CITATION: R. v. J.A., 2021 ONCJ 713

DATE: October 13, 2021

Information No. 19-321

ONTARIO COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

J.A.

REASONS FOR JUDGMENT

BEFORE THE HONOURABLE JUSTICE B.E. PUGSLEY

on OCTOBER 13, 2021 at ORANGEVILLE, Ontario

IMPORTANT: CONTENTS CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO AN ORDER UNDER SECTION 486.4 OF THE CRIMINAL CODE BY

HER WORSHIP JUSTICE OF THE PEACE V. CARTY

ONTARIO COURT OF JUSTICE

DATED APRIL 2, 2019

APPEARANCES:

M. Occhiogrosso Counsel for the Crown

C. Bellan Counsel for J.A.

REASONS FOR JUDGMENT

PUGSLEY J. (Orally):

J.A. is charged with two criminal charges related to a sexual encounter with his then boyfriend on the 2^nd^ of January 2019 at J.A.’s apartment in Shelburne.

For privacy reasons the parties and some of the witnesses will be described only by their initials.

The complainant, D.R., agreed in evidence that the sexual encounter was consensual up until the defendant engaged in a single sexual act and did not stop when told to do so by the complainant. The defendant states there was consent for all activity.

J.A. faces allegations of s. 271 of the Criminal Code sexual assault and s. 151 of the Criminal Code touching the complainant, a person under the age of 16, for a sexual purpose. Consent is an available defence on the s. 271 allegation. Consent is also an available defence on the s. 151 allegation by virtue of the application of subsection 150.1(2.1) of the Criminal Code.

The defendant was 18 on the 2^nd^ of January 2019. The complainant was 15 on that date. Their age difference was under five years and their relationship did not engage the defendant as being in a position of trust or authority over the complainant. Further, the complainant was not in a position of dependency to the defendant, nor was their relationship exploitive within the meaning of subsection 150.1(2.1) of the Code.

The focus of the evidence was upon whether the admitted sexual act was consensual as the defendant states or non-consensual as the complainant testified.

Both the defendant and the complainant identify as trans individuals adopting a male persona. They use male pronouns. They both have medical, emotional and mental health issues. They met at a support group meeting held regularly under the auspices of the local child and family services agency and available to the LGBTQ community at large. Shortly after their meeting they started to date.

The evidence of D.R. commenced with a lengthy video recorded police statement. On March 5^th^, 2019 the complainant attended at the Shelburne Police Service to complain about being sexually assaulted by the defendant. On video he described how he and the defendant met in May of 2018 at the C.A.S. youth group and how their relationship developed into a dating relationship. At the time the defendant lived in Shelburne and the complainant lived elsewhere. Neither had independent means of transportation and relied on being driven or by taking a cab, which was costly. At first the defendant still lived at home so they hung out together outside the home. When the defendant secured his own apartment the complainant started to visit the defendant there.

The complainant told the officer that the defendant suggested sexual acts that the complainant was not comfortable with and the defendant said, “Okay then” and then did not do those acts. He later agreed to some sexual contact, but stated that he had also had marijuana and was intoxicated.

The complainant narrated with frequent references to his cell phone on the video. He provided several lengthy hearsay digressions detailing the background of their fellow group members and alleged infidelities. He alleged that he had heard that the defendant had sexually assaulted another person and stated that he wanted to put the defendant behind bars. He told the officer that another time the defendant cheated on him with another person. The defendant was toxic, but he still loved him and others told him that he should not.

On or about January 2^nd^, 2019 the defendant invited him to come to his place in Shelburne. The complainant asked his grandmother for a ride, but she told him that his parents had told her not to drive him anymore. The complainant said, “You can’t tell me what to do”, and took a cab to Shelburne. He stated on video all he got for his $50.00 each way cab fare was trauma. As soon as he got to the apartment the defendant immediately undressed him and they had sexual contacts until 7:00 or 8:00 that night. He stated to the officer that he did not want to have sexual contact, but the defendant just kept going. He faked enjoying it hoping that the defendant would stop, but the defendant did not.

Finally, the defendant placed two or three fingers into his vagina and it hurt the complainant. He told the defendant to, “Stop. It hurts”, but the defendant did not. He was crying and the defendant’s hand was covered in blood. He cried for an hour, but the defendant just had a shower and said, “Why are you upset?” The complainant had an 11:00 p.m. curfew and they called a cab, but it was a long time coming and he did not get home until after Midnight.

He later told a friend, Ms M.E., at group and she agreed that what the defendant did was wrong. The complainant texted the defendant and said that he had told him to stop and the defendant implied that he had not heard him. D.R. replied that he had told him before. They got together on a later date and the defendant’s behaviour led to him ending their dating relationship. The complainant spoke out to the group session later about the defendant’s assaultive behaviour and that everyone at group knew that the defendant sold drugs at their group sessions, however no one did anything about it. He spoke on video about hearing about J.A. abusing another person and they together decided to put J.A. away.

Just before coming in to see the police the complainant’s mother had found marijuana in his bag and told him she was sad that he had not told her about his drug use. D.R. replied that when he got home he would tell them what had happened and when he got home he told them about being sexually assaulted by J.A. They arranged for him to see his therapist.

The complainant told the investigating officer that he had screamed loudly for the defendant to stop, but the defendant did not stop and joked about breaking his hymen. There was so much blood that they washed the sheets right after. He bled like in the horror movie Carrie. He was too embarrassed to tell anyone before he spoke to the police.

On Crown application the video was slightly edited to remove a reference to “Other victims”. The edited transcript is Exhibit 1B.

The complainant’s evidence in chief continued. He clarified that the forced sexual assault was about 20 or 30 minutes long, but he was not sure. He did not remember why J.A. stopped. He was not sure who took his pants off, but thought it was the defendant.

While they were waiting for the cab the defendant seemed upset and annoyed. D.R. was surprised that the defendant did not seem to know why D.R. was upset.

After the defendant showered they washed the sheets.

He broke up with the defendant in February of 2019. The defendant was angry because D.R. smoked so much marijuana and was never sober, and D.R. had messed up with the group meetings.

The complainant decided to tell his mother about the assault after she found his marijuana and he then decided to stop lying to her. It was embarrassing to tell about the event as well. He did not want to tell his family or friends.

D.R. was the subject of a vigorous cross-examination. He testified that he had shown over 100 screenshots of texts and other messages to the police after the video interview, and the police had saved the important ones. D.R. testified as well that he only took screenshots of messages that he felt were important.

D.R. was asked how he came to leave the group sessions and he agreed that he had been banned from the group due to being intoxicated. He disagreed that he had ever harassed the defendant at group, although others had done so. He went back after he was banned and brought a bunch of friends for backup because he had to get books he had left at the defendants. He said the defendant had stolen them and those books had to be returned. He took friends because he was scared of the defendant.

He agreed that his father messaged the defendant to have the books returned, but believed that that was before he went to the group session to pick them up. He testified that he had memory gaps due to past trauma.

He never raised the defendant’s assault at group, but persons at group knew. M.E. was told before the charges were laid. When they talked he never told her the whole story at the time. He later lived with M.E. and her then boyfriend, Aaron. After they broke up he was in a relationship himself with Aaron. M.E. told Aaron that the allegation would never have been made if the complainant’s mother had not found his drugs.

At group sometimes the complainant told others about the defendant’s lack of affection, although he knew that the defendant did not like overt demonstrations of affection in public. The defendant told M.E. everything about the events. He did not agree that he made dramatic gestures at group or when he did not get his way.

The complainant agreed that he knew that the defendant was not allowed to contact him after the police laid the charges. He denied sending any messages to the defendant. In particular he denied sending the defendant a photo of himself in bed with Aaron. He said that he did not send it. It was Aaron. He denied knowing that the defendant had Snapchat. Then he stated that he was intoxicated at the time. He agreed that of course that he knew that the defendant had Snapchat, but he did not know what it was. He never had Snapchat until later. Counsel suggested to the complainant that he sent the photo to harass the defendant. The complainant replied that if he did he was intoxicated. He does not remember. Aaron said he sent them. He did not remember that. The photo had a message attached that he was, “Fucking your boyfriend.” He then agreed that he was on Aaron’s phone at the time if he sent it. He knows that the defendant took a screenshot, but he was drunk and does not remember sending the photo.

On the date of the alleged assault the complainant was asked if their friend G.S. was also at the defendant’s residence. He said, “I guess. Was she?” and could not place her there that day. The complainant then stated definitively that only he and the defendant were at the defendant’s apartment that day. Then he agreed that sometimes other people were there, but very rarely. On this occasion he accepted that G.S. was there. People would send text messages to each other even when they were in the same room so as to not speak in front of the other persons.

The complainant stated that he did not recall what the defendant was wearing. He cannot recall all of that day. They did halfway undress each other then he could not recall. They started kissing and each left marks on the other. Each then manually stimulated the other. The complainant could not recall their positions, but they did discuss the 69 position and the defendant was on top of him then. The complainant agreed that he tried to finger the defendant’s vagina. The defendant said “No” and they talked. D.R. told the defendant he wanted the defendant to finger his vagina and the defendant slowly did so. The complainant agreed that he thinks that he asked the defendant for more, but when asked if that was when the defendant inserted a second finger the complainant says that was not what happened.

D.R. denied the suggestion that he never said “Stop” or “No”. They talked. The defendant said to him, “I’ll make you scream”, and then put in two fingers. He then asked himself, “Was there one?” He agreed that while the defendant had his fingers inside the complainant’s vagina that D.R. continued to stimulate the defendant’s vagina for part of that time, at least at the beginning. He denied that they cuddled after sex. When asked if the defendant took photos of them cuddling the complainant became loud and confrontational, then said, “That was on a different date”, then said, “I see”, and then it was before the event and then they did more. He then said definitively that he had seen the photos, but he could prove they were from before the defendant’s rape of him. The photos were posted on Snapchat on January 2^nd^, 2019, the date of the allegations, at 6:35 p.m. In the photo both parties are shown. The complainant is wearing a binder and the defendant is unclothed. Counsel suggested that this was after sex. The witness said this was after the first round of sex.

The complainant denied that there was only a bit of blood and that was on the defendant’s hand. He recalled that at first he thought it was his period. His period can trigger gender dysphoria. D.R. said he consented to the defendant inserting his finger into his vagina, but at that point before. Counsel suggested that if there was as much blood as the movie Carrie others would have seen it too. He stated that blood was on the sheets, the underwear, on the hands and that he was still bleeding up to two hours later. He then immediately corrected himself before the next question saying, “That is an overstatement.” Even the cop understood that that was an exaggeration. The defendant definitely did the laundry after they had sex.

D.R. agreed that after the defendant was charged he sent a message on the defendant’s Instagram account. He did not harass the defendant. He did it to make himself feel better. The complainant denied that he wanted the defendant charged for a different event as well. He misspoke when the video showed that. D.R. denied that when his mother found his marijuana he made up the story of a sexual assault to provide an excuse for his drug use. His mom was upset and then after he told her she understood. He agreed that before he went to the police the police had called him to warn him about harassing the defendant and told him not to call the defendant again.

The complainant’s therapist testified that she had many sessions with D.R. before and after the events described in his evidence. He had often called her on her cell phone in the past. He had made no complaint at any time of the assault until seeing her after his marijuana was found. When he told her of the allegations she called the police as required by law. D.R. was upset that the police had to be called.

G.S. testified as the first defence witness. She stated that she was at the defendant’s apartment on the day of the allegations and remained there at all times while the complainant was there. There were no screams by the complainant and no signs of any trauma or bloody sheets. D.R. never complained about any assault. D.R. was in a bad mood and wanted to smoke weed a lot that day.

M.E. was the next defence witness. She was a close friend of the defendant for three or four years, but does not talk to him now. They are just acquaintances. She also knows D.R. They all met at group in 2018. At one time she and D.R. were close, but they fell out two years ago and do not talk. Her former boyfriend is Aaron. The witness heard about the charges about two weeks after they were laid. She heard from the complainant. D.R. told her in an Instagram that his parents had found his weed and he made up an excuse that he needed the drugs because he had been sexually assaulted. He told her that the defendant had assaulted him, that their intercourse was too rough and he bled, and instead of comforting him the defendant had taken a shower. D.R. did not tell her it was forced or that he had said no. She did not tell D.R. that it sounded like rape and stated in evidence that what she heard was not rape. At that time she and D.R. were best friends.

At group D.R. was very child-like and disrespectful of others, and would have outbursts in the group sessions. D.R. was banned from group because he brought weed to the group. After he was banned the complainant did return once. D.R. had left a book at the defendant’s. When he came to group and yelled at the defendant about it the group leader intervened.

Ms. E. identified Exhibit Two. It was a photograph of the complainant in her bed with her ex-boyfriend Aaron after they had had sex. She saw D.R. take the photo on Aaron’s phone. It was sent to the defendant with a message that he was, “Fucking your ex-boyfriend”. Ms E. stated that she still cares for the defendant, but would not lie for him.

D.R. did not tell her he needed an excuse for his drugs. He told her he did not want to be grounded for weed. She did not assume it was an excuse. He messaged that to her. She believes that this was after the charges, but it might have been sooner. After the charges he told her that he regretted going to the therapist and his parents. She found some Instagram messages on her phone, but they did not include all of their discussions. Some of their discussions were not on Instagram. They exchanged more than 1,000 messages. What the complainant told her was not in her definition of a sexual assault or any abuse. On his messages D.R. said his parents found his weed and he needed a reason why he used drugs, and he made up a traumatic event so it would seem reasonable to be smoking a lot of weed.

The defendant testified. He has a number of diagnoses including autism, major depression, generalized and social anxiety, complex post-traumatic stress disorder, A.D.H.D, and a learning disability. In spite of this he is a college student and is also self-employed.

He met D.R. in May of 2018 at D.R.’s first group meeting and they started to date at the beginning of June. Their relationship was very rocky and chaotic from the start, and got progressively worse until they broke up on his birthday, […], 2019. The complainant was heavily using drugs and that affected his daily living. D.R. was very lively and attention seeking at group whereas the defendant preferred to remain in the shadows. The complainant tried to provoke him into overt public expressions of affection at group. J.A. reached out to the group leaders and the director for help, but it did not work. There were also issues with J.A.’s service dog being distracted. D.R. was banned from group, but the defendant continued to go until he was charged. Before then the complainant came back at one time and was loud and disruptive and dramatic about getting a book back. At one point D.R.’s father left a voicemail for the defendant stating, “You will bring the book next week or else.” The defendant went to the police immediately and they cautioned the complainant.

On January 2^nd^, 2019 he was at his apartment in Shelburne. His friend G.S. arrived there at 1:11 p.m. and the complainant arrived at 1:29 p.m. He knows the times because they need to text him to gain access to the building where he lives. D.R. left at 11:42 p.m. J.A. called a cab for him. G.S. left around 3:00 a.m. All three of them were there all of the time. During the day he texted G.S. several times although all three of them were in the room together. D.R. kept urging them to smoke more weed and they did not want to. D.R. smoked and the defendant took some too. D.R. and G.S. bickered and the defendant asked G.S. via text to be nice.

At around 5:30 p.m. he and D.R. went into his room to have sex. Afterwards he took a selfie of D.R. and himself in bed, and that was posted at 6:35 p.m. on the date of the alleged offence. The defendant described how they were dressed in tight underclothes. They were lightly intimate together at first and the complainant disrobed him and then he disrobed the complainant. The defendant testified that he has anxiety from his past and that he waits for others to take the lead. He clarifies each step in the ladder, kissing, touching, and so on. Sometimes they do not get to the top of the ladder, but pause and sit on that step. They each had multiple finishes. When they moved to a 69 position J.A.’s back was to the wall of the bed and they were on their sides. At first it was oral stimulation and then the complainant tried to insert a finger or two into the defendant’s vagina. The defendant said, “Ow. That’s painful to me”, and D.R. stopped. The defendant asked the complainant, “Do you want the same?” and D.R. said, “Yes”. He then said, “More” and J.A. added a second finger and they both stimulated each other to climax. Afterwards they cuddled and kissed and lay in bed together, and went on their phones and then J.A. took the selfie. They had no more sex after the selfie. The complainant did not say “Stop” or “No” or signal to him to stop.

J.A. testified that D.R. was upset after they returned to the living room where G.S. was still sitting. He had had a little blood on his finger, which was common with any penetration. There was no blood on the sheets and he did no laundry until the following evening. He recalls that because there are many older residents in his building and one man cornered him in the laundry room that evening and was crabby to him. The defendant described that he checked each time he and the complainant were going to take a new step in their intimacy.

After they came back out to the living room the awkwardness continued. He texted G.S. to ask for advice about how to react to D.R.’s anger and aggression. D.R. was not communicating and often there was silence and tension.

J.A. was also vigorously cross-examined. D.R. told J.A. that he liked being penetrated, but J.A. agreed that the complainant had testified in court that he did not. Sometimes he did and sometimes he did not in his experience with the complainant. He never told D.R. he was going to make him scream. The complainant moaned with pleasure and asked for more, and never screamed. If D.R. had screamed the defendant would have stopped immediately. He never told the complainant he popped the complainant’s cherry.

When they waited afterwards in the living room the defendant did not understand what was wrong and what he could do about it. He was concerned with the complainant having more anxiety when he went home because the complainant would have been alone then.

The Crown submits that I should accept the complainant’s evidence and convict the defendant.

The defendant submits that the complainant was not credible and that the Crown has not proven either charge on the required criminal standard.

Counsel both understand that as the trier of fact I must assess the defendant’s evidence under the principles long established by the Supreme Court of Canada in R. v. W.D. Our criminal justice system is founded on the principle that the burden of proving the case lies at all times upon the Crown beyond a reasonable doubt. W.D. instructs the trier of fact to consider the evidence in a special way when the defendant testifies so that all times the burden is on the Crown. To paraphrase W.D., if I believe J.A.’s evidence I must acquit him. If I do not believe J.A.’s evidence, but that evidence nonetheless raises a reasonable doubt of his guilt then I must also acquit him. Finally, if I do not believe J.A. and his evidence does not lead me to a reasonable doubt the Crown must still prove each element of the offence beyond a reasonable doubt before I can find the defendant guilty.

Often such allegations as these are founded on events that take place when only two people are present. The alleged offences here took place in the defendant’s bedroom and no one but the defendant and D.R. were in that bedroom at the time. G.S., however, was only feet away. The assault described by the complainant to the officers and in his evidence in chief engaged screaming and blood flow to the level of the movie Carrie, a notoriously bloody horror movie. G.S. would have clearly noted either event. Until cross-examination D.R. denied any possibility that G.S. was even there. In cross-examination D.R. started to back away from that position, but then stated clearly that he and the defendant were at all times alone in the apartment. Clearly he is mistaken in this since G.S. testified that she was there, the defendant did so and was also able to establish when she arrived, when D.R. arrived, and when each of them left. Contemporaneous text messages between J.A. and G.S. took place while they were in the living room with D.R. Clearly G.S. was present at all times when D.R. was in the defendant’s apartment that day.

Further, M.E. testified convincingly that the complainant, when caught by his parents with drugs, told her that he needed some traumatic event to excuse his drug use. This does not mean that a sexual assault did not take place. However, this said to his very close friend cannot help but affect the credibility of the complainant here.

That credibility was severely tested both on the video and in his oral evidence. The complainant was glib and flip on the video, downplayed his inconsistencies even while creating them in his evidence, most particularly in cross-examination and was combative and argumentative with counsel.

In the end in cross-examination it was made clear that he did indeed consent to digital penetration by the defendant during their intimacy leaving the Crown to submit that consent to one finger does not mean consent to two fingers. Indeed, the defendant’s evidence addressed that as well, testifying that before he added the second finger he asked and consent was given.

I am reminded that there is no “Usual” way in which a victim of a sexual assault may react to that assault and that in the past sexual assault myths have been improperly used to demean and demoralize victims of a sexual assault. I am equally aware that such allegations brought to the criminal arena must be tried on the criminal standard of proof.

Here D.R.’s evidence, simply put, does not make sense and is not credible. G.S. was there and there was no screaming and no bloody sheets. D.R. has exaggerated what took place and been caught in that exaggeration on multiple occasions. This does not mean that no sexual assault took place. It simply affects the overall credibility of D.R. upon which the Crown has tried to build a criminal case.

On the events in the apartment alone it would be unsafe to convict the defendant on the evidence of D.R. On top of that evidence is the post-offence conduct of the complainant when he told his best friend that he needed an excuse to explain his drug use when caught by his mother, a conversation I find did indeed take place.

J.A.’s evidence was convincing, logical and backed up by external evidence. There is no basis on the evidence to conclude that G.S. and M.E. lied to help their friend. The only evidence is to the contrary. J.A.’s selfie of the parties after their intimacy is evidence timed to the minute of the post-intimacy state of the parties. When confronted with that the complainant’s evidence was first to exclaim loudly that it was untrue, that he had proof, and that that was after their first sexual intimacy of that day, and that the sexual assault was during a later sexual encounter that he had never mentioned up to that moment.

I found that the complainant consented to the acts complained of as the defendant testified.

On a W.D. analysis the case has not been proven beyond a reasonable doubt. I believe J.A.’s evidence and disbelieve that of the complainant. The defendant is therefore acquitted on both counts.

...PROCEEDINGS RECORDED BUT NOT TRANSCRIBED

...WHEREUPON THIS PROCEEDING WAS ADJOURNED

Certification

FORM 2

Certificate of Transcript

Evidence Act, Subsection 5(2)

I, Kendra Kelly certify that this document is a true and accurate transcription of the recording of R. v. J.A. in the Ontario Court of Justice held at 10 Louisa Street, Orangeville, ON. taken from Recording No. 0611_102_20211013_092408_PUGSLEB.dcr, which has been certified in Form 1.

July 18, 2022 Kendra Kelly

(Date) (Electronic signature of authorized person)