WARNING

The court hearing this matter directs that the following notices 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:

110. (1) Identity of offender not to be published — Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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.

111. (1) Identity of victim or witness not to be published.— Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it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.

112. 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:

138. (1) Offences — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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.

Further:

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 (1) Order restricting publication -- sexual offences – Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(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 (1) Offence –- 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.

And Further:

This hearing is also governed by section 278.95 of the Criminal Code:

278.95 (1) Publication prohibited – A person shall not publish in any document, or broadcast or transmit in any way, any of the following:

(a) the contents of an application made under subsection 278.93;

(b) any evidence taken, the information given and the representations made at an application under section 278.93 or at a hearing under section 278.94;

(c) the decision of a judge or justice under subsection 278.93(4), unless the judge or justice, after taking into account the complainant's right of privacy and the interests of justice, orders that the decision may be published, broadcast or transmitted; and

(d) the determination made and the reasons provided under subsection 278.94(4), unless

(i) that determination is that evidence is admissible, or

(ii) the judge or justice, after taking into account the complainant's right of privacy and the interests of justice, orders that the determination and reasons may be published, broadcast or transmitted.

Offence

(2) Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction.

ONTARIO COURT OF JUSTICE

CITATION: R. v. L.P., 2022 ONCJ 55

DATE: 2022 02 01

COURT FILE No.: Central East Region: Oshawa Courthouse: File #Y20-18261

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

L. P., a young person

Before Justice Peter C. West

Heard on August 17 and 18, 2021

Oral submissions were heard on August 19, 2021

Written Reasons for Judgment released on February 1, 2022

Mr. S. O’Neill.................................................................. counsel for the Crown

Mr. T. Balka.................................................... Counsel for the defendant L.P.

WEST J.

[1] L.P. was charged with sexually assaulting H.B. on March 9, 2020. L.P. was a young person at the time of the alleged offence. He pleaded not guilty and a trial was commenced on August 17, 2021. The Crown called four witnesses: H.B., the complainant; K.B. the complainant’s mother; A.S., the complainant’s friend and N.B., the complainant’s friend. L.P. testified on his own behalf.

[2] A number of admissions were made by the defence at the outset of the trial. Date, time, identification and jurisdiction were all admitted. An agreed statement of fact was marked as Exhibit 1, which dealt with the vaginal and external genitalia swabs of H.B. taken by a sexual assault nurse at Lakeridge Health Hospital in Oshawa on March 9, 2020. A forensic biologist at the Centre of Forensic Sciences conducted an examination of those swabs and detected a male DNA profile from the presence of semen. L.P. could not be excluded as the source of the DNA from the vaginal and external genitalia swabs.

[3] The Crown played the video-taped statement of H.B., pursuant to s. 715.1, which H.B. adopted as being her statement to the police. H.B. testified what she told Detective McConnell in her video statement was the truth. This was marked as Exhibit 2 and the transcript was marked as Exhibit 2-A.

Factual Background and Findings of Fact

Areas Where the Evidence of H.B. and L.P. are in Agreement

[4] This was a relatively uncomplicated trial where the two parties gave diametrically opposed positions. Before addressing H.B.’s and L.P.’s evidence, which is in conflict, I intend to set out those areas of their evidence where they basically agree.

[5] H.B. was in Grade 9 and L.P. was in Grade 10 at […] Secondary School in Oshawa. They had not hung out or spoken to each other until the week leading up to March 9, 2020. This was when L.P. first started sending H.B. Snapchat messages. They had seen each other at the public school they attended but they were not friends and did not hang out with the same group of friends. They did not ever talk to each other in any way when they were in public school. L.P. was a grade ahead of H.B. She testified she had seen L.P. in the halls at the public school but she was not very familiar with him either in public school or at high school.

[6] L.P. testified a friend, N., told L.P. he had added H.B. to his Facebook and he said H.B. was interested in L.P. In cross-examination H.B. testified she did not know anyone named N. and did not tell anyone she thought L.P. was attractive. Both L.P. and H.B. testified they had never spoken to each other prior to L.P. initiating contact by sending her a text on Snapchat. After L.P. sent her a message they were both exchanging Snapchat messages on social media while they were at school. The evidence disclosed that Snapchat messages disappear in either 24 hours or 48 hours (I heard conflicting time periods in the evidence) unless the messages are saved. They had never hung out together or with friends until after L.P. initiated the Snapchat messages. H.B. testified they did “laps”[^1] in the school halls with a group of people, maybe once or twice, although she really only recalled once and initially L.P. testified they did this two or three times, however, in cross-examination he agreed it might only have been once or twice. H.B. testified she did not have a relationship with L.P.

[7] The Snapchat messages were about school or how each of them was doing. They found out they lived close to each other. There were Snapchat messages entered as Exhibit 4. There is no date on the Snapchat messages in Exhibit 4. L.P.’s messages were in blue and H.B.’s messages were in red. L.P. asked H.B., “Laps?” and H.B. responded, “I already asked her and she said I can’t cause I’m to behind but walk home together :)” L.P. responded, “Ok Txt when you ready to walk.” H.B. responded, “are you leaving right after school” and L.P. responded, “Are you tryna leave right away.” H.B. responded, “Whenever you are I have a lot of hw[^2] so just not to long afterschool.” L.P. then responded, “Aii will leave rig hit away then.” H.B. responded, “okk can you send me a text message just so I have ur number.” L.P. responded, “I did” and H.B. responded, “tyyy where are we meeting, front?” and L.P. texted, “Sure.” H.B., responded, “okkk.”

[8] It is my view this entire exchange had to occur on March 9, 2020, as this was a Monday and they would not have been sending Snapchat messages about doing “laps” or walking home from school on a Sunday, which would have been March 8, 2020. There is a text from L.P.’s phone to H.B.’s phone sent on Monday at 2:27 pm saying, “Hey” and H.B. responded, “Hey” at 2.28 pm. L.P. sent another text at 2:33 pm, “Where are you.” H.B. responded at 3:34 pm, walking down to front rn.” These texts were marked at Exhibit 5. It is my view this was H.B. walking to the front of the school where they agreed to meet. This was the first time they had ever been together alone based on the evidence.

[9] In H.B.’s statement, Exhibit 2, she said L.P. had asked if she wanted to come over to his house but she told him she couldn’t and as a result, he said to just walk him to his door, to which she agreed. H.B. testified when she got to the front of the school L.P. was talking with some of his friends. She testified L.P. talked to his friends for a period of time and they did not leave the school for another five to ten minutes, as late as 2:45. Initially L.P. testified they left the school as soon as H.B. got to the front but in cross-examination he agreed he was probably talking with his friends but they would not have left until 2:45.

[10] It took about 10-12 minutes to get to L.P.’s house. When she walked him to the door he asked her to just come in for a little while and she said no she really had to go but he kind of pulled her, not aggressively, by her arm, and she ended up going in his front door. He told her to take off her shoes, which she did. In her police statement H.B. indicated L.P. told her that his parents weren’t home after they entered his house. When L.P. opened the door he had to enter the code to stop the alarm and this was when H.B. testified L.P. told her his parents were not home. H.B. testified she was uncomfortable but she said, “Okay, I’ll come in for awhile.”

[11] In his evidence L.P. testified he had asked H.B. to walk home with him in a previous Snapchat conversation that was no longer available to view, as it had disappeared, for them to hang out at his house. H.B. agreed they had talked about walking home together after they realized they lived close to each other. It is clear from the Snapchat messages that H.B. had told L.P. she could not come over to his home to hang out because she had homework and she could not stay too long at school because she had to get home. L.P. testified he asked if she wanted to leave right away and he took from her response that she was not going to stay that long after school was over. He testified he also knew she had a dance class as well, so he responded he would leave right away.

[12] H.B. testified it took them 10-12 minutes to walk to L.P.’s house, which was the same length of time testified to by L.P. H.B. did not recall how long she was at L.P.’s house. She thought maybe 15-30 minutes when Mr. Balka pressed her. She believed she called her mom around 3:30 after she left the house. H.B. testified the times she gave in her evidence were estimates as she was not sure of the exact time and did not look at her watch or a clock. H.B. thought they got to L.P.’s house around 2:45, which was the same time L.P. thought they arrived at his house. H.B. later testified maybe they did not get there until 3:00. In cross-examination, L.P. agreed that maybe he had talked to his friends after school after meeting up with H.B., so while he initially testified he did not get to his house later than 2:45, he ultimately agreed they might not have arrived at his house until 2:55. L.P. thought they were at his house for about 35 minutes before H.B. left and H.B. testified she thought she was at L.P.’s house for 15 to 30 minutes. In cross-examination L.P.’s evidence changed about the length of time H.B. was at his house and he agreed it could have been only 20 minutes.

[13] After arriving at L.P.’s house, H.B. stated in her police statement and her testimony that L.P. took her by her arm, pulled her up the stairs, not aggressively or forcing her, rather, to direct H.B. to his bedroom, which was at the top of the stairs. H.B. said in her statement L.P. did not force her up the stairs. The diagram drawn by H.B. during her statement showing the layout of L.P.’s bedroom, was filed as Exhibit 3 and L.P. testified it was an accurate depiction. H.B. sat of his bed and he turned on the TV and put on some movie, which she did not remember the name. L.P. then said his room was messy and began to clean it up. L.P. agreed after they went into his bedroom he immediately put a movie on and began to clean up his room, there were clothes on the floor, which he put in the laundry. L.P. agreed H.B. sat on his bed. He was standing by the TV.

[14] It is at this point after arriving at L.P.’s house and they are in his bedroom that the evidence of H.B. and L.P. diverges and is diametrically opposed as to the events that took place. .

H.B.’s Evidence as to What Occurred in L.P.’s Bedroom

[15] H.B.’s evidence is clear she did not consent to L.P. having sexual intercourse with her, nor did she ever engage in any kissing with him or engage in oral sex with him. When they first arrived at his house she told him she had to leave to go home but he asked her to come in for a little while. She told him she would come in but could not stay long. L.P. unlocked the door and after he shut off the alarm he told H.B. for the first time that his parents were not home. H.B. testified she felt uncomfortable but she did not say anything. This was when L.P. took her arm and directed her upstairs to his bedroom. L.P. turned on a movie on the TV and then he began cleaning up his clothes that were on the floor of his bedroom. At some point L.P. said the movie was boring and he turned her around and took off her pants and underwear and started having sex with her. Her pants and underwear were completely off. At first L.P. tried to get H.B. on top of him and she told him no and she moved off of him. He then got off the bed and turned her legs towards him so her legs were off the bed too. She told him to stop and she said “No” over and over. She told him, “Like I don’t know you.” In her statement she said she told him to stop “at least 15 times.” She tried to push him off but it happened so quick. When she was pushing him she was trying to pick up her clothes but he just started having sex with her. He put his penis in her vagina. He did not use a condom. As he was pulling out he was finishing and it went on her stomach. She thought this went on for maybe two minutes and then she was able to push him off her. The whole time L.P. never said anything to her, even when she was telling him to stop. She got up and put on her clothes and ran down the stairs and left the house. When she got up and grabbed her clothes he said to her, “You’re leaving already” and she said “Yes.” L.P. did not stop her from leaving. She said he never kissed her at the door before she left the house.

[16] H.B. said in her statement that L.P. had never talked to H.B. on the walk to his house about them doing anything when they got there. She said in her statement, “I wasn’t expecting him to do that ‘cause he didn’t, he didn’t even talk about any – like doing anything with me” (p. 27 Exhibit 2A).

[17] When she left she saw a friend,, E.G., on the street. E.G. had asked her to do homework that day and she had said “No,” she was going home. It was suggested to H.B. she was concerned E.G. would say he saw her at L.P.’s house. H.B. testified that E.G. would not have known whose house she was at because as far as she knew he was not a friend of L.P. She did not talk to E.G. In fact, L.P. was asked by the Crown if he knew E.G. and he indicated he did not know him and E.G. did not know L.P. or where L.P. lived. Mr. Balka made submissions that H.B. seeing E.G. on L.P.’s street supported the defence theory of H.B. having a motive to fabricate because she did not want anyone to know she had sex with L.P. In my view this is a complete red herring and irrelevant to the issues raised by this case given L.P. and E.G. do not know each other. E.G. would not know whose house H.B. was coming out of, if he even observed that and the fact she was on that street is also insignificant given, on the evidence, H.B.’s house was close to the street she was walking on.. It is my view based on the evidence I heard during the trial respecting E.G. that his seeing H.B. either leaving L.P.’s house or on L.P.’s street has no relevance whatsoever in respect of the issues in this trial.

[18] H.B. testified she called her mother just after she left L.P.’s house. She did not tell her mother during this call about what had just occurred at L.P.’s house. In her statement she said she called her mom as she left L.P.’s, “I just told her – I didn’t want to tell her right away so I just told her that I was late ‘cause I went with my friends at school.” In cross-examination she said she did not tell her mother what had happened because she did not want her to “freak out.” It was a brief call as K.B. was about to go into her physio appointment. K.B. testified she was dismissive with H.B. on the phone because she had to go in for her physio appointment. H.B. also testified she had decided to get Plan B and not make a big deal of what happened and she only spoke briefly to her mother. In my view H.B.’s comment in her statement that she did not want to “tell her mother right away” implies she planned to talk to her mother at some point about what had happened with L.P. I will have more to comment about this aspect of H.B.’s evidence later in my reasons.

[19] H.B. said she called her best friend, N.B. when she got home. Although N.B. testified when H.B. called her on her phone the first time, H.B. told her she was walking home from L.P.’s house. This was the phone call where H.B. told N.B. that L.P. raped her.

[20] When H.B. got home nobody was there. She called her best friend N.B. When H.B. was talking to N.B. she said she was freaking out on the phone and this was probably when N.B.’s mom overheard what she was saying to N.B. She told N.B. in her first call that she went to this guy, L.P.’s house. She told N.B. his name and asked if she knew him. H.B. told her she thought they were just going to hang out and she was fine with that but then he just started having sex with her against her will.

[21] After H.B. called N.B. the first time, N.B. texted H.B. and told her that she had told her mother, E.B., what H.B. had told her. It was in this text that N.B. also told H,B. that E.B. had overheard their conversation on the phone. It was also in this text that because N.B. was at the hairdressers H.B. should go to another friend’s house so she would not be alone. This was when H.B. called her friend A.S. and made arrangements to meet her and then go to her house. The first thing H.B. said to A.S. the phone call was “I think I just got raped.” H.B. was extremely upset according to A.S. H.B. met A.S., who was with her friend, J. and they all went back to A.S.’s house.

[22] I will discuss in greater detail the evidence of N.B. and A.S. in the paragraphs below.

[23] E.B., N.B.’s mother, picked up H.B. from A.S.’s house and drove her to H.B.’s parents’ house. Her grandmother was home by this time and E.B. told H.B.’s grandmother what H.B. had told her. As a result, H.B.’s grandmother and E.B. were both texting and calling K.B. to get her to return home from her physio appointment. When K.B. came home she spoke to H.B. and brought her to the hospital where H.B. was seen by a nurse and evidence was collected and ultimately sent to Centre of Forensic Sciences.

[24] In cross-examination H.B. said she and L.P. could have arrived at 3:00 at his house but she did not know how long it took them to get there from the school. She thought she called her mom after leaving around 3:30 and later in her evidence she said it could have been 3:20 but she was not sure. She did not remember leaning on the pillows on the bed and thought she was leaning on her arms after she laid back on the bed but agreed maybe she was sitting up on the pillows. L.P. was standing on the right side of the bed, where she drew him on Exhibit 3.

[25] H.B. denied kissing L.P. and she denied that he kissed her at any time. It was suggested to H.B. that she denied kissing L.P. because this would show there was some consensual sexual contact between her and L.P. H.B. testified there was no consensual sexual contact between her and L.P. H.B. denied the suggestion that she performed oral sex on L.P. In her cross-examination H.B. testified she tried to get her clothes to put them back on but L.P. was pushing her on the bed and had sex with her. It was suggested she never said this in her police statement and she indicated she believed she did tell the police this. In fact, at page 32, she told Detective McConnell she tried to pick up her clothes to put them on but he started having sex with her and she couldn’t.

[26] H.B. testified she usually did not tell her mother where she was after school. H.B. said she usually went out with her friends after school and she would not tell her mom this. If her mom had checked H.B.’s location from her iPhone on March 9, she would have seen H.B. was not at home. She admitted she would lie to her mother about her whereabouts after school and that she did not tell her mom where she had been after school on March 9, 2020, when she called her mother in response to her mom’s text asking where she was.

Evidence of L.P. as to What Occurred in his Bedroom

[27] L.P. lived at [address redacted] in Oshawa since Junior Kindergarten. He was in Grade 10 on March 9, 2020, attending […] Secondary School. It takes 10 minutes for him top walk from school to his home. His friend N. added H.B. on Facetime call. N. told L.P. that H.B. was interested in him. As a result he contacted H.B. on Snapchat. She responded “Hey” and they were chatting for about a week. In Exhibit 4 the first Snapchat message from me says “Laps?” He testified he had done laps with H.B. 2 to 3 times. Laps is when a student asks the teacher to go to the bathroom and then you would go on laps with your friends.

[28] L.P. testified he had invited H.B. to come to his home. During a text L.P. said he told H.B. he had a “free base,” which means home and he asked if she wanted to come over. This happened on Saturday or maybe Friday before March 9. On March 9 he wanted to do a “lap” with H.B. but she said she couldn’t and he assumed it was her teacher she was referring to. They agreed to walk together to his house.

[29] On the way to his house L.P. testified he did not remember what they talked about. She mentioned she had dance. When they got to his house they walked up the stairs to the door. He used the keypad to open the door and then punched in the code to turn off the alarm. He denied grabbing or taking hold of H.B.’s arm He testified he did not have to convince her to come inside his house. L.P. testified he thought they would make out and kiss. They both took off their shoes. L.P. said there was no discussion before they went up to his bedroom. The diagram in Exhibit 3 is accurate. He put on a movie, Adam Sandler, “Zohan” and he cleaned up his room as there were clothes on the floor that he put in the laundry.

[30] When he put the movie on H.B. sat on his bed, she was also lying on the pillows up by the headboard. He took off his backpack and hung it on the door and then lay down beside her. He was on the left side closest to the TV and she was on the right if you were looking at the bed. They watched Zohan for 6 minutes. He then said the movie was boring and he kissed her. H.B. kissed him back. After that she got on top of him. She climbed over him and sat on his lap. They kissed for a total of 4-6 minutes.

[31] After the kissing he took off his pants. Initially L.P. testified he moved H.B. over and he got off the bed and was standing where she said he was in the diagram. He was at the edge of the bed standing up. H.B. took off her pants. He did not take her pants off. He had his underwear off and he continued kissing her. He lay down on the bed on his back and she gave him oral sex. He was kind of like on top of her. She put her mouth on his penis. This happened for 4 or 5 minutes. He stood up and went to the side of the bed and took off her underwear. She went with it and then I put my penis in her vagina. She was lying down, her legs were in a “V,” one leg on each side of me. This lasted 4 too 5 minutes that he had sex with her.

[32] He did not intend to ejaculate in her so he pulled out and did it on her stomach. She wiped it off on the blanket. H.B. then said, “Did some go inside?” L.P. testified she kept going on about it. She brought up Plan B. L.P. testified he did not know what Plan B was. She said she would have to get Plan B to be safe. L.P. told her he could get one of his friends to get it. H.B. told him no she would get her grandma to drive her to the store to get Plan B but that did not make sense to L.P. He put his underwear back on. She put on all of her clothes and her backpack on and walked downstairs. He said to her he didn’t see her getting her grandma to ask for it. L.P. said he kissed her at the front door. She left and he had nothing more to do with her.

[33] At that point two of his friends came to his house and he told them what happened. L.P. said he had talked with his friends before about H.B. coming over Saturday or Friday. He told them everything that happened. He sent messages on Snapchat “Are you good?” to see if she got Plan B and if she was safe because she seemed nervous. He sent these messages on March 9 around 8 or 9 p.m. He also sent “Why you r bombing me?” which means why ignoring me. She had said about Plan B at the house.

[34] L.P. denied sexually assaulting H.B.

[35] When school lets out at 2:30 he usually hangs around the front talking to his friends and playing basketball. A lot of his friends play basketball. They had planned to meet at the front. They did meet in the front foyer where kids would be hanging around. L.P. sent her a text at 2:33 asking where she was as he was in front foyer. He did not remember if he was talking to people who were at the front. It is possible he was talking to friends. He could see her walking down stairwell. He would have finished talking to his friends, most likely took a couple of minutes.

[36] They left and were walking at a normal pace. H.B. told him she had dance that night. Mr. O’Neill showed L.P. Google Maps with a route between the school and his house that said it was 13 kms. L.P. agreed this was the route they took. Google Maps say the walk would take 16 minutes. L.P. testified it was not possible for the walk to take longer than 10 minutes. He then said maybe it could take 10-12 minutes. If left at 2:37 would have arrived at his house at 2:49. He would not agree it would take him until 2:55 to arrive at his house. He knows they arrived at his home less than 2:50. L.P. testified the house alarm sends a notification to his phone but when questioned about whether he could get that he did not think it would still be available 18 months later. L.P. agreed it might be possible he arrived after 2:50, maybe 2:55. When the Crown indicated H.B.’s mother testified H.B. called her at 3:16 and was it possible she was only in his house for 20 minutes, L.P. said, “I honestly don’t know.” He thought she was in the house for 35 minutes. They were there for awhile but he doesn’t know how long they were there for. It felt like 35 minutes, 30-35 minutes, maybe 40 minutes.

[37] When L.P. was questioned as to when he and H.B. started exchanging Snapchat messages after he initiated things he testified from the previous Monday. He then agreed it could have been the previous Monday or maybe later. When he was asked what he meant by “later” L.P. said he did not know what he meant. He finally said he honestly didn’t know how long they were talking.

[38] When he was asked about laps L.P. said he was sure they took 2 laps. When it was drawn to his attention in the morning he said they took 2-3 laps L.P. testified he did not know why he changed his answer. When he was asked if possibly it was only one, he said he didn’t think so but he wasn’t sure. It was possible it was 1-2 times. He agreed other people were around and said he and H.B. were just getting to know each other.

[39] L.P. testified he had sent H.B. a message on Snapchat that he had a “free base,” which meant he had a home and his parents were not there. L.P. said this in his evidence in-chief, implying that H.B. knew when she walked him home that his parents would not be there. In cross-examination he conceded he did not know if H.B. knew what that meant and he did not confirm its meaning with her. It was also L.P.’s evidence in-chief that he had made arrangements on Friday or Saturday with H.B. to come to his house on Monday when his parents were not there. The Crown put to him why he would be suggesting they do “laps” in fourth period, which ran from 1:15 to 2:30, if H.B. was coming over to his house after school. L.P. said he was bored with his class. The Crown pointed out H.B. said in the Snapchat message “I already asked her (both agree this referred to H.B.’s teacher) and she said I can’t cause I’m to behind” and it was H.B.’s suggestion “but walk home together :).” When the Crown pressed him that there were no Snapchat messages inviting her to come to his house on Monday March 9 L.P. agreed but insisted there was a plan. He maintained the plan was not just for them to walk to his house. In fact, to support his evidence there was a pre-arranged plan, L.P. told the Crown he had told two of his friends on Saturday that H.B. was coming to his house on Monday and right after she left he called them to come over so he could tell them everything that had happened.

[40] In cross-examination L.P. testified H.B. was quiet but he did not recall if she was nervous. He did not remember her demeanour when she was in his house. He agreed he told Mr. Balka they went straight upstairs without any conversation. He did not remember any conversation and he was pretty sure there was no discussion. L.P. then said he may have told her why going upstairs. He did not know why he told Mr. Balka he did not know of any conversation with H.B. about why going upstairs. He testified he was not paying attention to her demeanour and he was not checking to see if she wanted to go upstairs. L.P. agreed he never asked H.B. if she wanted to go upstairs to make out.

[41] L.P. said it was possible he said he was going to put on a movie and this was why H.B. lay on the bed. He believed the movie was on for 6 minutes but he really did not know how long it was on, it could have been 10 minutes. When he kissed her there was no discussion. He just went for it. There was no indication she wanted to kiss. She was still quiet sitting on the bed.

[42] After the kissing and oral sex L.P. said he got off the bed and took off her underwear. He did not ask her if she wanted to have sex. He started having sex with her for 4 to 5 minutes. He pulled out and ejaculated on her stomach. He told her he did not ejaculate inside her. He testified he saw most of it go on her stomach. At the time he was certain he had not come in her but when she started getting nervous he thought it was a possibility he had.

[43] L.P. testified he did not know if H.B. was uncomfortable in his house. She did not suggest going to my bedroom. He did not ask if she wanted to kiss. He took her underwear off. He was off the bed. He did not remember if he pulled her legs to each side of himself. He doesn’t know if he did that. He had no recollection of how her legs got in that position. He could have done it or she could have put them. He had sex with her. There was no conversation. He did not ask her to have sex. He didn’t ask her to put her legs on each side of him.

[44] When she started talking about Plan B, L.P. testified he told her he had a friend who could get it for her. He did not know what it was but after she said it he assumed what it was. She was worried and upset he had ejaculated inside her. When L.P. was asked if he did not know what Plan B was how did he have a friend who could get it for H.B., he said he could ask a friend, he never said he could get it for her right away.

[45] L.P. agreed that H.B. seemed upset after L.P. had engaged in sexual intercourse with her. L.P. said, for first time in his evidence, that they had talked for quite a bit after finished and while getting dressed, it went on for 3-4 minutes. They did not hang out after she was dressed. He agreed H.B. left because she was upset.

[46] When he sent the Snapchat message, “Are you good?” he testified he wanted to know if she was safe. He was checking to see if she got Plan B and if she was safe.

Evidence of N.B. and A.S.

[47] N.B. testified she and H.B. had been best friends since Grade 1. They were good friends in March 2020. She was in Grade 9 at […] High School in Oshawa and was in the same grade as H.B. N.B. testified that she received a phone call from H.B. on her cell phone. This was unusual because H.B. never called her on her phone, they communicated always on social media. H.B. called her around 3:30ish. She was with her mom and younger sister sitting in the passenger seat. Her mom had picked them up at school and was taking them to the hairdressers. H.B. sounded scared at first and seemed to be on edge and crying. N.B. could not understand what she was saying because H.B. was so upset, sounded as if she was in shock. N.B. was telling her to calm down and take a deep breath and H.B. slowed down so she could talk and N.B. could “sort of” understand what she was saying. H.B. told N.B. she had been sexually assaulted – she used the word “rape.” H.B. was so much in shock she did not know what to do or say. N.B. asked her where she was and H.B. said she was home alone as her parents were still at work. N.B. testified when H.B. called her, she said she had just left L.P.’s house and was walking to her house. N.B. knew who L.P. was as they went to the same elementary school but they were not friends. She had never spoken to L.P. one on one before. H.B. told N.B. she told L.P. to stop over and over. H.B. said she was raped by him. N.B. did not think H.B. told her anything else in this first conversation on the phone.

[48] N.B. testified she had decided she was going to tell her mom because H.B. was scared, although H.B. told she did not want to make a big deal. She told H.B. she was going to tell her mom to see what she would say. As it turned out N.B.’s mother did hear much of H.B.’s conversation with her daughter N.B. and N.B. told H.B. this by text and in the second phone call. H.B. testified she and N.B. are really close, as were their families. N.B. told H.B. to go to another friend’s house, as N.B. was at a hair appointment. She told H.B. that her mom would pick her up from the other friend’s house. H.B. told N.B. she would go to her friend, A.S.’s house and wait for N.B.’s mom to come.

[49] In cross-examinations N.B. said she did not see H.B. at school and did not know what her plans were. N.B.’s mother picked her up from school to go to the hairdressers with her sister. N.B. testified that H.B. called on her way home and from her home. H.B. did not know what to do or where to go as nobody was at her home. Her grandmother was not home. H.B. did not want N.B. to tell N.B.’s mother. N.B. texted her between the phone calls and told H.B. that her (N.B.’s) mother overheard their conversation in the car and as a result N.B. told her what happened.

[50] A.S. attends […] Secondary School and is a friend of H.B. They were best friends in elementary school and continue to be friends in high school. H.B. called her phone, which was unusual as she speak to each other through Snapchat or iMessage. When she answered the call H.B.’s voice was cracking, she was crying, short breaths and she sounded extremely upset. The first thing she said was, “I think I just got raped.” A.S. asked where she was so she could go and get her and bring her to A.S.’s house. She met her and saw she was still crying and was so upset. H.B. came back to A.S.’s house. H.B. did not want to talk about what had happened. When she tried to say something she just couldn’t get it out.

[51] A.S.’s friend J. was at her house when H.B. was there. A.S. knew who L.P. was as they went to same elementary school but not friends. Never saw H.B. with L.P. at their high school. H.B. only told her she had talked to L.P. on Snapchat. A.S. did not know H.B. had spoken to L.P.

Evidence relating to Plan B

[52] H.B. testified she never talked to L.P. about Plan B. In fact she said this in her police statement (at page 40, Exhibit 2A). She was calling N.B., her best friend, for help in getting Plan B. She had no plan to get her grandmother to help her get Plan B. When she left L.P.’s house she was thinking she needed to get Plan B because of what L.P. did. At no time did she discuss this with him. The first time he mentioned Plan B was in his Snapchat message that she received when she was at the hospital with her mother. Her mother, K.B. saw this Snapchat message, “Did you get the Plan B” and asked H.B. why L.P. sent this to her. H.B. told, “Because he knows what he did.” K.B. testified her daughter, H.B. did not explain this comment. Both N.B. and A.S. testified Plan B is well known among teenagers, as did H.B. in her evidence.

[53] N.B. testified that H.B. spoke to her about Plan B when she called her a second time, when N.B. was at the hairdressers. H.B. was wondering when N.B. would be home so she would have someone with her to keep her company until her parents came home. This was when H.B. mentioned Plan B to her. Plan B is something you take to make sure you don’t get pregnant after sexual relations. She had heard of Plan B before. It is commonly known by people her age. In cross-examination N.B. said H.B. told her she was going to deal with this on her own and get Plan B. H.B. was very upset and she was concerned about being pregnant.

[54] When A.S. was with H.B. at A.S.’s house, H.B. talked about Plan B. She was panicked about getting Plan B and was going to go to the store. She also said this in the first phone call. A.S. knew what Plan B was. Lots of teenagers use it with their boyfriends. N.B.’s mom came to A.S.’s house and picked up H.B. to take her to her home. H.B. was at A.S.’s house for 30 to 45 minutes. This is an estimate.

[55] H.B. was saying to A.S. she should get Plan B as she did not want to get pregnant. She sounded very panicked and she wanted to get Plan B.

[56] At the end of A.S.’s evidence I asked A.S. what Plan B was because counsel had not asked H.B. either in her evidence in chief or in cross-examination. and she said it was a morning after pill and can prevent pregnancy.

[57] L.P. testified after he ejaculated on H.B.’s stomach H.B. asked “Did some go inside?” L.P. testified she kept going on about it. She brought up Plan B. L.P. testified he did not know what Plan B was. H.B. said she would have to get Plan B to be safe. L.P. told her he could get one of his friends to get it. H.B. told him no she would get her grandma to drive her to the store to get Plan B but that did not make sense to L.P. L.P. testified he told H.B. he had a friend who could get Plan B for her. He did not know what it was but after she said it he assumed what it was. She was worried and upset he had ejaculated inside her. When L.P. was asked if he did not know what Plan B was how did he have a friend who could get it for H.B., L.P. said he could ask a friend, he never said he could get it for her right away.

Evidence of K.B., H.B.’s Mother

[58] K.B., H.B.’s mom testified she had looked at Find My iPhone at 3:05 after her school where she worked finished and she saw that H.B. was not home at that time. She texted H.B. but did not get a response. H.B. called K.B. at 3:16 and said she was on her way home and wanted to know if her grandma was home, this was just before K. B. went into her physio appointment. K.B. testified said H.B. told her that she saw her grandmother driving in a car as she was walking home. K.B. said she was dismissive with H.B. because she had to get into her physio appointment. A minute or two after this first call K.B. received a text from H.B. saying she was going to her friend A.S.’s house. H.B. called K.B. back a second time, probably two minutes after the text all out of breath and told K.B. she ran to A.S.’s house, which was why she was out of breath.

[59] It is my view considering the totality of the evidence on the issue of how long H.B. was in L.P.’s bedroom, they were there for approximately 20 minutes. Both H.B. and L.P. made reference to L.P. talking with some of his friends at the front of the school after H.B. arrived there to walk with L.P. home. Despite initially being sure they left immediately after H.B. arrived, L.P. eventually agreed he talked with some of his friends at the front of the school while H.B. was with them before they left. They most likely left the school around 2:45 (this was agreed to by both H.B. and L.P.) and both of them testified it took 10-12 minutes to get to L.P.’s house. Of course, Exhibit 6, the Google Map showing the route L.P. agreed they took indicates the distance walking would take 16 minutes. When they arrived they talked about whether H.B. would come in or not and L.P. had to turn off the alarm, they took off their shoes and then went upstairs to L.P.’s room. As a result I find that H.B. and L.P. arrived in his room sometime just before 3:00 or perhaps even a couple of minutes after 3:00 if the Google Maps is accurate. L.P. testified he cleaned up his room by picking up some clothes, which H.B. confirmed he did. H.B. sat of the bed and at some point lay back on the bed on some pillows after L.P. turned on the TV. They watched a movie that L.P. had started and this likely lasted for 5 or 6 minutes according to L.P., although L.P. conceded in cross-examination it could have been 10 minutes. Neither H.B. nor L.P. were timing anything that took place in the bedroom. At some point, on both H.B.’s and L.P.’s evidence, H.B. left L.P.’s bedroom and went downstairs, put on her shoes and then left the house. I accept the evidence of K.B. that H.B. called K.B. at 3:16 and told her mom she was walking home. K.B. was conscious of time and was looking at the time on her phone because she was texting H.B., first at 3:05 and maybe a second time and was not getting a response from H.B. until H.B. called her at 3:16. K.B. also had a scheduled physio appointment that she had to attend, which in my view further supports K.B.’s evidence respecting the time events occurred. I found her to be a credible and reliable witness for the reasons indicated respecting the timing of texts and calls from H.B. As a result I find the total length of time for the incident complained of by H.B. occurred for a period of no more than 5-9 minutes. I will address what I believe to be the significance of this later in my reasons.

[60] K.B. testified her phone kept going off while she was in her physio appointment, but she ignored it. She received other texts telling her there was a problem at home and she should return home, which she did. As a result of what she was told she brought H.B. to the hospital. K.B. had H.B.’s cell phone in the hospital and a couple of Snapchat messages came into H.B.’s phone while she had it. K.B. looked through the Snapchat messages and took screen shots with her phone of the messages she found. K.B. identified Exhibit 4 as three pages she took pictures of H.B.’s Snapchat messages. These messages were photographed in the earlier morning hours of March 10, 2020. Those three pages were the entirety of the conversation between H.B. and L. She also took photograph of some text messages, Exhibit 5.

[61] When K.B. spoke to H.B. at 3:16 she sounded fine. K.B. testified in cross-examination that she was dismissive with H.B. because she had to get to her physio appointment. In cross-examination she was asked if she saw the message about Plan B to which she said she had. She asked H.B. why he would say that. H.B. told her, “Because he knows what he did.”

The Law Relating to R. v. W. (D.) and R. v. Villaroman

[62] As in any criminal case, L.P. is presumed innocent until proven guilty. I have reminded myself that I need not firmly believe or disbelieve any witness and that I can accept all, some or none of a witness’ testimony. I have also reminded myself that the Crown must prove the essential elements of the offence beyond a reasonable doubt, as this term has been defined and explained by the Supreme Court of Canada in R. v. W.(D.) (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.). Proof of a probability of guilt does not amount to proof of guilt beyond a reasonable doubt. Proof of guilt to a near certainty is required in criminal proceedings.

[63] The onus remains on the Crown to prove L.P.’s guilt beyond a reasonable doubt throughout this trial. A reasonable doubt is a doubt based on reason and common sense, one that arises logically from the whole of the evidence or absence of evidence. I recognize that the rule of reasonable doubt applies to the issue of credibility. Accordingly, I must acquit the defendant if I accept his evidence or if it raises a reasonable doubt after considering it in the context of the evidence as a whole. If I reject his evidence, or it does not leave me with a reasonable doubt, I must go on to ask whether the evidence that I do accept convinces me of the guilt of the defendant beyond a reasonable doubt.

[64] A determination of guilt or innocence must not, however, devolve into a mere credibility contest between two witnesses. Such an approach erodes the operation of the presumption of innocence and the assigned standard of persuasion of proof beyond a reasonable doubt: W.(D.) supra, at 409 per Cory J.; Avetsyan v. The Queen (2000), 2000 SCC 56, 149 C.C.C. (3d) 77 (S.C.C.) at paras. 20-22, per Major J.

[65] As the Ontario Court of Appeal in R. v. Hull, [2006] O.J. No 311 at para 5 noted:

W.(D.) and other authorities prohibit triers of fact from treating the standard of proof as a credibility contest. Put another way, they prohibit the trier of fact from concluding that the standard of proof has been met simply because the trier of fact prefers the evidence of Crown witnesses to that of defence witnesses.

[66] I must assess the evidence of the complainant and the defendant in light of the totality of the evidence, which includes and permits comparing and contrasting the evidence of those witnesses, other witnesses and the exhibits. The Court of Appeal in Hull continued:

However, such authorities do not prohibit the trier of fact from assessing an accused’s testimony in light of the whole evidence, including the testimony of the complainant, and in so doing comparing the evidence of the witnesses. On the contrary, triers of fact have a positive duty to carry out such an assessment recognizing that one possible outcome of the assessment is that the trier of fact may be left with a reasonable doubt concerning the guilt of the accused.

[67] Proof beyond a reasonable doubt means what it says. There is thus nothing illogical in rejecting the defendant’s evidence but still not being sufficiently satisfied by the complainant’s evidence to find that the case has been proven. A state of uncertainty at a trial like this, where the court has heard two conflicting versions from the two parties involved, is not uncommon. Ultimately, if I have a reasonable doubt on the whole of the case that arises from the evidence of the Crown witnesses, the evidence of the accused or the evidence of any other defence witness, or the absence of evidence, the charge must be dismissed: Lifchus, supra.

[68] I have also reminded myself that circumstantial evidence may or may not prove a fact from which an inference may be drawn, that is, a factual conclusion that logically and reasonably flows or may be drawn from that evidence. However, I have also reminded myself that the only inferences that may be drawn are those based solely on the evidence in this case, and that they may not and must not be based on conjecture or speculation. It is speculative to draw an inference when there is no direct or indirect factual or evidential basis to support it. However, it is the cumulative effect of all of the evidence that must meet the standard of proof beyond a reasonable doubt, not each individual item of evidence. (See R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000.

The Law Respecting Sexual Assault

[69] The elements of the offences charged are not disputed by counsel and as a result, I intend to only briefly address the essential elements of the offence of sexual assault which is the charge facing L.P. In a case under s. 271 of the Criminal Code of Canada, the Crown must prove beyond a reasonable that the accused had the actus reus of the offence and the mens rea: R. v. Barton, 2019 SCC 33, [2019] S.C.J. No. 33, at para. 87. The accused must have intentionally touched the complainant "knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched": Barton, at para. 87.

[70] Sexual assault requires the Crown to prove the following essential elements beyond a reasonable doubt:

i) That the defendant intentionally applied force;

ii) the complainant did not consent to the force that the defendant intentionally applied;

iii) that the defendant knew that the complainant did not consent to the force that he intentionally applied or was reckless; and

iv) that the force that the defendant intentionally applied took place in circumstances of a sexual nature.

[71] The Supreme Court of Canada has provided clear guidance on how to evaluate circumstances of a sexual nature, the fact that sexual assault is a general intent offence, and the requisite elements of the offence: R. v. Chase, 1987 CanLII 23 (SCC), [1987] 2 S.C.R. 293, at para. 11 [Chase]; R. v. Jarvis, 2019 SCC 10, [2019] S.C.J. No. 10, at paras. 50,124-125; R. v. Ewanchuck, 1999 CanLII 711 (SCC), [1999] S.C.J. No 10. The test outlined in Chase is still the focus in most sexual assault trials:

…The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: "Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer". The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats which may or may not be accompanied by force, will be relevant. [Citations omitted.]

[72] The role of consent was recently defined in R. v. G.F., 2021 SCC 20, [2021] S.C.J. No. 20, at para. 25:

The actus reus of sexual assault requires the Crown to establish three things: (i) touching; (ii) of an objectively sexual nature; (iii) to which the complainant did not consent: Ewanchuk, at para. 25; R. v. Chase, 1987 CanLII 23 (SCC), [1987] 2 S.C.R. 293. The first two elements are determined objectively, while the third element is subjective and determined by reference to the complainant's internal state of mind towards the touching: Ewanchuk, at paras. 25-26. At the mens rea stage, the Crown must show that (i) the accused intentionally touched the complainant; and (ii) the accused knew that the complainant was not consenting, or was reckless or wilfully blind as to the absence of consent: Ewanchuk, at para. 42. The accused's perception of consent is examined as part of the mens rea, including the defence of honest but mistaken belief in communicated consent: R. v. Barton, 2019 SCC 33, at para. 90.

[73] In R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440,at para. 31, the majority held consent is the "conscious agreement of the complainant to engage in every sexual act in a particular encounter" and at para. 36, “consent must exist at the time the sexual activity in question occurs” In Barton, at para. 88, the Supreme Court, citing R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346, at paras. 55 and 57, held:

…as s. 273.1(1) makes clear, "consent" is not considered in the abstract. Rather, it must be linked to the "sexual activity in question", which encompasses "the specific physical sex act", "the sexual nature of the activity", and "the identity of the partner", though it does not include "conditions or qualities of the physical act, such as birth control measures or the presence of sexually transmitted diseases"

[74] Section 273.1 of the Criminal Code provides:

(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.

(2) No consent is obtained, for the purpose of sections 271, 272 and 273, where

a) The agreement is expressed by 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.

(3) Nothing in subsection (2) shall be construed as limiting the circumstance in which no consent is obtained..

Bb Position of the Parties

[75] The defence submitted this is a case where the complainant blurts out something that is untrue to a friend after the event, which then locked her into what the defence refers to as a false story. Mr. Balka argued that the case of R. v. W.(D.) is at the center of this case and he submitted on the evidence there was a reasonable doubt as to whether H.B. consented to the sexual activity that occurred. He pointed to areas in H.B.’s evidence where she was vague and evasive in recounting how long it took her to get to L.P.’s house, how long she was in his house, how she put her clothes back on, her evidence respecting Evan Gunn, and the fact she regularly lied to her mother about where she was after school as examples. Mr. Balka pointed to the fact H.B. testified all she could think about after leaving L.P.’s house was whether she was pregnant. He submitted she was not upset about being sexually assaulted because she had consented to the sexual activity with L.P.

[76] Mr. Balka submitted that H.B.’s emotional state when she first spoke to her friend, N.B., was not because she was upset about being sexually assaulted, it was because she was worried she could be pregnant. He argued H.B. fabricated the allegation of being sexually assaulted to N.B. when her grandmother was not home and she wanted N.B.’s assistance in getting Plan B.[^3] The defence submitted H.B. told L.P. after they had sex she thought she was going to get pregnant and she wanted to get Plan B, to be safe. L.P., according to Mr. Balka, testified H.B. told him she would get her grandmother to drive her to the store to get Plan B and L.P. told her that he had a friend who could get the Plan B for her. H.B. testified she did not say anything to L.P. about Plan B. Mr. Balka submitted L.P.’s evidence on this issue was more realistic and had the ring of truth and should be preferred. Mr. Balka pointed to H.B.’s mother testimony that H.B. asked her where her grandmother was and she sounded fine. It was Mr. Balka’s submission that H.B.’s state of upset was only after she realized her grandmother was not at her home because her only concern was she did not want to get pregnant. It was the defence position this came down to the following question: “Is it possible that H.B. wants help to get plan B but doesn’t want to tell anyone that she had sex with a boy she doesn’t know very well – that none of friends know well – that she had unprotected sex and might get pregnant?”

[77] He submitted this led to the next question: “Is it possible that H.B. felt she could be successful in keeping this between her and N.B. and no one else would know?” Mr. Balka suggested it was a quick decision on H.B.’s part to tell N.B. that it wasn’t her fault as she did not agree to have sex with L.P. Mr. Balka then asked a further rhetorical question, “Do teenage girls sometimes tell a lie to their friends to protect their reputation or what that friend will think of them?”

[78] Mr. Balka submitted this is a very unique case because despite H.B. trying to prevent this from getting out, it did. N.B.’s mother was driving her daughters to the hairdresser and she overheard N.B.’s and H.B.’s conversation. As a result H.B. was forced to tell her mother and her grandmother or N.B.’s mother would tell them. It was his submission this was a distinct possibility that her one little lie, perhaps to save face, moved with lightning speed and H.B. was stuck with it. Mr. Balka pointed to H.B.’s evidence that all she wanted was Plan B and then forget about it. She did not want to make it a big deal, which he submitted supports the defence position this was not a sexual assault. It is Mr. Balka’s position it only became a sexual assault because of what H.B. told her friend N.B.

[79] The Crown disagreed and submitted all of the essential elements of the offence had been proven beyond a reasonable doubt. He agreed W. (D.) was central to a determination of the evidence in this case but also how the court defines consent or the absence of consent. He submitted if H.B.’s evidence as to what took place in L.P.’s bedroom was accepted then there was no consent because when L.P. had sexual intercourse with her she repeatedly told him “No” and to stop what he was doing. Mr. O’Neill submitted while there was evidence from L.P. respecting the issue of H.B.’s consent to engaging in sexual activity respecting his kissing her or her performing oral sex on him, he did not provide any evidence respecting H.B.’s consent to his having sexual intercourse with her. The Crown submitted there must be communicated consent in respect of each sexual activity engaged in and L.P. did not testify as to any affirmative, contemporaneous and on-going consent to his engaging in sexual intercourse with H.B. either through words or actions. L.P. testified while H.B. was in his room she was quiet, he could not tell if she appeared to be uncomfortable because he could not tell her demeanour or state of mind based on her facial expressions. Further he did not testify that H.B. was enthusiastic about the sexual activity or consenting to the sexual activity based on her demeanour. He removed her underwear and he could not recall how his legs came to be in the “V” shape with one on each side of his body and it was possible he put her legs in that position. L.P. never asked H.B. is she wanted to have sex with him and she never told him she wanted to have sex with him. It was the Crown’s position there was no evidence that H.B. consented to have sexual intercourse with L.P. In addition, L.P. agreed that H.B. was upset after he had sexual intercourse with her, indicating the absence of consent.

[80] In reply Mr. Balka submitted that there need not be any words on the part of H.B. to signify consent on her part to the sexual intercourse engaged in by L.P. Mr. Balka submitted if I accept L.P.’s evidence as to he and H.B. kissing and H.B. returning his kiss and then H.B. performing oral sex on him for 4 or 5 minutes after he lay down on the bed having removed his pants and underwear. Mr. Balka submitted these were actions by H.B. that conveyed to L.P. she was consenting to the sexual activity they were engaging in. No words were spoken by either L.P. or H.B. during these activities. L.P. testified he got off the bed and removed H.B. panties and he put his penis in her vagina and L.P. and H.B. had sexual intercourse according to L.P. for 4 to 5 minutes. It was Mr. Balka’s position H.B.’s actions throughout the whole transaction conveyed her consent to the sexual activities between L.P. and her. He concluded his submission on this issue by saying “To get there Your Honour would have to reject her evidence because she said, ‘I said no many times.’ To get to this point where you are considering whether on my client’s own evidence he is guilty of a sexual assault, you would have to reject the complainant’s evidence and then not have evidence from her about what happened because you’d be rejecting it. In my submission that is all that is required by the caselaw provided by my friend.”

[81] The Crown submitted the evidence of N.B. and A.S. was admissible respecting H.B.’s initial comment to N.B. and A.S., on separate occasions, that she was raped. The defence alleged a motive to fabricate and the defence alleged H.B. was concerned about being pregnant and that she fabricated the allegation of sexual assault so she could get Plan B without getting in trouble by telling an adult she had consensual sex. The defence pointed to H.B. calling her friend N.B. and as a result of N.B.’s mother hearing their conversation, H.B. then had no control over whether her own mother would find out and things spiralled out of control leaving her no choice but to fabricate this allegation of sexual assault. H.B. denied this suggestion by Mr. Balka when she was cross-examined and the defence submitted her denial was not credible. Mr. O’Neill submitted I could, in assessing H.B.’s credibility of her denial to fabricate her allegation, use the fact that when H.B. called N.B., shortly after leaving L.P.’s house, H.B. initially said she was raped. She did not call N.B. and say she thought she was pregnant. She did not know that N.B. was in a car with her mom or that N.B.’s mom was in a position to overhear her conversation with N.B. H.B. told N.B. she was raped.

[82] It was Crown’s position I could use what H.B. said to N.B., this prior consistent statement, to evaluate the defence allegation that H.B. had a motive to fabricate, that she said to N.B. she was raped. To evaluate her credibility and the trustworthiness of her denial of having a motive to fabricate. It was for this narrow purpose only and Mr. O’Neill reiterated he was not asking that because her prior statement to N.B. was consistent she was credible or that her out of court prior consistent statement corroborates her in-court testimony. The crux of the defence in this case was her motive to fabricate. He cites R. v. Khan, 2017 ONCA 114, [2017] O.J. No. 745 (C.A.) and R. v. D.K., 2020 ONCA 79, [2020] O.J. No. 432 (C.A.) as support for this submission.

[83] Mr. O’Neill further submitted with respect to Mr. Balka’s earlier submission that H.B. lied to N.B. because she did not want N.B. to know she had sex with this boy, L.P., someone she really did not know and no one else knew, it was Mr. O’Neill’s submission there was no evidence of this or that H.B. did not want this to get out or that N.B. would judge H.B. for her conduct or that H.B. was worried about what N.B. would think of her or that N.B. would tell anybody, rather the evidence showed that H.B. called her best friend, crying, emotionally distraught and saying she had been raped. This post event demeanour evidence the Crown submitted was also admissible and should be seen as providing circumstantial support as being consistent with H.B.’s allegation and inconsistent with the defendant’s denial, if I was satisfied it was genuine and not feigned or attributable to some other cause. Mr. Balka had submitted H.B.’s upset was because she was worried she was pregnant. Mr. O’Neill pointed to both N.B.’s and A.S.’s evidence that H.B. was so upset and distraught that they could not understand her what she was saying and that it was not until she calmed down that she could get words out, “I was raped.” Mr. O’Neill relies on R. v. Woollam, 2012 ONSC 2188, [2012] O.J. No. 3867 (SCJ, Durno) and R. v. N.R., [2016] O.J. No. 1561 (SCJ, Hill) as support for this position.

[84] The Crown submitted whether H.B. was sexually assaulted or whether she was also upset because she possibly was pregnant, these were not mutually exclusive. H.B.’s comment in her statement “the only thing going through my mind was I could be pregnant right now” is completely understandable and reasonable for a 14 year girl to think when she believed her assailant had ejaculated inside her without a condom. It is entirely possible she was upset about being sexually assaulted and pregnant and her post-event conduct is entirely consistent with the version of events she described. Mr. O’Neill submitted this was circumstantial evidence that the offence did occur. Further, the timing of H.B.’s upset on the phone with N.B. was also significant, considering it occurred within 15 minutes of H.B. leaving L.P.’s house when she first called N.B.

[85] Mr. O’Neill submitted the fact H.B. sounded fine when she spoke to her mother at 3:16 p.m. and advised she was on her way home did not adversely affect her credibility. It was the Crown’s submission H.B. explained why she did not tell her mother on the telephone she had been sexually assaulted because she did not want her mother to “freak out.” This was an entirely reasonable explanation for a teenager to give in these circumstances. The Crown cautioned about engaging in stereotypes of what victims of sexually assault would do or say after being sexually assaulted and that they should immediately tell the first person they talk to. There are reasons they would not do that and H.B. provided a reasonable explanation. Mr. O’Neill further submitted the fact H.B. admitted in cross-examination that she would often lie to her mother about where she was after school did not negatively affect her credibility. This was something Mr. O’Neill argued most teenagers probably do. It did not mean H.B. would lie to the police or lie in court. He submitted those two concepts are completely divorced from each other.

[86] The Crown submitted L.P.’s evidence should not be accepted because of his vacillation on every issue put to him. His answers flip flopped from yes to no to maybe on key issues in this case. His inconsistency in his answers to questions undermined his reliability and credibility. It was Mr. O’Neill’s submission that L.P. had an inability or unwillingness to provide straight consistent answers to the questions he was asked. Mr. Balka criticized H.B. for answering questions about the timing or how long she was inside L.P.’s house with “I don’t know” or “I can’t remember,” however, Mr. O’Neill submitted this is exactly what a witness should do. When Mr. Balka pushed her to provide an estimate she said maybe between 15 to 30 minutes. Mr. O’Neill pointed out this was another area where L.P. was sure she was in his house for at least 35 minutes, yet in cross he agreed it could have been as low as 20 minutes then he went back to 30-35 to maybe 40 minutes.

[87] The Crown also submitted there was no basis for the defence’s submission that once N.B.’s mother overheard H.B.’s and N.B’s conversation that everything snowballed and H.B. was locked into a certain course of action and had no choice. The evidence is that Detective McConnell repeatedly advised H.B. it was her decision whether to proceed with charges, he did not pressure her in any way. There is no evidence H.B.’s mother and father pressured her to proceed with charges. Mr. O’Neill also submitted I should not draw any negative conclusions from the fact that H.B. did not want to tell her mother the details of the sexual assault. This should not adversely affect or detract from H.B.’s credibility.

[88] Finally, Mr. O’Neill submitted I should not accept L.P.’s evidence respecting the discussion he said he had with H.B. after they engaged in sexual intercourse. L.P.’s evidence he did not know what Plan B was makes no sense and if so, how does he know a friend who could get it for H.B. Mr. O’Neill pointed to the evidence of N.B. and A.S. who testified Plan B is well know by young people who engage in sexual activity with boyfriends or girlfriends. Reasonable inference he knew he ejaculated inside H.B.’s vagina, although he was evasive when questioned about this, and this was why he inquired in the Snapchat message, Exhibit 4, when H.B. was at the hospital whether she got Plan B.

Analysis

[89] Counsel agreed at the conclusion of the evidence that in this case there is no issue respecting honest but mistaken belief in consent. There is also no issue as to whether sexual activity occurred as both H.B. and L.P. testified to sexual activity occurring. The issue is whether H.B. consented to that sexual activity.

[90] H.B. testified she believed she was just walking L.P. home from school and after arriving there she would go home because she had homework her mother wanted her to do and she had a dance class. She had only begun sending Snapchat messages with L.P., which he had initiated, less than a week before March 9, 2020, when they walked to his house. She was just getting to know him. She had never spoken to him prior to him first contacting him via Snapchat. According to her evidence the Snapchat messages they exchanged were about school, where they lived and information about each of them as they did not know anything about each other. She did not have any kind of relationship with him.

[91] The only Snapchat messages in existence were those sent between L.P. and H.B. on March 9, 2020. Unfortunately, because of the format Snapchat messages are automatically deleted either 24 or 48 hours after they are received unless one of the parties to the conversation saves them. There is no record of the messages sent in the 5 or 6 days prior to March 9. Other than communicating on Snapchat, L.P. and H.B. had only been in each’s presence on one or two occasions when they had done “Laps” walking around the halls of their high school with other students. No details were provided by L.P. as to the days this occurred. As discussed above he initially testified they did Laps 2 or 3 times, however, in cross-examination he changed this number to 1 or 2 occasions. H.B. could remember one occasion when she had done Laps with L.P. and some other students. I did not hear any evidence from either L.P. or H.B. that they did Laps just the two of them. In my view on the evidence I heard the first and only time they were alone together was on March 9 after school finished and they walked together to L.P.’s house.

[92] There was no evidence that they even spent lunch hours with each other either alone or with a group of friends. Their only contact was through a few Snapchat messages. If the messages in Exhibit 4 were indicative of the number and type of messages exchanged between L.P. and H.B. there were very few messages and they were not very detailed or lengthy. Further, they did not provide any information about what each of these young people enjoyed, their favourite subjects at school, who their friends were, what they were doing in their spare time, what their musical interests were, what TV shows they liked. In fact, the Snapchat messages in Exhibit 4 only made reference to L.P. asking H.B. if she wanted to do Laps and H.B. saying she couldn’t but they could walk home together, which all of the other messages made reference to setting up where they would meet.

[93] It is my view the evidence of H.B. accords with common sense. Her belief that she and L.P. are just walking home to start to get to know each other better completely fits with the very limited interaction and contact they had with each other up to the point.

[94] L.P. testified he could not recall anything they talked about in the 10-12 minute walk to his house from the school. There was no discussion about L.P. asking H.B. to come into his house to hang out together. There were no plans made other than H.B. walking L.P. to his house. H.B. did not know L.P.’s parents were not home. In the Snapchat messages L.P. did not suggest they could hang out together after they got to his house, even for a short time.

[95] Yet L.P. testified after they arrived at his house he thought they were going to kiss and make out. On the evidence the only person who thought that was L.P. and in my view there was no basis for his belief. It is extremely difficult, if not impossible, to understand where L.P. would come to this conclusion, which in my view is thoroughly beyond the scope of any realistic likelihood. He did not have any conversation with H.B. about the two of them kissing or making out. In fact, when he was asked by the Crown if he asked H.B. if she wanted to make out he said he had not. He had not even canvassed whether their making out was even a remote possibility. In my view this is a concerning aspect of L.P.’s testimony.

[96] A concerning piece of evidence is the fact that L.P. had discussed on the weekend with two of his friends that he was going to have H.B. come to his house on March 9. He testified that right after H.B. left his house he called those two friends and they were already on their way to his house and he told them to come over. When they arrived he regaled them with what had happened in terms of the sexual activity he had with H.B.

[97] L.P. testified there was a plan to go to his house, which had been made in an earlier Snapchat that had disappeared. I do not accept L.P.’s evidence that he had made a plan with H.B. for him to come to his house on Monday March 9, 2020. Even if he had, this plan was over, it was not going to happen because as H.B. told him in the Snapchat messages she had to go straight home because she had homework. The Snapchat messages clearly communicate L.P. asking H.B. to go for laps about 45 minutes before the end of school based on his evidence. In my view it does not make sense for L.P. to ask H.B. to do laps if they had plans to go to L.P.’s house after school. H.B. says “No” to meeting to do laps because she was too far behind in her schoolwork but she suggested they could walk home together. In her police statement H.B. indicated in earlier Snapchat messages they had discovered they lived close to each other and she said they had talked about walking home together. The Snapchat message just before the end of school on March 9, 2020, (Exhibit 4, page 1) is not inconsistent with H.B. and L.P. having a previous discussion about walking home but does not support an earlier discussion about H.B. planning to go to L.P.’s house.

[98] L.P. testified after he ejaculated on H.B.’s stomach H.B. told him that she wanted to get Plan B because she thought he had ejaculated inside her. He eventually agreed with the Crown that H.B. was upset after he had ejaculated on her stomach. He then testified he did not know what Plan B was, yet he said he had a friend who could get it for her. In my view this is completely non-sensical given L.P. testified he did not know what Plan B was when he said H.B. said she needed to get it. Further, when the Crown asked L.P. if he did not know what Plan B was, how did he have a friend who could get it for H.B., L.P. said he could ask a friend, but he never said he could get it for her right away. In my view this is an example of L.P. being evasive because his original comment in-chief clearly implied he could get Plan B for H.B. immediately.

[99] As I indicated to the Crown during his submissions it may be there were some brief comment or comments by H.B. to L.P. about Plan B after L.P. ejaculated on H.B.’s stomach and perhaps inside her. In my view that would not be inconsistent with either version as L.P. did not use a condom and on his evidence had not discussed this with H.B. before engaging in sexual intercourse. As I have indicated I do not accept L.P.’s evidence he did not know what Plan B was. I believe he knew full well. I find if there was something said about Plan B to L.P. it does not in any way negatively affect H.B.’s evidence. In my view given what H.B. described going through by L.P.’s conduct towards her she might very well have forgotten what she said to L.P. as she was leaving his house.

[100] L.P. asked H.B. in Snapchat messages, Exhibit 4, “ Are you good.” There are no times on any of the Snapchat messages so it is not really possible to determine when they were sent. H.B. testified this message was sent after she left L.P.’s house before she went to the hospital. K.B. testified when she was at the hospital and had H.B.’s phone, two messages were received by H.B.’s phone. In my view there is an inference that the message “Are you good” was likely sent by L.P. to H.B. because she was in fact upset with him when she left his house. When I consider this with all of the evidence I am discussing in this part of my reasons it is my view this comment supports H.B.’s evidence and does not support L.P.’s evidence about this message.

[101] It was L.P’s evidence that after the sex they had a conversation about Plan B because she was upset about whether he had ejaculated inside her and then he walked her downstairs after she got dressed and that they kissed before she left his house. It is my view this does not jibe or accord with his text “Are you good,” which he testified was him asking if she was safe. His evidence on this did not make sense. Further, if H.B. was upset after sex as L.P. finally agreed she was, it does not make sense for them to kiss or for H.B. to allow L.P. to kiss her before she leaves his house. As I will discuss more fully later, her emotional condition just 15 minutes after leaving L.P.’s house also puts a lie to L.P.’s evidence of them kissing at the door.

[102] There were many areas where L.P.’s evidence changed significantly where he vacillated and his answers changed from being firm one way to ending up he did not really know. Some examples of this relate to when they left the school. L.P.’s original position was they left at 2:35 and no later. He was emphatic in this answer. However, in cross-examination he agreed when H.B. arrived at the front of the school he was talking with his friends and he probably continued to talk to them for five or ten minutes so he could have left at 2:45. This was the time he originally said was the latest time they could have arrived at his house, it could not have been later, however, his position changed that maybe they did not arrive until 2:55 but again it was not any later. The same comment applies to his estimate of how long H.B. was at his house. His initial position was she was there for at least 35 minutes. This time changed to as low as 20 minutes when he conceded “I honestly don’t know” how long she was at my house. However, his evidence changed again to H.B. was there for at least 30-35 minutes, maybe even 40 minutes. It is my view L.P. wanted to stretch out the time H.B. was in his house because the shorter the period of time she was there affected the reasonableness and credibility of his evidence that H.B. consented to engaging in all of the sexual activity with him that he described. In my view the very limited, almost non-existent relationship of any kind being described by L.P. between he and H.B. cannot be ignored. In my view it raises serious questions concerning L.P.’s truthfulness, particularly considering the nature of the sexual activity he testified he engaged in.

[103] As I discussed earlier the total amount of time for any sexual activity between L.P. and H.B. to take place is between 5 and 9 minutes, which certainly is far less than the combined time recounted by L.P for all of the sexual activity he described was consensual. This is a further piece of evidence I consider in accessing L.P.’s credibility and reliability.

[104] The cases concerning consent in cases involving sexual activity is well established. In R. v. H.W., [2022] O.J. No. 135 (C.A.) at paras. 42-46, the Ontario Court of Appeal held:

42 Central to both the actus reus and the mens rea for sexual assault is the issue of consent, "the foundational principle upon which Canada's sexual assault laws are based": G.F., at para. 1.

43 The Code defines consent for the purpose of sexual assault. Under s. 273.1(1) of the Code, consent means "the voluntary agreement of the complainant to engage in the sexual activity in question." It means the conscious agreement of the complainant to "every sexual act in a particular encounter": J.A., at para. 31. Section 273.1(2) of the Code contains a non-exhaustive list of circumstances in which consent is not obtained, while s. 273.1(3) "authorizes the courts to identify additional cases in which no consent is obtained, in a manner consistent with the policies underlying the provisions of the Criminal Code": J.A., at para. 29.

44 Consent, so defined, is analyzed from a different perspective at the mens rea stage than it is for the purpose of determining whether the actus reus was committed: Barton, at para. 89.

45 At the actus reus stage of the analysis, the absence of consent is determined solely by reference to the complainant's subjective internal state of mind towards the touching, at the time it occurred: R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at para. 26; G.F., at para. 25. The question is solely whether the complainant, in her mind, wanted sexual touching to take place. Whether or not the accused thought or perceived that the complainant was consenting is irrelevant to whether the actus reus occurred: Barton, at para. 89.

46 The mens rea stage of the analysis is typically reached after the trier of fact has concluded that the actus reus has been committed. In the sexual assault context, this means that the trier of fact has concluded that touching of a sexual nature occurred, and that the complainant did not actually, subjectively, consent within the meaning of the Code to that sexual touching. The focus then shifts to the accused's mental state, the question being whether the accused knew of, or was wilfully blind or reckless as to, that lack of consent: Barton, at para. 87.

[105] If I accept the evidence of H.B. as to what occurred at L.P.’s house during the brief time she was in his house it is my view the actus reus of the charge of sexual assault facing L.P. has been proven beyond a reasonable doubt by the Crown.

[106] The defence pointed to the fact H.B. admitted she often lied to her mother about where she was or who she was with after school as negatively impacting H.B.’s credibility. In my view this does not lead to a finding H.B. lies about all things. The Crown submitted this was probably something many teenagers do. While that observation may be accurate it does not necessarily assist me in determining what impact this should have on H.B.’s credibility. I do agree with the Crown’s submission that the fact H.B. lies to her mother about where she is after school does not lead to a finding H.B. would lie to the police or in court when she has affirmed to tell the truth. It is important to note H.B. did not lie to her mother when speaking to her at 3:16. Her mother said H.B. told her that she was almost home, which was true, as she had just left L.P.’s house, which was close to her house. She did not lie about who she was with or what she did. I do not draw any adverse inferences as to H.B.’s credibility from her admitting she often did not tell her mother exactly where she was or who she was with after school.

[107] The fact H.B.’s mother testified H.B. sounded fine when K.B. spoke to her at 3:16 p.m. in view does not adversely affect H.B.’s credibility. H.B. did not make up a lie about who she had been with or what they had done after school finished. When she was asked by Mr. Balka why she did not tell her mother about what she said happened in L.P.’s bedroom, in my view her explanation was reasonable for not saying anything to her mother because she did not want her mother to “freak out.” She was talking to her mother on the phone. Is this something a 14 year old young girl would want to talk to her mother on the phone about? Further, as I indicated previously, in my view H.B.’s comment in her statement that she did not want to “tell her mother right away” leads to the reasonable inference she planned to talk to her mother at some point about what had happened with L.P. She testified her plan when she left L.P.’s house was to call her best friend, N.B. As well, K.B. testified when H.B. called her she was dismissive with her daughter, as she was walking into her physio appointment. In my view this provides a further explanation for why in that phone call H.B. did not disclose to her mother what had happened.

[108] H.B. also testified she had initially decided to get Plan B and not make a big deal of what happened. It is my view she was still processing what had happened and trying to decide what she was going to do. She told Detective McConnell in her statement initially she was going to reach out to N.B., her best friend, to assist her in accomplishing this. She denied Mr. Balka’s suggestion she was planning to get her grandmother to drive her to the store, although in my view this could very well have been something H.B. considered doing. As Mr. Balka reminded me at the outset of his submissions I must take into account when assessing credibility of the young witnesses in this case their youthful age, which I have done. Mr. Balka submitted H.B.’s only concern was getting Plan B because all she was concerned about was being pregnant. There was no sexual assault. The sexual activity engaged in was consensual and her upset was caused by L.P.’s action of not wearing a condom and ejaculating semen in her vagina.

[109] Respecting Mr. Balka’s three rhetorical questions, in my view they do not accord with the evidence respecting H.B.’s demeanour when she spoke to her friends N.B. (has been a friend since Grade 1) and A.S (also a close friend since elementary school). She first advised both friends she had been “raped” or sexually assaulted by L.P.[^4] It was after making that disclosure that she told them she was concerned about being pregnant and wanted to get Plan B. Mr. Balka’s position is that H.B.’s only concern after having sexual intercourse with L.P. was whether she was pregnant because L.P. did not wear a condom and ejaculated inside of her and on her stomach. It was his position H.B. became panicked when she got home and her grandmother was not there to drive her to the store to get Plan B. Mr. Balka’s position was this was why H.B. made up the lie to N.B. and A.S. of being “raped” or sexually assaulted by L.P. because she wanted to protect her reputation and she did not want anyone, adults or her friends, to know she had unprotected sex with a boy she doesn’t know very well – that her friends don’t know and that she might get pregnant. H.B. denied Mr. Balka’s allegation. It is my view the defence position does not make sense and involves engaging in speculation and mental gymnastics to be able to come to the conclusion that H.B. made up her allegation of being raped. In my view this submission does not in any way accord with the evidence presented by both parties in this case.

[110] When H.B. emotional condition is added into the mix it is my view her extreme emotional upset as described by N.B. and A.S., her best friends, provides circumstantial evidence capable of being corroborative of the truth of H.B.’s account of what occurred in L.P.’s bedroom. Mr. Balka argued this upset was caused by her concern about being pregnant and not because she was sexually assaulted by L.P. It is my view, however that the depth of H.B.’s distress and upset, where she is described as crying, in shock, scared, extremely upset, where her friends could not understand what she was saying until they were able to calm her down, belies the defence submission her upset was caused by her concern she was pregnant. H.B. knew about Plan B and knew she would be able to take it in a timely fashion. H.B. was taken to the hospital, on the evidence, within a short time from leaving L.P.’s house. Further, H.B. is in this highly emotional and distraught condition within 15 minutes or so of leaving L.P.’s house. She speaks to her mother at 3:16 just after she left L.P.’s house and it is only a brief phone call and K.B. conceded in her evidence she was dismissive with her daughter, from which I draw the reasonable inference K.B. was not really paying much attention to what her daughter was saying to her because she has to get in for her physio appointment. H.B. then calls N.B. right after her call with her mother, N.B. thought the call came in at 3:30, approximately 15 minutes after leaving L.P.’s house. The timing in my view is significant. In R. v. N.R., supra, at paras. 19-20, Justice Hill describes the relevance of what I would refer to as “demeanour” evidence and the use to be made of it:

19 A complainant's emotional condition is circumstantial evidence capable of being corroborative of the truth of the witness' account: R. v. B.(G.) (1990), 1990 CanLII 113 (SCC), 56 C.C.C. (3d) 161 (S.C.C.), at pp. 164, 167-8; R. v. Haggart, [2010] O.J. No. 268 (C.A.), at para. 14; R. v. Folland (1999), 1999 CanLII 3684 (ON CA), 132 C.C.C. (3d) 14 (Ont. C.A.), at paras. 24-5.

20 The observed emotional condition of M.M., as described by A.P., was important evidence considering the timing of events and the depth of distress reported by Ms. A.P.. That evidence was uncontradicted and A.P. was not cross-examined to suggest that the complainant was not in the condition described by the witness.

[111] H.B.’s friends’ evidence was uncontradicted and it was not suggested to either of those witnesses that H.B. was not upset. Further, both friends indicated H.B. had never phoned them previously, rather, she always communicated through social media. This in itself, according to N.B. and A.S., was very unusual and in my view demonstrates that a H.B. experienced a significant trauma.

[112] I had the opportunity to observe H.B. when she testified and was subjected to a vigorous cross-examination by Mr. Balka. In my view she handled herself extremely well, did not become upset by Mr. Balka’s questioning, rather, she remained calm and composed and her answers were directly responsive to the questions being asked, even when those questions dealt with difficult areas of her evidence.

[113] A further piece of evidence is the prior consistent statements the Crown sought to introduce and have me consider solely for the purpose of evaluating the context in which the initial complaint arose, in particular the fact and timing of the complaint in order to assist in assessing the truthfulness of the complainant’s in-court testimony. In my view Mr. Balka opened up the relevance of this evidence by alleging H.B. had a motive to fabricate her complaint. It was Mr. Balka’s submission all H.B. was concerned about was getting Plan B because she thought she was pregnant and when she arrived at home and her Grandmother was not there this caused her to decide to make up a story that she was sexually assaulted. In my view it is this allegation that makes what H.B. said to her best friend N.B., within 15 minutes of leaving L.P.’s house relevant in evaluating the context in which the complaint arose. H.B., once she was able to calm down, did not raise the possibility she might be pregnant, she told N.B. she had been raped. She made a similar comment to her good friend, A.S., just 15 minutes later, again when she was able to breathe, “I think I just got raped.” It is my view the emotional condition of H.B. and her prior consistent statement neutralize the alleged motive to fabricate.

[114] The defence theory of everything spiraling out of control because N.B.’s mother overheard her daughter’s phone call with H.B. this somehow caused H.B. to be locked in with no choices is not an accurate description of what the witnesses described occurred. H.B. told Detective McConnell in her statement (p. 42) that after it happened she did not want to tell her mom; she was just going to go with her friend (N.B.) and get Plan B and be over it. She was not going to make a big deal of it, although she knew it was a big deal. It is my opinion that when someone is sexually assaulted by an assailant who does not wear a condom and who ejaculates inside them when they are engaging in sexual intercourse, being concerned about the fact you were sexually assaulted or raped and being concerned about whether you are pregnant are not mutually exclusive concerns. In my view this is where H.B.’s initial disclosure to N.B. and S.A., her prior consistent statement, becomes significant in evaluating the context in which the complaint arose, in terms of the fact it was made and its timing to assist in assessing the truthfulness of H.B.’s in-court testimony. As well her demeanour is also significant circumstantial evidence corroborating the truth of H.B.’s initial disclosure, “I was raped.” In my view it also neutralizes the defence position of H.B. having a motive to fabricate. These where her best friends. Her first complaint to them was not that she had sex with L.P. and he did not use protection so she had to get Plan B. She told them both initially that L.P. raped her and later she talked about the fact he had not used a condom so she might be pregnant and therefore she should get Plan B.

[115] Based on the totality of the evidence I find that the Crown has proven beyond a reasonable doubt the actus reus respecting the charge of sexual assault facing L.P. There was a touching, of a sexual nature (Sexual intercourse) and the complainant did not consent.

[116] The only remaining aspect to be determined is whether the Crown has proven beyond a reasonable doubt L.P.’s mens rea. I have no doubt he intentionally touched H.B. On his evidence he removed H.B’s. underwear. His next comment in his evidence was “she went with it,” however, he did not explain what he meant by this statement. He did not describe how he removed her underwear, whether she assisted him in their removal. He did not ask her if he could engage in sexual intercourse with her before putting his penis in her vagina. H.B., according to L.P. did not say anything to him. She was quiet and he was unable to describe her demeanour in any way. He could not describe H.B.’s facial expressions at any time he was engaging in sexual activity with her. H.B. described repeatedly telling him to stop, trying to push him off her and telling him over and over to stop. The cases clearly indicate there must be communicated consent in respect of each sexual activity engaged in. The consent of the complainant must be specifically directed to each and every sexual act, and the Criminal Code provisions require the complainant to consent to the activity at the time it occurs. I agree with the Crown’s submission that “L.P. did not testify to any affirmative, contemporaneous and on-going consent by H.B. to his engaging in sexual intercourse with her, either through words or actions. L.P. testified he put his penis in H.B.’s vagina after he removed her underwear. No words were spoken by either L.P. or H.B. and he did not describe any actions, of any kind, by H.B. L.P. testified did not know how her legs ended up in a “V” shape on each side of his body and agreed it was possible he did this.

[117] It is my view based on L.P.’s description of what occurred after he got off the bed, removed H.B.’s underwear, and somehow her legs ended up on each side of him he just put his penis into her vagina. No discussion or comments by either he or H.B., and absolutely no actions or conduct by her that could in any be construed as her giving consent to what he was doing. He did not use a condom during intercourse. He did not ask H.B. if she wanted him to use a condom. L.P. did not provide any evidence whatsoever as to any words or actions by H.B., of any kind, that would have conveyed her consent for him to engage in sexual intercourse with her. For the many reasons described above I find L.P.’s evidence not to be credible or reliable and I do not accept his evidence that he and H.B. engaged in consensual sexual activity. Further, I am not left in any reasonable doubt on this issue. I accept the evidence of H.B. and find that she told L.P. to stop and repeatedly told him “No.” I find there was no motive to fabricate, her concern about being pregnant and wanting to get Plan B was directly related to and as a result of L.P.’s sexual assault of her when he engaged in sexual intercourse without a condom and without her consent. As a result, I find the Crown has proven beyond a reasonable doubt that L.P. knew H.B. was not consenting to engaging in any sexual activity with him. I also find, based on the totality of the evidence and the absence of evidence that at the very least L.P. was reckless as to whether H.B. was consenting or he was wilfully blind as to the absence of her consent.

[118] There will be a finding of guilt and a conviction registered on the charge of sexual assault by L.P. on H.B.

Released: February 1, 2022

Signed: Justice Peter C. West

[^1]: This is when students ask to go to washroom and meet up with other students and walk in the halls. [^2]: H.B. testified “hw” meant homework. [^3]: Plan B was talked about in the evidence as something teenagers are aware of to use as a form of birth control if one thinks they could be pregnant. [^4]: I will address H.B.’s prior consistent statement later in my reasons.