — DNA Evidence and Penetration

Any doubt about this matter is extinguished by the presence of the defendant's DNA (semen) on her body. In this regard, it is important to reiterate that the he does not assert consensual sexual activity or that he mistakenly believed in consent.[1] His explanation for the compelling forensic evidence is that he masturbated and ejaculated as a means to end the complainant's aggressive misconduct. Having rejected this explanation for DNA evidence, I am persuaded that the defendant sexually assaulted the complainant, as described by her. This conclusion means I find that he penetrated her. In this regard, I am not troubled by the fact that the complainant did not believe he had ejaculated in her vagina. As noted, this is not required to prove incest but it is important in confirming the complainant's testimony that she felt his penis inside her.

[35] Court's Assessment — Interpretation of Biology Report

It has been suggested that the Biology Report is ambiguous about where the defendant's DNA was found. I disagree. Two samples were taken from the complainant; one from a vaginal swab and the other from an external genitalia swab. These terms speak for themselves and the latter makes it clear the former is from within the vagina. It is obvious that the complainant is wrong in her belief the defendant had not ejaculated inside her.

[36] Conclusion

The Crown has met its burden of proof.

Released: December 12, 2018

Signed: Justice J. De Filippis

[1] As previously noted, such consent or mistaken belief is legally irrelevant to the incest charge. I make the point to frame the defendant's evidence and define the factual issue.