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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 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: 2024 09 04 COURT FILE No.: Toronto

BETWEEN:

HIS MAJESTY THE KING

— AND —

MALCOM BRYCE-BROWN

Before: Justice Jennifer Strasberg

Heard on: August 8, 9 & 12, 2024 Reasons for Judgment released on: September 4, 2024

Counsel: M. Cole.................................................................................................. counsel for the Crown M. Feldmann.......................................... counsel for the accused Malcom Bryce-Brown

STRASBERG J.:

[1] Mr. Bryce-Brown is charged with ten criminal counts: one count of sexual assault, two counts of assault bodily harm, one count of assault, one count of possession of child pornography and five counts of failing to comply with the “keep the peace and be of good behaviour” term of his probation order.

Overview of the Allegations

[2] KLR and Mr. Bryce-Brown met at Eva’s Phoenix which is transitional housing for youth located in the City of Toronto. On March 6, 2023, they began a romantic relationship which lasted until May 20, 2023.

[3] During the course of the relationship there was consensual sex. KLR and Mr. Bryce-Brown also participated in what is known as BDSM sex. BDSM is sexual activity involving such practices as the use of physical restraints, the granting and relinquishing of control, and the infliction of pain. The acronym is a combination of Bondage/Discipline, Dominance/Submission, and Sadism/Masochism. Mr. Bryce-Brown and KLR had discussed their interest in participating in this kind of sex and the things they would be willing to do. They also discussed a safe word that would be used when one of the parties wanted the sex to stop. This word was “red.” While KLR acknowledges there was consensual sex during the relationship she alleges four specific incidents where she was not consenting. The relationship came to an end on May 20, 2023. On that day KLR was assaulted by Mr. Bryce-Brown.

Admissions

[4] Prior to the start of the trial, it was conceded that police located 14 images of computer-generated pornography on Mr. Bryce-Brown’s phone. This pornography meets the definition of child pornography as defined in the Criminal Code. I was asked to find Mr. Bryce-Brown guilty of count 9 on the information which is a count of possession of child pornography. At the time of the offences Mr. Bryce-Brown was on a probation order which contained the condition “keep the peace and be of good behaviour.” As a result of possessing the child pornography he was in breach of this condition, and I was asked to also find him guilty of count 10.

[5] After the completion of the evidence I was invited by Mr. Bryce-Brown to find him guilty of count 3 (an assault that took place at a Popeye’s restaurant) and the related breach of “keep the peace and be of good behaviour,” (count 5), and count 4 (an assault causing bodily harm in relation to the May 20 incident where he bit KLR’s nose) and the related breach of “keep the peace and be of good behaviour,” (count 6).

[6] Given these concessions, Mr. Bryce-Brown is found guilty of these six counts.

[7] The four remaining counts consist of a global count of sexual assault that relates to four alleged non-consensual sexual incidents during the relationship. There is a related breach of “keep the peace and be of good behaviour” due to the probation order Mr. Bryce-Brown was bound by at the time. There is also a count of assault bodily harm in relation to the alleged choking of KLR during one of the incidents of sexual assault and the related breach of probation.

Issues:

[8] The issues related to the remaining counts are:

1. Has the Crown proven beyond a reasonable doubt that KLR was not consenting during any of the four incidents of sex that KLR alleges were not consensual?
2. In the incident that involved the choking where KLR was rendered unconscious did this vitiate her consent to the sexual activity and thus constitute a sexual assault?
3. By rendering KLR unconscious during the sexual activity did Mr. Bryce-Brown commit an assault bodily harm on KLR?

Legal Principles

[9] I turn to set out some important legal principles.

[10] The Crown bears the burden to prove Mr. Bryce-Brown’s guilt beyond a reasonable doubt. Mr. Bryce-Brown is presumed innocent and bears no burden to prove anything. If the evidence, considered as a whole, leaves a reasonable doubt about whether he is guilty of the charges, I must find him not guilty.

[11] Proof that Mr. Bryce-Brown is probably guilty or likely guilty is not enough. The standard of proof beyond a reasonable doubt falls much closer to absolute certainty than to proof on a balance of probabilities, and it applies not to individual items of evidence, but only to the final determination of guilt or innocence based on the essential ingredients of the offences charged.

[12] The reasonable doubt rule applies to the issue of credibility. It is wrong to approach a criminal trial as if it is a credibility contest between Crown and defence witnesses. That approach risks eroding the presumption of innocence and shifting the burden of proof. The issue is not whose evidence I believe, or prefer, or think is likely the truth.

[13] In this case Mr. Bryce-Brown testified. He denied the allegations and contradicted significant parts of the evidence of KLR as it relates to the sexual assault allegations. I remind myself that the verdict must not be based on the choice between the evidence of the accused and the evidence of the Crown: R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639.

[14] I also remind myself that I must be guided by the principles of R. v. W.D., 1991 93 (SCC), [1991] 1 S.C.R. 742. These are: If I accept the evidence upon which the defence relies, then I must acquit. If I do not accept that evidence but I'm left in the state of reasonable doubt by it, I must also acquit. Finally, I must acquit Mr. Bryce-Brown of the offence charged unless I'm satisfied, beyond a reasonable doubt on the evidence I do accept, of his guilt.

[15] Each witness is entitled to a fair and even-handed assessment of his or her testimony based on logic, common sense, and human experience. Each person's evidence must be evaluated not in isolation but considering the whole of the evidence. The trier of fact can accept some, none, or all the evidence of any witness. The case for the Crown and the defence must be subjected to the same level of scrutiny. Fairness and balance are essential.

General Comments Regarding the Credibility of KLR and Mr. Bryce-Brown

[16] This is a case that largely turns on credibility and reliability. The limitations of using demeanour evidence in the witness box are well illustrated by this case. KLR and Mr. Bryce-Brown both testified in a compelling manner. In cross-examination, neither was significantly shaken. Both were believable. Both admitted facts that were not helpful to their case and which did not cast them in the best light. That being said, both of their accounts cannot be true.

[17] At the time of the incident KLR was 17-years old and Mr. Bryce-Brown was 19. During the relationship, she said that she smoked marijuana constantly and that she was “constantly out of it.” She said the constant use of marijuana caused her to disassociate, have flashbacks and forget things.

[18] She acknowledged that it affected how she acted and her sleep and that it affected her memory and her perception of how she saw things on a day-to-day basis. It is her description of her memory and perception of events during this time that gives me pause. I do not think KLR was lying or purposely misleading the court, however I find her credibility and reliability are affected by her constant use of marijuana.

[19] Her description of the events does not differ greatly from the description provided by Mr. Bryce-Brown. The significant difference in their evidence is twofold. First is the question of whether the sexual relations between them were consensual. Mr. Bryce-Brown says all of them were. Second, in relation to the safe word “red” it is Mr. Bryce-Brown’s evidence that the word was to be used in place of “stop” or “no” in all of their sexual interactions. KLR said it was to be used only when they were having BDSM sex.

[20] When I consider the evidence as a whole, I am left with a reasonable doubt regarding both matters.

[21] I will explain my reasons for this concerning each of the four incidents:

Incident #1 – The sexual incident in KLR’s room at Eva’s House

[22] KLR testified that the first non-consensual incident took place in her room at Eva’s. She recalled going to bed in burgundy pajamas. She woke up in her bed to Mr. Bryce-Brown penetrating her. Her pants were at her ankles. She does not recall consenting to this. She told him to stop, and he said, “it is ok I am not going to hurt you.” She says that the argument went on for a bit, she does not recall how it ended because she passed out.

[23] She did not recall a conversation about consenting. She did not recall other details of the night. It was put to her that they watched a movie, that they kissed and that she consented to having intercourse. She did not recall any of this. She did recall that after she was upset about the incident.

[24] Mr. Bryce-Brown testified that on that night he went to her room and they smoked weed. They began to kiss, and he asked her if she wanted to have sex. They were having sex and she said “stop” and he said “shhh.” After they has sex, he said she was upset with him because he was “going too hard.” He asked her why she didn’t use the safe word. It was her evidence that they did not have a safe word at that point in the relationship.

[25] They both said that this was an ordinary sexual interaction and not a BDSM scenario. This incident sticks out in his mind because it was the only time she seemed moody or emotional after having sexual relations with him. He said that after other sexual interactions there was hugging and kissing.

[26] It was his evidence that early in the relationship they had a conversation about using a safe word. The word “red” would mean “stop” or “no.” The words “stop” or “no” would not mean to stop the sexual activity. It was his understanding that the word “red” would be used in all sexual interactions not just BDSM interactions. KLR said it was to be used only during BDSM sex. He admitted that she told him to stop, and he did not. He said this was because she did not use the word “red.”

Incident #2 – Stairwell

[27] Regarding the second incident, KLR testified that they had discussed a play scenario where he would pretend to be a stranger and sexually assault her. As the scenario unfolded it took longer for him to find her and when he did, he could not get an erection. They were walking back to Eva’s when she says he grabbed her arm and pulled her towards a stairwell where he forced her pants off and pushed her against the door and raped her from behind.

[28] She did not recall having any discussion about this or discussing this being a BDSM act that she was going to participate in. She testified that she told him to stop and no. He did not stop. She then said she used the safe word “red,” but he still did not stop. She said her voice was loud enough that he could hear her and when she said red it was very loud. After that they walked back to Eva’s. They had no discussion about it. She denied that this was part of the scenario they had discussed earlier.

[29] For the first time at trial, she said she used the safe word during this incident. She had told the police in her statement and in her witness prep meeting that she had used the safe word during the relationship, and he did not stop but she never specifically said when describing this incident that it was said in relation to the incident in the stairwell.

[30] Mr. Bryce-Brown said that after they started to walk back to Eva’s, he asked her if they could finish the sexual scenario and she agreed. He led her to the stairwell, and they finished the sexual encounter. He testified that she did not say anything that would indicate she wanted to stop and specifically she never said “red.”

[31] At the time of the incident KLR was 270 lbs. and Mr. Bryce-Brown was 160-170 lbs. During the Popeye’s incident it was suggested that given their size discrepancy Mr. Bryce-Brown would have had to have used significant force to get KLR out of the restaurant. Mr. Bryce-Brown testified that she was not resisting but did not deny that he had to use some force to move her to the door.

[32] During the incident in the stairwell there was no indication by KLR of force being used by Mr. Bryce-Brown or any resistance from here. She did not testify to having any injuries. She testified at trial that she said “red” during this incident. While she did tell police in her statement that during the relationship, she used the word “red” during sexual interactions she did not mention it in relation to this incident. I find this to be a significant inconsistency.

Incident #3 – Ottawa

[33] The third incident she recalled took place in Ottawa. She had gone there with Mr. Bryce-Brown for a few days because they were kicked out of Eva’s for breaking the house rules, by him being caught in her room on several occasions. KLR’s friend Samira picked them up in Toronto. KLR was having a nap on Samira’s couch and woke up to Mr. Bryce-Brown raping her from behind. He told her he was going to come inside her, and she told him no because she had just taken a “Plan B” and didn’t want to take another. Despite this he came inside her. There was no conversation prior to this incident. She testified that she also told him to stop.

[34] Mr. Bryce-Brown agreed that they had sex on the couch in Ottawa. He described it as normal sex because there was no time for role play. He admitted they both used alcohol and marijuana that day. He said it was quick sex on the couch and that it was consensual. He disagreed that she was asleep or passed out.

Incident #4 – Choking

[35] The fourth incident occurred while they were having consensual sex. Mr. Bryce-Brown was behind her, and she was on her hands and knees on the bed. She recalled he took her brown t-shirt and put it over her neck and choked her until she lost consciousness. She admitted that she might have consented to choking a couple of times on prior occasions but did not consent that time. She does not recall him asking if he could use the shirt to choke her. She described not being able to breathe and scared that she was going to die. When she regained consciousness, she said he was still having sex with her. She recalled saying to him “I passed out” and he said, “yes you did.”

[36] Mr. Bryce-Brown’s version of this event is that they were having a normal encounter of sexual intercourse when he saw her shirt. They had talked about choking as part of BDSM and he asked her if he could choke her, and she said yes. He testified that his intention was to limit her air flow to increase her pleasure. He did not do this to render her unconscious. She was up on all fours, and she went slack, sinking into her arms. He stopped and went around to check on her and a couple of seconds later she came back. He was concerned that she would be scared about what happened and they had a conversation. He said he apologised and that he didn’t mean to do it. He then said that they reengaged in sex.

[37] In coming to my conclusions, I have considered in the context of each incident KLR’s evidence that she was constantly using marijuana at the time and her admission that this had a significant impact on her day-to-day life. She acknowledged that it affected her perception of events and memory.

[38] I have also considered the following evidence regarding Mr. Bryce-Brown:

• During his evidence Mr. Bryce-Brown testified that he was also a heavy user of marijuana. He said this affected him by making him lethargic.
• Regarding the choking incident he did not minimize or excuse his behaviour. He admitted that he should have done a better job of applying pressure to KLR’s neck. He was doing this to increase her pleasure. He appeared genuinely concerned that he had rendered her unconscious.
• Regarding the incident at Popeye’s, he admitted that he used force to get her out of the restaurant and that his thumb would have been on her jugular and the rest of his hand on the back of her neck. He said that he was inebriated at the time and that he could not say how much force he used but acknowledged it was enough to get her out.
• He also admitted that this was something his father did and that it was a learned behaviour. Along with this he admitted that he has anger issues. He also said when he gets angry, he gets loud.
• Regarding the incident on May 20, he acknowledges he took a large amount of mushrooms and was not aware of what he did. Based on this he took no issue with KLR’s version of events. He did not attempt to offer an alternate explanation.

[39] Based on all of this evidence I am left with a reasonable doubt on the issue of consent. Specifically, I cannot firmly determine if the safe word “red” was to apply to all sexual interactions or only to BDSM interactions. I also have doubt that KLR used the safe word during the interaction in the stairwell. These two findings together with my finding that KLR might have consented to sexual interaction during the four incidents makes it impossible for me to find Mr. Bryce-Brown guilty beyond a reasonable doubt of sexual assault regarding incidents 1, 2 or 3.

Issue 2 and 3

[40] While I have found that I cannot rule out that KLR consented to the sexual activity during the choking incident I must still determine if being rendered unconscious during this incident vitiated KLR’s consent to the sexual activity and thus constituted a sexual assault and/or an assault bodily harm.

[41] Both of these questions rest upon the same principles.

[42] The issue is when, in the context of a sexual assault or assault, can consent be vitiated. In the context of this case was KLR’s apparent consent vitiated by being rendered unconscious and in rendering her unconscious did Mr. Bryce-Brown commit an assault causing bodily harm?

[43] While the issue came before the Supreme Court in R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, because the issue of bodily harm was not before the court, the court did not take a position on whether and in what circumstances individuals may consent to bodily harm during sexual activity. Rather J.A. stands for the proposition that advance consent to sexual activity that takes place while the complainant is unconscious or asleep is outside the scope of the consent provisions of the Criminal Code.

[44] The facts of J.A. involved the complainant K.D. being choked into unconsciousness by her partner. The trial judge found that K.D. consented to erotic asphyxiation, and that she did not experience bodily harm because the unconsciousness “was only transient” [para 11]. Nevertheless, she convicted J.A. of sexual assault because she found that K.D. had not consented to the sexual activity that occurred while she was unconscious, nor could she as a matter of law.

[45] At the Ontario Court of Appeal, the majority rejected the Crown’s argument that K.D.’s consent was vitiated by the intentional infliction of bodily harm through choking. Although it found that the trial judge had committed an error of law in her analysis of bodily harm, J.A. had only been charged with sexual assault simpliciter, and thus bodily harm could not be relied upon to vitiate consent [para. 17]. The Crown did not appeal this holding, so the issue of whether choking amounts to bodily harm and whether it vitiates consent was not before the Supreme Court.

[46] The Supreme Court’s decision in R. v. Jobidon, 1991 77 (SCC), [1991] 2 S.C.R. 714, is Canada’s leading authority on common law vitiation of consent in the fist fight context. In Jobidon the Court concluded that the law “vitiates consent between adults who intentionally apply force causing serious hurt or non-trivial bodily harm to each other in the course of a fist fight or brawl.” [125] Thus, in order for consent to be vitiated, serious harm must be both intended and caused. The court defined the threshold of harm necessary as that found in s. 267(2) of the Criminal Code, “any hurt or injury…that interferes with the health or comfort of the complainant and that is more than merely transient or trifling in nature.” [129]

[47] In R. v. Zhao, 2013 ONCA 293, the Ontario Court of Appeal clarified the extent to which the ruling in Jobidon might apply in the context of sexual assault.

[48] In Zhao, the court corrected the trial judge’s apparent common misapprehension that consent is automatically vitiated in cases of sexual assault causing bodily harm. Instead, the court found that in order to vitiate consent the Crown must prove that the accused both intended to and in fact did cause bodily harm. Zhao clarified that, given an air of reality on the issue of consent or apprehended consent in an alleged sexual assault resulting in bodily harm, there is an additional burden on the Crown to prove the accused’s subjective intention to cause bodily harm.

[49] While Zhao is the current position on this issue in Ontario, just recently the Alberta Court of Appeal dealt with this very issue and expanded upon it in R. v. Barton, 2024 ABCA 34. The Court reviewed the common law history regarding this issue in cases of consensual fights, medical treatment and sporting events and applied it to the developing common law and legislation regarding vitiation of consent in the context of a sexual assault.

[50] The court clarified that vitiation of consent is applied as a defence in the context where the court has determined that it cannot rule out consent beyond a reasonable doubt. It does not apply to cases of mistaken belief in consent. That is a separate defence. [204]

[51] After its thorough review the court found that apparent consent to sexual activity is vitiated where significant bodily harm is caused and where the accused intentionally touched the complainant intending to cause significant bodily harm; being wilfully blind or reckless to causing significant bodily harm; or in such a way that significant bodily harm was objectively foreseeable. [218]

[52] Departing from the jurisprudence in Ontario the court found that bodily harm in the context of vitiation of apparent consent has a different meaning than bodily harm in s. 2 of the Criminal Code in the context of non-consent. [183] The use of the term “significant bodily harm” in this context is any hurt or injury that interferes in a substantial way with the integrity, health, or well-being of a person, which does not include injuries such as a cut or bruise that would normally heal within a few days.” [182] The court also expanded on the subjective component to include recklessness and wilful blindness.

[53] In a recent Ontario case R. v. Kelly, [2024] O.J. No. 1180, the accused and the complainant were engaged in consensual sexual activity that included choking. Mr. Kelly choked the complainant to unconsciousness 2-4 times during the sexual activity. Mainville J. concluded that while she accepted that Mr. Kelly did not initially intend to cause the complainant to lose consciousness the first time, that once she had, he knew this harm could readily repeat itself, and it did 2-4 more times. Regarding the harm caused, and following the reasoning in Zhao, Mainville J. found the harm caused to the complainant constituted non-trifling bodily harm such that her consent was vitiated. At para. 118 she indicated that had it been just one time she would not have found the conduct to be on purpose, but after Mr. Kelly knew what could happen his persistence in doing it again made it an intentional act.

[54] In the case before me I had doubt that KLR was not consenting to the sexual activity and to being choked. I accept that as soon as KLR slumped forward Mr. Bryce-Brown was concerned and stopped the sexual activity. KLR was unconscious for a brief period of time and then regained consciousness. She said to Mr. Bryce-Brown “I passed out” and he said, “yes you did.” I accept from his evidence that Mr. Bryce-Brown did not intend to render KLR unconscious.

[55] While the choking by Mr. Bryce-Brown was intentional, in the sense that he and KLR were engaging in a form of BDSM that included the restricting of her airflow by choking, the extent of the choking, which went beyond the level of force that KLR would have consented to, was not. Accordingly, there was no subjective intention to cause bodily harm.

[56] Had I not found that the issue of vitiation failed on the first branch of the test in Jobidon and Zhao (on the issue of intent), I would have had to consider if there was bodily harm or serious bodily harm. Given the evidence before me I could not find either. While I accept that choking is an inherently dangerous activity and there is much written on the detrimental and long-lasting effects of rendering a person unconscious by choking, I was not provided with any evidence on this point. The evidence I had from KLR was brief and did not provide any details of injuries or harm caused.

[57] While I cannot find that there was bodily harm or serious bodily harm of the kind that would vitiate consent, those who wish to participate in this kind of sexual play as the dominant party should be aware of the danger and potential jeopardy they put themselves in by partaking in this highly risky and dangerous behaviour.

[58] I note that in the recent case of R. v. Hodgson, 2024 SCC 25 the court stated at para. 53:

The expert witness who testified regarding choke holds explained that “strangulation prevents breathing and deprives the brain of blood and, thereby, of oxygen. Thus, unlike a headlock-which merely immobilizes someone by limiting their movement a neck compression chokehold can rapidly lead to unconsciousness. The tragic consequences that Mr. Windsor suffered, include serious injuries in addition to a loss of consciousness and death, speak to how dangerous chokeholds can be.

[59] In some circumstances, therefore, the consequences of choking including loss of consciousness might constitute bodily harm under the Zhao threshold – i.e., non-trifling/transient… This will depend on the circumstances and ideally, expert evidence will be adduced.

[60] Should the law in Ontario change to align with Barton, I would in any event have found that consent was not vitiated given my finding on bodily harm. Given this finding and the fact that the bodily harm threshold in Barton is set even higher than in Zhao, I do not need to address whether anything short of subjective intent to cause bodily harm was present in this case.

Findings of Fact in Relation to the Counts Conceded

[61] As mentioned at the start of these reasons several counts were conceded as proved beyond a reasonable doubt by Mr. Bryce-Brown based on his own evidence.

[62] There is the assault by choking at the Popeye’s restaurant and the assault bodily harm that happened on May 20.

[63] I will briefly set out my findings of fact regarding these two incidents.

Popeye’s Assault

[64] Based on the evidence of KLR and Mr. Bryce-Brown I accept that Mr. Bryce-Brown placed his hand around her neck and used a significant amount of pressure to steer her out of the restaurant.

The Assault Bodily Harm on May 20

[65] Based on the evidence of KLR and Mr. Bryce-Brown I accept that Mr. Bryce-Brown bit her arm and then bit her nose with a significant amount of force. Photos of her injuries were filed as exhibits. There is a clear bite mark on her nose.

Conclusion

[66] To summarize my findings, Mr. Bryce-Brown will be found guilty of counts 3, 4, 5, 6, 9, and 10, and is acquitted of counts, 1,2, 7, and 8.

Released: September 4, 2024 Signed: Justice Jennifer Strasberg