WARNING
The court hearing this matter directs that the following notice be attached to the file:
This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:
IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.
IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.
NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.
Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:
- OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .
( a ) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
( b ) is guilty of an offence punishable on summary conviction.
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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.
DATE: March 16, 2021 COURT FILE No: 20-Y053
O N T A R I O C O U R T OF J U S T I C E
B E T W E E N :
HER MAJESTY THE QUEEN
-AND-
C.C.
Before: Justice Michael G. March
Trial evidence heard on: January 19, 2021 Written submissions filed by Crown and Defence respectively on: January 27 and February 1, 2021 Reasons for Judgment released on: March 16, 2021
Counsel: Goher Irfan, for the Crown Joshua Clarke, for C.C.
March, M.G., J. :
Introduction
[1] C.C. stands charged that on or about September 10, 2019, he committed a sexual assault upon J.M. contrary to section 271 of the Criminal Code (the “Code”).
[2] C.C. is a “young person” as defined by section 2 of the Youth Criminal Justice Act. At the time of the alleged offence, he was 15 years old.
[3] C.C. and a young woman, J.M., were engaged in a short-lived, dating relationship spanning August to September 2019.
[4] When she testified, J.M. was 16 years of age. At the time of the alleged offence, she was 14. C.C. and she were both students attending the same high school.
[5] J.M. was the only witness called at C.C.’s trial.
The Relevant Evidence
[6] On the day the alleged offence occurred, September 10, 2019, J.M. arrived home from school around 3:10 p.m. C.C. pre-arranged a time to come visit her between 4:00 and 4:30 p.m.
[7] When C.C. came by, J.M. was at home with her mother, her stepfather and her two younger sisters.
[8] C.C. and J.M. worked on homework together for half an hour to 45 minutes in her bedroom. J.M. was then called down to eat dinner.
[9] After her meal, she returned upstairs to her room to watch a movie with C.C.
[10] While laying on her bed, J.M. placed her right leg over C.C. and put her head on his chest. As well, C.C. had his left hand wrapped around her right elbow and forearm. His right hand was on her lower back. To the best of her recollection, J.M. was lying on her left side.
[11] C.C. and J.M. remained in that embrace for half an hour to 45 minutes. There was little to no conversation between them.
[12] J.M. was wearing a sweatshirt and a pair of shorts. C.C. had his hand directly on her skin in her lower back area. He then moved it down to her “butt crack” and around her anal area.
[13] When C.C. began touching J.M.’s buttocks, she told him, “We can’t do this. My parents are home.”
[14] In response, C.C. said, “Give me a minute.”
[15] J.M. told C.C. to stop again. He repeated, “Give me a minute.”
[16] He continued to touch her on her backside. J.M. explained that she “froze”. She did nothing physically to resist being touched by C.C thereafter.
[17] In describing what C.C. was doing with his hand, J.M. testified that he was rubbing and squeezing down her “butt crack and butt cheeks”.
[18] J.M. believed that the touching lasted approximately 10 to 15 minutes. He did not engage in any other sexual activity with her.
[19] C.C. then got up and left. J.M. said goodbye to him. Her family members were present for the full duration of his visit to her home.
[20] J.M. estimated that C.C. departed around 7:00 p.m.
[21] J.M. did see C.C. at school afterwards for a few more days. However, she ended the relationship with him around September 13 or 14, 2019.
[22] In early November 2019, J.M. told her school counsellor about the incident involving C.C.
[23] In mid-November 2019, she told her mother, who was not supportive of her.
[24] J.M. next told her best friend and another friend in early December 2019.
[25] It was not until early June 2020 that she told her grandmother, who assured J.M. that she would be there for her during any next steps J.M. decided to take. Following that conversation, J.M. called the police on June 15, 2020.
[26] After the breakup, J.M. blocked any attempt on the part of C.C. to contact her. She did not hear from him until July or August 2020. He told her to stop spreading rumours about him, and if she did not, he would call police to report her defamation of his character.
[27] Under cross-examination, J.M. agreed that she contacted police exactly one day after she learned of a similar incident involving C.C. and another girl. She felt she then needed to do something.
[28] J.M. conceded that her memory about some of the details surrounding the incident had become foggy after the passage of nine months.
[29] She confirmed that one of the house rules when she lived with her mother was to keep her bedroom door open whenever a boyfriend was over. It was indeed open the day of the incident.
[30] Her sisters, who were 11 and 6 years of age at the time, could come into her room at any time, as well as her mother and stepfather. However, she could not recall either sister coming into her room while C.C. and she were watching the movie.
[31] J.M. testified that she neglected to tell police about her school counsellor as the first person to whom she disclosed the incident. However, she stated that she gave the same account to her counsellor as she did when giving her evidence at C.C.’s trial.
[32] She reflected that she had a lot of time to think about the incident involving C.C. and her by December 2019, but she did not contact police until after she spoke to her grandmother in June 2020. As well, this postdated her move away from her mother’s residence, which occurred in May 2020.
[33] J.M. agreed that she had ample opportunity to call the police before June 2020.
[34] She acknowledged that C.C. had visited her house a couple of times before the incident.
[35] While laying on her bed, she was fine with C.C. touching her lower back. It was not until his hand went into her shorts that she no longer felt comfortable. She did not lift her head. Nor did she tell him angrily, “Don’t do this.”
[36] However, she described his pleas to “give him a minute” as rude.
[37] She could not see C.C.’s face, nor he hers. He did not appear angry to her. She interpreted what he was saying as trying to convince her that the touching was okay. He then continued to rub her posterior inside her shorts.
[38] She explained that she did not want to get in trouble should her parents walk in on them.
[39] J.M. confirmed that in her statement to police, she estimated that the touching lasted for 15 to 20 minutes.
[40] She agreed that in her mind, she was choosing not to oppose what C.C. was doing to her. She gave in.
[41] J.M. conceded that C.C. likely had no idea why she was breaking up with him.
[42] Under re-examination, J.M. explained that she did not tell police earlier because she was not comfortable telling anyone about the incident other than those with whom she was closest.
[43] She was clear that her motivation in contacting police was influenced by learning that C.C. had done the same thing with someone else as he had with her. Equally, her grandmother helped her to realize what C.C. did to her was not right. She told him twice not to. She then froze.
The Law
[44] The decision of the Supreme Court of Canada in R. v. Ewanchuk (1999) 711 remains after twenty years the benchmark case for understanding what constitutes sexual assault in Canadian law. Major J. at para. 23, writing for the six member majority of a full panel of the Court, identified the elements of the offence:
23 A conviction for sexual assault requires proof beyond reasonable doubt of two basic elements, that the accused committed the actus reus and that he had the necessary mens rea. The actus reus of assault is unwanted sexual touching. The mens rea is the intention to touch, knowing of, or being reckless of or wilfully blind to, a lack of consent, either by words or actions, from the person being touched.
[45] At para. 25 to 30, Major J. of Ewanchuk elaborated:
25 The actus reus of sexual assault is established by the proof of three elements: (i) touching, (ii) the sexual nature of the contact, and (iii) the absence of consent. The first two of these elements are objective. It is sufficient for the Crown to prove that the accused’s actions were voluntary. The sexual nature of the assault is determined objectively; the Crown need not prove that the accused had any mens rea with respect to the sexual nature of his or her behaviour: see R. v. Litchfield , [1993] 4 S.C.R. 333, and R. v. Chase , [1987] 2 S.C.R. 293.
26 The absence of consent, however, is subjective and determined by reference to the complainant’s subjective internal state of mind towards the touching, at the time it occurred: see R. v. Jensen (1996) , 106 C.C.C. (3d) 430 (Ont. C.A.), aff’d , [1997] 1 S.C.R. 304, R. v. Park , [1995] 2 S.C.R. 836, at p. 850, per L’Heureux-Dubé J., and D. Stuart, Canadian Criminal Law (3rd ed. 1995), at p. 513.
27 Confusion has arisen from time to time on the meaning of consent as an element of the actus reus of sexual assault. Some of this confusion has been caused by the word “consent” itself. A number of commentators have observed that the notion of consent connotes active behaviour: see, for example, N. Brett, “Sexual Offenses and Consent” (1998), 11 Can. J. Law& Jur. 69, at p. 73. While this may be true in the general use of the word, for the purposes of determining the absence of consent as an element of the actus reus , the actual state of mind of the complainant is determinative. At this point, the trier of fact is only concerned with the complainant’s perspective. The approach is purely subjective.
28 The rationale underlying the criminalization of assault explains this. Society is committed to protecting the personal integrity, both physical and psychological, of every individual. Having control over who touches one’s body, and how, lies at the core of human dignity and autonomy. The inclusion of assault and sexual assault in the Code expresses society’s determination to protect the security of the person from any non-consensual contact or threats of force. The common law has recognized for centuries that the individual’s right to physical integrity is a fundamental principle, “every man’s person being sacred, and no other having a right to meddle with it, in any the slightest manner”: see Blackstone’s Commentaries on the Laws of England (4th ed. 1770), Book III, at p. 120. It follows that any intentional but unwanted touching is criminal.
29 While the complainant’s testimony is the only source of direct evidence as to her state of mind, credibility must still be assessed by the trial judge, or jury, in light of all the evidence. It is open to the accused to claim that the complainant’s words and actions, before and during the incident, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place. If, however, as occurred in this case, the trial judge believes the complainant that she subjectively did not consent, the Crown has discharged its obligation to prove the absence of consent.
30 The complainant’s statement that she did not consent is a matter of credibility to be weighed in light of all the evidence including any ambiguous conduct. The question at this stage is purely one of credibility, and whether the totality of the complainant’s conduct is consistent with her claim of non-consent. 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.
[46] At para. 31 in Ewanchuk, Major J. eradicated any doubt about the availability of a defence of “implied consent”. It simply does not exist in the context of sexual activity shared in by two or more persons.
31 Counsel for the respondent submitted that the trier of fact may believe the complainant when she says she did not consent, but still acquit the accused on the basis that her conduct raised a reasonable doubt. Both he and the trial judge refer to this as “implied consent”. It follows from the foregoing, however, that the trier of fact may only come to one of two conclusions: the complainant either consented or not. There is no third option. If the trier of fact accepts the complainant’s testimony that she did not consent, no matter how strongly her conduct may contradict that claim, the absence of consent is established and the third component of the actus reus of sexual assault is proven. The doctrine of implied consent has been recognized in our common law jurisprudence in a variety of contexts but sexual assault is not one of them. There is no defence of implied consent to sexual assault in Canadian law.
[47] At paras. 41 to 44 of Ewanchuk, Major J. went on to describe how and when a defence of honest but mistaken belief in fact may arise for an accused.
41 Sexual assault is a crime of general intent. Therefore, the Crown need only prove that the accused intended to touch the complainant in order to satisfy the basic mens rea requirement. See R. v. Daviault , [1994] 3 S.C.R. 63.
42 However, since sexual assault only becomes a crime in the absence of the complainant’s consent, the common law recognizes a defence of mistake of fact which removes culpability for those who honestly but mistakenly believed that they had consent to touch the complainant. To do otherwise would result in the injustice of convicting individuals who are morally innocent: see R. v. Creighton , [1993] 3 S.C.R. 3. As such, the mens rea of sexual assault contains two elements: intention to touch and knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched. See Park , supra , at para. 39 .
43 The accused may challenge the Crown’s evidence of mens rea by asserting an honest but mistaken belief in consent. The nature of this defence was described in Pappajohn v. The Queen , [1980] 2 S.C.R. 120, at p. 148, by Dickson J. (as he then was) (dissenting in the result):
Mistake is a defence...where it prevents an accused from having the mens rea which the law requires for the very crime with which he is charged. Mistake of fact is more accurately seen as a negation of guilty intention than as the affirmation of a positive defence. It avails an accused who acts innocently, pursuant to a flawed perception of the facts, and nonetheless commits the actus reus of an offence. Mistake is a defence though, in the sense that it is raised as an issue by an accused. The Crown is rarely possessed of knowledge of the subjective factors which may have caused an accused to entertain a belief in a fallacious set of facts.
44 The defence of mistake is simply a denial of mens rea. It does not impose any burden of proof upon the accused (see R. v. Robertson , [1987] 1 S.C.R. 918, at p. 936) and it is not necessary for the accused to testify in order to raise the issue. Support for the defence may stem from any of the evidence before the court, including, the Crown’s case-in-chief and the testimony of the complainant. However, as a practical matter, this defence will usually arise in the evidence called by the accused.
[48] In order to avail oneself of the defence of an honest but mistaken belief in fact, the evidence must essentially establish a basis for finding a reasonable doubt as to the moral guilt of the accused. As explained by Major J. at paras. 45 to 49 in Ewanchuk:
45 As with the actus reus of the offence, consent is an integral component of the mens rea , only this time it is considered from the perspective of the accused. Speaking of the mens rea of sexual assault in Park , supra , at para. 39 , L’Heureux-Dubé J. (in her concurring reasons) stated that:
. . . 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”.
46 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 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. The statutory definition added to the Code by Parliament in 1992 is consistent with the common law:
273.1 (1) Subject to subsection (2) and subsection 265(3) , “consent” means, for the purposes of sections 271 , 272 and 273 , the voluntary agreement of the complainant to engage in the sexual activity in question.
48 There is a difference in the concept of “consent” as it relates to the state of mind of the complainant vis-à-vis the actus reus of the offence and the state of mind of the accused in respect of the mens rea . For the purposes of the actus reus , “consent” means that the complainant in her mind wanted the sexual touching to take place.
49 In the context of mens rea – specifically for the purposes of the honest but mistaken belief in consent – “consent” means that the complainant had affirmatively communicated by words or conduct her agreement to engage in sexual activity with the accused. This distinction should always be borne in mind and the two parts of the analysis kept separate.
[49] Limits, of course, are placed on the defence of ‘honest but mistaken belief in consent’, especially where a complainant has expressed initially a lack of agreement to engagement in any given type of sexual activity. At paras. 50 to 52 of Ewanchuk, Major J. articulated where those constraints would apply.
50 Not all beliefs upon which an accused might rely will exculpate him. Consent in relation to the mens rea of the accused is limited by both the common law and the provisions of ss. 273.1(2) and 273.2 of the Code , which provide that:
273.1 . . .
(2) No consent is obtained, for the purposes of sections 271 , 272 and 273 , where
( a ) the agreement is expressed by the words or conduct of a person other than the complainant;
( b ) the complainant is incapable of consenting to the activity;
( c ) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;
( d ) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or
( e ) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.
273.2 It is not a defence to a charge under section 271 , 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where
( a ) the accused’s belief arose from the accused’s
(i) self-induced intoxication, or
(ii) recklessness or wilful blindness; or
( b ) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.
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. An accused cannot say that he thought “no meant yes”. As Fraser C.J. stated at p. 272 of her dissenting reasons below:
One “No” will do to put the other person on notice that there is then a problem with “consent”. Once a woman says “No” during the course of sexual activity, the person intent on continued sexual activity with her must then obtain a clear and unequivocal “Yes” before he again touches her in a sexual manner. [Emphasis in original.]
I take the reasons of Fraser C.J. to mean that an unequivocal “yes” may be given by either the spoken word or by conduct.
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:
An accused who, due to wilful blindness or recklessness, believes that a complainant . . . in fact consented to the sexual activity at issue is precluded from relying on a defence of honest but mistaken belief in consent, a fact that Parliament has codified: Criminal Code , s. 273.2 ( a )(ii).
[50] Recently in R. v. Barton, 2019 SCC 33, the Supreme Court of Canada reaffirmed the principles surrounding the law of consent and the availability of the defence of honest but mistaken belief in consent as established in Ewanchuk ( see Barton , paras. 98 – 113 ). ‘Implied consent’ offers no defence to an accused, nor does ‘broad advance consent’.
[51] In Barton, Moldaver J. on behalf of the four member majority of the seven member panel of the Supreme Court of Canada, commented on the need for greater clarity in the law regarding what constitutes reasonable steps on the part of an accused to ascertain that consent from the complainant was voluntarily given. Moldaver J. succinctly made plain – “no reasonable steps, no defence” (see para. 104 of Barton ). In short, Moldaver J. held that “the reasonable steps requirement rejects the outmoded idea that women can be taken to be consenting unless they say “no”.” ( see Barton , para. 104 ).
[52] An assessment of the reasonable steps, if any, taken by an accused to ascertain consent is a “highly fact- specific ” inquiry. An accused cannot rely upon the complainant’s “silence, passivity or ambiguous conduct. To do so would be a mistake of law. Nor can an accused attempt to “test the waters by recklessly or knowingly engaging in non-consensual sexual touching.” ( see Barton , para. 107 )
[53] The more invasive sexual activity becomes, the greater care the accused must take to ensure he has obtained consent. ( see Barton , para. 108 )
[54] Trial judges ought to take a purposive approach. An accused cannot be permitted to equate silence, passivity or ambiguity with the communication of consent. Always, the fact finding function of a trial must be informed by the need to protect and preserve every person’s bodily integrity, sexual autonomy and human dignity ( see Barton , para. 109 ).
[55] Fundamentally, close heed must be paid to the presence or absence of reasonable grounds for the accused’s purported, honestly held belief in consent. The more an accused’s asserted belief in consent seems unreasonable, the more dubious the claim becomes that his belief was honestly held ( see Barton , para. 110 ).
Analysis
Did J.M. consent to the sexual activity in question?
[56] Upon my assessment of the totality of the evidence, it is clear that J.M. consented to lying on her bed with C.C., intertwining herself with him, placing her head on his chest and allowing him to touch her lower back area.
[57] However, she did not consent to permitting C.C. to slide his hand into her shorts in order to be able to make skin on skin contact with her buttocks and around her anal area. At that point, he began “testing the waters . . . recklessly”.
[58] J.M. clearly voiced her displeasure at C.C.’s decision to do so. Her unchallenged evidence was that she told him, “We can’t do this. My parents are home.”
[59] Her protest was met by a command from C.C., “Give me a minute”. Clearly, he was not listening to her.
[60] J.M. repeated her lack of agreement to what C.C. was insisting upon doing. Rudely, C.C. told her again, “Give me a minute”.
[61] C.C. continued to touch J.M. in a sexual manner without her consent.
[62] J.M.’s silence thereafter, her passivity and arguably her ambiguous conduct does not offer any legal defence or excuse to C.C.’s touching of her in that moment the way in which he did.
[63] Although C.C. may not have known, in his mind, that anything wrong had taken place, or why J.M. broke up with him, matters not. J.M. “froze” after the second time C.C. told her to give him a minute. Her conduct, or more aptly put, her lack of physical resistance or further verbal protestation thereafter to C.C.’s continued touching of her buttocks did not amount, at law, to the communication of consent to C.C. to proceed with what he was doing.
[64] The defence argued that “people freeze because they are afraid”. In some instances that is true, but not all. People can freeze due to the shock and bewilderment they feel at what is being done to them by people who they believe care for them. People can freeze in the hope that what is being done to them will end sooner if no resistance is offered. There may be more reasons why a person may freeze. Fear is not the only cause.
[65] What is clear is C.C.’s rubbing and squeezing of J.M.’s butt crack and butt cheeks was unwanted by her in the moment. Her words, conduct and/or passivity did nothing to communicate consent to C.C. In fact, they communicated a lack of it.
[66] The actus reus of the sexual assault offence with which C.C. was charged has been proven by the Crown beyond a reasonable doubt.
Did C.C. honestly but mistakenly believe that J.M. consented to the sexual activity he engaged in with her?
[67] C.C. did not take reasonable steps to ascertain whether J.M. was consenting to him touching her buttocks. He did not ask for permission to do so. He was not invited to. In fact, he was told that they could not do what he wanted to do. Notwithstanding, he ignored J.M.’s protests.
[68] The situation with which C.C. was presented absolutely called for him to cease what he was doing to J.M. She was not comfortable. She was not agreeing. Yet he did not stop.
[69] Instead, C.C. demanded that he be given a minute to satisfy his desire to sexually touch J.M. as he wished over a time period of his choosing.
[70] More was required of C.C. to obtain J.M.s consent to his continued desire to touch her buttocks, or to determine that she had truly changed her mind, after having twice verbalized her lack of agreement.
[71] Giving the most liberal and favourable interpretation to the defence on the evidence called at trial, I cannot see how C.C. could have honestly believed that he had secured J.M.’s consent to sliding his hand into her shorts in order to be able to feel her buttocks and to touch around her anal region. Simply put, he was not taking no for an answer.
[72] There was no reasonable basis for C.C. to assume he had obtained J.M.’s permission to touch her in that moment the way he did. He did not have her consent to do so. He was told not to. He proceeded headlong into doing what he wanted to do irrespective of her wishes. In R. v. Sansregret (1985) 79, at para 16 McIntyre J., speaking for the unanimous seven member panel of the Supreme Court of Canada, defined “recklessness” as a criminal law concept in the following manner:
In accordance with well‑established principles for the determination of criminal liability, recklessness, to form a part of the criminal mens rea , must have an element of the subjective. It is found in the attitude of one who, aware that there is danger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk. It is, in other words, the conduct of one who sees the risk and who takes the chance. It is in this sense that the term `recklessness' is used in the criminal law and it is clearly distinct from the concept of civil negligence.
At a minimum, C.C. was reckless in his intentions in insisting on touching J.M. as he wanted. She communicated her opposition to him. She could not have been clearer with her words, “We can’t do this.”
[73] C.C. cannot on the evidence adduced at his trial be seen to be “honestly mistaken” in respect of J.M.’s consent to what he was doing to her, nor can he be seen to be morally innocent in any way.
[74] In my view, the Crown has made out the mens rea element of the offence of sexual assault beyond a reasonable doubt.
Conclusion
[75] C.C. intentionally touched J.M. in a sexual way without her consent. In spite of her protests, he recklessly continued to touch her buttocks by rubbing and squeezing them. J.M.’s decision not to oppose what C.C. was doing to her, after she protested twice without deterring C.C., does not equate to her consent to the sexual activity C.C. was imposing on her.
[76] Upon considering the totality of the evidence adduced at his trial, I cannot find that C.C. honestly but mistakenly believed that he had obtained J.M.’s consent to touch her as he did. He took no reasonable steps to ascertain the limits of her consent after he slid his hand down her shorts to caress her buttocks. He did not listen to what she told him. He proceeded to do as he wished. He alone decided when he would stop.
[77] The defence raised the possibility for collusion between J.M. and an unknown third party to cast doubt on J.M.’s credibility, and on her motive for testifying as she did. Her disclosure of the incident to police did not occur until after she became aware that C.C. may have done something similar to some other girl as he did to her.
[78] While it is true that J.M. had a virtual conversation with this other girl, I found J.M.’s evidence to be untainted, uninfluenced and unembellished in any respect as to what she specifically recalled C.C. did to her. She fairly conceded weaknesses in her memory – that it was “foggy” after the passage of time.
[79] However, J.M. was sure in her recollection of exactly how C.C. touched her buttocks, how she communicated her opposition to it and how C.C. proceeded to conduct himself in any event. Her state of “freezing” did not describe a lack of memory, a black out or any other cognitive phenomenon which would give me pause to question the credibility or reliability of her evidence. As J.M. aptly put it herself, she simply “ . . . chose not to oppose it”. Again, her passivity does not equate to consent. Nor does it raise a reasonable doubt as to whether such passivity communicated consent to C.C. It did not. Something more in the way of reasonable steps was required of C.C. to change her mind and to secure her consent. He did nothing along those lines.
[80] I give no weight to the evidence that C.C. may have touched some other girl inappropriately. To be clear, my knowledge of that allegation does nothing to enhance the credibility of J.M.
[81] Accordingly, based on J.M.’s account alone of the material incident, I conclude that the Crown has proven C.C.’s guilt beyond a reasonable doubt for having committed a sexual assault on or about September 10, 2019 contrary to section 271 of the Code .
DATED: March 16, 2021 March, M.G., J.