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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 07 16 COURT FILE No.: BRAMPTON 22-4085

BETWEEN:

HIS MAJESTY THE KING

— AND —

NIMAL RANATUNGA

Before: Justice A.R. Mackay

Heard on: November 6 and 7, 2023 Oral Reasons for Judgment given on: December 7, 2023 Written Reasons for Judgment released on: July 16, 2024

Counsel: Emily Beaton....................................................................................... counsel for the Crown Brendan Monk............................................................ for the defendant Nimal Ranatunga

MACKAY J.:

Overview

[1] Mr. Ranatunga is charged with sexually assaulting M.F. On March 27, 2022, while the parties had consented to have sexual intercourse, on the night in question, M.F. testified that she did not consent to having sex with the defendant without a condom. The defendant agreed that they had discussed using a condom when they had sexual intercourse, he agreed to use one when requested to do so by the complainant, and he put one on. However, Mr. Ranatunga decided while they were engaged in sex after a number of minutes that he would remove the condom. He maintained that he advised M.F. prior to removing the condom and she did not say anything. The following morning, Mr. Ranatunga told M.F. that he no longer wanted to be in a romantic relationship with her and that she should “go to plan B”. He was referring to what is commonly called a “morning after pill” to prevent a pregnancy.

The Law with respect to Condom Removal without Consent

[2] The Supreme Court in R. v. Kirkpatrick [1] recently recognized that sex with and without a condom are fundamentally and qualitatively distinct forms of physical touching. A complainant who consents to sex on the condition that their partner wear a condom does not consent to sex without a condom. The Court found that this approach is consistent with the Criminal Code, the jurisprudence on consent, and with Parliament’s intent to protect the sexual autonomy of all persons in Canada. If a complainant’s partner ignores their stipulation that a condom be used, the sexual intercourse is non-consensual and their sexual autonomy has been violated. 2 Prior to Kirkpatrick, the Supreme Court ruled in R. v. Hutchinson, 2014 SCC 19, in order to convict someone of sexual assault where a condom was removed without consent, the Crown would have to establish that consent to have sexual intercourse was vitiated by fraud; that is, that consent was obtained by lies or deliberate failure to disclose coupled with a significant risk of serious bodily harm as a result of the sexual touching.

[3] It is the Crown’s submission that the complainant gave credible evidence that she had communicated to Mr. Ranatunga that her consent to sex was contingent on condom use. Despite the clear establishment of her physical boundaries, the defendant disregarded her wishes and did not wear a condom.

[4] In a criminal case there must be both a criminal act, referred to as the actus reus, and a guilty mind, the mens rea. The actus reus of the offence in the case before me would be unwanted unprotected sex. The mens rea is the intention to have sex without a condom knowing, being reckless of, or being willfully blind to a lack of consent from the person they are having sexual intercourse with. 3 For the actus reus, the absence of consent is entirely subjective and dependent on the complainant's state of mind about whether they wanted the touching to take place at the time it occurred. 4 There is no need to inquire into the accused's perspective at the actus reus stage. 5 “When a woman says 'no' she is communicating her non-agreement, regardless of what the accused thought it meant, and that her expression has an enforceable legal effect.” 6

[5] A fundamental principle in our law is that all persons are entitled to refuse sexual contact at any time, and for any reason. 7 All persons "have an inherent right to exercise full control over their own bodies, and to engage only in sexual activity that they wish to engage in." 8 Fundamental concepts of physical inviolability, sexual autonomy and agency, human dignity and equality inform Canadian law. 9 As McLachlin C.J. explained in Mabior, 10 the "modern understanding of sexual assault is based on the preservation of the right to refuse sexual intercourse: sexual assault is wrong because it denies the victim's dignity as a human being"; fails to respect each sexual partner as an "autonomous, equal and free person"; and involves "the wrongful exploitation of another human being.” “To engage in sexual acts without the consent of another person is to treat him or her as an object and negate his or her human dignity." 11

[6] When a complainant states: "no, not without a condom", our law of consent says, emphatically, this actually means "no", and cannot be reinterpreted to become "yes, without a condom.” 12

[7] If the accused is mistaken and has not been reckless or willfully blind to the complainant's consent, and has taken reasonable steps to ascertain this consent, they may be able to put forward a defence at the mens rea stage of the analysis. 13

[8] The Court in Kirkpatrick underlined emphatically that ‘non-consensual condom refusal or removal is a form of sexual violence that generates harms and undermines the equality, autonomy, and human dignity of complainants.” 14

[9] Consent must be renewed and communicated for "each and every sexual act", an accused cannot "test the waters" during a second episode of intercourse to "see" if the complainant now consents to sex without a condom. 15 Implying consent revives the "mythical assumptions that when a woman says 'no' she is really saying 'yes', 'try again', or 'persuade me'." 16 Once the complainant has expressed her unwillingness to engage in sexual contact, the accused should make certain that she has truly changed her mind before proceeding with further intimacies. The accused cannot rely on the mere lapse of time or the complainant's silence or equivocal conduct to indicate that there has been a change of heart and that consent now exists. 17

Analysis

[10] As in every criminal case, the Crown must prove beyond a reasonable doubt that that the defendant committed sexual assault.

[11] Mr. Ranatunga and M.F. both testified at the trial. The main issue I must determine is the credibility and reliability of the parties. Given the facts in this case, I must also consider the law of consent and mistaken belief in consent.

[12] The test to be applied in trials in which credibility is the real issue is well known and was set out by Justice Cory in R. v. W.(D.) [18] and other case law.

[13] In R. v. J.J.R.D. [19], Doherty J.A. added the following qualification to W.D. at para. 53 that:

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.

[14] More recent cases from the Ontario Court of Appeal, R. v. C.L. and R. v. CG [20], have underlined the fact that when applying W.D. and J.J.R.D., that a trial judge in finding an accused guilty has an important obligation to clearly and adequately explain why he or she has chosen not to accept the accused’s exculpatory evidence. It is not enough for the trial judge to simply state that he or she believes the complainant and not give reasons as to why they have rejected the accused’s evidence.

[15] The analysis set out by W.(D.) requires me to consider whether I believe the evidence of Mr. Ranatunga, or whether it raises a reasonable doubt relative to the allegations of M.F. Even if I do not believe his evidence and find that it does not raise a reasonable doubt, I must then go on to consider M.F.'s evidence and the evidence as a whole to determine in the context of the entirety of that evidence whether the Crown's evidence that I accept proves Mr. Ranatunga to be guilty beyond a reasonable doubt of sexual assault.

[16] I am not permitted to simply choose the evidence of one of the principal witnesses over that of the other, but as the Court of Appeal observed in R. v. Hull [21], I am permitted to assess the accused’s testimony in light of the whole of the evidence including the testimony of the complainant, and in so doing comparing the evidence of the witnesses.

[17] Turning now to assess the evidence.

[18] Except for the most crucial area of the evidence, the parties’ evidence was consistent with one another. M.F. and Mr. Ranatunga had met on a dating site and had been dating a couple of months prior to the night in question. The relationship only became more romantic a few weeks prior. After a night out, they returned to Mr. Ranatunga’s condo where they shared a pizza and a drink. Thereafter they became intimate. Just prior to engaging in sexual intercourse, M.F. told him to use a condom. Mr. Ranatunga had condoms already out beside his bed. He put on the condom, and they had sexual intercourse. It is not disputed that Mr. Ranatunga took off the condom as the sex continued and that he ejaculated inside M.F. Mr. Ranatunga maintains that he told M.F. prior to removing the condom that he was doing so, and M.F. testified that she was not aware until after the sex was completed that Mr. Ranatunga had removed the condom.

M.F.

[19] M.F. had previous conversations with Mr. Ranatunga about the fact that he would have to use a condom. Just prior to engaging in sex, Mr. Ranatunga asked her if they could have sex without the condom and she told him “no”, and he put the condom on right away.

[20] In cross–examination M.F. described the lighting in Mr. Ranatunga’s bedroom. His condo is situated near Square One Mall and his bedroom was illuminated by the lights from surrounding buildings. While the bedroom was dark, she could see him without difficulty in the bedroom. There was no music on or TV, they could hear one another clearly. M.F. was asked about the various positions she was in during the sexual act. She indicated that they started with Mr. Ranatunga on top of her and then she was on top and then the defendant got on top of her and this is when he ejaculated. She had a few breaks for a few seconds to catch her breath. She did not see Mr. Ranatunga take off the condom, he did not stop abruptly to take his condom off. Apart from him removing his penis when they changed positions, the transitions happened quickly. One break could have been about a minute when she needed to catch her breath. She agreed that she did not tell the officer that there was a short break in the sex. I did not find this to be a major omission. There was no suggestion that the officer asked her whether she took a break and to describe each position she was in.

[21] M.F. was adamant that she never heard Mr. Ranatunga say he was going to take the condom off. She did not see him take the condom off and throw it on the floor.

[22] I found M.F. to be a credible and reliable witness. However, there were two areas which required some scrutiny. She was inconsistent on whether she saw the condom in Mr. Ranatunga’s hand after the intercourse. In her statement to police, she said she saw Mr. Ranatunga with the condom in his hand and stated he threw it on the ground. At trial she could not recall if the condom was in his hand but stated she saw the condom on the floor. I did not find this to be an important inconsistency. It had been several months since the offence occurred and this was not a significant detail.

[23] The other inconsistency dealt with whether M.F. was upset about the fact that Mr. Ranatunga told her he no longer wanted to continue a romantic relationship with her or whether she was upset because he did not where a condom against her wishes. In her video statement, she told the officer that she commented to the defendant the following: “How dare you know yesterday full well you had no intentions of having a potential future with me doing that. I’m like what if I don’t take the plan B and I get pregnant. You’re going to have a kid on the street with someone you don’t want to be with.” [22]

[24] Similarly, at the start of her evidence-in-chief, M.F. said when Mr. Ranatunga told her he did not want to continue having a romantic relationship with her the next morning after removing his condom without her consent, she said “this did not sit well with me”.

[25] However, in cross-examination, when it was suggested to her that she was angry with the defendant because he ended the relationship the following morning, she replied, “no”, she was upset by the fact that he removed the condom. M.F. said that they were not in a relationship at the time and there was nothing to break up from. She further stated that when they were dating, she told Mr. Ranatunga she did not want to put a title on it, but he did. M.F. stated that she was angry about him not using the condom and not about ending the relationship.

[26] It does appear that M.F. may have been trying to downplay the fact that she was also upset with Mr. Ranatunga about ending their dating relationship. But her emotions were tied in together with the circumstances of his behaviour the next day and underlined for her the recklessness of his behaviour. She stressed to Mr. Ranatunga that he did not consider the possible consequences which included her becoming pregnant.

[27] Counsel submits that it is unlikely that M.F. would not see Mr. Ranatunga remove the condom and discard it given the room, while dark, was illuminated with light from the outside. Mr. Ranatunga was not asked about this and nor was M.F. A condom is not significant in size and I do not see that this suggestion by counsel affects M.F.’s credibility.

[28] Despite the areas reviewed above, I find that M.F. was a credible and reliable witness.

Mr. Ranatunga’s Evidence

[29] Mr. Ranatunga is 40 years old, approximately four years older than M.F. As stated, his account of the events leading up to the sexual intercourse is consistent with the complainant’s version.

[30] Mr. Ranatunga described that prior to the sexual intercourse, he put a condom on in front of M.F. He agreed that M.F. told him to use a condom prior to commencing the sexual intercourse. He described exactly as M.F. had with respect to the positions they took during the sex: that he was on top of her and then M.F. went on top of him and then he got on top of M.F. Similar to M.F., he confirmed that his bedroom was illuminated by all the lights around his building and there was no music or other noise in the room. However, it is at the moment when Mr. Ranatunga takes the condom off where the evidence differs dramatically.

[31] Mr. Ranatunga stated that when he was on top of M.F. for the final time, he propped himself up, came out of her, and said to M.F. that he was taking the condom off. He said he was very loud and clear about this. He then kissed her, and she kissed him back. Mr. Ranatunga said that this was an indication to him that M.F. was agreeing to everything that was going on. He then took the condom off and penetrated her, and soon after he ejaculated inside her. Mr. Ranatunga then said to her, “since we had sex without a condom, you need to go to Plan B.” M.F. replied by giving a kind of a frustration laugh, “Ok geez” and then they went to sleep. The parties slept on opposite sides of the bed.

[32] When Mr. Ranatunga took the condom off, he threw it on the ground beside M.F. and went to bed.

[33] The next morning, M.F. used the washroom and flushed the condom in the toilet. They spoke about random topics for about an hour. Mr. Ranatunga then told M.F. that he thought it was best that they remain only friends and not a couple. He told her he thought their friendship was therapeutic and he did not want to ruin it. M.F. was shocked and visibly upset. M.F. said to him, “you lied to me the whole time, how could you have sex when you knew you did not want to be with me?”

[34] Mr. Ranatunga felt bad but wanted to be honest with M.F. She put on her clothes and got ready to leave. Before she left, he said to her that he hoped that they could still be friends and she replied, “give me a few days to think about it” and stormed out.

[35] The Crown introduced Mr. Ranatunga’s police statement. Voluntariness was conceded. He stated to the officer that he told M.F. that he was taking the condom off and he reached down and threw it on the floor. During this incident, M.F. did not say anything. When they were finished, he told her that they “need to go to plan B”. In his testimony, he provided much more detail about what he did right before and after he told M.F. he was taking the condom off.

[36] In his police statement he said that he has often told his previous girlfriends that they need to go to “Plan B” when he has ejaculated inside of them and never had a problem.

[37] In cross-examination Mr. Ranatunga said that on the night in question he had not made his mind up about whether he wanted to be friends with M.F. or whether to have an intimate relationship with her.

[38] He knew that M.F. wanted him to use a condom.

[39] Mr. Ranatunga stated that after he took the condom off, he waited a few minutes before putting his penis back inside M.F. He took from the fact that M.F. continued to kiss him that she was acquiescing in having sex without a condom. He knew she was not on birth control which is why the first thing he said to her was that “you have to go to Plan B.” He knew there was a risk that she could get pregnant.

[40] While he agreed that M.F. had a good career at the bank and was in her late 30s and not in a secure relationship and not on the pill, he did not concede that she would not agree to him taking the condom off. He agreed that while she did not agree verbally, she did agree physically.

Honest but Mistaken Belief in Consent

[41] Mr. Monk, counsel for Mr. Ranatunga, submits that even if I find that M.F. did not consent, I should have a reasonable doubt about whether Mr. Ranatunga had an honest but mistaken belief that she was consenting to having sexual intercourse without a condom.

[42] Section 273.1(1) of the Criminal Code [23] sets out the meaning of consent; simply it is the voluntary agreement of the complainant to engage in the sexual activity in question. 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."

[43] Once the complainant has expressed an unwillingness to engage in sexual contact, the accused must make certain that she has truly changed her mind before proceeding with any further intimacies. The accused cannot rely on the mere lapse of time, the complainant’s silence, or equivocal conduct to indicate that there has been a change of heart and that the consent now exists, nor can he engage in further sexual touching to see if the complainant changes her mind. 24

[44] In R. v. A(J) [25], the Supreme Court held:

It is thus not sufficient for the accused to have believed the complainant was consenting: he must also take reasonable steps to ascertain consent, and must believe that the complainant communicated her consent to engage in the sexual activity in question.

[45] Section 273.2(b) has both objective and subjective dimensions: the accused must take steps that are objectively reasonable, and the reasonableness of those steps must be assessed in light of the circumstances known to the accused at the time. 26

[46] An accused's attempt to "test the waters" by recklessly or knowingly engaging in non-consensual sexual touching cannot be considered a reasonable step." 27

[47] Mr. Ranatunga was told prior to the sexual activity that M.F. wanted him to use a condom. Just before the sexual activity commenced, she asked him to put on a condom. He put a condom on in front of her. M.F. testified that they also had previous discussions about the fact that Mr. Ranatunga would have to use a condom during sexual intercourse. I am satisfied beyond a reasonable doubt after considering all of the evidence that M.F. did not consent to having sexual intercourse without a condom.

[48] While the parties were engaged in consensual sex with a condom, Mr. Ranatunga chose to take the condom off. Even if I accept that Mr. Ranatunga said he was taking the condom off in circumstances where M.F. did not hear him, he did not take steps to make sure she heard him and that she was consenting to this change in sexual activity. Mr. Ranatunga had an obligation in these circumstances to make certain that M.F. had changed her mind before proceeding. Mr. Ranatunga said he first propped himself away from her and pulled out of her, and then told her he was taking off the condom, they continued kissing for a few minutes and he then thought he had the green light to penetrate her without a condom and then went further and ejaculated inside her without confirming this was OK.

[49] Even on his own evidence I find that Mr. Ranatunga was hoping that M.F. would be OK with him removing the condom. He did not ask her permission or take any steps to confirm that she was consenting with having intercourse without a condom when she had clearly stated minutes earlier that she was only consenting to sex with a condom.

CONCLUSION

[50] After considering all the evidence, I am satisfied beyond a reasonable doubt that there was no evidence of anything that occurred between the communication of non-consent and the subsequent sexual touching which would have led the accused to hold an honest but mistaken belief that there was consent. In the result I find Mr. Ranatunga guilty of sexual assault.

Released Orally: December 7, 2023 Released In Writing: July 16, 2024 Signed: Justice A.R. Mackay