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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

ONTARIO COURT OF JUSTICE

DATE: 2022 10 28 COURT FILE No.: Niagara Region 998 21 S0554

BETWEEN:

HIS MAJESTY THE KING

— AND —

M. (T.)

Before: Justice J. De Filippis

Heard on: September 14 & 15, 2022 Reasons for Judgment released on: October 28, 2022

Counsel: Mr. M. Eshuis....................................................................................... counsel for the Crown Mr. V.J. Singh............................................................................................... for the defendant

De Filippis, J.:

INTRODUCTION

[1] The defendant was charged with two counts of sexual assault against the same complainant. The first charge relates to events dated November 15, 2014 and the second is dated January 1, 2021. The Crown called the complainant and her brother-in-law to testify. Moreover, on consent, without the need for a voir dire, the Crown tendered a video recorded statement given by the defendant to the police after he was arrested. The defendant testified.

[2] The allegation with respect to 2014 is dismissed and can be dealt with summarily. After the complainant went to the police with respect to the recent allegation, she also revealed a prior incident in which the defendant had “fingered” her vagina. The complainant testified that the incident occurred after a night of heavily drinking by both parties. She added that she has no memory of what she may have said or done before and after the incident. The defendant testified that he did, in fact, insert his finger into the complainant’s vagina on the evening in question. He asserts that she consented to this. At the commencement of submissions, I asked the Crown how I could be satisfied, beyond a reasonable doubt, on this evidence, that the defendant had sexually assaulted the complainant in 2014. The Crown did not pursue the charge.

[3] The following reasons explain why I find the defendant guilty of sexually assaulting the complainant in 2021.

NON-CONTROVERSIAL EVIDENCE

[4] The defendant is 31 years old and the and complainant is 30 years old. They have known each other since high school. Prior to the defendant’s arrest they spoke to each other frequently – often daily. They considered their friendship to be special, but it was not an intimate relationship.

[5] The complainant’s sister is married to a man I will identity as A.M. The latter has known the defendant since grade school and considered him to be one of his best friends. The events in question occurred at the home of A.M. The complainant visited that home on New Year’s Eve. The defendant was invited and attended. At this time, he was engaged to be married.

[6] The group spent the evening watching television and playing games. The defendant and complainant consumed alcohol. He drank rum or whisky and she had “Mike’s Hard” (a vodka drink). At one point, they also went outside and smoked marihuana.

[7] The complainant and defendant sat on an L shaped couch. They joked and made fun of each other, in the presence of the homeowners. Eventually, the complainant fell asleep on the couch while others were still in the room. She was wearing Lululemon pants, a baggy sweater, and wrapped in a blanket. After midnight, A.M. and the complainant’s sister went to bed upstairs. The defendant also fell asleep on the couch.

[8] The complainant testified that she awoke, in the early hours of January 1, 2021, to find the defendant sexually assaulting her. The defendant has a different version of events. I will deal with that evidence later. However, what is not in dispute are the social media messages subsequently exchanged between the defendant and complainant and the defendant and A.M. The explanation for these messages is a matter of controversy and I will also deal with that later.

[9] Within a few hours of the alleged sexual assault on January 1, the following messages are exchanged between the defendant (D) and complainant (C). The medium is Facebook Messenger and it begins at 5:36 AM:

D: Be careful the roads are terrible C: Thank you for the heads up, please drive safe! Just heading home now. D: Home – to this message, the complainant added a heart emoticon. D: You got home safe right C: I did D: Good I’m Glad D: Try to get some rest beautiful. C: Hopefully you can too!! Night. - to this message, the complainant added a heart emoticon D: Night xoxo

[10] On January 2 at 12:37 PM, the following exchange occurred:

D: Morning D: Hope you got some sleep

[11] Having received no answer, the defendant sent another message at 5:11 PM,

D: Are you upset with me? C: Not at all. I just think you need to evaluate your relationship with your fiancé before making rash decisions like you did this morning. I’m sure [the name of the fiancé] would feel very disrespected and hurt with what you pulled. I think I just need a few days cause I’m certainly not becoming a home wrecker D: Won’t ever happen again take all the time you need D: Enjoy your night xo D: And I’m sorry I was a douche you’re right that’s not me D: Anyway last message D: I’m sorry and thank you I shouldn’t have projected my personal problems into a physical action most likely ruining something so amazing as our friendship there’s no excuse for me to give you just that this won’t ever happen again promise on my kids and that I need to work on my own feelings thank u for knowing me better then I no myself I’m such an idiot I love you your an amazing girl and deserve the world if I’ve destroyed our friendship then I’ll live with that because it was my entire fault for not being more considerate and thinking over my actions regardless of my state of mind or body

[12] There is no evidence of additional Facebook messages between the parties. However, five days later, the defendant sent the complainant a message by Instagram and she responded:

D: You didn’t have to block me on everything D: Guess this is for me more then you…I’ll miss you…this is going to be a hard year without you…Destroyed me when I saw u took me out of your life…It’s my fault…Hope you have nothing but happyness in your life…Love you…Goodbye C: Destroyed me when you sexually assaulted me at my sisters. Haven’t slept, complete mess. Thank you for Fucking me up more than I already was…Have a good life [the defendant’s first name]. Please don’t contact me again.

[13] Several days later, on January 13, there was an exchange of messages by Facebook Messenger between the defendant and A.M.:

D: Surprised you didn’t remove me too AM: Kinda want the facts of everything that happened D: Well I’d explain on the phone but don’t need [the complainant’s sister] yelling at me AM: Well I heard that you were very inappropriate with [the complainant] AM: very touchy feely D: Yeah I may have let the alcohol and weed get the best of me I don’t remember the entire night but enough of it…But at the end of the day If you want or need to remove me I won’t hold it against you I made a poor decision and regret it AM: I understand that you regret it man but that’s my sister in law and at my house not acceptable D: I know…Can I at least know what was said I did AM: You where on top of her touching her in privates when you finally got off of her you jerked off on my couch D: My penis never left my pants Second I was beside her not on top of her AM: Still not the point you touched her inappropriately. Did you discuss it with your future wife D: No I don’t want to ruin my family I did something stupid it won’t ever happen again…Please don’t tell her AM: I won’t that’s up to you to do the right thing D: If you are going to remove me just wanted to say you have been a good friend…And I won’t work with [XXX] anymore either if need be

THE COMPLAINANT’S TESTIMONY

[14] The complainant described what happened as follows: “On awaking I was on longest part of the couch, on my right side, on my back with my arm behind my head with [the defendant] on top of me on my left side…my blanket was off and he had his forearm on my shoulder and the other hand caressing all over my body and he was rubbing on me”.

[15] The complainant said, “what are you doing” and repeatedly told the defendant to stop. He did not. Instead, he said. “Let me do this, I am not happy at home, let me do this”. He grabbed her left breast and at one point bit that breast through her clothing as he tried to put his hand down her pants. The complainant said the bite hurt and she pushed back at him and said, “You have a fiancé at home, don’t do this”.

[16] The complainant said that the defendant, “inserted his finger into me”. She explained he penetrated her vagina through her clothing. She told him to “get off me I don’t want this and he finally clicked in his head that it wasn’t ok and he got up….I [also] got up to compose myself and saw him standing with his hands down his pants, masturbating…he eventually got his stuff and left”. Before departing, the defendant said “you’re not going to hate me for this are you, we are still friends, drive safe, I’ll message you when I get home”. Within 30 minutes, the complainant also left the home in her vehicle.

[17] Soon after the parties had gone to their own homes, the defendant contacted the complainant, as set out above. These messages were eventually turned over to the police by her on January 19, 2021, when she reported the present allegations. She did so at the suggestion of her counsellor.

[18] The complainant testified that she used the heart emoticon when asked if she had arrived home because “it was the thing that popped up” and she used it to confirm her safe arrival. She said she used that heart symbol again “because I send that to all my friends”. The complainant did not respond to the defendant’s apology. When she later blocked him from contacting her by Facebook, the defendant contacted her by Instagram. He said she had destroyed him by blocking her. The complainant responded that he had destroyed her by the sexual assault and told him not to contact her. The parties have not had further communication.

[19] The complainant agreed with Defence counsel’s characterization of their relationship as “best friends" and that they communicated “all day every day”. He visited her home every other weekend and occasionally stayed over. The complainant noted that she often invited the defendant’s wife and children to join them, but he never brought them; the complainant added that she has never met his wife.

[20] The complainant confirmed that she and the defendant have mutual friends and that alcohol “played a big role” in those gatherings. She rejected the suggestion that she had previously playfully told the defendant about “fooling around” - she said, “I wouldn’t joke about that”.

[21] The complainant insisted that on the night in question she awoke with the defendant trying to “finger” her. She denied they had earlier been “making out” while drinking. She testified that “I would not have consented to that – that was not our relationship”. The complainant rejected the suggestion she was “giggling” while the defendant touched her; she repeated that she was awakened by his actions and kept telling him to stop.

[22] Defence counsel reviewed the exchange of messages soon after the incident in question and suggested that the complainant’s initial responses and use of the heart emoticon shows that what happened was consensual. The complainant denied this and explained that she wanted to avoid a confrontation and did not know how to deal with the matter at this time. This, she said, also explains why she said she was “not at all” upset.

[23] Defence counsel pressed this issue by pointing out that the complainant told the defendant he needs to evaluate his relationship with his fiancé because of what he “pulled this morning… I need to take a few days because I am certainly not becoming a home wrecker". The complainant denied she was expressing guilt and remorse for her consensual sexual encounter with the defendant.

[24] The complainant explained her last communication with the defendant - “Thank you for fucking me up more than I already was” – as a reference to the pandemic and the loss of her job. She denied she has mental health issues for which she takes medication and that she was in counselling before the events in question.

A.M.’S TESTIMONY

[25] A.M. confirmed the Facebook conversation referenced above. He testified that he and his wife went to bed on the evening in question around 1 AM. At this time, he noticed the complainant was “dozing in and out of sleep” and the defendant was making himself comfortable to fall asleep. The parties were on the L-shaped couch with their feet almost touching.

[26] A.M. awoke around 8:30 am and noticed that the complainant and defendant were both gone. He saw the complainant several days later and observed that “she was down”. A.M. testified that she has “mental health issues” and assumed this explained her mood. He added that her issues were related to “something that happened in the past” and that she had been in counselling for a few years, prior to the 2021.

THE DEFENDANT’S STATEMENT TO THE POLICE

[27] The defendant was interviewed at a police station after his arrest. The recorded statement is 53 minutes in length. A good part of the interview is about his background and history with the complainant. He denies sexually assaulting the complainant as alleged in 2014 and 2021. His comments about the latter include the following:

Defendant: We were both very drunk, I thought we were fooling around. She never said no, she – all she said to me with a smile on her face is we shouldn’t be doing this, which gave me no, no indication that she didn’t want to do it. She was, she was talking to me, she was moving, she never pushed me away. Um afterwards when I sobered up I felt extremely guilty ‘cause I have a wife and a child at home and I didn’t want to ruin my family, so I apologized to her....We started fooling around, it was all me and she didn’t say no, all she did was a smile on her face moaning, we shouldn’t, we shouldn’t be doing this you’re gonna get married. So, I was not in the right frame of mind, I drank a lot of alcohol, and I smoked marihuana which I’ve never done...I don’t know how to explain it. If – she was smiling, she was laughing, like how do I, how am I supposed to interpret that, like don’t fucking touch me? I thought she was playing hard to get.

Officer: Did she an any point use her hands to push you away? D: [no response] O: Did she pull your hands away with her hands? D: Yea, she, she, she brushed my hand away...She never said stop it – all she said was we shouldn’t be doing this, and she was smiling and laughing so I thought she was playing hard to get. I was not in my right mind... O: Did you put your hand, did you put your fingers in her vagina D: No O: Through her pants? D: No O: Do you remember her vagina through her pants? D: We were fooling around. O: Okay. Do you remember her boobs? D: Over her sweater. O: Yeah. Did you bite her boob? D: I don’t remember.

THE DEFENDANT’S TESTIMONY

[28] The defendant is married with two children. He has been in a relationship with his wife for eight years. She was his fiancée at the time of the 2021 incident in question. He testified that he has never introduced her to his friends, including the complainant, because she “is not a partier or drinker” and prefers to say close to home. He added that his wife always knew where he was and who he was with, but at the time they were “having problems”.

[29] The defendant met the complainant in high school. He said they “partied a lot together”. He described their relationship as “boyfriend/girlfriend like” but “not sexual”.

[30] The defendant’s testimony about the events on New Year’s Eve in 2021 is similar to what he told the police in the statement referenced above. He said they both fell asleep on the couch, but he must have moved because he awoke hugging the complainant’s leg. In momentary confusion, he thought he was with his wife, and began rubbing her leg. The complainant said you “shouldn’t be doing this you are a married man”. However, she was smiling and spread her legs.

[31] The defendant said the complainant did not tell him to stop. He rejected her evidence that he was on top of her; “that’s not possible, I am 300 pounds and 6’ 2””. He also denied that he masturbated.

[32] The defendant admitted that he was ““not in the right frame of mind” because of the consumption of alcohol and marihuana. He estimated his intoxication level to be at 7 or 8 out of 10. He conceded that this affected his perception, and he cannot recall all events. However, although they were “fooling around” and he had his hand was on the complainant's breast he is confident he did not bite her breast or insert his finger in her vagina. The defendant acknowledged the complainant brushed his hand away but maintains that he thought the complainant was consenting and merely “playing hard to get”.

[33] The defendant confirmed that the complainant always used the heart emoticon in her social media messages. He explained their exchange of messages after the incident was not an apology, on his part, for sexually assaulting the complainant. Rather, they reflect “guilt because of what happened” - that is, he felt bad because he had “cheated” and she did so because she consented to it. Therefore, he told A.M. he made a “poor decision” and the complainant said she did not want to be a “home wrecker”. The defendant testified that his apology “for being a douche” was offered in the hope the complainant would not tell his fiancée about his infidelity. Crown counsel pressed the defendant on this point and asked, “Why not just tell her not to tell?”. The defendant replied, “Because then she has a text message in which I admit [the] act [of cheating]”. To this, the Crown noted, “But she already has that”.

ANALYSIS

[34] The Crown carries the burden of proving guilt beyond a reasonable doubt. This fundamental principle of law means that if the defendant has called evidence, there must be an acquittal where the testimony is believed or where the testimony is not believed but raises a reasonable doubt. An acquittal will follow even if the Defence evidence is rejected, but the remaining evidence fails to convince, beyond reasonable doubt, that the defendant is guilty: R. v. W.D., [1991] 1 S.C.R. 742.

[35] The Defence submits that I should accept the defendant’s evidence that the complainant consented. It is said that his testimony on point was candid and not undermined. Counsel adds that at the very least I should conclude that he had an honest and mistaken belief in such consent. In any event, counsel emphasized that the Crown has not met its burden of proof and that I must be left with a reasonable doubt about guilt.

[36] The Crown argues that, on all the evidence, it is clear the complainant did not consent to sexual activity. Counsel also submits that there is no basis to find that the defendant honestly, but mistakenly believed, in communicated consent.

[37] The principles that apply to the issues in the present case were set out by the Supreme Court of Canada in R. v. Ewanchuk, [1999] 1 S.C.R. 330 and again, more recently, in R. v. Barton, [2019] 2 S.C.R. 575. I understand the law to be as follows:

• Consent to sexual activity must be communicated by word or deed and cannot be assumed. There is no doctrine of implied consent, and it cannot be based on the relationship of the parties. Moreover, the complainant cannot be deemed to consent because she did not resist or say “no”.

• The defendant can rely on mistake of fact as a defence; this acknowledges that the complainant did not consent and rests on the claim that he honestly but mistakenly believed she did. The defence is based on fact that the Crown has proven the actus reus and negates mens rea.

• The mistaken belief is linked to “communicated” consent. This avoids straying into forbidden territory of assumed or implied consent.

• The defendant’s mistaken belief in communicated consent must be honestly held; it must be based on the complainant’s words or deeds. Silence, passivity, or ambiguous conduct by the complainant is not sufficient.

• To rely upon the defence of honest but mistaken belief in communicated consent, there must be evidence the defendant took reasonable steps to determine consent. This is highly fact specific.

[38] In the present case, the defendant and complainant had both consumed alcohol and marihuana. This significantly affected the defendant. It is less clear to what extent the complainant was intoxicated. In any event, I approach the testimony of both with caution. That said, the following is clear and agreed upon by the parties: The defendant initiated sexual activity with the complainant while she slept. She awoke and said the activity should not continue (by repeatedly telling him to stop on her version and by stating “we should not be doing this” according to him). This verbal rejection was followed by a physical gesture (in pushing him back according to the complainant and by brushing his hand away on the defendant’s version). The defendant continued to touch her for a sexual purpose (by fondling her breast on his version and, according to her, by also biting her breast, inserting his finger in her vagina and masturbating). On this common ground, the defendant’s assertion that the complainant consented or that he honestly believed this, cannot be accepted. However, the defendant adds that he initially touched the complainant thinking she was his wife and that the words and deeds he attributes to her were accompanied by a smile and the parting of her legs, signifying a consenting partner “playing hard to get”.

[39] The subsequent conversations involving the defendant undermine the Defence position. For example, the defendant told the complainant that “I shouldn’t have projected my personal problems into physical action” and told A.M. he might have “let the alcohol and weed get the best of me” and “I made a poor decision and regret it”. The defendant explained such admissions as referencing guilt for cheating on his fiancé. He added that by apologizing he also hoped that the affair would not be disclosed to his fiancé. I have little doubt the defendant felt guilty and was concerned his fiancé would learn what he did. But these factors have no necessary implications with respect to the issue of consent or his belief in it. His feelings of guilt and concern are also consistent with having committed a sexual assault. A fair reading of the social media exchanges, the defendant’s statement to the police, and his trial testimony show that his contrition went far beyond the issue of consensual infidelity. He was worried that the line he had crossed in forcing himself upon the complainant had jeopardized long lasting and important relationships he had with her and A.M.

[40] On all the evidence before me, I cannot accept the defendant's testimony that the complainant consented to sexual activity. Moreover, I reject the suggestion that the defendant honestly and mistakenly believed in communicated consent. In this regard, it is worth repeating that at the time of the incident, the defendant was intoxicated and, later, he conceded his perception of events was impaired. On his own version of events, it cannot be said that he took reasonable steps to determine consent.

[41] The complainant’s testimony about the incident in question was simple and straightforward. On its own there is no reason to doubt its truth or accuracy. She claims to have been sexually assaulted. It is not in dispute that sexual activity occurred. At issue is her state of mind (and the extent of the sexual activity). There are several factors that might undermine or cast doubt on the complainant’s evidence.

[42] As noted, I am mindful that the complainant had consumed alcohol and marijuana. However, I am not concerned that this impacts her credibility or reliability as the common ground, reviewed above, justifies a finding that she did not consent to sexual activity.

[43] The Defence asserts that the complainant’s insistence that she did not consent must be judged by her subsequent conversations with the defendant. It is argued that these show the complainant felt guilty about her willing participation in the sexual activity.

[44] Within hours of the incident the defendant contacted the complainant to ensure she had arrived home safely. She confirmed this fact. There is no mention – by either party – of the sexual activity. The complainant attaches a heart emoticon to two of the defendant’s messages. The complainant testified that she habitually uses the emoticon. This is confirmed by the defendant. In such circumstances, I accept the complainant’s evidence that her use of the emoticon is not relevant to her state of mind about the earlier events.

[45] Several hours after the initial conversation, the defendant contacted the complainant again through a different medium as she had failed to reply to other messages he had sent. He asked if she was upset. The complainant replied, “not at all…you need to evaluate your relationship before making rash decisions like you did this morning, I’m sure [name of fiancé] would feel very disrespected and hurt with what you pulled, I’m certainly not becoming a home wrecker”. The Defence argues that this points to a guilty complainant who had engaged in consensual sexual activity. I disagree. The complainant’s comments reflect anger, not guilt. This explains the defendant’s response: He accepts blame, apologizes, and promises never to repeat his actions. He says nothing to suggest a consensual encounter. In any event, I consider that the complainant’s comments occurred within hours of a sexual assault by a close friend of many years. In these circumstances, precision of language is not to be expected.

[46] The inconsistency between the complainant’s testimony and that of her brother-in-law about whether the former has mental health issues and was previously in counselling is of concern. It is improbable that the complainant has forgotten this; either she is being untruthful or, her brother-in-law has his facts wrong (there being nothing to suggest he would lie about it). On the record before me, I cannot resolve this issue. Having regard to the analysis and findings explained above, this inconsistency does not alter my conclusion.

CONCLUSION

[47] I reject the Defence evidence. I accept that tendered by the Crown. The defendant is found guilty of sexually assaulting the complainant in January 2021.

Released: October 28, 2022 Signed: Justice J. De Filippis