WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

( a ) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

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

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)( a ) or ( b ), the presiding judge or justice shall

( a ) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

( b ) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Ontario Court of Justice

Date: 2023 03 16 Court File No.: 3211-998-21-45-00

Between:

His Majesty the King

— AND —

S.K.

Before: Justice K.L. McKerlie

Heard on: November 29 and December 13, 2022 Reasons for Judgment released on: March 16, 2023

Counsel: Allison Large....................................................................................... counsel for the Crown Tom Brock............................................................................ counsel for the defendant S.K.

McKerlie J.:

Charge and Background

[1] As a result of events that took place in the early morning hours of December 12, 2020, S.K. is charged with sexually assaulting J.F., contrary to section 271 of the Criminal Code of Canada.

[2] It is alleged that S.K. sexually assaulted J.F. by subjecting her to non-consensual vaginal intercourse.

[3] The sole witness on this trial was the complainant, J.F.. S.K. did not testify, nor did he call any evidence. It is the defence position that the crown has not discharged its onus of proving beyond a reasonable doubt the absence of consent.

[4] By way of background, S.K. was 18 years old on the date in question. The complainant, J.F., had just turned 15 years old. They are second cousins. J.F. described S.K. as a close friend. They “hung out” together from time to time.

Examination in Chief of the Complainant

[5] J.F. and S.K. made arrangements to “hang out” together on December 12, 2020. In J.F.’s words, “we hadn’t hung out in like a couple of months by then I’d say. So, we just like wanted to get together and like just chill I guess”. [Transcript, p. 5]

[6] Shortly after midnight, J.F. snuck out of her parents’ house by climbing out the window. Her parents would not have given her permission to go out after her 10 pm curfew. She left the house unbeknownst to her parents.

[7] S.K. was parked down the road from her house and J.F. walked to his vehicle. S.K. then drove to his sister’s residence, which was unoccupied because his sister was out of the country.

[8] When they arrived at his sister’s residence, they sat in the vehicle for a bit longer and then S.K. suggested they head inside. Once inside, they went upstairs to his sister’s bedroom.

[9] J.F. testified that S.K. took his shoes off and sat on the bed, leaning up against the wall. She sat on the edge of the bed. She remembered S.K. playing some music.

[10] As to what was happening when the music was playing, J.F. replied that she remembered “zoning in and out kind of”, which she explained as “one minute I’m like completely aware of what’s going on and the next I’m just like in my own world not thinking about what’s happening”. [Transcript, p. 8] She explained at that point she was still sober and was zoning in and out because she was bored.

[11] J.F. testified that they were just “chilling” and playing on their phones for about 20 to 30 minutes. Then, they headed back outside for 5 to 10 minutes to smoke some “weed”, which S.K. provided. J.F. stated, “I didn’t do a lot because like I didn’t want to black out or anything so I didn’t do much”. [Transcript, p. 9] She testified that she had smoked marijuana on one prior occasion.

[12] As to feeling the effects of marijuana, J.F. replied:

At first, I didn’t really feel it and then like after a while, I started to feel it and it made me like not completely aware of my surroundings. [Transcript, p. 9]

[13] J.F. testified it was cold and so they headed back inside and went up to the bedroom. She stated:

I was the first one in the room so I had laid down because I was feeling a little bit light headed. So, I laid down on the bed and then he goes around the other side and hops in as well and we like just start watching the movie. [Transcript, p. 10]

[14] As to what she meant by “feeling light headed”, J.F. replied, “I couldn’t really stand still. I was almost like swaying back and forth and everything was like blurry and spinning kind of. [Transcript, p. 10] She explained that it was the “effect of the marijuana kicking in”. She described herself as lying flat on her back, staring up at the ceiling and trying to clear her head.

[15] J.F. testified that at some point S.K. paused the movie. She thought he must have noticed that she was not paying attention to it.

[16] After pausing the movie, S.K. climbed on top of her, and sat straddling her with one leg on either side of her body. She testified that he was trying to make sure that she was okay and said words to the effect of, “Yo, like you okay”. She responded, “Yeah, I’m good”. [Transcript, p. 11]

[17] J.F. testified that she was wearing a loose shirt over a tank top. The shirt was open with all the buttons undone. She was wearing loose, baggie sweatpants with an elastic waistband. She was also wearing a bra and underwear.

[18] While straddling her on the bed, S.K. moved his hands up to her shoulders and shrugged her shirt off. As to what she remembered next, J.F. stated, “probably him trying to pull my pants down”. [Transcript, p. 12]

[19] As to her response, J.F. testified that she was “trying to tell him to stop and get off and stuff like that, but he wasn’t listening”. [Transcript, p. 12]

[20] As to whether S.K. heard her tell him to stop and get off, J.F. testified:

I’m assuming he did hear me because he had said like, “It would only be one time. Like nobody has to know” and stuff like that. [Transcript, p. 13]

[21] She responded by saying, “No, I don’t want to do this. Like you’re my second cousin. It feels wrong and I just don’t want to”. [Transcript, p. 13]

[22] As to what was going through her mind, J.F. testified she was thinking “I hope this doesn’t go any further”. She explained at the time she could barely move and did not have strength to push him off. She testified that she was scared and “hoping and praying that he would just like get off and listen to me”. [Transcript, pp. 13-14]

[23] As to why she could barely move and did not have strength to push him off, J.F. explained that she thought it was because of the marijuana kicking in. She testified that she could lift her arm but couldn’t gather enough strength to push him off.

[24] When asked what happened after she told him, “I don’t want to do this”, J.F. testified:

At that point, I think from what I remember, he had started kissing the side of my neck. … It was kind of rough, like he was forcing the kisses almost. … I was trying to get him to stop but he just wouldn’t. … [He] was forcing himself on to me to do it. … I was trying to move my head to the side so that he would stop. Like I was trying to move out of his way so that he wouldn’t like try to go further”. [Transcript, p. 14]

[25] J.F. testified that she was scared. She explained:

Like at that point, I think I had noticed and kind of become aware of the fact that he was not going to stop. So I was – I was trying to fight against him, like I was trying to push him off, trying to do everything I could to get him to stop.

At some point, I had like tried to stop fighting because I like--at that point I was not able to completely move. And then he had continued with pulling my underwear down and then – and then he had taken his own pants off as well. … Then he moves a little further like further up my body because he had to slide down to the end of the bed to get his pants off. Then he forces himself on to me again. [Transcript, p. 15]

[26] When asked what she meant, J.F. stated, “Then he proceeds to put his penis into my vagina”. She stated, “I was hoping it would end. Like I just wanted it to--to go away”. [Transcript, pp. 15-16]

[27] J.F. testified that at that point she was trying to get her strength back so she could push him off, but she was not strong enough. She shoved at his chest, tried turning over and even tried to use her legs to push him off, but was unsuccessful. She could not turn over because S.K.’s body weight was on her legs.

[28] J.F. explained that she stopped fighting because she could not move. When S.K. slid down to the end of the bed to pull his own pants down, he was still partially on top of her. As to why she could not move away at that point, J.F. explained that it was like she was almost asleep. She was aware of what was going on, but she could not do anything about it and could not move.

[29] As to whether she told S.K. to stop as the sexual assault progressed, J.F. confirmed that she told him to stop in the beginning, but did not think she said anything after that. She stated:

I guess at a point, I had realized that trying to tell him to stop wasn’t going to help. [Transcript, p. 20]

[30] As to whether S.K. said anything further to her as the sexual assault progressed, J.F. replied, “I don’t think he had said anything after that either”. [Transcript, p. 20]

[31] When asked if she knew whether S.K. used a condom, J.F. testified that she did not see him put one on and she did not see what went on.

[32] When asked how the incident ended, J.F. testified:

Eventually, I like - I almost threw up and then like at a point I guess he noticed that I was going to throw up soon so he got off and I ran to the bathroom. [Transcript, p. 16]

[33] J.F. testified that she felt vomit coming up her throat, swallowed it and then started gagging. In her words, “I guess he must have noticed that”. [Transcript, pp. 18-19]

[34] Once he got off her, she tried to get to the bathroom as fast as she could and vomited into the toilet. After flushing the toilet, she went back to the bedroom, put on her clothes and told S.K. that she wanted to go home.

[35] S.K. dropped her off down the road from her residence. She vomited again in the grass on the side of the road and then walked the rest of the way home. J.F. testified that she did not know what caused her to vomit, but thought it might have been a combination of eating very little during the day and then smoking marijuana. Other than her stomach being upset, J.F. did not think the marijuana affected her during the ride home.

[36] When asked if she felt the marijuana affected her during the sexual assault, J.F. replied,

I don’t think it had affected me in any other way other than I kept like zoning in and out like to the point where I couldn’t move. [Transcript, p. 21]

[37] J.F. explained that “zoning in and out” meant that at one point she was fully aware of what was happening and then at the next point she was aware but couldn’t do anything about it.

[38] Approximately two weeks later, J.F. and her parents met with S.K. and his mother at the F. residence to discuss what happened. When asked what S.K. said during the meeting, J.F. replied, “All I can remember him saying is that he was sorry for what he had done”. She was also informed that he had used a condom. [Transcript, p. 22]

[39] As to what he was apologizing for, J.F. testified that she thought S.K. was referring to the sexual assault. When asked if S.K. said anything in the meeting that made her believe that he thought the sexual activity was consensual, J.F. replied, “I don’t think he had mentioned anything about that, no”. [Transcript, p. 22]

Cross Examination of the Complainant

[40] Under cross examination, J.F. confirmed that earlier in the day after she had finished work, she exchanged text messages with S.K.. She sent the first text. The text messages were about their plans to get together that evening.

[41] J.F. testified that she did not know where they were going until they arrived at S.K.’s sister’s residence. She was aware his sister was out of the country. J.F. confirmed that S.K. opened the window beside the door and reached in to unlatch the door to gain entry to the residence.

[42] J.F. confirmed that S.K. asked her if she would like to smoke some marijuana. They went outside to his vehicle and each had one puff from a bong before returning inside.

[43] J.F. confirmed it was a cold December night, there was no heat on in the house, and they got into his sister’s bed to warm up.

[44] When asked if she recalled cuddling, J.F. replied, “I don’t think I can recall doing that”. When defence counsel suggested that it was not to say it did not happen, she simply did not have a recollection one way or another, J.F. stated, “It is possible that it could have happened. I just do not remember it”. [Transcript, p. 34]

[45] As to whether she got under the covers after getting into the bed, J.F. replied, “I don’t think I can recall doing that”. She agreed that she could not specifically say that she did not get under the covers and that one of the reasons for getting into the bed was to warm up. J.F. confirmed that they watched a movie on S.K.’s cell phone. At some point, he turned off the movie and played some music.

[46] Cross examination on the next sequence of events included this exchange at pages 35-40 of the transcript:

Q. What happens in the bedroom after you come into the room for a second time, what starts happening is a kiss. That he reaches in and kisses you?

A. Yes

Q. You and he are side-by side and then you respond to his kiss by a kiss from you to him?

A. I don’t think I can recall doing that, but it is possible that it could have happened, yes.

Q. But what I’m getting at , you and he were kissing for a little while?

A. It is possible.

Q. And it was during this original kissing that you have some concern that should you and he be doing this when you’re cousins?

A. Yes

Q. And in response to your inquiry, he says that he thinks it is okay because you two are only second cousins and not first cousins?

A. Yes

Q. And it’s not out of the ordinary in your particular culture that because the culture is not a big one, that sometimes second cousins do marry?

A. Yes

Q. So, with that in mind, given what S.K. had said that you are just second cousins, you and he continued to kiss, did you not?

A. It is possible.

Q. He was kissing you and you were responding in kind by kissing him?

A. I cannot recall doing that, but it is possible.

Q. …And from the kissing, I’m told, led to he kissing your neck?

A. Yes.

Q. And there is a slight readjustment to your clothing to facilitate his kissing of your shoulder?

A. Yes.

Q. And you thought that was okay and you never said no to it, did you?

A. I guess I didn’t think much of it at the time, but I did not say no.

Q. Is it fair to say, and I don’t mean to offend you by this question, but were you and he getting aroused during this exchange of kissing?

A. It is possible, but I don’t think I was.

Q. But you can’t say for sure you weren’t, correct?

A. There is a very, very small chance that I may have been.

Q. But you can’t say specifically you were not aroused, can you?

A. Not 100 percent, no.

Q. And while you are kissing, he said to you, did he not, that if you wanted him to stop, he would. And by that, he would stop kissing you?

A. I don’t think I remember him saying that.

Q. Well, I’m suggesting to you, J.F., that your response to him asking you if you wanted him to stop was it was fine. Do you recall that?

A. I could have easily said that.

Q. And by saying it was fine, what you’re in fact inferring is that what he was doing at that particular time was okay with you?

A. Only by the kissing part was it okay.

Q. Okay, but that occurs, does it not, before either he or you remove any piece of clothing other than your shoes?

A. Yes.

Q. And I’m going to suggest to you, witness, that while on the bed and sometime after the exchange of kisses, sometime after he kissed you on the shoulder, you and he both find yourself naked?

A. Yes

Q. What I’m getting at is this--you were both lying in bed under the covers naked?

A. It is possible.

Q. When you are lying there naked alongside of S.K., what did you expect was going to happen?

A. After him taking my clothes and his clothes off, I had expected exactly what did happen.

Q. And by that, the expectation related to an act of sexual intercourse?

A. I had not agreed to it.

Q. But you expected it to happen, did you not?

A. I had prepared myself for that it was going to happen. And he was not lying beside me, he was sitting on top of me.

Q. At no point did you express any dissatisfaction with what was occurring by way of a sexual interaction?

A. I had said no

Q. I suggest you never said no, and in the heat of the moment, you’re engaging in an act of sexual intercourse to the point in time that you felt sick to your stomach?

A. Before I had gotten sick to my stomach, I had tried to push him off.

Q. I’m suggesting witness that you were a willing participant in what was occurring in this bed?

A. I did not consent to it.

Q. Nor did you ever say no to it, did you?

A. Yes, I did say no.

Q. And was that before you had this expectation that you and he would be engaging in a sexual interaction when you were both lying nude in the bed?

A. It was before and after.

Q. It is not very long after S.K.’s penis enters your vagina that you say you’re going to be sick and get out of bed and run to the washroom.

A. That is correct.

[Transcript, pp. 35-40]

[47] J.F. confirmed that S.K. ran after her with a blanket, put the blanket over her to keep her warm while she was vomiting and later walked back to the bedroom with her. She also confirmed that S.K. asked her if she was okay and she told him she wanted to go home.

[48] As to the impact of her consumption of marijuana, J.F. testified that she was feeling the effects of marijuana because it was one of the first times she had used it. However, she agreed that it was not the marijuana alone that made her stomach upset. She agreed that she was aware of her surroundings.

[49] Cross examination on the first day of trial ended with the following exchange:

Q. I’m suggesting you were exchanging kisses while both in the nude?

A. It is possible, yes.

Q. And it’s during that particular exchange that he inserts his penis in your vagina?

A. Yes.

Q. And it’s shortly thereafter, and by that I’m talking maybe ten, 15 seconds, that you suspect you’re going to be sick to your stomach, and you move out of the bed and go to the washroom.

A. Yes, that is true

Q. While you were cuddling with S.K., did that bring some warmth to your person?

A. Yes.

[Transcript pp. 45-46]

[50] During the second day of the trial, J.F. was cross examined on the transcript of her January 6, 2021 police interview. She agreed that reviewing the transcript refreshed her memory and she confirmed that there was cuddling before S.K. reached in and kissed her.

[51] The following exchange at pages 3-7 of the transcript reviewed the progression of events after the cuddling:

Q. So, in fact, you and he cuddled and that was prior to the start-up of any kissing or anything of that nature, correct?

A. Yes.

Q. And while cuddling, he reaches in and kisses you, is that correct?

A. Yes

Q. And there is an exchange of kisses, were there not, between you and S.K.?

A. I think so, yes.

Q. And that is how everything really started?

A. Yes.

Q. And during kissing, I take it that you and he were touching one another?

A. I didn’t.

Q. I suggest you did hug him though?

A. It is possible

Q. And at some point during this interaction, both you and he removed your clothing—each other’s clothing?

A. He removed all the clothing.

Q. But at no point in time did you resist him removing all the clothing, did you.

A. No, I didn’t.

Q. In any event, you and he then end up side-by-side without any clothing on but for your socks?

A. Yes

Q. You and he continued when in the nude to exchange kisses, did you not?

A. I don’t remember, but it could have been.

Q. The possibility of that occurring happened while you and he have nothing on by way of clothing except for your socks.

A. Yes.

Q. And it’s while you and he are exchanging kisses that he states and says to you, “If you want me to stop, just say so and I will”?

A. I don’t remember him saying that, no.

Q. Well, I’m suggesting he did and that in your mind gave justification to he and you removing clothing.

A. It could be.

Q. Consistent with that is the fact you put up no resistance whatsoever while he was helping you remove your clothing?

A. I had tried to.

Q. You had tried to what?

A. I tried to stop him.

Q. Was he without clothing on when you tried to stop him or was it after he had nothing on.

A. I tried to stop him after he had taken his own clothes off.

Q. And is it fair to say that when he was assisting you in removing your clothing, that he already had all his clothes off.

A. Yes

Q. And I suggest to you that in your mind when you realized he didn’t have any clothes on, that the next step in this interaction between you and he in the bed was that you were going to be removing your clothing, is that not correct?

A. Yes

Q. And that was an expectation you had when you realized he had nothing on?

A. Yes

Q. And it’s from there you start to take your clothing off by removing this loosely fit shirt and he then engaging by way of help to you to take your clothes off?

A. I did not take any of my own clothing off.

Q. Witness, but you did not do anything to otherwise prevent the removal of your clothing from your person by my client?

A. I tried to stop him.

Q. You never said no, did you?

A. I didn’t say no because I knew there was no point in trying.

Q. Well, there you end up then in the nude, correct?

A. Yes.

Q. Lying face-to-face to S.K., correct?

A. Yes.

Q. And you and he once again exchange kisses at that point in time, do you not?

A. No.

Q. I’m suggesting you did and that the next step in this particular interaction is then when he moves and is seated on top of you with his legs on either side of you?

A. Yes

Q. At no time up to this point in time did you tell him to stop, did you?

A. No.

Q. And you knew as a result of what he had said to you earlier that if you did say stop, he would, did you not know that?

A. I didn’t remember or hear him say that to me.

[Transcript, pp. 3-7]

[52] During further cross examination, J.F. confirmed that she did not resist S.K. removing her clothing. She also confirmed that S.K. removed all her clothing, including her bra and underwear.

[53] Defence counsel again suggested that the next thing that occurred is that she and S.K. once again exchanged kisses. J.F. replied, “It could have been possible, but I do not remember doing that”. [Transcript, p. 9]

[54] When asked what she expected to happen, J.F. replied, “I kind of knew what was already going to happen”, which she explained was “the sex without consult”. J.F. stated, “I didn’t agree to it. … There was no permission. Like I did not give him permission to do that”. [Transcript, p. 9]

[55] When defence counsel suggested that S.K. earlier said to her “if you want me to stop I will”, J.F. confirmed that she did not remember S.K. saying that. She agreed that it was not to say it did not happen, but she did not have a recollection of it.

[56] When defence counsel pressed the point that when J.F. “kind of knew what was going to happen”, she did not say “stop”, J.F. replied:

I didn’t tell him to stop because one, I didn’t hear that he said that I could tell him to stop. And number two is he’s obviously stronger than I am so I couldn’t get him to stop even if I wanted to. [Transcript, p. 10]

[57] J.F. confirmed that S.K. did not threaten her or physically injure her. When asked if S.K. restrained her, J.F. testified that S.K. was sitting on top of her so she could not move.

[58] When asked why she didn’t tell him to get off, J.F. replied, “because I knew he wouldn’t listen”. [Transcript, p. 10]

[59] J.F. confirmed that S.K. has never in the past tried to force her to engage in anything she did not want to do. She agreed that he is a “nice and good person”.

[60] The final topic of cross examination was the meeting arranged by J.F.’s parents approximately two weeks after the events in question. J.F. confirmed that pre-marital sex is considered a sin in her religious faith. During the meeting, S.K. apologized to her mother and father. She accepted S.K.’s apology. She likewise apologized to S.K.’s mother for sinful behaviour, being the sexual interaction. Their parents also exchanged apologies.

[61] J.F. confirmed that she apologized for what occurred because it was not consistent with her moral upbringing.

[62] As to whether she told anyone at the meeting that the sexual interaction was non-consensual, J.F. testified,

I didn’t get a chance to say anything in this whole meeting, so, I didn’t. I tried to say something, but I couldn’t. [Transcript, p. 14]

[63] Cross examination ended with the following exchange:

Q. You made no reference during this meeting to the behaviour being non-consensual, did you?

A. I did try to mention it once.

Q. I’m suggesting to you, witness, that the behaviour becomes non-consensual only after this meeting in response to the anger that was displayed by your father with regards to what you and S.K. engaged in?

A. I don’t think I understand the question that you’re trying to ask.

Q. Simply put, your father could not believe that you engaged in extramarital sex. He was very upset with you, was he not?

A. I don’t think he was angry at me for doing that. Still to this day, I do not know why he was so angry?

Q. But nonetheless, he was very angry, was he not?

A. Yes, he was.

Q. You were fearful with what the situation was becoming?

A. Yes, I was getting scared.

Q. And I’m suggesting to you that in response to the fear you were feeling as a result of your father, you turned what occurred between you and S.K. into something of a non-consensual nature when, in fact, you voluntarily engaged in this sexual interaction with my client?

A. No.

Q. It’s not a sin if the behaviour is non-consensual, correct?

A. For us, we grew up being told that it’s a sin to have sex before getting married, period.

Q. But if it’s something you do not want to personally engage in, it no longer is a sin, correct?

A. No.

[Transcript, pp. 15-16]

Re-examination of the Complainant

[64] In re-examination, the crown elicited clarification from J.F., including the following:

1. J.F. clarified that that she has no current recollection of cuddling with S.K., but it is possible they could have cuddled when they got into the bed after smoking marijuana. As to why she said it was “possible” if she had no recollection, J.F. explained that it has been two years since the events in question and she could not remember everything as if it were yesterday.

2. J.F. confirmed that she did not remember getting under the covers at all. As to why then she said it was possible, J.F. stated, “For me, I think it’s possible because like I said, I can’t remember everything down to like the specific detail”. [Transcript, p. 22]

3. As to the suggestion in cross examination that as they were side by side she responded to his kiss with a kiss and her answer, “I don’t think I can recall doing that, but it’s possible that it could have happened, yes”, J.F. explained,

   I don’t know how to word this. I don’t remember kissing him, so, I was agreeing to the part where we could have been lying beside each other looking at each other. [Transcript, p. 22]

4. As to her testimony that it is possible that they were kissing for a little while, J.F. explained what she meant was, “I said it’s possible because I don’t remember doing that”. As to why she said it was possible if she didn’t remember doing that, J.F. stated, “Because it’s been such a long time ago, I can’t really remember everything down to the detail of what happened”. [Transcript, p. 22]

5. As to her testimony that she expressed concern that they were cousins and S.K.’s response that it was okay because they were second cousins, J.F. confirmed that her concern related to sex. In her words, “I didn’t want to do it because he was my cousin. … I didn’t want to have sex with him”. [Transcript, p. 24]

6. J.F. confirmed that it was possible that there was some consensual kissing. When asked to clarify the transition between consensual kissing and non-consensual sexual touching, J.F. replied, “For me, like in my opinion, I didn’t—I hadn’t seen anything wrong with the kissing part until I had noticed that it was going to go like further than that”. [Transcript, p. 24]

7. J.F. confirmed that during the encounter she did not hear S.K. say words to the effect that if she wanted him to stop, he would stop. As to defence counsel’s suggestion that she responded “it’s fine” and her acknowledgement that “I could have easily said that”, J.F. explained that she was not agreeing that S.K. asked the initial question and what she meant by “its’ fine” was that “I was okay with the kissing part, not to go further”. [Transcript, p. 25].

8. Respecting the suggestion that S.K. said that if she wanted him to stop, he would stop, her testimony that she did not remember him saying those words, defence counsel’s further question, “I’m suggesting that he did and that in your mind provided justification to he and you removing your clothing” and her response, “it could be”, J.F. clarified:

   I think what I had meant by saying “it could be” was that he could have taken my—like if he did say that if I wanted him to stop that he would, by me not replying to his question, I think he might have thought that like I was agreeing to it. [Transcript, p. 27]

9. As to questions about an “expectation” that sexual intercourse would take place, J.F. explained:

   I had prepared myself for it to happen in a way. … What I mean by that is that I wasn’t like - I wasn’t fully expecting it to come. Like I was—I had prepared myself for—that it could happen, but I hadn’t like actually thought it was going to happen. [Transcript, pp. 25-26]

10. As to her testimony that S.K. was forcing the kisses and also her acknowledgement that there had been an exchange of kisses, J.F. explained:

    By the exchange of kisses that I had agreed to, that was only when we were like kissing each other on the lips kind of thing. But the ones that I didn’t agree to, is when he had started like kissing down the side of my neck. [Transcript, p. 27]

Analysis

[65] The issue on this trial is whether the crown has discharged its onus of proving beyond a reasonable doubt that S.K. engaged in vaginal intercourse without J.F.’s consent.

[66] The starting point in the analysis of the trial evidence is the presumption of innocence. The accused, S.K., is presumed to be innocent. He is not required to prove or disprove anything. He is not required to testify or call evidence.

[67] The onus of proof is on the crown and never shifts. The standard of proof is high—proof beyond a reasonable doubt. S.K. is entitled to the benefit of any reasonable doubt on any issue. I am mindful that the principle of reasonable doubt applies to issues of credibility and reliability, as well as to issues of fact.

[68] In assessing the credibility and reliability of J.F.’s testimony, I take into account her ability to make observations, her capacity to recall and describe clearly the events in question, issues of bias and interest, the completeness, consistency and reasonableness of her testimony and the manner in which it was given in both examination in chief and cross examination. I am mindful of the danger of equating credible demeanor with reliability and accuracy.

[69] As succinctly summarized by the Ontario Court of Appeal in R. v. H.C, 2009 ONCA 56 at paragraph 41:

Credibility and reliability are different. Credibility has to do with a witness’s veracity, reliability with the accuracy of the witness’s testimony. Accuracy engages consideration of the witness’s ability to accurately

i. observe;

ii. recall; and

iii. recount

events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence: R. v. Morrissey (1995), 22 O.R. (3d) 514, at 526 (C.A.).

[70] Both the credibility and reliability of J.F.’s testimony must be carefully scrutinized. The issue on this trial is not whether I believe J.F. or whether she is a reliable witness. As the Ontario Court of Appeal emphasized in R. v. T.A., 2020 ONCA 783 at para. 29:

A finding that a complainant is both reliable and credible is not sufficient to satisfy the burden of proof beyond a reasonable doubt. As noted by this court in R. v. J. W., 2014 ONCA 322, at para. 26: “a reasonable doubt can survive a finding that the complainant is credible”.

[71] The issue is whether the crown has discharged its onus of proving beyond a reasonable doubt all the essential elements of the offence of sexual assault, including the absence of consent.

[72] On the date in question, December 12, 2020, J.F. had just turned 15 years old. She was 17 years old when she gave her trial testimony. Throughout both examination in chief and cross examination, J.F. presented as a very candid, transparent, and fair witness.

[73] J.F. listened carefully to the questions asked. She answered the questions directly and without equivocation. She took pains not to overstate her evidence or her recollection of events. She readily acknowledged that now, two years later, she did not remember all the details, particularly during the beginning of the encounter.

[74] For example, when asked if she was under the influence of any substances when she snuck out of the house to meet S.K., J.F. stated, “no, I think I was sober”. When asked why she used the phrase “I think”, she testified. “It had happened almost two years ago now, so I can’t fully remember everything”.

[75] Likewise, J.F. quite fairly acknowledged that some of what defence counsel suggested to her was “possible” even though that was not her memory of events. She carefully considered the suggestions made to her and was very transparent in her answers, for example: “I don’t think I can recall doing that, but it is possible that it could have happened”. In re-examination, J.F. gave context to why she said some of what defence counsel suggested was possible.

[76] I provided a very detailed summary of J.F.’s testimony in these Reasons for Judgement to illustrate the care she took in not overstating her evidence and not rejecting out of hand suggestions put to her in cross examination. J.F. very fairly acknowledged some suggestions were possible even when such suggestions did not accord with her memory of events.

[77] J.F. did not present as a witness with a poor memory or as an otherwise unreliable witness. To the contrary, she presented as a very careful witness who did not overstate her recollection of events and carefully considered the suggestions made to her in cross examination. J.F. was clear about what she remembered and what she did not. The level of detail provided appeared consistent with how the events progressed, the relative significance of those details at the time the events were occurring, and the passage of time since those events occurred.

[78] J.F. consistently described a progression of events involving initial kissing on the lips which she reciprocated and then more forceful kissing down her neck, which she did not want. S.K. was on top of her and he was the one who removed all her clothing. She was clear that she did not remove her clothing.

[79] J.F.’s recollection of how the sexual assault ended was more specific than her recollection of how the kissing began. The comparative detail was consistent with her explanation that she was not overly concerned about the kissing until it became more forceful. In her words, “I guess I didn’t think much of it at the time, but I did not say no” in reference to the kissing and his removal of the loose fitting shirt she was wearing over her tank top.

[80] J.F.’s recollection of events was more distinct from the point when she realized that S.K. was not going to stop. She had very specific recollections of S.K. putting his penis in her vagina, vomit coming up her throat, gagging on the vomit and running to the bathroom to vomit in the toilet.

[81] J.F. described why she was unable to stop S.K. or push him away and her realization that he was going to engage in intercourse whether she wanted it or not. She described initially trying to tell him to stop and get off, but he was not listening. She assumed he heard her in the beginning because he said things like it would only be one time and no one would have to know.

[82] J.F. explained why she stopped fighting and why she did not think she said anything further as the sexual assault progressed. She explained that she realized “trying to tell him to stop wasn’t going to help”.

[83] J.F. answered questions in a direct and matter of fact manner and provided context when required. For example, defence counsel cross examined J.F. about what she expected was going to happen. J.F. replied, “after him taking my clothes off and his clothes off, I had expected exactly what did happen”. She explained that she prepared herself for what was going to happen, but she had not agreed to it.

[84] J.F. did not overstate her attempts to resist S.K.. Her explanation that she prepared herself for what was going to happen appeared consistent with a personally experienced event rather than a scripted or after the fact invented account.

[85] J.F. consistently described a scenario in which S.K. was not listening to her. She came to realize what was going to happen--S.K. was going to have sex with her. He was on top of her. He had already removed her clothing. He was stronger than her. He did not stop when she asked him to stop. He was not listening to her and she did not hear him say that if she wanted him to stop, he would.

[86] J.F. clearly and consistently testified that she did not consent to sexual intercourse. She described how she came to the conclusion that “telling him to stop wasn’t going to help” and she “stopped fighting”. She consistently described S.K. as forcing himself on her and putting his penis in her vagina without her consent.

[87] J.F. did not attempt to portray S.K. in a negative light. She readily acknowledged that he asked her if she was okay after she smoked the marijuana and again asked her if she was okay after she vomited. She readily confirmed that S.K. did not threaten her, had never in the past tried to force her to engage in something she did not want to do and that he was a “good person”.

[88] J.F. consistently testified that she did not hear S.K. say that if she wanted him to stop, he would. However, she very fairly offered an explanation in re-examination that if S.K. said those words, by her not replying, “he might have thought that I was agreeing to it”.

[89] J.F.’s testimony about the subsequent family meeting was consistent with the tenor of her testimony respecting the events in question and the very fair and balanced way in which she testified under cross examination. Her testimony survived the scrutiny of cross examination. I am satisfied that J.F. did not make up a story about lack of consent because her father was angry.

[90] In summary, J.F. testified in a very fair and balanced manner. She answered questions directly, transparently and without equivocation. She was frank and forthright. She did not avoid answering difficult questions. She carefully considered the suggestions put to her and answered them without attempting to tailor her evidence. She provided context and detail, and also insight respecting what she was thinking and how she reacted.

[91] J.F.’s consistent testimony that she did not consent to sexual intercourse remained unshaken during thorough cross examination. I accept J.F.’s testimony as both credible and reliable.

[92] On the basis of J.F.’s uncontradicted testimony, I make the following findings of fact:

1. S.K. kissed J.F., straddled her on the bed and removed her clothing. J.F. did not assist in the removal of her clothing or S.K.’s clothing.
2. J.F. initially returned a kiss but expressed concern that they were cousins. S.K. dismissed those concerns and told her they were only second cousins.
3. J.F. told him to stop and get off. S.K. appeared to have heard her as he responded by saying it would only be one time and nobody would have to know.
4. J.F. told S.K. she did not want to do it and it felt wrong. She was unable to push him off or get out from under him.
5. S.K. kissed J.F. more forcefully, moving his lips down the side of her neck. At some point, J.F. became resigned to what might happen and realized that resistance was futile. As she put it, “I prepared myself that it could happen, but I hadn’t actually thought it was going to happen”.
6. Although in the beginning J.F. told S.K. to stop, she did not say anything further because she realized that trying to tell him to stop was not going to help. He was not listening to her.
7. S.K. put his penis in J.F.’s vagina. Within seconds she felt like she was going to vomit. When the vomit came up her throat, she gagged. S.K. noticed and got off her. J.F. ran to the bathroom and vomited in the toilet.
8. J.F. did not hear S.K. say that if she wanted him to stop, he would stop. Although she acknowledged it was possible that he could have spoken those words, there is no evidence that those were words spoken by S.K..
9. If S.K. did speak those words, there was no reply by J.F. as she did not hear him say those words.

[93] The defence submission that J.F. was a willing participant and agreed to engage in sexual intercourse is without foundation in the trial evidence.

[94] The crown has discharged its onus of proving beyond a reasonable doubt that, as it relates to the actus reus of sexual assault, J.F. in her mind did not consent to sexual intercourse.

[95] I now turn to the requisite mens rea. The crown must prove beyond a reasonable doubt that:

1. S.K. knew of, was wilfully blind to or was reckless about the absence of consent to sexual intercourse; and
2. S.K. did not have an honest but mistaken belief in communicated consent.

[96] It is the crown’s position that J.F. did not affirmatively express by words or actively express by her conduct any agreement to engage in sexual intercourse. The crown further submits that S.K. did not take reasonable steps, in the circumstances known to him at the time, to ascertain consent.

[97] Consent in the context of the offence of sexual assault is defined in the Criminal Code as “the voluntary agreement of the complainant to engage in the sexual activity in question”: s. 273.1(1) of the Criminal Code.

[98] As emphasized by the Supreme Court of Canada:

Consent is the foundational principle upon which Canada’s sexual assault laws are based. For decades, this Court has recognized that “control over who touches one’s body, and how, lies at the core of human dignity and autonomy”: R. v. Ewanchuk, [1999] 1 S.C.R. 330, at para, 28. … It is now indisputable that consent is a subjective state of mind, entirely personal to the complainant. There is no room for implied consent in Canada, and the range of mistaken beliefs an accused may lawfully hold about the complainant’s consent are tightly restricted by the Criminal Code: R. v. G.F., 2021 SCC 20 at para 1.

[99] In R. v. I.A.D., 2021 ONCA 110, at paragraphs 13, 14 and 19, the Ontario Court of Appeal provided the following guidance:

[13] Section 273.2 of the Criminal Code places important limits on the defence of honest but mistaken belief in communicated consent, including s. 273.2(b), which states “it is not a defence” where “the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting”. As Moldaver J. held in R. v. Barton, 2019 SCC 33, at para. 104, s. 273.2(b) “imposes a precondition to the defence of honest but mistaken belief in communicated consent—no reasonable steps, no defence” (emphasis added).

[14] There are both objective and subjective dimensions to this defence. The accused must take steps that are objectively reasonable in the circumstances, and the reasonableness of the steps must be considered in light of the circumstances known to the accused at the time: Barton, at para. 104.

[19] The reasonable steps inquiry is a fact-specific one. Clearly, those steps cannot arise from the complainant’s silence, passivity, or ambiguous conduct: R v. Ewanchuk, [1999] 1 S.C.R. 330, at para 51; Barton, at para. 107. …

[100] In Barton at para. 98, Moldaver J. emphasized that it is an error of law “to assume that unless and until a woman says “no”, she has implicitly given her consent to any and all sexual activity”. Moldaver J. provided the following clear direction at paragraph 109:

Overall, in approaching the reasonable steps analysis, trial judges and juries should take a purposive approach, keeping in mind that the reasonable steps requirement reaffirms that the accused cannot equate silence, passivity, or ambiguity with the communication of consent. Moreover, trial judges and juries should be guided by the need to protect and preserve every person’s bodily integrity, sexual autonomy, and human dignity. Finally, if the reasonable steps requirement is to have any meaningful impact, it must be applied with care — mere lip service will not do. (emphasis added)

[101] In R. v. H. W., 2022 ONCA 15, at paras. 36-52 the Ontario Court of Appeal summarized the legal components of the offence of sexual assault and provided the following guidance respecting the mens rea stage of the analysis:

[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.

[47] “[T]he common law recognizes a defence of mistake of fact which removes culpability for those who honestly but mistakenly believed that they had consent to touch the complainant”: Ewanchuk, at para. 42. The defence is a “negation of guilty intention”, rather than an affirmative defence – it is a “denial of mens rea”: Ewanchuk, at paras. 43-44.

[48] The defence requires that the accused had “an honest but mistaken belief that the complainant actually communicated consent, whether by words or conduct”: Barton, at para. 91. From a practical standpoint, the principal relevant considerations are the complainant’s behaviour which is said to have involved communication and the “admissible and relevant evidence explaining how the accused perceived that behaviour to communicate consent”: R. v. Park, 2 S.C.R. 836, at para. 44; Barton, at para. 91.

[49] The defence is limited both by the common law and by provisions of the Code that tightly restrict “the range of mistaken beliefs an accused may lawfully hold about the complainant’s consent”: G.F., at para. 1; J.A., at para. 24. As a result, “[n]ot all beliefs upon which an accused might rely will exculpate him”: Ewanchuk, at para. 50.

[50] For example, mistakes as to what amounts in law to consent – for example, a mistaken belief that “no”, or silence, or lack of resistance, meant “yes” – do not engage the defence: Barton, at paras. 98-100.

[51] Moreover, s. 273.2 of the Code imposes additional restrictions on the applicability of the defence. It imposes a precondition of reasonable steps to ascertain consent – “no reasonable steps, no defence”: Barton, at para. 104. And it requires evidence of words or conduct by which the complainant expressed consent. Section 273.2 provides:

It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where the accused’s belief arose from … the accused’s recklessness or wilful blindness, … or the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting, or there is no evidence that the complainant’s voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct.

[52] An accused who wishes to rely on the defence of honest but mistaken belief in communicated consent must first demonstrate there is an air of reality to it. … If there is, the onus is on the crown to negative the defence. If the Crown fails to do so, the accused is entitled to an acquittal. The Crown might disprove the defence by, for example, proving beyond a reasonable doubt that the accused did not take reasonable steps to determine whether the complainant was consenting or that the accused’s mistaken belief was not honestly held: Barton, at paras. 121-23.

[102] Applying those principles to the facts of this case, the obligation was on S.K. to ascertain consent before penetrating J.F.’s vagina with his penis. Although she did say “no” in the beginning, there was no obligation for J.F. to say “no” at any stage of this encounter. As emphasized in Barton at para. 98, it is an error of law to assume that unless and until a woman says “no”, she has implicitly given her consent to any and all sexual activity. An accused “cannot equate silence, passivity, or ambiguity with the communication of consent”.

[103] On the issue of an honest but mistaken belief in communicated consent, the only evidence from which such a belief could possibly be inferred is J.F.’s testimony that although she did not hear S.K. say that if she wanted him to stop, he would stop, it was possible he could have said those words. If he did say those words, he did not receive a response. J.F. was clear that she did not hear him say those words and did not respond to something she did not hear.

[104] In re-examination, J.F. acknowledged “if he did say that if I wanted him to stop that he would, by me not replying to his question, I think he might have thought that like I was agreeing to it”.

[105] The fact that J.F. quite fairly identified this as a possible thought process on S.K.’s part is a far cry from S.K. fulfilling the precondition of taking reasonable steps, in the circumstances known to him at the time, to ascertain that J.F. was consenting to sexual intercourse: s. 273.2(b).

[106] Even if S.K. said words to the effect that if J.F. wanted him to stop, he would, S.K. cannot rely on her silence, passivity or lack of resistance as consent. Beyond the bare assertion that it is possible that S.K. said those words, there was no evidence that S.K. took reasonable steps, in the circumstances known to him at the time, to ascertain consent to sexual intercourse.

[107] The crown has established beyond a reasonable doubt that J.F. did not affirmatively express by words or actively express by her conduct any agreement to engage in sexual intercourse. In the circumstances established by J.F.’s uncontradicted trial evidence, returning a kiss on the lips and/or failing to prevent the removal of her clothing, cannot be construed as an agreement by J.F. to engage in sexual intercourse.

[108] The crown has proven beyond a reasonable doubt that S.K. did not take reasonable steps, in the circumstances known to him at the time, to ascertain J.F.’s consent to sexual intercourse. As emphasized in Barton, “the reasonable steps requirement reaffirms that the accused cannot equate silence, passivity, or ambiguity with the communication of consent”.

[109] The crown has discharged its onus of proving beyond a reasonable doubt that S.K. did not have an honest but mistaken belief in communicated consent and that he knew of, was wilfully blind to or was reckless about the absence of J.F.’s consent to sexual intercourse.

[110] In summary, the crown has discharged its onus of proving beyond a reasonable doubt the absence of consent, both as it relates to the actus reus and the mens rea of the offence. Accordingly, I find S.K. guilty of the December 12, 2020 offence of sexually assaulting J.F., contrary to s. 271 of the Criminal Code.

Released: March 16, 2023 Signed: Justice K.L. McKerlie