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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.
DATE: 2023-06-05 Toronto
ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
AGYEI DE ROCHE
Before Justice Mara Greene
Reasons for Judgment released June 5, 2023
Counsel: L. Jacek, for the Crown A. Page, for Agyei De Roche
Greene, J:
[1] Mr. De Roche is charged with sexual assault in relation to a sexual touching of R.D. after a recording session. Mr. De Roche pled not guilty. His defence at trial was mistaken belief in communicated consent. Crown counsel urged me to reject his evidence as he was not a credible witness. She further argued that even if I accepted his evidence about what took place, there was no air of reality to his assertion that he thought R.D. consented to his advances.
Summary of the Evidence
[2] At trial I heard evidence from R.D. and Mr. De Roche. I was also provided with a copy of all their Instagram communications and a portion of the podcast recorded on the day of the alleged sexual assault.
[3] According to R.D., her first contact with Mr. De Roche was when he sent her a message on Instagram. R.D., when not working her day job, was an online streamer and earned some income through her online activities.
[4] According to R.D., after that first message from Mr. De Roche they had sporadic contact always initiated by Mr. De Roche. During this time, Mr. De Roche had asked R.D. out a few times, but she always rejected his online advances.
[5] The frequency of the contact between R.D. and Mr. De Roche changed months later when Mr. De Roche asked R.D. to collaborate on a podcast with him. Once it was decided that R.D. and Mr. De Roche would collaborate on a podcast, there were a series of Instagram messages about this podcast including R.D. advising Mr. De Roche that she had a manager, she wanted to know the questions in advance and discussed other details of the podcast. The vast majority of these communications were professional, and work related.
[6] On February 2, 2022, R.D. attended at the Lynx studio to record the podcast. According to R.D., when she arrived, she did not recognize Mr. De Roche at first. He appeared to be intoxicated, was carrying a bong and a drink, his speech was slurred, and he was sloppy looking. After paying the fee for the recording room, R.D. and Mr. De Roche went to a back studio.
[7] The podcast recording lasted an hour, but only the first part and the very end were captured on the recording. This is because Mr. De Roche’s phone stopped recording part way through the podcast and no one noticed.
[8] R.D. described the whole podcast recording session as awkward and uncomfortable for her. She felt trapped and decided to make the recording run as smoothly as possible. At the beginning of the podcast, Mr. De Roche gave her a big hug to congratulate her for reaching 82 followers. This took her off guard and happened so quickly she had no time to react. She did not hug him back. He also made a series of comments to the intended audience about how beautiful she was. Later in the podcast, Mr. De Roche tried to get her to sit on his lap and tried to look at her rings. He held onto her hand and would not release it. R.D. said she did not want to sit on his lap. She told Mr. De Roche that her stomach hurt and that she had a boyfriend.
[9] At the end of the podcast, R.D. went to take a sip of water from her water bottle. She had been wearing her mask during the entire podcast and Mr. De Roche came over and lowered her mask. She said thank you to him at which point Mr. De Roche leaned in and tried to kiss her on the lips. She turned to the left and he ended up kissing her cheek. Mr. De Roche then put his arms around R.D. and tried to touch her stomach while he pushed her against the wall. Mr. De Roche touched R.D.’s breasts for a couple of seconds then put his hand on her waist. R.D. testified that she tried to push Mr. De Roche off but he just came closer and wrapped his arms around her. She felt an erection on her leg as he did this. Mr. De Roche then asked if she liked being pushed against the wall like that and she said she did not. Mr. De Roche let go of her and R.D. made an excuse to leave.
[10] Mr. De Roche gave a very different version of events in his evidence. Mr. De Roche testified that he first met R.D. at her place of employment. She was working as a cashier at No Frills. He flirted a bit with her and R.D gave him her Instagram information. He subsequently contacted her on Instagram.
[11] Mr. De Roche admitted that he liked R.D. from the start and attempted to ask her out a few times on Instagram, but R.D. rejected him each time. According to Mr. De Roche, in order to better assess if R.D. was interested, he asked her on Instagram if she liked boys to which R.D. responded yes. Mr. De Roche testified that this answer confused him as he was not clear if she was interested in him or not.
[12] In order to get to know her better, Mr. De Roche suggested that they do a podcast together. They agreed to meet on February 2, 2022 to record the podcast.
[13] Mr. De Roche testified that he was not impaired by alcohol or drug during the podcast. He had smoked some marijuana in the morning but did not smoke after that as he wanted to keep his voice fresh. As for alcohol, he had consumed one mixed drink that a friend made for him and was holding a second drink when R.D. arrived. This drink was largely untouched. Mr. De Roche did have a bong with him, but only because it was new, and he wanted to keep it safe.
[14] Mr. De Roche testified that during the podcast he felt a spark between himself and R.D. When he complemented her and called her beautiful, Mr. De Roche thought he had hit a “home run”. In his mind, R.D. responded like a high school girl, twirling her hair and smiling. While she was wearing a mask, he could tell from her eyes that she was smiling.
[15] Mr. De Roche testified that when he went to kiss R.D. at the end of the podcast, he thought she wanted him to kiss her because of her response to his compliments, the fact that she hugged him back when he hugged her early on in the interview, and her behaviour near the end of the interview when R.D. let him touch her hand, tattoos and rings. According to Mr. De Roche, while R.D. did tell him that she did not want to sit on his lap, she came up to him, stood between his legs and put out her hand and let him massage her hand. She also touched his tattoos.
[16] Mr. De Roche testified that he did not consider R.D.’s refusal to sit on his lap as a rejection or a sign that she did not like him.
[17] Mr. De Roche testified about other times during the podcast recording when he viewed R.D.’s behaviour to be flirtatious. At one point they played a “cup game”. During this game they were laughing, and he thought they were being flirtatious. This portion was not captured on the audio recording.
[18] Mr. De Roche admitted to kissing R.D. and touching her breast. He testified that leading up to the kiss he thought she liked him so he leaned in for the kiss, but she moved away and it landed on her cheek. The signals that he took to think she liked him included what he called her “googly eyes”, her twirling her hair and overall behaviour. He testified that there was a vibe in the room, and she came over to show him her tattoos.
[19] At trial, the only issue was mistaken belief in communicated consent
Relevant Legal Principle
[20] The starting point in understanding any decision in a criminal court is understanding the burden of proof. The burden lies on the Crown to prove each essential element of the offence beyond a reasonable doubt. This is a high standard. Reasonable doubt is based upon reason and common sense. It is logically connected to the evidence or the lack of evidence. It is not enough for me to believe that Mr. De Roche is possibly or even probably guilty. Reasonable doubt requires more. As a standard, reasonable doubt lies far closer to absolute certainty than it does to a balance of probabilities. In order to convict, a trial judge must be sure that every essential element of the offence has been made out.
The Offence of Sexual Assault
[21] The offence of sexual assault must be considered in the context in which the offence was created. McLachlin C.J. wrote in R. v. J.A. 2011 SCC 28, [2011] S.C.J. No. 28 “It is a fundamental principle of Canadian law that a person is entitled to refuse sexual contact.” Major J., speaking for the majority of the court in R. v. Ewanchuck, [1999] S.C.J. No. 10 stated at paragraph 28,
…Society is committed to protecting the personal integrity, both physical and psychological, of every individual. Having control over who touches one’s body, and how, lies at the core of human dignity and autonomy. The inclusion of assault and sexual assault in the Code expresses society’s determination to protect the security of the person from any non-consensual contact or threats of force. The common law has recognized for centuries that the individual’s right to physical integrity is a fundamental principle, “every mans’ person being sacred, and no other having a right to meddle with it in any the slightest manner”: See Blackstone’s Commentaries on the Laws of England (4th ed. 1770). Book III, at p. 120. It follows that any intentional but unwanted touching is criminal.
[22] All offences in the Canadian Criminal Justice System have both an actus reus and a mens rea. The same is true for the offence of sexual assault. The actus reus of a sexual assault is made out where the Crown has proven beyond a reasonable doubt that: the defendant touched someone; where the contact was sexual in nature; and the person did not consent. The Crown must prove all three of these essential elements beyond a reasonable doubt. In other words, the test is not whether the victim consented. The test is whether the Crown has proven beyond a reasonable doubt that the victim did not consent.
[23] The mens rea for sexual assault is made out where the Crown proves beyond a reasonable doubt that the defendant intended to touch the complainant in a sexual manner and knew or was reckless or willfully blind to the complainant’s lack of consent. Once the actus reus is established, the defendant can only rely on his lack of knowledge about the absence of consent if the defendant took reasonable steps to confirm that the victim was consenting.
[24] In the case at bar, it is conceded that Mr. De Roche touched R.D. in a sexual manner, that he intended to touch R.D. in a sexual manner and that R.D. did not consent. The only issue is whether Mr. De Roche knew or was reckless or willfully blind to the fact that R.D. did not consent or whether or not he took reasonable steps to ascertain R.D.’s consent.
Mistaken belief in communicated consent– Legal Principles
[25] The concept of consent in a sexual assault trial cannot be divorced from the purpose of criminalizing non-consensual sexual acts. As noted above the offence of sexual assault is premised on protecting personal integrity and that having control over who touches one’s body. It is for this reason, that the definition of consent is not mere silent acquiescence. In R. v. J.A., supra, McLachlin C.J. stated that consent in the context of a sexual assault case is “the conscious agreement of the complainant to engage in every sexual act in a particular encounter” (see para 31). McLachlin C.J. further stated at paragraph 34 “consent for the purpose of sexual assault is defined in s.273.1(1) as the voluntary agreement of the complainant to engage in the sexual activity in question”.
[26] In relation to the mens rea for the offence of sexual assault, and specifically for the purposes of the defence of honest but mistaken belief in communicated consent, the focus is on the mental state of the accused. The issue becomes not whether the complainant did in fact consent but whether the accused honestly believed that the complainant was saying “yes” to the sexual contact through her words or actions (see R. v. Ewanchuck, supra, at para 47 and R. v. Barton, 2019 SCC 33 at para 90).
[27] Pursuant to section 273.2 (b) of the Criminal Code, it is not a defence to a charge of sexual assault that the accused believed that the complainant consented where the accused failed to take “reasonable steps, in the circumstances known to the accused at the time to ascertain that the complainant was consenting”.
[28] As was noted in R. v. Barton, supra, the reasonable step requirement was created to “replace the assumptions traditionally – and inappropriately – associated with passivity and silence”. The court went on to state at paragraph 105,
Professor Elizabeth Sheehy puts it this way: “Bill C-49’s ‘reasonable steps’ requirement was intended to criminalize sexual assaults committed by men who claim mistake without any effort to ascertain the woman’s consent or whose belief in consent relies on self-serving misogynist beliefs (P.492). The common thread running through each of these descriptions is this: the reasonable steps requirement rejects the outmoded idea that women can be taken to be consenting unless they say “no”.
[29] Pursuant to R. v. Barton, supra, the reasonable step requirement has both objective and subjective components. The Accused must take steps that are objectively reasonable (the objective component). These steps must be assessed based on the circumstances as known to the accused at the time (subjective component).
[30] While the Supreme Court of Canada in Barton noted that the reasonable steps requirement will be fact specific, they still identified things that are “clearly not reasonable steps” (Barton at para 107). Silence, passivity, or ambiguous conduct cannot be considered as a reasonable step. Testing the waters by recklessly or knowingly engaging in a non-consensual sexual touching is also not a reasonable step. (Barton, at para 107)
[31] The court further stated that the threshold for satisfying the reasonable steps requirement will be elevated in certain circumstances including where the accused and complainant are unfamiliar with each other (Barton at para 108).
[32] The process a trial judge should engage in when assessing if the defence of mistaken belief in communicated consent is available is as follows:
An accused who wishes to rely on the defence of honest but mistaken belief in communicated consent must first demonstrate that there is an air or reality to the defence. This necessarily requires that the judge consider whether there is any evidence upon which a reasonable trier of fact acting judicially could find (1) that the accused took reasonable steps to ascertain consent and (2) that the accused honestly believed the complainant communicated consent.
…If there is an air of reality to the defence of honest but mistaken belief in communicated consent, including the reasonable steps requirement, then the defence should be left with the jury. The onus would then shift to the Crown to negative the defence, which could be achieved by proving beyond a reasonable doubt that the accused failed to take reasonable steps. (R. v. Barton, supra at paras 121 and 122)
Findings of Fact – Legal Principles
[33] Before I engage in assessing the evidence, a few comments must be made about the fact-finding process. In Canadian Criminal Law, there is a clear process for addressing evidence where the defendant testifies. The court must consider whether she believes the defendant’s evidence. If the court does not believe the defendant, she must go on to consider whether the defendant’s evidence leaves her with a reasonable doubt about the commission of the offences. Where there are competing versions of events the court is not permitted to merely decide which version of events the court likes better. In assessing whether or not to accept the defendant’s evidence the court must consider all the evidence, including the evidence of the complainant. A considered and reasoned acceptance of the complainant’s evidence beyond a reasonable doubt is a sufficient basis to reject the testimony of the defendant. As was stated in R. v. J.J.R.D., [2006] O.J. No. 4749 (C.A.) at paragraph 53:
53 The trial judge's analysis of the evidence demonstrates the route he took to his verdict and permits effective appellate review. The trial judge rejected totally the appellant's denial because stacked beside A.D.'s evidence and the evidence concerning the diary, the appellant's evidence, despite the absence of any obvious flaws in it, did not leave the trial judge with a reasonable doubt. An outright rejection of an accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused's evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused's evidence.
[34] While it is open to the court to reject the evidence of the defendant because she believes the complainant, there may be occasions where the court believes both the defendant and the complainant. In such a case, as long as the defence evidence amounts to a defence in law, the court will be left in a reasonable doubt.
Findings of fact
[35] In the case at bar, R.D.’s evidence differed from Mr. De Roche’s evidence in many respects. Crown counsel urged me to accept R.D.’s evidence and to completely reject Mr. De Roche’s evidence. Crown counsel argued that Mr. De Roche was both unreliable and not credible. Essentially Crown counsel argued that I should reject Mr. De Roche’s assertion that he had an honestly held belief that R.D. was consenting to the sexual contact. In the alternative, counsel argued that even if Mr. De Roche thought R.D. was consenting, he failed to take reasonable steps to ascertain her consent.
[36] Crown counsel identified a number of areas where she argued Mr. De Roche was not credible. Firstly, the Crown argued that Mr. De Roche lied about the fact that he was not intoxicated on the night of the offence. She argued that there was a substantial body of evidence that contradicted Mr. De Roche on this point. R.D. testified that Mr. De Roche seemed impaired and that he sounds impaired on the audio recording from that night. Moreover, when Mr. De Roche first met R.D. that night, he had a bong and an alcoholic drink with him. Despite counsel’s able arguments, it is my view that Mr. De Roche was not intoxicated that night. I accept that R.D. believed that Mr. De Roche was impaired given his erratic and tangential behaviour. But she had never spoken to him before and had not spoken to him since. I head Mr. De Roche on the audio recording. He lost track of this thoughts, his voice sounds slightly slurred, he spoke quickly and was not organized. Having never met Mr. De Roche before, R.D.’s assumption that Mr. De Roche was intoxicated was a reasonable one. I, however, had the opportunity to view Mr. De Roche on the witness stand. Mr. De Roche at times spoke tangentially, his voice at times sounded slurred, he spoke quickly and was not always responsive to questions. In my view, the way he sounds on the podcast was similar to the way he sounded in court. I appreciate that he had a bong with him and a drink but Mr. De Roche provided an explanation for why he had the bong with him and also denied consuming more than one alcoholic drink. I have no reason to reject his evidence on this point. I therefore cannot find that he was in fact intoxicated during the podcast.
[37] Crown counsel also urged me to reject Mr. De Roche’s evidence that R.D. came up to him during the podcast, stood between his legs and showed him her rings while he massaged her hand and also looked at her tattoos. This version of events is directly contradicted by R.D. and is inconsistent with other evidence. For example, R.D. does not have tattoos in the location that Mr. De Roche claimed they were. I suspect that the events did not unfold as described by Mr. De Roche, I am not able, however, to completely reject his evidence on this point. It is clear to me that at some point Mr. De Roche did touch R.D.’s hand while R.D. was standing in close proximity to him. Both R,D,’s and Mr. De Roche’s versions about who initiated are viable and I am unable to determine which version is accurate.
[38] Mr. De Roche also testified that during this time when he was touching R.D.’s hand, R.D. initiated further contact by touching his tattoos. I reject this aspect of Mr. De Roches testimony. In his examination in chief, Mr. De Roche testified that when he was touching R.D.’s hand, he noticed her tattoo and they started to talk about tattoos. Mr. De Roche then told R.D. about his tattoos and showed her his tattoo on his neck. Mr. De Roche, at first, could not recall if he showed R.D. any of his other tattoos. He then went on to testify that he would not have shown any of his tattoos that required him taking off his jacket as the shirt he wore that day was damaged. In cross-examination, Mr. De Roche testified that he did remove his jacket so that R.D. could see his tattoos. He went on to testify that R.D. then touched his tattoos. Mr. De Roche did not provide any meaningful explanation for this change in his evidence or for why he failed to mention earlier in his evidence that R.D. touched his tattoos. In my view, given the nature of the issues in this case, whether or not R.D. touched his tattoos after Mr. De Roche removed a piece of clothing is a pretty significant fact and not the kind of evidence that Mr. De Roche would have accidentally failed to mention or forgotten that it occurred. In my view, Mr. De Roche added the showing of the tattoos and the touching of the tattoos in his cross-examination to bolster his position that he had a solid foundation to believe that R.D. wanted him to kiss her.
[39] One other factual issue I must address is whether R.D. attempted to push Mr. De Roche away when he leaned in to kiss her and touched her breast. Mr. De Roche denied that this occurred. While I am not confident that Mr. De Roche was honest about this, having assessed all the evidence, I am unable to completely reject his evidence on this point.
[40] Crown counsel argued that even if I find that Mr. De Roche was attempting to be honest with the court, I must still reject his evidence because he was not a reliable witness. Crown counsel argued that Mr. De Roche was impaired by alcohol and/or drug which affected his memory. Moreover, he admitted to being uncertain about many things including when during the podcast he kissed R.D., whether R.D. was masked during the podcast and the timing of other key events that night. I appreciate that Mr. De Roche’s memory of February 2 was not perfect. He did, however, have a clear memory of his thought process that night and I do not reject his evidence on the bases that he was too unreliable.
[41] I will now turn to the credibility and reliability issues that relate to R.D.
[42] Mr. De Roche did not ask me to reject that R.D.’s evidence that she did not consent to the sexual touching. It was conceded that R.D. did not consent to the kiss, to being pushed against the wall, to having her breast touched and to having Mr. De Roche’s erection pressed against her leg. Counsel for Mr. De Roche nonetheless argued that despite this admission, R.D. was not completely honest in her evidence. Counsel argued that R.D. overstated her discomfort and misled the court about her own flirtatious acts towards Mr. De Roche.
[43] For example, R.D. testified that when Mr. De Roche gave her a congratulatory hug for reaching 82 followers, she did not hug him back. She further testified that during the entire podcast she was frightened and uncomfortable. Moreover, R.D. denied smiling or laughing at all during the podcast. Counsel for Mr. De Roche argued that I should reject R.D.’s evidence on these points.
[44] In relation to the hug, I accept R.D.’s evidence that her recollection now is that she did not hug back. On both accounts the hug was quick and fleeting and it took R.D. by surprise. I would not expect her to recall now whether or not she hugged him back. What was more prominent was the surprise of the hug and the fact that it was a “quick” hug. While I find that R.D. was being honest with the court about her present recollection of the hug, her account of it, in my view, is not reliable. While R.D. testified at trial that she did not hug back, she told the police that she did hug back. R.D.’s statement to the police is consistent with Mr. De Roche’s evidence on this point. In my view, it is more likely that R.D. did in fact hug back, albeit only for a second or so.
[45] Similarly, it is my view that R.D.’s memories of how she felt during the early portions of the podcast are not reliable. R.D.’s evidence that she did not smile or laugh during the pod cast and felt uncomfortable the whole time is inconsistent with what I hear on the audio recording of that night. On the recording R.D. can be heard laughing and having fun with Mr. De Roche. Given what I hear on the audio recording, I cannot accept R.D.’s evidence that she felt trapped and uncomfortable during the entire recording session. I am not finding that R.D. lied to the court. I think that R.D. was being honest about her memory. I just think that R.D.’s memory of the whole evening has been affected and tainted by the unwanted sexual advances that occurred at the end of the recording.
[46] Counsel for Mr. De Roche also asked me to reject other aspects of R.D.’s evidence as she was inconsistent on these points. For example, R.D. testified at trial that she recalled Mr. De Roche’s words verbatim when he asked her about liked being pushed against the wall. Despite this assertion, R.D. used different language during the interview with police. In my view this is not a meaningful inconsistency.
[47] Another inconsistency that counsel for Mr. De Roche referenced as a basis to reject R.D.’s evidence was that at trial R.D. denied being aware that Mr. De Roche was interested in her romantically. By the time of the pod cast, Mr. De Roche had asked her out three times. She must have known he was interested in her. R.D. explained at trial that when she first arrived for the podcast, she had forgotten about these earlier exchanges. Once Mr. De Roche started commenting on her physical appearance, however, she remembered his interest in her. This explanation makes complete sense and I accept it.
[48] There is one additional factual despite that must be resolved. Ms. Page for Mr. De Roche argued that the kiss, pressing against the wall and touching R.D.’s breast and stomach was all one action. Crown counsel argued that they were not. In her examination-in-chief, R.D. testified that Mr. De Roche tried to kiss her on the lips but she moved her head, so he ended up kissing her cheek. Immediately after this, Mr. De Roche leaned in, pressed her against the wall and touched her breast and then her waist. In cross-examination, Ms. Page asked R.D. about the kiss and pressing her against the wall. R.D. responded that the pressing against the wall happened after the kiss. Ms. Page then asked “so he went in for a kiss, you turned your head and he pushed his body against yours”? R.D. responded “yes, right after”. Ms. Page then again asked if it was all one gesture, including the kiss in the single gesture. R.D. responded in the affirmative but then added that one hand was on her stomach and the other on her back pulling her in.
[49] When I look at this evidence and the way R.D. responded, it is my view, R.D. was testifying that the kiss happened first and then immediately after Mr. De Roche pushed her against the wall and touched her breast and stomach. It was the pushing and touching that was all one gesture albeit the pushing against the wall and touching happened immediately after the kiss so as to link the behaviours together.
Analysis – Reasonable steps
[50] In my view, the issue of mistaken belief in communicated consent can be resolved by looking whether Mr. De Roche took reasonable steps to ascertain if R.D. was consenting.
[51] Counsel for Mr. De Roche strongly argued that Mr. De Roche took reasonable steps to confirm that R.D. wanted him to kiss her and touch her breast. Counsel also argued that R.D.’s responses to Mr. De Roches “reasonable” steps supported his belief that R.D. was consenting to being kissed and having her breast touched. The steps and responses identified by counsel for Mr. De Roche are as follows:
- Their mutual flirty ways on Instagram and in person on February 2, 2022
- Mr. De Roche complimented R.D. and R.D. responded to these compliments by twirling her hair and smiling
- Mr. De Roche hugged R.D. when she told him she had 82 followers. R.D. hugged him back
- Mr. De Roche reached out his hand to R.D. and she responded by walking towards him. She then stood between his legs and put her hand in his for 30 to 60 seconds.
- R.D. wanted to see his tattoos
- R.D. appeared to enjoy herself during the podcast
- At some point in the podcast R.D gave him googly.
- The whole atmosphere of the event.
[52] In my view, the above behaviours, do not amount to reasonable steps. Mr. De Roche relied on ambiguous conduct and R.D.’s passivity and silence to form his belief that R.D. was communicating her consent to sexual contact. He took ambiguous or benign behaviour and read too much into it. Given their limited past contact, this is the kind of scenario contemplated in Barton, where the standard for reasonable steps is elevated. Moreover, in addition to mis-reading ambiguous or benign conduct, Mr. De Roche ignored obvious signs of rejection. When I look at his evidence in its entirety, taking the evidence that I have not rejected and the remainder of the evidence that is most favourable to him, I find that the Crown has proven beyond a reasonable doubt that Mr. De Roche did not take reasonable steps to ascertain if R.D. was consenting to being kissed.
[53] In assessing whether Mr. De Roche took reasonable steps, it is helpful to look at the entire relationship. The relationship started on Instagram. Mr. De Roche testified that at times R.D. seemed flirty in her responses. His counsel argued that this is a reasonable interpretation of R.D.’s comments online. I disagree. Mr. De Roche sent R.D. the first message on Instagram on August 25, 2020. R.D. did not respond until days later. On that day, Mr. De Roche asked R.D. out and she said “no”. The next communication was on September 15, 2020 when Mr. De Roche wrote “looks beautiful” in relation to an art piece R.D. posted. R.D.’s response was “thanks”. On September 17, 2020 there was a brief discussion that included R.D. giving Mr. De Roche some personal information. During this conversation Mr. De Roche asked her out again. R.D. again said no. Mr. De Roche then asked her if she liked boys and R.D. responded that she does like boys.
[54] There is no contact between R.D. and Mr. De Roche between October 2020 and February 2021. The communication between them began again when Mr. De Roche sent R.D. a new message. Nothing of substance was communicated in these exchanges. Most of R.D.’s responses to Mr. De Roche are one- or two-word sentences. There is another gap in communication from March 2021 until December 2021 when Mr. De Roche started to message R.D. again. During the exchanges in December, Mr. De Roche again asked R.D. out and again R.D said no. It is only after Mr. De Roche raised the issue of collaborating on a podcast that their text exchanges become more frequent. Even then, however, the text messages are brief, not intimate and are work related. R.D. also told Mr. De Roche that she was dating someone. She wrote to Mr. De Roche on Jan 1, 2022 that she went out to watch fireworks with her man.
[55] Having reviewed all the Instagram messages, it is my view that R.D. is never flirty with Mr. De Roche. She was friendly at times, but there is nothing in the content to suggest she is romantically interested in him. In fact, her messages are to the contrary. He asked her out three times and all three times she said no. Mr. De Roche testified that when R.D. told him that she was interested in boys that this confused him because he took this as a sign that she might be interested. This is utterly absurd. This comment happened right after she said she did not want to go out with him. R.D. answered Mr. De Roche’s question about her sexual orientation. She did nothing more. Even if Mr. De Roche truly believed that this was some indication that R.D. liked him, it should have been quickly dashed away when a few texts later he asks her out again and she again says no and also makes reference to going out with her “man”.
[56] Mr. De Roche’s evidence about his interpretation of R.D.’s Instagram messages is exactly the kind of mental gymnastics that section 273.2 of the Criminal Code was meant to protect against. Mr. De Roche took a benign statement about R.D’s sexual preference and somehow concluded that R.D. may be interested in him when she had otherwise been consistent in rejecting him. Mr. De Roche ignored all of R.D.’s explicit comments that she was not interested (turning him down three times and making reference to going out with her boyfriend) and clung to a benign comment as somehow being indicative of interest. Nothing in the Instagram messages amounts to a reasonable step as contemplated by section 273.2 of the Criminal Code. As noted in in R. v. C.R.N., 2023 ABKB 456 at paragraph 30 “A belief that silence, passivity or ambiguous conduct constitutes consent is a mistake of law, and provides no defence”.
[57] Mr. De Roche testified that in addition to the flirty comments on Instagram, he took a number of steps to ascertain R.D.’s consent once inside the studio. As noted above, these included the hug for the 82 followers, the compliments and the touching of her hand. Mr. De Roche testified that all her responses led him to believe that R.D. wanted to be kissed. She hugged him back, was pleased with his compliments, let him massage her hand and made googly eyes at him.
[58] In my view, a reasonable person aware of the same circumstances would not have interpreted R.D.’s responses as communicating consent and would have taken further steps to ascertain consent. I reach this conclusion for a number of reasons. Firstly, R.D.’s response to the hug, even on Mr. De Roche’s version of events, would not lead anyone to think R.D. was sexually interested in Mr. De Roche. Mr. De Roche admitted that the hug caught R.D. by surprise and that it was a quick congratulatory hug. It would have been rude for R.D. to not hug him back in these circumstances when he is showing excitement for her success. This was not a cue and could not be a cue that R.D. was interested in Mr. De Roche. This is the kind of passive acquiescence that the case law talks about.
[59] Accepting that R.D. did twirl her hair and smile after Mr. De Roche complimented her, this again is not a sign that someone is interested in the other person. It is a natural response to a compliment. Any reasonable person would not have interpreted this reaction as an expression that she wanted to be kissed.
[60] The touching of someone’s hand as described by Mr. De Roche, could in some cases be seen as an expression of interest. But this evidence cannot be viewed in a vacuum. In the case at bar, after Mr. De Roche massaged R.D.’s hand, he tried to take the physical contact a step further and received a clear “NO”. He asked R.D. to sit on his lap and she said no. Mr. De Roche testified that he did not see this as a rejection and still thought that R.D. wanted to be kissed, have her breast touched and have his erection pressed against her. Mr. De Roche relied on R.D.’s “googly eyes”, the “atmosphere in the room” and what called her “flirty way” to explain why he thought R.D. wanted him to kiss her and touch her breast. In my view, section 273.2 protects against this very situation. R.D. explicitly rejected Mr. De Roche’s advances when she said no to sitting on his lap. Mr. De Roche ignored this, and instead focused on her friendliness and passivity to conclude that R.D. wanted to be kissed. In my view, a reasonable person, when faced with R.D. saying she did not want to sit on his lap, would have taken additional steps to ascertain R.D.’s consent before kissing her and touching her breast. Mr. De Roche may have viewed R.D.’s googly eyes as suggestive pr that she was sexually interested in him, but these are the kinds of ambiguous actions that cannot ground reasonable steps. It is too close to the “she looked like she wanted it” type of attitude that mistakes ambiguous actions and passivity for consent.
[61] Given the number of times that R.D. rejected Mr. De Roche in the past and her clear expression that she did not want to sit on his lap, no matter how friendly she was during this podcast, more steps were required by Mr. De Roche to confirm that R.D., a woman he had never met in person before, actually wanted him to kiss her.
[62] I should note that in assessing whether Mr. De Roche took reasonable steps, I did not consider his evidence that R.D. touched his tattoos. This is because, as noted above, I rejected this portion of his evidence.
[63] In my view, Mr. De Roche relied on R.D.’s passive acquiescence, silence and general friendliness to conclude that she wanted to be kissed and have her breast touched. This does not amount to reasonable steps. Nothing in the above actions communicates consent to the kind of sexual touching involved here. This was not just a kiss. Mr. De Roche went in for a kiss, which was rejected. He then leaned in and touched her breast. R.D. did nothing during the exchanges with Mr. De Roche to communicate to him that she was consenting to being kissed or having her breast touched. Moreover, Mr. De Roche did not take the reasonable steps necessary to confirm her consent.
[64] I am therefore satisfied that Crown has proven beyond a reasonable doubt that Mr. De Roche did not take reasonable steps to confirm R.D.’s consent. As such, the defence of mistaken belief in consent is not available to him. I therefore find him guilty of the offence of sexual assault.
Released June 5, 2023, Justice Mara Greene