Court File and Parties
Ontario Court of Justice
Date: 2020-09-29
Court File No.: Parry Sound 190416
Between:
Her Majesty the Queen
— and —
David Contin
Before: Justice Oldham
Heard on: September 16, 2020
Reasons for Judgment released on: September 29, 2020
Counsel
Radbert Pe — Counsel for the Crown
David Lakie — Counsel for the Defendant David Contin
OLDHAM J.:
Charges and Pleas
[1] On September 16, 2020, Mr. Contin was arraigned and pled not guilty to one count of assault on Jolene Janvier pursuant to s. 266 of the Criminal Code and two counts of breach of recognizance pursuant to s. 145(3). Mr. Contin is alleged to have breached his recognizance by communicating with Ms. Janvier and by being within 50 meters of where Ms. Janvier is known to be.
[2] A certified copy of the recognizance was filed as Exhibit 1. At the conclusion of the trial, counsel for Mr. Contin conceded that the Crown had proven beyond a reasonable doubt that Mr. Contin had breached his recognizance as alleged in counts 2 and 3 of the Information. Accordingly, there will be a finding of guilt in respect of counts 2 and 3 on Information 194016.
The Assault Charge
[3] With respect to the charge of assault on Ms. Janvier, there were no issues with respect to identity and jurisdiction. The date of the incident was acknowledged to the extent that the parties provided an oral statement of agreed facts at the conclusion of the trial. The statement confirmed that the complainant reported the incident on June 8, 2019 indicating that the allegations of assault had occurred earlier that day. To be clear, Mr. Contin denied that an assault occurred at all. In the alternative, Mr. Contin's position at trial was that if there was an assault, it was consensual. Both counsel agree that there was no bodily harm and as a result, the defence of consent would be available.
Similar Fact Evidence Application
[4] Prior to the commencement of trial, the Crown filed an application to adduce similar fact evidence seeking to admit transcripts from sentencings on three previous convictions for assault by Mr. Contin on Jolene Janvier. The Crown submits that the similar fact evidence will go to the following trial issues:
(a) to provide context for how the incident occurred;
(b) the credibility of the witnesses in light of the other allegations;
(c) the credibility of David Contin in light of the other allegations; and
(d) the proof of a pattern of behavior in similar circumstances indicating a greater likelihood that the incident alleged did occur.
[5] Defence counsel did not file any materials in response to the similar fact application and did not oppose the admission of the similar fact evidence. In fact, Defence counsel filed a third transcript from June 9, 2020 whereby Mr. Contin pled guilty to several breaches in 2018 and 2020 of a condition not to communicate with Jolene Janvier. This transcript was marked as Exhibit 4. Counsel for Mr. Contin invited the court to make appropriate use of the prior convictions and assaultive behavior to determine whether Mr. Contin was guilty in this case.
Issues
[6] The issues for this trial are:
(1) whether Mr. Contin intentionally applied force to Ms. Janvier;
(2) if force was applied, whether Ms. Janvier consented to the assault;
(3) if Ms. Janvier did not consent, whether Mr. Contin knew that Ms. Janvier did not consent; and
(4) whether appropriate use can be made of the similar fact evidence filed in determining the issues set out above.
The Evidence
[7] The Crown called Ms. Janvier as its only witness. Ms. Janvier testified in a forthright, candid manner. Specifically, she took responsibility for and in fact, in some cases blamed herself for issues in her relationship with Mr. Contin. She acknowledged her use and abuse of alcohol and illicit drugs and her role in purchasing and ensuring a supply of hard drugs. She acknowledged her own inappropriate verbal and physical aggression towards Mr. Contin.
[8] Mr. Contin also testified. Similarly, he acknowledged his abuse of drugs and alcohol and his past misconduct with Ms. Janvier.
The Relationship
[9] The relationship between Mr. Contin and Ms. Janvier was described by both as a ten year on and off again relationship. The parties have children together. Their children are not in their care, in part, as a result of the parents' abuse of alcohol and drugs.
The Incident
[10] With respect to the incident before the court, Ms. Janvier testified that she and Mr. Contin did not have a permanent residence. They were couch surfing and staying at her mother's residence at the time of the incident. Ms. Janvier testified that they went to Charlie Blacksky's home (which is a five to ten minute walk from her mother's) around 11:00 pm the night of the incident. Ms. Janvier's evidence was that neither she, nor Mr. Contin had been drinking or doing drugs prior to their attendance at Mr. Blacksky's. Once there, they both drank approximately 7 Canadian beers. On a scale of one to ten, with ten being the most drunk she has ever been, Ms. Janvier described herself as being about a four. She thought that Mr. Contin was likely around the same but did not know for sure.
[11] Ms. Janvier testified that Mr. Contin left around 1:30 or 2:00 a.m. She left shortly after. She testified that Mr. Contin left as a result of an argument that was brewing between the two of them. Mr. Contin had an affair with Britney Pawis in June 2019. Ms. Janvier had seen Mr. Contin and Ms. Pawis at Linda Gail's home where Ms. Pawis was living. Darryl, who was at Mr. Blacksky's on the evening of the incident, began speaking about Mr. Contin being at Linda Gail's residence. Ms. Janvier indicated that this bothered her and that she was jealous. She acknowledged that she began to say things that she knew would get Mr. Contin angry and in fact by the time he left she described him as being angry. She commented that his decision to leave that time was a good one, because if he had not, things likely would have escalated.
[12] Ms. Janvier left Mr. Blacksky's at approximately 2:00 am, after Mr. Contin had already departed. She saw Mr. Contin on her walk back to her mother's home, but nothing occurred until she returned home. Mr. Contin apparently returned to the home and Ms. Janvier testified that the argument about women continued in the bedroom for approximately an hour.
The Alleged Assault
[13] After approximately an hour, Ms. Janvier testified that she went out of the bedroom and into the living room to sit on the arm of the couch. She noted that Mr. Contin was saying some pretty hurtful things, such as calling her a whore and a slut. Ms. Janvier acknowledged that she may have been antagonizing the situation by bringing up things about Ms. Pawis knowing that it really bothered Mr. Contin. Ms. Janvier testified that at some point he walked over to her and slapped her on the side of the face. She described the slap as one that stung, made her ear ring and her cheek numb for approximately 20 minutes. She confirmed that the slap did not leave any marks on her face.
[14] Ms. Janvier suggested that it was neither her fault nor Mr. Contin's fault and that they each push each other's buttons. When asked what she meant by saying that it was both of their faults, she testified that they do not know when to stop when they are arguing, they do not know when to cool off, and that neither have had people show them how to deal with things in the proper way.
[15] Ms. Janvier testified that she asked Mr. Contin to leave before he slapped her. When asked what happened when she told him to leave, she responded that we just kept arguing. Ms. Janvier testified that she was not surprised by the slap because she "knew it was coming just by the way he was walking towards her". She explained that he was mad and that she was asking him to leave and he would not leave. When asked why she went from the bedroom to the living room, she indicated that she left the bedroom because they just kept arguing and she knew it would not stop.
[16] When asked if she slapped Mr. Contin on that evening, she confirmed that she did not. In cross-examination however, Ms. Janvier acknowledged that she has slapped Mr. Contin in the past and that in fact there have been situations where they have argued, and both have slapped each other. When it was suggested to her that she and Mr. Contin regularly slap each other, she agreed. She also agreed with the suggestion that as long as they do not really hurt each other, it is okay to slap each other. Finally, she acknowledged that slapping each other is something that she accepts as part of her relationship with Mr. Contin.
Mr. Contin's Evidence
[17] Mr. Contin denied that the incident occurred. He acknowledged that he does have difficulties with his memory when he drinks enough alcohol. He distinguished his consumption of alcohol with the use of hard drugs and noted that in the later situation he does not have difficulties with respect to his memory. Mr. Contin acknowledged that there had been situations in the past when he has slapped Ms. Janvier and she has not slapped him back. When asked in cross-examination if this could have been one of those times, and would it be possible that he simply forgot or does not remember the specifics, he said it was possible. He acknowledged that there were dozens of times throughout the summer of 2019 when he attended at Mr. Blacksky's home to drink. Mr. Contin also acknowledged that he did have an affair with Britney Pawis in June of 2019 and that it was a topic of conversation between he and Ms. Janvier on several occasions from June 2019 until he was rearrested on May 16, 2020.
[18] In cross examination, Ms. Janvier was asked if it was possible that she was confusing the events and that this was the evening when she was looking through the window at Ms. Gails's home and saw Mr. Contin. Ms. Janvier was very clear that this was on another occasion, prior to this incident. When asked if it was possible that she made up this allegation because she wanted to get revenge on Mr. Contin for his affair, she provided a sarcastic response, but denied the suggestion. She further denied that she and Mr. Contin spoke about the allegations and that she acknowledged to him that she had made up the allegations. When Mr. Contin was asked about this conversation, he indicated that Ms. Janvier said that she would try to make it better for him and that she would get ahold of people. When asked why, he responded 'because I did not do what she said I did'. I note that he stopped short of saying that she told him that she had made up the allegations or that she did not believe that he did what she said he did; only that she told him she would try to make it better for him.
Law and Analysis
Application to Admit Similar Fact Evidence
[19] The Crown submitted transcripts from two separate court proceedings which set out facts which were acknowledged by Mr. Contin and which formed the basis for convictions in respect of prior assaults on Ms. Janvier and breaches of undertakings and probation orders involving non-communication provisions with respect to Ms. Janvier. Counsel for Mr. Contin filed a transcript from a plea on June 9, 2020 in which Mr. Contin acknowledges facts to support several breaches of non-communication provisions regarding Ms. Janvier in both probation orders and recognizances.
[20] The facts from 2013 describe a situation where Mr. Contin was under the influence of alcohol and on an undertaking not to consume alcohol. There was an assault on Ms. Janvier on March 24, 2013 when Mr. Contin elbowed Ms. Janvier in the face. Another incident of assault on March 28, 2013 when he pushed Ms. Janvier. To the extent that these facts were acknowledged for the purposes of the plea of guilt, there is no issue with respect to the credibility or collusion with respect to the evidence.
[21] In 2016 there were several convictions. The first arising out of an incident on October 14, 2016 when both Ms. Janvier and Mr. Contin drank to excess. They left in a vehicle which Mr. Contin was driving and had a heated argument about Ms. Janvier's past love life which resulted in Mr. Contin punching her with his right hand while driving with his left hand. The argument continued after he dropped her off and a scenario unfolded where Mr. Contin was backing up the vehicle which trapped Ms. Janvier who was holding onto the door. She fell to the ground while the vehicle was in motion.
[22] Mr. Contin was on a recognizance of bail and on January 14, 2017, he was arrested for breach of that recognizance by being in a vehicle with Ms. Janvier. There was no assault associated with that breach.
[23] The final offence was on March 31, 2017. Mr. Contin was on a recognizance of bail indicating that he would not be out of his residence without being in the direct supervision of a surety. On this particular occasion one of his two sureties, Candace Kakagins (ph) was allegedly fighting with Ms. Janvier. That prompted Mr. Contin to go to Ms. Kakagin's home where he approached her in a menacing fashion. After an exchange, Mr. Contin pushed, Ms. Kakagin's uncle, Edwin Kakagin into a wall. I note there was no assault on Ms. Janvier during that particular incident.
[24] The transcript from 2020 relates to a series of breaches on June 8, 2018, September 5, 2018, September 6, 2018, October 7, 2018, April 10, 2020, May 13, 2020. On June 8, 2018 Mr. Contin was seen holding hands with Ms. Janvier in breach of a non-communication provision in his probation order. On September 5, 2018, Ms. Janvier was captured on surveillance video with Mr. Contin when he took Sony speakers from Walmart without paying for them. He was on an undertaking not to communicate with Ms. Janvier at this time.
[25] On September 6, 2018 Mr. Contin and Ms. Janvier were observed outside of a residence in Parry Sound in breach of a term of Mr. Contin's recognizance.
[26] On October 7, 2018 Mr. Contin and Ms. Janvier were captured together at Circle K in Parry Sound on video surveillance.
[27] On April 10, 2020, there was an incident where Mr. Contin was intoxicated. Police were called when a civilian heard yelling and screaming in or around 3:00 am. Mr. Contin was charged with and plead guilty to mischief as a result of damage that was done to the civilian's vehicle. The civilian reported that Mr. Contin was arguing with his girlfriend and Ms. Janvier spoke with the police after exiting the same apartment that Mr. Contin had been in earlier. If charges were laid with respect to any breach of non-communication on that particular event, they were withdrawn by the Crown on June 9, 2020.
[28] On May 13, 2020, Mr. Contin was followed to a residence in Parry Sound. When he approached apartment 112 and shouted 'open the door', he was arrested on an outstanding warrant. Ms. Janvier exited the apartment and confirmed that Mr. Contin and his sister had been living with her for two weeks in breach of his recognizance.
[29] Counsel for Mr. Contin did not make any submissions in respect of the specific similar fact evidence and how it could be appropriately used in this case.
[30] The Crown relied on his factum to detail his submissions in respect of the appropriate use.
Legal Test for Similar Fact Evidence
[31] The onus is on the Crown to demonstrate on a balance of probabilities that the evidence is relevant and probative to an issue at trial and that the probative value outweighs its prejudicial effect. (See: R. v. Handy 2001 SCC 55, at para 101).
[32] With respect to the assault, the Crown relies on the case of R. v. Batte, and a reference in paragraphs 102 and 103 of that decision to suggest that the court acknowledges that in a domestic setting a pattern of assaulting one's domestic partner is relevant to the accused's propensity to do the very same thing in the present because of an existing disposition to do that very same thing. Specifically, Justice Doherty states the following:
[102] The criminal law's resistance to propensity reasoning is not, however, absolute. There will be situations in which the probative force of propensity reasoning is so strong that it overcomes the potential prejudice and cannot be ignored if the truth of the allegation is to be determined. The probative force of propensity reasoning reaches that level where the evidence, if accepted, suggests a strong disposition to do the very act alleged in the indictment. For example, if an accused is charged with assaulting his wife, evidence that the accused beat his wife on a regular basis throughout their long marriage would be admissible. Evidence of the prior beatings does much more than suggest that the accused is a bad person or that the accused has a general disposition to act violently and commit assaults. The evidence suggests a strong disposition to do the very act in issue – assault his wife. In such cases, the jury is permitted to reason, assuming it accepts the evidence of the prior assaults, that the accused was disposed to act violently towards his wife and that he had that disposition on the occasion in issue. The existence of the disposition is a piece of circumstantial evidence that may be considered in deciding whether the accused committed the alleged assault.
[103] The admissibility of prior assaults as evidence that the accused assaulted the same person on the occasion in issue is well established in the authorities: e.g., R. v. F. (D.S.) (1999), 132 C.C.C. (3d) 97 (Ont C.A.); McCormick on Evidence, supra, 665-66. While the authorities refer to the evidence as relevant to demonstrate motive or animus, these labels merely describe the disposition that is established by the discreditable conduct evidence. They do not detract from the fact that the evidence derives its probative force through propensity reasoning: R. Lempert, S. Saltzburg, A Modern Approach to Evidence, supra, 226-27, 229 – 30.
[33] The court, however, must be very careful about the probative value of such evidence. Probative value is accessed through:
(a) identifying the issue at trial to which the proposed similar facts are to be relevant; and
(b) identifying the factors that connect or distinguish the similar fact evidence from the facts alleged in the charge and the degree of similarity required to make the proposed evidence admissible; and
(c) considering the strength of the similar fact evidence.
R v. Handy, 2002 SCC 56, paras 69 to 75 and 76-84 and paragraph 102.
[34] Other factors held to contribute to probative value and admission of similar fact evidence include:
The similarity between the various offences alleged which show an underlying unity or system or course of conduct providing a connecting link between them so that each story renders the next more probable. In R. v. C.K., the similar fact evidence was capable of raising the inference the accused had a situation specific propensity. "The present case is very similar to the decision in R. v. B. (C.R.), [1990] 1 S.C.R. 717, at p. 739, admitting similar fact evidence that demonstrated a pattern of behaviour in which the accused established a parental relationship with young girls before engaging in sexual activities with them. The similar fact evidence in this case was capable of raising the inference that the appellant had a situation-specific propensity to sexually exploit young males over whom he exerted financial or emotional influence." R v. C.K. 2015 ONCA 747 at para 39.
Application to This Case
[35] The Crown submits that Mr. Contin has a clear propensity to assault Ms. Janvier in the context of a domestic relationship, when intoxicated, given that it has occurred frequently over a long period of time. The Crown suggests that there is no issue of prejudice given that this is not a jury trial and given that the evidence submitted is based upon Mr. Contin's previous convictions there is no issue with credibility or collusion.
[36] While I would agree that there is a very sad history of intoxication and arguments which may lead to physical abuse, none of the incidents have specific hallmarks that would create a real connection to the assault that occurred on this particular occasion such that the evidence would be of any assistance in an appropriate way in terms of determining whether Mr. Contin did in fact slap Ms. Janvier on this particular occasion.
[37] The history between these two suggests that it is possible that if they drink, it will lead to an argument and ultimately some physical interaction. However, in the incidents provided as similar fact evidence, not every situation resulted in an assault against Ms. Janvier. In at least one situation where Mr. Contin was drinking, it appears that he came to Ms. Janvier's aid because his surety was fighting with her (March 31, 2017). The assault was against Edwin Kakagins (ph), not Ms. Janvier.
[38] Moreover, Ms. Janvier testified that sometimes the couple argues and may engage in consensual physical contact (i.e. slapping each other). She also suggested that the intoxicant may have an impact on the outcome. When asked if they used any hard drugs the night of this incident she responded no and maybe that is why we were so bitchy; suggesting that perhaps alcohol increased the likelihood of an argument.
[39] The history, may however, have been relevant to support a finding of breach of the recognizance. It would appear that neither Mr. Contin, nor Ms. Janvier respect the non-communication provisions whether in a probation order or a recognizance. That said, it was not necessary to rely on similar fact evidence to establish breaches in this instance. As noted above, Mr. Contin conceded that the Crown had proven its case and Ms. Janvier admitted in cross examination that they will be in a relationship whether there are conditions on them or not.
[40] Accordingly, while neither party specifically objected to the admission of similar fact evidence, in my view, at best, the only appropriate use that can be made of the evidence of past domestic violence, is as one piece of circumstantial evidence to support a finding that because Mr. Contin has assaulted Ms. Janvier in the past, it is possible that he assaulted her on this particular occasion. Such use is of such minimal value that I find that there is no real appropriate use that I can make of the similar fact evidence in this particular case.
Did Mr. Contin Intentionally Apply Force to Ms. Janvier?
[41] Ms. Janvier testified that Mr. Contin slapped her with such force that he made her ear ring and the side of her face numb for 20 minutes. Mr. Contin testified that he did not slap Ms. Janvier on this particular occasion. The onus is on the Crown to prove the assault beyond a reasonable doubt. In this case, that finding rests on an assessment of the credibility of the witnesses.
[42] The Supreme Court of Canada in R. v. W. (D.), [1991] 1 SCR 742 para 27 set out the following test for assessing the credibility of witnesses:
[27] In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if they do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in the context of the evidence as a whole. See R. v. Challice (1979), 45 C.C.C. (2d) 546 (Ont. C.A.), approved in R. v. Morin, supra, at p. 357.
[28] Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well instruct the jury on the question of credibility along these lines:
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
[43] I accept Ms. Janvier's evidence in this case. It was detailed and consistent. Not only did she recall what happened, but how she felt as it was happening. For example, she described how she knew he was going to hit her based upon the way he approached her. She recalls the slap, not only because it physically hurt her, but also because she was emotionally hurt by the affair. She did not deny that she went to the police, not to have Mr. Contin charged, but because she wanted him off the reservation so that he could not go back to Brittney Pawis. She acknowledged an element of revenge, but denied that she made up the allegation of assault to get back at him.
[44] Mr. Contin's evidence, while not shaken on cross, was not inconsistent with Ms. Janvier's. He denied that he recalled any incident in which he slapped Ms. Janvier at Mr. Blacksky's home after drinking when she did not slap him back. Counsel for Mr. Contin submits that Mr. Contin's evidence on this point must be accurate, because there is no evidence that he was so drunk that he would not recall the incident. I do not agree.
[45] Mr. Contin did not testify as to his level of intoxication on that night. Ms. Janvier testified that he drank 7 beers and she thought he might have been about the same as her in terms of intoxication, but she did not know. In cross examination, Mr. Contin acknowledged that there had been dozens of incidents where he drank at Mr. Blacksky's home with Ms. Janvier in the summer of 2019 and that it was possible that there was an occasion when he may have hit Ms. Janvier after drinking and he just did not recall it. He acknowledged that he did not always remember events when he drank. Ms Janvier's recollection of the evening was very clear and as indicated above, I accept her evidence.
[46] Ms. Janvier denied that there was ever a conversation during which she acknowledged that she had made up the story that Mr. Contin slapped her. Mr. Contin did not go that far. His evidence was that Ms. Janvier said she would try to make it better.
[47] As noted by the Court of Appeal in R v. R. A. [2017] ONCA, there may be situations where the accused's evidence did not raise any obvious problems and yet the accused is not entitled to an acquittal, because of the acceptance, beyond a reasonable doubt, of conflicting evidence. Specifically, at para 55 and 56 Justice Huscroft wrote:
[55] Although the trial judge's reasons are relatively brief, they are responsive to the live issues in the case and the parties key arguments: R v. Walker [2008] SCC 34 [2008] (2d) 245 (SCC) para 20. The trial judge properly instructed himself as to the law, and in particular the requirements set out in W.(D). The appellant was not entitled to an acquittal simply because his evidence did not raise any obvious problems. The trial judge did not accept the appellant's evidence, but nor did he reject it simply because he accepted the complainant's evidence.
[56] The trial judge was entitled to reject the applicant's evidence "based on a considered and reasoned acceptance beyond a reasonable doubt about the truth of the conflicting credible evidence". R v. D. (J.J.R.) (2006), 218 O.A.C. 37 (Ont C.A.) at para 53. That is what occurred in this case.
[48] Similarly, in this case, I do not reject the evidence provided by Mr. Contin, but based on all of the evidence, I am satisfied beyond a reasonable doubt that Mr. Contin slapped Ms. Janvier with such force as to make out the allegation of assault.
Did Ms. Janvier Consent to the Assault?
[49] As noted above, Defence counsel submits that Ms. Janvier consented to the slap and that her consent is a defence under this section. Specifically, he relies on the evidence by Ms. Janvier and Mr. Contin that there have been occasions in the past that each has slapped the other and that as long as they do not really hurt each other, it is something that they each accept as part of their relationship. Counsel for Mr. Contin suggested that Mr. Contin had no way of knowing that Ms. Janvier was not consenting in these particular circumstances.
[50] Like the suggestion that Mr. Contin's past propensity to drink to excess and physically harm Ms. Janvier, renders it more likely that he did the very same thing on this particular occasion, the suggestion that Ms. Janvier consented to a slap because the parties had consented in the past, does not meet the threshold of sufficient probative value to admit the evidence for that purpose. Ms. Janvier cannot be said to consent to being slapped simply because she has allowed it to occur in the past, or because she acknowledges that it is part of her relationship with Mr. Contin. There was no evidence of the circumstances under which consent was granted. Was it only when Ms Janvier slapped him back? Or was it only when she slapped him first? What does it mean, as long as no one was really hurt? There is clear evidence from the transcripts that there were occasions where Mr. Contin elbowed her in the face or pushed her and was convicted of assault. There is no evidence to confirm whether she suffered physical injury on these occasions. There is no real connection that can be made between the act and the consent, or lack of consent, that could properly be used to assist the court in determining whether there was consent on this occasion.
[51] Moreover, consent requires more than past consent. In R. v. J. A. 2011 SCC 28, [2011] S.C.J. No. 28 at para 65, Justice McLaughlin concluded:
[65] In the end, we are left with this. Parliament has defined sexual assault as sexual touching without consent. It has dealt with consent in a way that makes it clear that ongoing, conscious and present consent to "the sexual activity in question" is required. This concept of consent produces just results in the vast majority of cases. It has proved of great value in combating the stereotypes that historically have surrounded consent to sexual relations and undermined the law's ability to address the crime of sexual assault. In some situations, the concept of consent Parliament has adopted may seem unrealistic. However, it is inappropriate for this Court to carve out exceptions when they undermine Parliament's choice. In the absence of a constitutional challenge, the appropriate body to alter the law on consent in relation to sexual assault is Parliament, should it deem this necessary.
[52] Although the above is in the context of a sexual assault, consent in this context, also requires an examination of the circumstances leading up to and at the time of the assault. This is not a case of honest, but mistaken belief that Ms. Janvier was consenting. As noted by counsel, at best the evidence is equivocal. 'How was Mr. Contin to know' that she was not consenting this time?
[53] While there may not be actual knowledge, I am satisfied that the Crown has proven beyond a reasonable doubt that Ms. Janvier did not consent to the slap and that Mr. Contin was either reckless or willfully blind to the lack of consent.
[54] Specifically, based on Ms. Janvier's evidence, which I accept, she said things and took steps to demonstrate that she was not consenting to the argument, much less the assault. She testified that she moved from the bedroom to the living room because she knew the arguing would not stop. Once there, she asked Mr. Contin to leave because she knew it would not stop if he did not leave. I do not accept that by continuing to argue with him she was consenting to an escalation in the argument or to physical violence.
[55] Defence counsel suggests that given that Ms. Janvier was in her home that she had the right as a home owner to physically remove Mr. Contin which would have clearly demonstrated her lack of consent. In my view, Ms. Janvier had no obligation to attempt to physically remove Mr. Contin to ensure he knew that she did not want to engage. Ms. Janvier testified that while she was a 'big girl', Mr. Contin was much larger and was physically stronger than her.
[56] There is no evidence to suggest that Ms. Janvier slapped Mr. Contin on that particular occasion, which may have suggested consent to a physical exchange. In fact, the evidence is the opposite. Ms. Janvier testified that she did not slap Mr. Contin. Mr. Contin denies the incident and accordingly, gave no evidence to suggest that she slapped him on this occasion. Ms. Janvier was sitting on the arm of the couch and Mr. Contin approached her and slapped her on the side of the face after calling her names and refusing to leave when asked.
[57] In all of the circumstances, Mr. Contin knew, or ought to have known that Ms. Janvier was not consenting, when he walked over and slapped her with such force that it made her ear ring and the side of her face numb.
Findings
[58] Given the above, I am satisfied beyond a reasonable doubt that the Crown has proven that Mr. Contin assaulted Ms. Janvier on June 8, 2019. There will be a finding of guilt with respect to the assault.
Released: September 29, 2020
Signed: Justice Oldham