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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged 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 victim of the right to make an application for the order; and

(b) on application made by the victim, 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: September 25, 2020

Court File No.: Dufferin 18-982

Between:

Her Majesty the Queen

— and —

Brandon Charles Rusk

Before: Justice D.A. Harris

Heard on: August 28 and September 2, 2020

Reasons for Judgment released on: September 25, 2020

Counsel

Robert Levan — counsel for the Crown

Christien Levien — counsel for s. 486 Counsel

The accused Brandon Rusk — on his own behalf

Decision

D.A. HARRIS J.:

Introduction

[1] Brandon Rusk has been charged with three counts of sexually assaulting SD when she was under the age of 16 (counts 1, 8 and 10), one count of exposing his genitals for a sexual purpose to SD when she was under the age of 16 (count 4), one count of sexual interference with SD when she was under the age of 14 (count 7), and two counts of inviting SD to sexual touching when she was under the age of 16 (counts 6 and 11). All of these were alleged to have occurred in Orangeville on August 19, 2018.

[2] Crown counsel elected to proceed by indictment. Mr. Rusk elected to be tried in the OCJ. He pled not guilty and the trial began.

[3] Counts 2, 3, 5, 9 and 12 were either stayed or withdrawn at the request of Crown counsel at various stages in these proceedings.

[4] SD testified for the Crown. She adopted the contents of her video statement made to police five months after the alleged sexual assault. This was done pursuant to section 715.1 of the Criminal Code. She then gave further evidence in-chief and was cross-examined. I remind myself that her video statement was not just a prior statement to be used for assessing credibility. It was part of the evidence before me.

[5] Michael Ledat of the Orangeville Police Service also testified for the Crown.

[6] Mr. Rusk testified.

[7] Mr. Rusk testified that he had taken all reasonable steps to determine that SD was more than 18 years old and that she had consented to his actions. If I accepted this, it might be argued that he had a defence to some, or all of the charges. Accordingly, the principles in R. v. W (D) are applicable.

[8] If I find that his evidence negates any essential element of the offence, I must find him not guilty.

[9] Even if his evidence leaves me with a reasonable doubt regarding any essential element of the alleged offence, I must find him not guilty.

[10] Finally, even if his evidence does not leave me with a reasonable doubt about his guilt, if after considering all the evidence that I do accept, I am not satisfied beyond a reasonable doubt of his guilt, I must acquit.

[11] In determining this, I must keep in mind that Mr. Rusk, like every other person charged with a crime, is presumed to be innocent, unless and until the Crown has proven his guilt beyond a reasonable doubt. He does not have to present evidence or prove anything. It is not enough for me to believe that he is probably or likely guilty. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. Conversely it is nearly impossible to prove anything with absolute certainty and the Crown is not required to do so. Absolute certainty is a standard of proof that does not exist in law. However, I must remember that "the reasonable doubt standard ... falls much closer to absolute certainty than to proof on a balance of probabilities".

[12] This is a tough standard and it is so tough for a very good reason. As Cory J said in R. v Lifchus:

The onus resting upon the Crown to prove the guilt of the accused beyond a reasonable doubt ... is one of the principal safeguards which seeks to ensure that no innocent person is convicted.

Legal Framework

[13] So what does the Crown have to prove here.

[14] Sexual assault is an assault that is committed "in circumstances of a sexual nature, such that the sexual integrity of the victim is violated".

[15] The actus reus of sexual assault is established by the proof of:

(a) a touching,

(b) the sexual nature of the touching, and

(c) the absence of consent.

[16] The absence of consent is subjective and determined by reference to the complainant's subjective internal state of mind towards the touching, at the time it occurred.

[17] The accused's perception of the complainant's state of mind is not relevant. That perception only arises when a defence of honest but mistaken belief in consent is raised in the mens rea stage of the inquiry.

[18] The offence requires general intent only. The mens rea for the offence is the general intent to touch the complainant.

[19] The accused may challenge the Crown's evidence of mens rea by asserting an honest but mistaken belief in consent.

[20] This is recognized by the Criminal Code where section 265 (4) provides that:

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

[21] It is essential to note that the honest but mistaken belief must be of communicated consent. The Supreme Court of Canada made this clear in R. v. Ewanchuk, where Major J. wrote that:

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.

[22] The complainant must have affirmatively communicated by words or conduct agreement to engage in sexual activity with the accused.

[23] In this case the issue of consent is also governed by section 150.1 of the Criminal Code. The relevant parts of that section read as follows:

150.1 (1) Subject to subsections (2) to (2.2), when an accused is charged with an offence under section 151 or 152 or subsection 153(1), 160(3) or 173(2) or is charged with an offence under section 271, 272 or 273 in respect of a complainant under the age of 16 years, it is not a defence that the complainant consented to the activity that forms the subject-matter of the charge.

(4) It is not a defence to a charge under section 151 or 152, subsection 160(3) or 173(2), or section 271, 272 or 273 that the accused believed that the complainant was 16 years of age or more at the time the offence is alleged to have been committed unless the accused took all reasonable steps to ascertain the age of the complainant.

[24] Subsections (2) through (3) do not apply in this case.

[25] The elements of the charge in count 4 of exposing his genitals for a sexual purpose to SD when she was under the age of 16 are self-evident.

[26] The elements of the charges in counts 6 and 11 that he did for a sexual purpose invite SD a person under the age of 16 years to touch a part of his body, to wit his penis, are also self-evident.

[27] Finally, the elements of the offence in count 7 that he did for a sexual purpose touch SD, a person under the age of 14 years are also self-evident.

Application to the Facts

[28] So how do these principles apply to the facts in this case?

[29] There is no dispute that at the time that these events occurred, SD was 13 years old. She testified to that effect. Mr. Rusk did not expressly agree with this, but he did not disagree either in his evidence or during his submissions. His position was that he thought that she was older. I will deal with this alleged belief at greater length below.

[30] By his own admission during his testimony, Mr. Rusk did everything that SD accused him of doing. The actus reus of each of the offences was clearly made out beyond a reasonable doubt.

[31] With respect to counts 1 (sexual assault) and 7 (sexual interference), upon meeting SD, Mr. Rusk hugged her and then placed his hands on her buttocks. He made reference to her giving him a "hardy", an erection. In so doing he intentionally applied force directly to her in circumstances of a sexual nature, such that her sexual integrity was violated.

[32] With respect to count 4 (expose genitals) and count 6 (invitation to sexual touching), he asked her if she wanted to see his penis and without waiting for a reply pulled it out and showed it to her. He asked her to "give him a blow job" and they could measure to see how big his penis got. She said "no", and he put his penis back in his pants. The actus reus of both offences was clearly made out.

[33] With respect to count 8 (sexual assault), he grabbed her and began "humping" her from behind, grinding his pelvis against her buttocks. Again, in doing this he intentionally applied force directly to her in circumstances of a sexual nature, such that her sexual integrity was violated.

[34] With respect to count 10. He again touched her buttocks with his hand. Again, in doing this he intentionally applied force directly to her in circumstances of a sexual nature, such that her sexual integrity was violated.

[35] With respect to count 11, he told SD and her sister that he would like to have one or both of them on top of him. He said that he had a "big dick". This was clearly an invitation for her to touch his body for a sexual purpose.

[36] The only issues raised by Mr. Rusk were that of consent or of an honest but mistaken belief in consent.

[37] The first hurdle he had to overcome in advancing this argument is the fact that as a 13-year-old, any consent by her would not constitute a defence to any of the charges against him.

[38] In an attempt to get around this, Mr. Rusk argued that he had believed that she was more than 18 years old and that he had taken all reasonable steps to reach that conclusion.

[39] He testified that he had dated an older sister, X., many years earlier. About a month before this incident, he met X. and she had mentioned that she had two sisters who were around her age (she was about 28 at the time of trial and so would have been about 26 at the time of the alleged offences). Mr. Rusk also testified that he had asked SD and the girl with her if they were X.'s sisters and that they had confirmed that they were. He argued that in determining that SD and the other sister present that night were in fact sisters of X., he had taken all reasonable steps to determine that SD was old enough that her consent would provide a defence to any charges.

[40] I disagree. He did nothing to determine whether the statement by X. was true. He did nothing to determine whether X. might have had two other sisters who were close in age to her. Further, having seen how SD looked at the time (via the video recording), I would conclude that there was no reasonable basis for him to immediately conclude (my emphasis) that she was close in age to a 26-year-old.

[41] The most reasonable means of determining her age would have been to ask her how old she was. He did not do that. He did not even ask the two girls anything else that might have hinted at how old they were such as asking what they did to support themselves.

[42] I am satisfied that he did not take any reasonable steps let alone all reasonable steps to determine her age.

[43] I also note that the acts complained of in counts 10 and 11 occurred after SD had told Mr. Rusk that she could not buy cigarettes for him. He did not ask her why she could not do this, but it was because she was not old enough to do so legally. Her statement to him should have raised questions about her age in his mind but it did not do so.

[44] In any event, even if she could have consented by law to these acts, I am satisfied that she did not do so. Her evidence on that was clear and unequivocal. Further, even Mr. Rusk testified that she kept declining his offers and moving away from him when he touched her.

[45] With respect to an honest but mistaken belief, I note the following comments by Mr. Rusk when giving evidence:

"She didn't object."

"I thought she was enjoying herself."

"I didn't think it was a problem."

"They never said anything."

"I didn't think she minded."

[46] At this point I simply refer back to what I said in paragraph 21. An honest but mistaken belief must be of communicated consent.

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.

[47] I also note here that section 273.2 (b) of the Criminal Code provides that a belief that the complainant consented is not a defence to a charge of sexual assault if the accused did not take reasonable steps to determine that she was consenting.

[48] Mr. Rusk conceded during cross-examination that SD never expressed approval of what he had done to her. She never touched him or initiated physical contact with him. She did not tell him to grab her or to grind on her. She never said she was okay with him grabbing her buttocks or anything else. She declined to give him a "blow job" and reacted negatively to other things of a sexual nature that he did.

[49] He still alleged that she was flirting with him and leading him on "in [his] head". She was getting close to him and the way she was talking to him was flirtatious and sexy. However, he never elaborated on what exactly she said or did to make him believe "in [his] mind" that she was enjoying his presence.

[50] I reject any suggestion by Mr. Rusk that there was any reasonable basis for him to believe that SD was consenting to anything that Mr. Rusk did to her.

[51] I also note that the first sexual touching of SD by Mr. Rusk occurred before she had done or said anything other than to identify herself as X.'s sister.

[52] Mr. Rusk did not raise intoxication as an issue here. I did note however that the evidence made it clear that he was intoxicated to a certain degree. I note however that section 273.2 (a) of the Criminal Code provides that a belief that the complainant consented is not a defence to a charge of sexual assault if that belief arose from the accused's self-induced intoxication.

[53] I was also satisfied that Mr. Rusk was not so intoxicated that he lacked the intent to commit the offences with which he was charged.

Verdict

[54] After considering all of the above, I am satisfied that the Crown has proven beyond a reasonable doubt that Mr. Rusk committed the offences set out in counts 1, 4, 6, 7, 8, 10 and 11 and I find him guilty of those offences.

Released: September 25, 2020

Signed: Justice D.A. Harris