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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 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.
ONTARIO COURT OF JUSTICE
DATE: 2021 03 26 COURT FILE No.: Halton 19-1577
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
D.B.
Before Justice A. Calsavara
Heard on February 17, 18, 19, 23, 2021 by Zoom Reasons for Judgment released on March 26, 2021
Counsel: Maureen McGuigan............................................................................ counsel for the Crown Paul Alexander....................................................................... counsel for the accused D.B.
CALSAVARA J.:
[1] D.B. is charged with sexually assaulting N.S. Until February 24th, 2019, D.B. and N.S. were a young couple in a relationship for over two years. On that morning, the two were naked in bed together at N.S.’ home when, it is alleged, D.B penetrated N.S.’ vagina with his penis without her communicated consent. Prior to trial, the defendant brought an application to introduce other sexual activity between them. In a judgment released December 10, 2020 [1], I partially allowed the application which permitted counsel for the defendant to adduce evidence of D.B. and N.S.’s pattern of non-verbally communicating consent in the form of prior sexual activity and discussions between the two over the course of their relationship. This evidence was admissible for two purposes: (i) to support the accused’s defence of honest but mistaken belief in communicated consent; and (ii) context for the accused’s two post-incident apologies.
The issue in dispute
[2] The main issue at trial is whether D.B. had an honest but mistaken belief that N.S. consented to penetration.
Position of the Parties
[3] The Crown submits that D.B’s version is diametrically opposed to N.S.’ to such a degree there is no room for a finding of honest but mistaken belief in communicated consent. Moreover, she asserts that D.B. took no reasonable steps and is precluded from relying on a mistake of fact defence.
[4] The defendant agrees N.S. did not consent to the attempted penetration that morning, but honestly thought she did at the time. Central to this defence is his reliance on the couple’s customs and practices, and particularly, a body motion by N.S. that signaled her consent to vaginal intercourse or foreplay. D.B. asserts that reasonable steps were informed by these customs and N.S.’ pattern of communicating her consent non-verbally some minutes after initially telling him ‘no’, like on this occasion.
Common Ground
The Past
[5] D.B. and N.S. had an established and trusted relationship that was otherwise good until that morning. It was the last they saw of each other.
[6] N.S. is a survivor of sexual violence and experienced PTSD as a result. She disclosed this to D.B. early in their relationship.
[7] An Agreed Statement of Fact filed at trial included:
- Ms.[S] sometimes experienced PTSD symptoms (specifically dissociation and flashbacks), while engaging in sexual activity with Mr. [B]. These symptoms could arise suddenly and without warning. Sometimes these symptoms were unexpectedly triggered by a sexual act.
- There were times during sexual activity with Mr. [B] when she would tell him to stop. When Ms. [S] told Mr. [B] to stop, he would respect her wishes by stopping and holding her. The sexual activity would not proceed further unless and until Ms. [S] signaled her consent to further sexual activity. This was a normal pattern in their relationship. (This paragraph refers to sexual relations between Mr. [B] and Ms. [S] before February 24, 2019. Whether this pattern was followed on February 24, 2019 is a matter of dispute.)
- Over the course of their relationship, Ms. [S] and Mr. [B] often discussed her PTSD and the effect that it had on her. Mr. [B] was engaged in a process of learning about her PTSD symptoms, her triggers, how to avoid those triggers, and how to respond in an effort to build their relationship into a “safe space” for Ms. [S].
[8] In her testimony, N.S. guesstimated that she said ‘no’ to halt activity between them about once per week. She has said no to intercourse and other sexual activities. In the past, after he held her, she would “calm down” and feel safer in the moment. Through body language or words, N.S. would signal she was ready to engage in sexual activity.
[9] Sometimes, this body language indicating consent would be ‘grinding hips against him’, ‘making out’ or ‘touching him.’ N.S. testified that it would be apparent she was feeling better and open to sexual activity. Until she felt better, they would just lay there, at times silently and at times talking about what she was experiencing. On some occasions, no sexual activity took place. On others, once N.S. felt comfortable, she would signal her consent to sex by either grinding her pelvis against him, kissing him, touching him in “a sexual way”, or telling him that she felt better. N.S. testified that in the past when she said ‘no’, he would hold her in an embrace, caressing her—which was agreeable to her.
[10] In the past, the interval between N.S.’ verbal ‘no’ to her signalling consent was often about 10 to 15 minutes, give or take—but definitely no less than five minutes.
[11] N.S. agreed that throughout their relationship the two talked about how to ensure she felt safe and how he would know she was okay with a given activity. They had many conversations. It was an important topic to both of them.
February 24, 2019
[12] On the date of the incident, N.S. and D.B. were naked together in her bed. It was a Sunday morning. The sun was shining through the window. They were being affectionate with each other and kissing. D.B. pulled N.S. on top of him. N.S. helped with that maneuver. D.B. was on his back and they were facing each other – although N.S.’ face may have been, at times, near D.B.’s shoulder. They continued being affectionate. D.B. continued to touch and kiss N.S. He described it as caressing, including rubbing her back, and grabbing N.S.’ buttocks. So far, everything was fine. D.B. then pushed N.S.’ hips down to move her genitals towards his erect penis. N.S. told D.B. she did not want to have sex. D.B. said ‘okay’. They remained in the same position. D.B. continued to caress N.S., touching her ‘all over’; including rubbing N.S.’ back, touching her buttocks and thighs. They kissed.
[13] At this point the contact between them was fine and continued without incident for several minutes. About eight to ten minutes after N.S.’ verbal ‘no’, D.B. grabbed and pulled apart N.S.’ buttocks to open up her vagina and with one quick thrust penetrated her with the tip of his penis. What occurred in the two to three minutes immediately preceding this act is in dispute. I will review the discrepancies in their evidence, but before I do, I continue here to review post-act, the common ground between their evidence to better situate its material differences.
[14] Upon being partially penetrated, N.S. lifted herself up on her elbows and knees to prevent further penetration by putting distance between their bodies. She remained in that position and, as she put it, was ‘frozen’: Not moving. Not speaking. Meanwhile, D.B. continued to touch and caress N.S.’ body. There was no apparent reaction from him. Then, N.S. got off of D.B., laid down facing away from him and said ‘what was that – I told you I didn’t want to have sex.’ D.B. replied, “ I’m sorry, I’m learning .” N.S. told him to leave. He got up, got dressed, but not before leaving behind this note:
Dear [N],
I 'm very sorry and ashamed of my actions. What happened is not the person I want to be by any stretch. More than anything, I want to be that safe space for you. I understand that you need time to process, so take as much time as you need. Just know that my arms are ready and open to talk whenever you are. I am deeply committed to this relationship and becoming the best version of myself for it. That includes being a safe place for you.
I love you with all my heart,
[D]
[15] That was the last they saw of each other.
[16] After he left, N.S. testified she was an emotional state. She was upset, angry and confused. She explained she was not sure what happened and was in shock. She questioned herself because of her history and wondered if it was her overreacting. N.S was trying to understand if it was her own issue or something D.B. had done.
[17] That day, N.S. reached out to a friend, C., in her therapy group and discussed the incident.
[18] Two days later, on the Tuesday, N.S. had a one-on-one session with her therapist and spoke about the incident. N.S. testified in-chief that in that moment she realized it was something D.B. had done to her; rather than her perceiving something because of PTSD. Then, later that night, N.S. had her regular group therapy session.
[19] Between the incident and the Tuesday therapy sessions, D.B. sent N.S. several texts including telling N.S. he was there to talk whenever she was ready. He told her he wanted to help her ‘unpack’. At the time N.S. was angry, hurt, and sad. On two occasions, she agreed to meet him to talk but never did. N.S. agreed that by the Tuesday, after her discussion with her therapist, she changed her mind about even talking to D.B. about it. Through a text message, N.S. told D.B. that she did not want to talk ever again. She told him they were done and for him to throw away the key to her apartment.
[20] N.S. testified that D.B. was shocked that she would break up in a text message, but she was shocked that he would do what he did to her. She blocked his number.
[21] Later that week N.S. started writing notes of what occurred on February 24th. She brought those notes with her to the police station two months later when she reported this sexual assault and relied on them to help her remember details when she gave her statement.
Facts in Dispute
N.S.’ Version
[22] N.S. testified that she did not change her mind about not wanting to have sexual intercourse. She believed nothing changed in this interim—between the ‘no’ and the penetration. They remained in the same position – but nothing that was going on caused her to expect the penetration. In addition to the kissing and caressing, N.S. testified that D.B. continued to grab her hips and pull her towards his erect penis. She said he was aggressive.
D.B.’s Version
[23] D.B. maintains that eight to ten minutes after N.S.’ communicated ‘no’ and while they continued to lay in the same position—kissing and him caressing her—he noticed her body language change. N.S. repeatedly pressed the opening of her vagina on his erection. At first it seemed to be a subtle movement. He did not react right away. He waited one to two minutes until he was sure. She continued pressing her vagina on him. He thought it obvious she was communicating consent. D.B. explained that she would have had to be rocking her hips to make that movement but said he was so focused on the sensation of her against his erection and as it went on for one to two minutes, he decided to penetrate her. He just meant to penetrate with the tip of his penis to be playful; as a teasing gesture and not aggressively. D.B. said he did not use a lot of force but it was a quick motion. In his mind, the mechanics he used, was the only way to penetrate her that way, given the position they were in.
[24] After the penetration, N.S. changed position. She got up on all fours. He was still rubbing her back, being playful and sweet to her. He could not see her face. He had no idea anything was wrong until she climbed off of him. Then he saw her face – that blank expression he has seen when she is experiencing PTSD. As soon as he saw that face, D.B. testified, he knew something was wrong.
[25] After she confronted him, he responded with “ I’m sorry, I’m still learning ”. By that, he meant he is still figuring out all the things about PTSD and how it relates to N.S. He testified he meant he is still learning how to be that safe space for her.
[26] When he was confronted, he felt terrible. It became apparent to him that N.S. did not want to have sex. He felt bad about letting her down, but maintained that it was not intentional. He thought she was communicating consent in the moment.
[27] He wrote the apology note for the same reasons. He did not try to defend or explain himself in that note. She was upset and he never expected that would be the last they saw each other or speak about this.
The Law
[28] The burden is on the Crown to prove the accused's guilt beyond a reasonable doubt. The accused comes before the court with the presumption of innocence. He has a clean slate. The presumption is only discharged when, and if, the Crown proves the accused's guilt beyond a reasonable doubt. The Crown at all times bears the onus of proving the case against the accused. The accused need not prove anything. The Crown is required to prove the essential elements of the offence beyond a reasonable doubt. I must assess the case on the whole and decide whether, on the basis of all of the evidence, or lack thereof, the Crown has proven the guilt of the accused beyond a reasonable doubt; R. v. Lifchus, [1997] 3 S.C.R. 320.
[29] A conviction for sexual assault requires proof beyond a reasonable doubt of the actus reus and the mens rea of the offence. A person commits the actus reus if he touches another person, that is sexual in nature, without his/her consent. Consent for this purpose is actual subjective consent in the mind of the complainant at the time of the sexual activity in question: R. v. Ewanchuk, [1999] 1 S.C.R. 330; R. v. J.A. 2011 SCC 28, [2011] S.C.J. No. 28.
[30] In this case, there is no real dispute that the Crown has proven the actus reus beyond a reasonable.
[31] The mens rea is established by showing the accused knew that the complainant was not consenting to the sexual act in question, or was reckless or wilfully blind to the absence of consent. An honest but mistaken belief in consent can be raised if an accused believed that the complainant communicated consent to engage in the sexual activity: Ewanchuk, at para. 51; J.A. para 24.
[32] This defence is statutorily limited by s. 273.2 of the Criminal Code. Subsection 273.2(b) imports a requirement that an accused take reasonable steps, in the circumstances known to him/her at the time, to ascertain that the complainant was consenting. The misapprehension must be of fact and not law—meaning it cannot be based on implied consent, broad advance consent, a propensity to consent, or upon self-serving misogynist or stereotypical beliefs. The threshold of what amounts to ‘reasonable steps’ is fact specific and highly contextual. What is required will vary from case to case: R. v. Barton, 2019 SCC 33.
[33] This precondition, however, does not require the accused to take all reasonable steps, unlike the analogous restriction on the defence of mistaken belief in legal age imposed under s.150.1(4) of the Criminal Code: Barton, para 104. It is a quasi-objective test that takes into account the particular knowledge of the accused: R. v. Malcolm, 2000 MBCA 77, at para 24, leave to appeal to S.C.C. refused, [2000] S.C.C.A. No. 473; R. v. Albourkhari, 2013 ONCA 581 at para 41-42.
Analysis
[34] The conclusion in this case is resolved by the application of W.D. [2] to the mental element of this offence.
[35] D.B. testified, denying his culpability. He believed N.S. communicated her consent to the sexual intercourse at the time he penetrated her, relying on the couple’s customs with intimacy to inform his interpretation of N.S.’ body language as an overt expression of consent. Subject to the reasonable steps inquiry: If I believe that evidence, I must acquit. If I do not believe that evidence but it leaves me in reasonable doubt, I must acquit. Even if I am not left in doubt by D.B.’s evidence, I must still consider, on the basis of the evidence that I do accept, if I am satisfied beyond a reasonable doubt of the guilt of the accused. If I cannot decide whether to believe the accused’s evidence or other evidence that is capable of contradicting the elements of the offence, or if I cannot decide what to believe, or I am unable to resolve conflicting evidence and therefore left in a state of reasonable doubt, I must acquit.
[36] D.B.’s version is not incredible. His evidence was internally consistent. His explanation for his mistaken belief was in part confirmed by other evidence. In the past, D.B. would hold N.S. after she verbally communicated a ‘no’ to sex. Sometimes after several minutes, N.S. would change her mind and would habitually signal this non-verbally with body language, including by pressing her groin or buttocks against him. It developed into a practice. Because of this custom and with N.S’ approval, D.B. treated this body language as a reliable indicator of N.S’ change of mind and her consent to sexual intercourse. The Agreed Statement of Fact and N.S.’ testimony corroborate this custom.
[37] D.B. and N.S.’s immediate post-incident reaction is also capable of corroborating D.B.’s version. When N.S. lifted herself up on her knees and elbows in response to the penetration, he continued to kiss and caress her like nothing happened. N.S. also testified that D.B. did not seem to notice anything was wrong. This is not to say a person who commits sexual assault would not continue to be heedless and unconcerned with the feelings of or the effect he has had on the person assaulted. In fact, this might well be an expected reaction of an offender. The important distinction here is that as soon as he saw her face and as she confronted him, he responded accordingly and not as the callous sexual offender. Then, he reacted as well. Apologetic; guilt-ridden for hurting N.S. His reactions at both those points is circumstantial support that D.B. thought N.S. was consenting at the time, but only realized his mistake after the fact.
[38] N.S.’ ‘post-offence’ reaction can also be looked at as corroborative of D.B.’s defence. She testified that she was shocked, and trying to understand what just happened. There is no doubt that N.S. did not in fact consent to penetration but she also testified that she did not know what happened at first. Because of her history as a survivor, she did not know if it was her over-reacting or if it was due to something D.B. did. She was questioning her own perceptions. And that could be because she is a survivor and had reposed such trust in D.B. and shocked he would be so callous; or it could equally be that N.S. was not sure herself at the time if she did something to have misled D.B. to believe she was expressing her consent to intercourse.
[39] N.S. was unsure in the immediate aftermath about what led to D.B. penetrating her without her consent, but over the course of the next few days – after speaking with a friend from her woman’s group and after a one-on-one therapy session with her therapist she became sure. That is when it crystalized for N.S. that D.B. sexually assaulted her.
[40] Concerning the transaction in question, D.B. described a repeated movement by N.S that if true is a clear and overt act indicating she wanted to have sexual intercourse, particularly given the couple’s established practices.
[41] N.S. disputes she was pressing her vagina against D.B.’s erection. The defence points to inconsistencies between her testimony and police interview as a sign N.S. is not credible. I disagree. N.S. presented as an honest witness. She gave considered and measured responses in chief and in cross. There was nothing about her narrative that is implausible. She did not exaggerate and in fact conceded many points helpful to the defence. Her sincerity, in my view was not impeached; however I do agree with the defence submission that her evidence about what took place during those critical few minutes immediately preceding the penetration cannot be relied upon; or at least when I consider D.B.’s evidence in the context of all the evidence including this reliability concern, it could be reasonably true that N.S. repeatedly pressed the opening of her vagina against D.B.’s erection.
[42] Firstly, I cannot ignore that N.S.’ memory may be tainted by her discussions with her friends from her women’s therapy group and her therapist, as it was only after speaking with them that she was certain what exactly happened -- certain then that she had been raped when in the moments after the act, she was confused and unsure. I want to be clear, that I do not believe it is inconsistent that a victim of sexual assault might be confused and shocked in response to an assault—especially from a loved one who was trusted. In fact, it may well be a commonly seen reaction; however, on this record, given the circumstances and timing of when N.S.’ certainty of what happened crystalized, it is possible her initial uncertainty reflects N.S. herself was not discounting the possibility something she did led D.B. to believe in the moment she was consenting.
[43] The second reason to question the reliability of N.S.’ evidence about what immediately preceded the penetration is a significant difference, which the defence highlighted, between N.S’ testimony and her previous statements.
[44] At trial, N.S. testified after her verbal ‘no’, D.B. continued to grab her by the hips in an effort to pull her genitals down onto his erection. Confronted with her videotaped statement, N.S. agreed she stated the following to the investigating officer:
Q. Yeah. Okay. Um, and then after you told him that you didn't wanna have sex, um, did he say anything? A. Um, I don't remember this, but I have it written down 'cause I wrote things after it happened, that... Q. Mm-hmm. A. ...he said"Okay". Q. Mm-hmm. A. But I don't actually remember. Q. Okay. And -- and then what happened after he said"Okay"? Or what -- what do you have? What do you remember happening A. um after that he just kept, like, rubbing my back. I was still on top of him. Rubbing my back and squeezing my butt. Which is normal, like, we were just cuddling sort of thing. Q. Right. A. And then.... Q. So, that was okay with you at that point? A. Yeah A. … But it was just, like, I didn't -- I said I didn't wanna have sex and it was fine. Q. Yeah. A. Um, and then, um, yeah, then -- and so he was running my neck and squeezing my butt and then when he squeezed my butt one time, all of a sudden, he just, like, opened my -- opened me and thrusted. Q. Okay. And when he thrust [sic] , did he thrust inside of you? A. Uh, some of him got inside, yeah. Q. Okay. And inside of which part? A. My vagina.
N.S. was also taken to this portion from her statement to the police:
A. Um, he just said"Okay", and he kept, like, rubbing my back and squeezing my butt and stuff. And then, um, he, um, just like, had his hands on my butt and spread me open and just thrusted really hard. And I immediately froze. I, like, got on my elbows and my knees. So, I was lying on top of him.
[45] Confronted with these portions, it was suggested to N.S. that she did not previously state that D.B. continued to grab her hips after the ‘no’ and try to pull her genitals down onto D.B.’s penis. N.S.’ explanation was that her use of the “ and stuff ” phrase with the officer was meant to reference D.B. forcefully grabbing her hips to pull her groin down on him.
[46] This added detail at trial, in my view, reflects a significant change in N.S.’ pre-trial account on the critical moments relevant to D.B.’s honest but mistaken belief in communicated consent defence. I do not accept—as submitted by the defence—that this reflects a credibility concern—rather I see it as a further concern to doubt the accuracy of her memory in those critical moments preceding the penetration, particularly given her own professed uncertainty post-incident until after speaking to her therapist and a friend from her women’s therapy group.
[47] Looking at the evidence in totality, I do not accept that D.B. continued to grab N.S’ hips in attempt to pull her genitals down onto his penis after she said ‘no’ to sexual intercourse. Additionally, in all the circumstances, it could be true that N.S. made repeated movements with her body—some eight to ten minutes after saying ‘no’—that D.B. perceived as her pressing the opening of her vagina onto his erect penis.
Reasonable steps inquiry
[48] The entitlement to the legal of effect of this mistake of fact, rests on whether it can be said that D.B. took reasonable steps in the circumstances to ascertain that N.S. was consenting. This is a legal precondition to the defence – “no reasonable steps, no defence”: Barton, at para 104; I.A.D., 2021 ONCA 110 at para 13.
[49] The reasonable steps inquiry is a fact specific one which must take into account the full contextual circumstances of what was known to D.B. at the time. When a reasonable person considers how the “prior sexual activities may establish legitimate expectations about how consent is communicated between” them, “thereby shaping the accused’s perception of communicated consent … at the time it occurred” [3], he/she would conclude that D.B. fulfilled this requirement even though N.S. gave a verbal ‘no’ to penetration 10 minutes earlier.
[50] In coming to this conclusion, I consider the following:
- D.B. did not initiate or try to initiate vaginal penetration after N.S’ verbal ‘no’; and instead—consistent with their relied upon custom—waited for an overt sign as an expression of her consent to that activity
- After eight to 10 minutes passed, N.S. pressed the opening of her vagina against D.B’s erect penis, a clear and overt sign
- D.B. turned his mind to the possibility of misreading that sign and did not react until he was sure he interpreted her movement correctly
- N.S. then over the course of one to two minutes continued to press the opening of her vagina by making repeated movements consistent with rocking her hips back and forth – an act which is also consistent with the manner in which N.S. has consented non-verbally in the past after a verbal ‘no’
[51] In my view, these circumstances distinguish this case from scenarios where an accused claims honest but mistaken belief in communicated consent in the face of ambiguous or passive conduct. The conduct that D.B. perceived was overt and a precise and repeated motion particular to intercourse. That conduct was also consistent with an established pattern whereby N.S. would express her consent non-verbally after a verbal ‘no’ followed by an interval of some minutes similar to this occasion.
[52] Looking at all the circumstances, including the conduct of both parties during and after the sexual encounter at issue, this transaction genuinely speaks of misunderstanding—one that cost D.B. his relationship and sadly re-violated and traumatized N.S in a profound way.
[53] As a result of my findings, I am left in doubt as to the accused’s guilt.
Conclusion
[54] The Crown has not proven the mens rea element beyond a reasonable doubt. Consequently, I find D.B. not guilty of sexual assault.
Released: March 26, 2021 Signed: Justice A. Calsavara
[1] R. v. D.B., 2020 ONCJ 579 [2] 1991 93 (SCC), [1991] 1 SCR 742 [3] Barton, para 93