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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 04 12
COURT FILE No.: Halton Info # 21-3099 (RI)
BETWEEN:
HIS MAJESTY THE KING
— AND —
D.S.
Before Justice Jennifer Campitelli
Heard on February 27, 2023
Reasons for Judgment released on April 12, 2023
R. Zager................................................................................................. counsel for the Crown R. Brooks................................................................................. counsel for the accused D.S.
CAMPITELLI J.:
[1] D.S. faces two counts on the information, which is before the court. That he:
(1) On or about the 3 day of September in the year 2021 at the Town of Milton in the said region, did without lawful authority confine L.S., contrary to section 279(2) of the Criminal Code of Canada; and
(2) On or about the 3 rd day of September in the year 2021 at the Town of Milton in the said region, did commit a sexual assault on L.S., contrary to section 271 of the Criminal Code of Canada.
Factual Background
[2] It is alleged by the complainant that on September 3, 2021, after unsuccessfully propositioning her for consensual sexual intercourse, D.S. forcibly confined L.S. in the front entrance way of their home in Milton, Ontario. L.S. alleges that while she was unlawfully confined by D.S., and prevented from leaving their home, he digitally penetrated her vagina without her consent.
[3] In this trial there was no issue with respect to there being sexual contact between the complainant and the defendant on September 3, 2021. D.S. does not dispute that he digitally penetrated L.S.’s vagina on September 3, 2021. The nature of this contact is illustrated with a view to the DNA results, which were filed on consent as Exhibit #1. However, it is D.S.’ evidence that the sexual contact was consensual. Moreover, D.S. expressly denies confining L.S. against her will as she alleges. He takes the position that L.S. was motivated to fabricate these allegations to gain an advantage in family law proceedings.
The Evidence of L.S.
[4] L.S. provided detailed evidence and testified in a clear and straightforward manner with respect to the incident, which she alleges occurred on September 3, 2021. Her evidence surrounding the allegations flowed logically, was internally consistent, and was corroborated by the text message exchange, which occurred between herself and D.S. on September 3, 2021 [^1]. I find that L.S. became defensive and slightly evasive when asked to provide relevant evidence, which touched on aspects of her current relationship. This was somewhat troubling. However, when the totality of L.S.’s evidence is reviewed, I do not find those slightly problematic areas impacted L.S.’s credibility, or the overall reliability of her evidence.
[5] L.S. testified that she met D.S. sometime in 2012 and they commenced an intimate relationship. In April of 2015, they decided to purchase a home together in Milton, Ontario, as they required more room for their blended family. However, the relationship began to breakdown from L.S.’ perspective. It was L.S.’ evidence that her intimate relationship with D.S. ended at the beginning of the summer in 2021, and that she let D.S. know that the relationship was over “probably in June or July”. L.S. recalled that she had “many conversations” with D.S. prior to September 3, 2021, expressing that she was “done in the relationship”. It was L.S.’s evidence that D.S. did not accept that the relationship was over, became emotional, and when she attempted to discuss ending the relationship, D.S. would just stop the conversation, telling L.S. that he “didn’t want to talk about it”, and that at times he would leave the house and sit in his car.
[6] L.S. was pressed under cross-examination about when her relationship with D.S. ended and was confronted with a receipt from Pasqualino’s Café dated June 21, 2021. It was suggested to her that she celebrated her anniversary with D.S. on this occasion. L.S. could remember attending the restaurant with D.S.; however, she was unable to remember exactly when. L.S. was also questioned about a BBQ the pair had attended together over the long weekend at the beginning of July 2021, when L.S. agreed she was still wearing her engagement ring. L.S. agreed that it could have been July of 2021 when she told D.S. the relationship was over. Given L.S.’ previous evidence, that the relationship ended in June or July 2021, I did not find her evidence on this point to be internally inconsistent. Certainly, I did not find L.S. to be intentionally misleading or evasive.
[7] L.S. remembered that once she decided to end her relationship with D.S., she attempted to initiate necessary discussion surrounding the house they jointly owned. It was her evidence that D.S. did not want her to live in the house without him, so she was agreeable to selling the property. However, L.S. testified that D.S. was unwilling to engage in conversations surrounding disposition of the property. While under cross-examination, it became clear that L.S. eventually bought out D.S.’ interest in the property with the assistance of her current partner. It also became clear, particularly after the relevant land transfer documentation was reviewed [^2], that L.S. and her new partner have a joint interest in the property. However, there is obviously some degree of legal complexity surrounding how title is possessed. It was L.S.’ evidence that she was the sole owner of the property, but her partner was on title “in trust”. The defence challenged this evidence with reference to the land transfer documentation. Eventually, L.S. was re-called at the agreement of both parties, and she produced a document titled “Trust and Title Agreement” [^3]. I think the inclusion of the word “trust” in the title of this document is significant with a view to the evidence L.S. provided on this point. I want to make it very clear that I understand that engaging in a collateral fact analysis with respect to the legalities of title associated with the property in Milton would be wholly improper. I have considered this evidence solely with a view to my assessment of L.S.’ credibility and the reliability of her evidence overall. The defence argues that I should be troubled by the way L.S. provided this aspect of her evidence. I am somewhat troubled. L.S. became slightly evasive and even confrontational with a view to this aspect of her evidence, particularly relative to the involvement of her current partner. However, this is an issue of some legal complexity and I do not find that L.S. attempted to mislead the court in any fashion or that she was dishonest. In fact, I find the “Trust and Title Agreement” provided insight with respect to her evidence on this point.
[8] On September 3, 2021, L.S. testified, with reference to the text message exchange between herself and D.S. [^4], that she initiated communication with D.S. about a dog they were fostering, Daisy, at 9:05 a.m. Within that communication, L.S. sent D.S. a photo of the dog and the following dialogue ensues:
D.S.: so cute (9:30 a.m.) D.S.: u should get in that pic (9:30 a.m.) L.S.: Why?? (9:31 a.m.) D.S.: makes it cuter (9:31 a.m.) L.S.: Whatever (9:33 a.m.) D.S.: its true (9:33 a.m.) D.S.: come on (9:37 a.m.) L.S.: Nah I’m good (9:37 a.m.)
L.S. testified that she did not send a picture to D.S., because she “wasn’t saying anything to sort of engage in other conversation”. L.S. questioned why she would send D.S. a picture “if we were no longer together?”.
[9] L.S. then testified about an exchange she had with D.S. surrounding taking her daughters to Canada’s Wonderland. After it became clear that the children would be out of the home they shared when D.S. returned home from work, the following exchange occurred:
D.S.: we should do something tonight for the last time (9:48 a.m.) L.S.: Like what? (9:48 a.m.) D.S.: hehe (9:49 a.m.) D.S.: bang (9:49 a.m.) L.S.L Omg no (9:49 a.m.)
It was L.S.’ evidence that she responded, “Omg no” to D.S. because the fact that he propositioned her for sex was “ridiculous”. They were no longer together; the relationship was over, and she wasn’t “interested in that at all”. L.S. also testified that she felt mad and frustrated when she received those messages from D.S. She didn’t understand why he was propositioning her in that way.
[10] L.S. testified that she returned to their residence in Milton shortly after 5:33 p.m., as she wanted care for their foster dog. D.S. was present in the residence at that time, and L.S. recalled him asking her for sex and suggesting that the pair should have sex. L.S. testified that she told him “no” and questioned D.S. with respect to why he would be propositioning her in that way. L.S. then remembered that she received a message from her daughters, indicating they were nearly ready to be picked up. L.S. testified that she began to make a salad fer herself at the island; however, D.S. proceeded to take her salad and walk upstairs towards the bedroom with it. L.S. recalled D.S. saying things like, “well, if you want the salad, you have to come and get it” and when she demanded he bring her salad back, D.S. replied with, “No, I’m going to, I’m going to bring it up here and if you come up here you know what’s going to happen”. It was L.S.’ evidence that she repeatedly told D.S. that “nothing is going to happen”, because she had no intention of following him up the stairs. However, L.S. testified that D.S. persisted until finally, she told D.S. that she “was just going to leave”.
[11] L.S. recalled that she travelled quickly down the stairs from the main level to the doorway and put her shoes on. D.S. followed her and L.S. testified that, at that point in their interaction, he was saying things like, “No, don’t leave, don’t leave, come on, come on, you know you want me, you know you want it”. At this point, L.S. testified that D.S. proceeded to get closer to her, notwithstanding she responded to D.S.’ advances by saying, “stop”, “leave me alone” and “let me go out the door”. It was L.S.’ evidence that D.S. prevented her from leaving the residence by pressing her up against the wall. She remembered that D.S. was pulling at her shirt, trying to lift it up and grabbing at her breasts. L.S. remembered that her bra became unfastened as D.S. continued his attempts at lifting up her shirt. At this point, L.S. remembered D.S. saying, “Come on, come upstairs, I want to fuck you, you’re going to love it”. It was L.S.’ evidence that she said, “no” and that she resisted D.S. as he tried to kiss her by saying, “Stop, don’t touch me”. L.S. also recalled that to resist D.S.’ attempts at kissing her, she turned her head, pushing her left cheek against the wall. L.S. testified that she was unable to leave the residence at this point in time, as D.S. had her “backed into the corner” of the entrance way, which was the “furthest point” from where she could access the door handle. L.S. recalled that D.S. was “blocking” her, using his right arm to control her movement by pressing it at ninety degrees against her chest. It was L.S.’ evidence that there was no way she was able to get around D.S. and exit the residence.
[12] L.S. was pressed under cross-examination about this aspect of the alleged incident. It was suggested to L.S. that she began to “moan” when D.S. began rubbing her breasts. L.S. strongly rejected that suggestion.
[13] L.S. testified that the situation continued to escalate despite her continuously telling D.S. to “Stop” and not to touch her. She recalled that he started unbuttoning his shorts and he said, “Okay, then we’ll just do it here”. L.S. remembered saying, “No” and “Just let me go”; however, she testified that, at this point, D.S. stopped grabbing at her shirt, and grabbed her shorts instead. L.S. recalled that D.S. pulled down her shorts and her underwear to her ankles. She testified that D.S. took his finger and inserted it into her vagina. She recalled D.S. commenting about how she was getting “wet” and that he would try and make her “cum”. It was L.S.’ evidence that she continued to tell D.S. to “Stop” and “No”; however, she recalled him inserting another finger inside of her and eventually, she could feel all of his fingers inside of her vagina. L.S. was not able to remember if D.S. continued to hold her against the wall with his right arm at that point in time, but she recalled attempting to squeeze her legs together, in an effort to get D.S. to stop inserting his fingers into her vagina. L.S. was not certain of which hand D.S. used to penetrate her vagina; however, she remembered that D.S. was right hand dominate.
[14] It was suggested to L.S. in cross-examination that she consented to D.S. inserting his fingers into her vagina and, in fact, she put one leg up on a stair to make it easier for D.S. to engage in this activity. Again, L.S. very strongly rejected this suggestion.
[15] L.S. testified that at the point when D.S. had all of his fingers inside her vagina, she yelled, “Get your hands off of me”. L.S. recalled that D.S. backed up a little at this point, she was able to push him away and quickly exit the residence. L.S. remembered pulling up her shorts and her underwear as she was going out the door.
[16] After L.S. was able to leave, she picked up her daughters up at Canada’s Wonderland, allowed one of her daughters to retrieve her bathing suit from the home in Milton and then drove to her parent’s home. D.S. sent the following text messages during that time period:
D.S.: you’re hot btw and it would have been (6:04 p.m.) D.S.: whatcha doing (8:34 p.m.) D.S.: where did you go? (9:15 p.m.) D.S.: hope everything is OK? just let me know (9:22 p.m.)
L.S. testified that she received the above series of text messages from D.S.; however, she did not respond to them. L.S. contacted the police from her parents house the evening of September 3, 2021 and reported the incident alleged.
The Evidence of D.S.
[17] D.S. provided evidence that I find was intentionally vague and at times, completely unbelievable. His evidence was confusing, illogical and I find it was substantially inconsistent with the text messages produced. Simply put, D.S.’ testimony did not have a “ring of truth to it”. I did not find D.S. to be a credible witness, nor did I find his evidence to be reliable.
[18] D.S. testified that his relationship with L.S. ended in July of 2021, and there is no dispute on this record that it was L.S. who decided to end the intimate relationship between the pair. It was D.S.’ evidence that, in direct conflict with the evidence of L.S., he was more than willing to discuss the sale of the property in Milton. D.S. recalled that he wanted to discuss selling the home with L.S. because it would be the next step given their intimate relationship was ending. But L.S. would get “a little heated” during these conversations. D.S. testified that he didn’t want to talk to L.S. when she was “raising her voice and stuff” so he would walk away, go to his room, or leave the house altogether. Eventually, D.S. remembered that he was able to have a conversation with L.S about what they were going to do with the property in Milton, and they mutually agreed to sell it. When considered in context, I found this aspect of D.S. evidence to be confusing, as I find it is inconsistent with any suggestion that L.S. fabricated these allegations to gain an advantage in family court proceedings.
[19] D.S. acknowledged the text message history, and agreed that he propositioned sexual intercourse to L.S. through the text message exchange produced, and again when she returned to their home in Milton shortly after 5:33 p.m. However, it was D.S.’ evidence that when he propositioned L.S. for sex while she was making a salad for herself, she “just giggled”. Given the text message history reveals that earlier that same day, when D.S. propositioned L.S. for sex she immediately responded with “Omg no”, I found this aspect of his evidence to be illogical and completely unbelievable.
[20] D.S. acknowledged that after he propositioned L.S. for sex, he grabbed her salad and went upstairs; however, it was his evidence that he was just “goofing around”. He testified that L.S. didn’t follow him; rather, she headed for the doorway. It was D.S. evidence that he followed her down the stairs and at this point, the pair came “face to face”, so he tried to “touch her and stuff”. D.S. testified that he started touching L.S.’ breasts, and the pair moved backward towards the wall. When pressed under cross-examination, D.S. acknowledged that he did not obtain L.S.’ consent prior to touching her breasts. D.S. testified that L.S. did not respond when he began touching her breasts, that she was letting him “do it”, “relaxing”, “just like enjoying it”. He recalled the pair were up against the wall but moved close to the stairs where he started rubbing L.S.’s vagina outside of her shorts. D.S. testified that L.S. put her foot up on one of the stairs, and he penetrated her vagina with his fingers. It was D.S.’ evidence that L.S. was “into it” and responding to his advances by “moaning” and “breathing heavy”. After about five minutes, D.S. testified that L.S. said, “I have to go”. Once it became clear to D.S. that L.S. had to pick up her daughters, he knew it was time to stop, so he did. His evidence was that L.S. pulled up her pants, grabbed her purse and left the house. Again, when considered in context, I found D.S.’ evidence did not flow logically, was inconsistent with the text message history produced and was unbelievable.
Grounding Legal Principles
[21] Given that D.S., the defendant, has provided evidence, the framework set out in R. v. W.(D.), [1991] S.C.J. No. 26 applies. Specifically, the test outlined at paragraph 28:
(1) If I believe the evidence of D.S., obviously, I must find him not guilty;
(2) Second, even if I do not believe the testimony of D.S., but I am left in reasonable doubt by it, I must find him not guilty;
(3) Finally, even if I am not left in doubt by the evidence of D.S., I must ask myself whether on the basis of the evidence which I do accept, if I am convinced beyond a reasonable doubt by that evidence of the guilt of D.S.
[22] In turning my mind to the analysis I must engage in, I have also reviewed the article written by Paciocco J.A. entitled, “Doubt about Doubt: Coping with W.(D.) And Credibility Assessment” found at 2017 22 Canadian Criminal Law Review 31. In that article, Justice Paciocco helpfully breaks down the W.(D.) principles into five analytical points:
(1) Criminal trial cannot properly be resolved by deciding which conflicting version of events is preferred;
(2) A criminal fact-finder that believes evidence that is inconsistent with the guilt of the accused cannot convict the accused;
(3) Even if a criminal fact-finder does not entirely believe evidence inconsistent with guilt, if the fact-finder is left unsure whether that evidence is true there is a reasonable doubt and an acquittal must follow;
(4) Even where the fact-finder entirely disbelieves evidence inconsistent with guilt, the mere rejection of that evidence does not prove guilt; and
(5) Even where the fact-finder entirely disbelieves evidence inconsistent with guilt, the accused should not be convicted unless the evidence that is given credit proves the accused guilty beyond a reasonable doubt.
[23] With respect to the offence of sexual assault, the actus reus consists of three essential elements, each of which must be proven by the crown beyond a reasonable doubt. In this case, the crown must establish: (1) that D.S. knowingly touched the complainant (2) that the touching was of a sexual nature; and (3) that the complainant did not consent to that sexual contact: R. v. Nyznik, 2017 ONSC 4392, [2017] O.J. No. 4138 at para. 8 (SCJ). In this case, there is no issue with respect to there being sexual contact between L.S. and D.S., the sole issue relevant to my analysis on this count is consent.
[24] The presumption of innocence applies to a person accused of sexual assault in the same way that it applies in any other criminal offence. The crown must prove that this was an act of assault rather than consensual contact. I have reminded myself that there is no burden on the defence to prove that L.S. consented to the sexual contact, which occurred between the parties. Rather, the burden is on the crown to prove beyond a reasonable doubt that D.S. had sexual contact with L.S. without her consent: R. v. Nyznik supra. at para. 10. That burden never shifts.
[25] Further, the authorities establish that if for any significant period of time, L.S. was coercively restrained or directed contrary to her wishes, so that she could not move about according to her own inclination or desire, there was unlawful confinement within the meaning of s. 279(2) of the Criminal Code of Canada: R. v. Pritchard, 2008 SCC 59, [2008] 3 S.C.R. 195 at para. 24 (SCC).
[26] Finally, unlawful confinement is a general intent offence, which requires the crown to prove only the intent to effect deprivation of freedom of movement: R. v. S.J.B., 2002 ABCA 143, [2002] A.J. No. 726 at para. 41 (Alta. C.A.)
Analysis
[27] I have considered D.S. evidence within the context of the complete evidentiary record, which has been placed before me, and it is inconsistent with reason and common sense. I do not believe D.S. I find he provided evidence that was confusing, illogical and at times, completely unbelievable.
[28] I find it unbelievable that L.S. would giggle when propositioned for sex orally by D.S., after immediately responding with “Omg no” when he suggested, through a text message, that they “bang” for the last time hours earlier.
[29] After overtly refusing D.S.’ advances over text message and refusing to follow him upstairs towards their bedroom, I find it implausible that L.S. was suddenly “into” D.S.’ sexual advances as she was making her way out of their residence, breathing heavily, moaning, and even placing her foot up on a stair, which allowed D.S. to digitally penetrate her vagina. Simply put, this evidence does not “ring true” when considered within the context of the evidentiary record as a whole, and I reject it.
[30] To be clear, I do not accept D.S.’ evidence, nor am I left in a reasonable doubt by it.
[31] However, my analysis is far from over. Even though I do not accept D.S.’ evidence, nor am I left in a reasonable doubt by it, I still must ask myself whether, on the basis of the evidence which I do accept, if I am convinced beyond a reasonable doubt of D.S.’ guilt.
[32] I find L.S. was a credible witness, who provided logical and reliable evidence. L.S. recalled, in detail, the sequence of events surrounding her interactions with D.S. on September 3, 2021. She recalled, with significant clarity, the relevant body positions of the parties. Not only could L.S. recall that D.S. used his right arm to control her movement, but she was also able to remember that he pressed it against her chest at ninety degrees. L.S. remembered turning her face away from D.S. to prevent him from kissing her. She recalled having her left cheek pressed up against the wall and feeling D.S. insert one, followed by multiple fingers into her vagina. L.S. remembered that she attempted to squeeze her legs together to prevent D.S. from further penetrating her vagina with his fingers. L.S. was able to remember the dialogue exchanged and that she repeatedly communicated her lack of consent to D.S. Her evidence flowed logically, and I find it is corroborated by the text message exchange produced. I accept it.
[33] I have concluded that D.S. touched L.S.’ breasts, attempted to kiss her, rubbed her vagina and inserted his fingers inside of her vagina without her consent. The crown has proven that this was an act of assault rather than consensual contact.
[34] Moreover, I find that D.S. coercively restrained L.S. against her wishes, so that she could not move about according to her own inclination or desire. I find as fact that D.S. unlawfully prevented L.S. from leaving their home in Milton on September 3, 2021, by restraining her against the wall, where he sexually assaulted her.
Conclusion
[35] In the result, D.S. is found guilty as charged.
Released: April 12, 2023 Justice Jennifer Campitelli
Footnotes
[^1]: Exhibit #3 [^2]: Exhibit 6 [^3]: Exhibit 5 [^4]: Exhibit 3