Warning and Non-Publication Order
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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: 2025-01-13
COURT FILE No.: Central West Region 998 23 11100450
Between:
His Majesty the King
— AND —
F. (D.)
Before Justice J. De Filippis
Heard on October 22-23, 2024
Reasons for Judgment released on January 13, 2025
Mr. W. Milko — counsel for the Crown
Mr. D. Paquette — counsel for the accused
De Filippis, J.:
Introduction
[1] Sometime between August 1 and October 31, 2020, the complainant awoke to the sensation of a penis in her mouth and another one in her rectum. She has no memory of how this happened. The defendant, her husband, is charged with sexual assault. The complainant is 37 years old.[1] She met the defendant in 2012. They married in 2017 and have two children – an 11-year-old and a 10-year-old. The parties separated in 2021, several months after the incident in question. The complainant reported the sexual assault about three years later, on September 30, 2023, after going tothe police about a separate allegation against her husband.
[2] This was a one witness trial. In addition to the testimony of the complainant, I received certain exhibits, including notes made by her family doctor and the record of an online conversation between the parties. This case was not argued on the basis that the complainant lacked the capacity to consent or that the defendant had an honest but mistaken belief in such consent. The main issue is whether the Crown has proven that the complainant did not, in fact, consent. It is agreed that the complainant’s trial testimony is not determinative of this issue and that any circumstantial evidence is important. In this regard, Crown and Defence counsel rely on the exhibits but did not address the law with respect to the prior consistent statements made by the complainant as recorded in the doctor’s note and the online conversation between the parties. It may be that this is because the law is well established. However, in my view, this law is complicated and can be difficult to apply. I will explain my understanding of this law later in these reasons.
[3] I find the defendant guilty.
Evidence of the Complainant
[4] The complainant testified that soon after she met the defendant, as they ‘explored their relationship’, he told her he “likes to watch his friends have sex with his girlfriend”. The complainant replied that she was not interested. She does not recall the subject being discussed again in the subsequent years leading up to the incident in question.
[5] In 2020, the parties lived in a rural area, with a large shed at the back of the property. It is equipped with a fridge, bar, and entertainment devices. It was a common occurrence, especially during the COVID pandemic, for the parties to enjoy drinks and music in the shed. The complainant does not know the date the incident in question occurred, but believes it was the autumn season because when she reported it to her sister, within the following month, the latter and her boyfriend came to the home wearing “hoodies”.
[6] On the day in question, the complainant and defendant went to the shed in late afternoon or evening. The children may have been in the home or with their grandparents. She consumed White Claw, her alcohol drink of choice. He had beer. She was not expecting guests – “it was a regular day; we were having a good time”. At some point a man entered the shed from the back door. She did not know him but learned his name was Quinton. He had a guitar. The complainant assumed he was her husband’s friend.
[7] The complainant noticed Quinton’s guitar had signatures on it. He explained that it was signed by his wedding guests. Quinton drank beer. The conversation was not memorable. The complainant cannot say how much alcohol each person consumed over what period. Her last memory is of cradling Quinton’s cheeks in her hands and complimenting his beard. She likes beards.
[8] The complainant awoke to an intense foul odour and the sensation of something in her mouth. Her upper body and head were on the bar stool. There was a penis in her mouth. She realized that it was Quinton who had his penis in her mouth, and this was the source of the odour – “a very unwashed penis”. She heard him say, “no teeth, no teeth”. Next, she realized that her husband was penetrating her anus with his penis. She reached back to touch her anus and it felt wet. She stood up and ran out of the shed to her home, crying as she did so. It was dark outside. She no longer had her pants on.
[9] The complainant does not know how much time elapsed between her last memory in the shed and awakening to this scene. However, she ran out of the shed within minute of becoming aware of it. She testified as follows:
I was in a panic. I needed to get away. I got up and left. They did not stop me or force me to stay. They did not follow me. I can’t recall any words being spoken….It was awful, I felt disgusting, I felt dirty, I kept showering, I didn’t know this guy, I didn’t know what else they may have done.
[10] The next morning the complainant told her husband she was upset and felt sick but “he brushed it off”. She added that “it was a hard day for me…[the defendant] is hard to talk to at the best of times”. When Crown counsel asked if there had been any discussion of sex with another male, she replied, “absolutely not, I have never told [the defendant] I was interested in this activity”. She added that they had not discussed having any sexual activity on the day in question.
[11] The complainant noted that before this incident she and her husband “were not having sex much” but after, it was more frequent and explained, “I don’t know what happened to my brain”. She said that during this sex he would say “you really seemed to like that [the threesome]” and “do you want it to happen again”. She testified that “he kept saying this and I always said ‘no’”.
[12] On April 15, 2021, the complainant visited her doctor. A report prepared by the doctor was filed as an exhibit. It records that the complainant said she had cramping and dysuria and wanted a test to determine if she had a sexually transmitted infection [STI]. The doctor’s verbatim notes continue as follows:
- she found out her husband has had other partners
- she is separating from her husband
- she was sexually assaulted in August 2020
- never had STI checks after this
- one her husband’s friends assaulted her with her husband’s knowledge
- she would like the reqs sent to her as she is going to lifelabs tomorrow
[13] The complainant left the matrimonial home. A few weeks later, she went to that home to get a dress for their daughter. On arrival she saw Quinton coming out of house to smoke a cigarette. The complainant was upset and contacted the defendant. A screen shot of this exchange of text messages was filed as an exhibit and is set out below:
Complainant: That wasn’t quinton was it
Defendant: yea he’s fixing the walls in the upstairs hallway so I can paint it and he’s gonna put a door on [A.’s] room
C: Yes so that was nice I had to drive [A.] to get her dress for tomorrow and [he] was there
I had to look at him
Fuck my life
Well glad you see you guys are buddies again: enjoy
D: Sorry I didn’t know you were going there were not really buddies he’s just the only one I could get to come do the job cheap
Did you get the other stuff from on top of the freezer
C: Yeah cause you think I went in there? I didn’t
D: Oh well sorry
C: I guess you think that was super easy for me; cool, have a good night
D: What are you talking about
What was easy
C: Nothing Nevermind
D: What d you mean nevermind
C: She went in and got it already that's why I knew he was there
D: OK I would have brought it to you in the morning
C: It's fine I didn't knew whose van it was, I was waiting in the driveway and for some reason he decided to come out for a cigarette
D: I don't know he was sanding when I left maybe he was taking a break
C: I don't know he came out when [A.] went in the house
then tried talking to me when I checked the mail
D: Well it's not like he knows that you have a problem with him
C: OK night
D: OK, I don't know what the problem is I know that you seem to think he raped you but in order for that to happen you would have to think that I stood there and let him do that to you regret and rape are not the same thing
C: Haha fuck off. And again, DON’T fucking talk to me unless it's regarding the kids.
I can't believe how much hatred I have for you
Go fucking gaslight someone else you fucking abusive piece of shit
I literally want nothing to do with you fuck you
[14] On September 30, 2023, the complainant went to the police to report an assault involving a baseball bat committed by the defendant earlier that morning when she went to the matrimonial home to obtain some property. In cross-examination, the complainant conceded that she did not mention the sexual assault allegation in the present trial until after providing details of the assault, about 41 minutes into the interview. She did so in response to other questions by the interviewing officer.
[15] The complainant first saw a psychologist in 2013 and has been in counselling for many years. She has been diagnosed with complex post traumatic stress disorder, depression, and anxiety. The complainant explained that she went to counselling at the request of the defendant “because he thought I was crazy and bi-polar”.
[16] The complainant agreed that her mental health issues affect her behaviour and noted that “sometimes I’m really sad”. She takes medication to address these issues, and this helps her “feel not as sad”. However, the COVID pandemic added to her depression because she was unable to continue her employment at a dental office. The complainant began consuming more alcohol during this time but said that, although she was not to mix alcohol with her medication, this did not cause problems. She said the defendant’s job as an iron worker was not affected by the pandemic and that he was “always a big drinker”.
[17] In addition to the incident in question at this trial, there have been three other occasions in which the complainant has had gaps in her memory. The first occurred at a concert. She recalls being at the concert, consuming alcohol and leaving her drink unattended at one point. Her next memory is waking up on the bathroom floor at her cousin’s home. She noted that the muscles in her thighs were sore “but this could have been for anything”. Nevertheless, afterwards, she took a test for STI. The complainant believes someone put something in her drink at the concert. The second occasion occurred at a friend’s apartment in Hamilton. The complainant and her friend had consumed much alcohol, The complainant did not black out but her memory of the evening is “foggy”. The final occasion occurred at another friend’s house; again, much alcohol had been consumed. The complainant was later told she had fallen onto a wood stove, but she has no memory of this.
[18] The complainant agreed that she has suddenly exposed her buttocks to friends in the shed and at other private places. She explained that she has a weird sense of humour and finds this funny. She denied she has done so in a public place.
[19] The complainant agreed that although she had rejected the defendant’s early suggestion that he watch other men have sex with her and that there had been no further discussion of the matter in the many subsequent years, she always understood this is something her husband wanted. She acknowledged there is much about the day in question that she does not recall. She remembers drinking with her husband in the shed, the unexpected appearance of Quinton, his possession of a guitar with signatures on it, and that everything seemed fine. Then, nothing more until she awoke with a penis in her mouth and another in her rectum. When confronted with the fact she consumed much alcohol, she replied that “I was at home and felt safe there and did not expect anything like this to happen”. The complainant was shown photographs, dated September 6, 2020, depicting her with her husband, Quinton, and others in the shed. She does not recall this event and cannot say if it is the one in question.
[20] The complainant testified she would not have consented to sex with the defendant on the day in question as their relationship was not good at the time. She added that she had recently rejected his advances many times before. When she awoke with the realization there was a penis in her mouth, she reached behind with her hand and explained, “I was trying to piece what was going on. I felt wet there. I was worried I had poop back there because [the defendant] was penetrating me”. The complainant tearfully added that she got up, said nothing, and fled the shed, adding, “I was a victim to a threesome I did not consent to”. She was challenged on this latter point by Defence Counsel:
Q: You don’t know you didn’t consent, you don’t recall
A: You can’t really consent when I was drinking, you shouldn’t have this when intoxicated
Q: But you agree you don’t know what you said and did
A: Yes…[but] he was my husband, we drank together, he would know the signs of my intoxication
[21] The complainant testified that afterwards, “I collected my thoughts and tried to make sense about what happened … there is no way I could have consented to that, as of today I would not consent to a threesome [but] I have no memory”. She agreed she blamed herself for what happened and added, “it is my natural inclination, I blame myself for everything, maybe I could have done things differently and this wouldn’t [have] happen[ed]”.
[22] When asked why she waited three years to report the incident to the police, the complainant explained that it came about because of what happened at the matrimonial home after she went to retrieve her property: “The baseball bat situation happened…my oldest daughter came upstairs, upset, said dad has a bat, she was in corner frantic as she said he is waiving a bat”. The frightened complainant called her mother who called the police, and she was interviewed. The complainant further explained that she previously did not want to report the sexual assault as “he is the father of my children”.
Submissions
[23] The Crown commenced submissions by stating that there is insufficient evidence to determine if the complainant had the capacity to consent because there is no expert evidence about the effect of alcohol consumption upon her. Moreover, the Crown concedes that the complainant’s memory loss, without more, means she cannot give direct evidence about whether she did, or did not, consent to the sexual activity. This does not mean that evidence of memory loss is unimportant. It may be indirect evidence, when considered with other evidence, to support inferences about consent. Counsel adds that there is circumstantial evidence about why the complainant would not have consented and, if accepted by me, proves she did not, in fact, consent.
[24] The Crown argues that it is reasonable to assume the complainant was quite intoxicated. However, her first memory of the sexual activity is clear and compelling; a strong and disgusting odour, immediately followed by the sensation of a penis in her mouth, hearing the words, “no teeth, no teeth”, and the awareness of being anally penetrated. She quickly fled the scene without any words being spoken. The Crown submits that this emotional and physical response is relevant to the issue of consent. Importantly, the events must be assessed along with the complainant’s testimony that early in their relationship she adamantly rejected the defendant’s interest in sexual activity involving a third person and that on the day in question there had been no discussion with her husband about sex or receiving guests. The exchange of text messages between the parties months later shows that the complainant remained angry about the events. The Crown asserts that the defendant’s comments, including that “rape and regret are not the same” is post facto analysis and that there is nothing in this conversation to show the complainant was asked for her consent at the time or that she gave it. Counsel submits that the circumstantial evidence proves the complainant did not consent and adds that the defendant could not be mistaken about this.
[25] Defence counsel described this trial as a classic criminal case. The Crown must prove beyond a reasonable doubt that the complainant did not consent to the sexual activity. The Defence need not prove that she did. Counsel added that reliability is the core of this case.
[26] The Defence position is that the Crown has not proven the complainant did not consent. Counsel relies on the exchange of text messages between the parties on April 15, 2021. Whereas the Crown claims this online conversation is one piece of circumstantial evidence supporting the complainant’s testimony she did not consent, the Defence asserts it must raise a reasonable doubt about non-consent. Counsel suggests this conversation is evidence that the complainant appeared to enjoy the sexual activity and that the defendant would not have allowed it to occur if that were not the case. Moreover, according to counsel, the defendant’s observation that there is a difference between rape and regret underscores that the complainant’s subsequent anger does not mean she did not consent.
[27] Defence counsel also relies on the evidence that the complainant has a history of blackouts and doing strange things when intoxicated. Counsel asks how is it possible that she does not recall the gathering in the shed on September 6, 2020? It is argued that the fact the complainant asserted many years earlier that she would not participate in a threesome does not necessarily support her testimony that she did not consent. She knew this was something that would please her husband and may have changed her mind. In this regard, the fact that Quinton was a stranger may support the inference she did consent to please husband and/or herself, unencumbered by the embarrassment of a prior relationship.
Analysis
[28] The Crown must prove guilt beyond a reasonable doubt. This means that probable guilt is not the criminal law standard of proof – it is closer to certainty. In this context “doubt” means one based on reason and common sense which must be logically based on the evidence or lack of evidence: R v Villaroman, 2016 SCC 33. In this case, the Defence did not call evidence. There is no requirement to do so. To repeat, the burden of proof rests on the Crown. In this regard, evidence called by the Crown favourable to the defendant can raise a doubt about guilt or, if believed, exonerate him.
[29] The law of sexual assault is grounded in consent. Subjective consent to sexual activity requires that the complainant be capable of consenting and does, in fact, consent. Of relevance to the present trial, is the decision by the British Columbia Court of Appeal in R. v. Capewell, 2020 BCCA 82:
[48] In cases where the complainant’s memory of the sexual activity is limited, the same circumstantial evidence may be relevant to both consent and capacity. The relevant authorities on this point were recently reviewed by the Nova Scotia Court of Appeal in R. v. Al-Rawi, 2018 NSCA 10 at paras. 69–70:
Difficulties present where the complainant, due to the ingestion of drugs or alcohol, truly has little or even no memory of the event. Absent direct evidence from a complainant that subjectively she did not consent, the judge or jury frequently must rely on circumstantial evidence to determine the absence of consent (see for example: [citations omitted])
Where a complainant testifies that she has no memory of the sexual activity in question, the Crown routinely asks: “Would you have consented?” Despite the potential to discount the typically negative response as speculation, the answer is usually received into evidence, and depending on the reasons, may or may not have a bearing on the determination if consent or capacity to consent were absent (see for example: [citations omitted]). For unknown reasons, this question was not put to the complainant.
[49] Even where the evidence falls short of establishing incapacity beyond a reasonable doubt, evidence of intoxication may be relevant in assessing whether any apparent consent was voluntary. In G.F. at para. 49, the Ontario Court of Appeal held that the complainant’s vomiting from intoxication was relevant to indicate both that she would not have consented to sexual contact and that her degree of intoxication impacted her capacity to consent. Similarly, evidence that the complainant would not have consented may serve as circumstantial evidence of both non-consent and incapacity: R. v. Kontzamanis, 2011 BCCA 184 at para. 31; Al-Rawi at para. 70.
[50] In this case, the judge found that the complainant lacked the capacity to consent. Yet it was equally open to the judge to find that the circumstantial evidence proved non-consent. The law is not, as the appellant submitted in this court, that non-consent could not be in issue because the complainant had no memory of whether she consented or not. Nor does the law infer consent in cases of intoxication: [citations omitted].
[51] Consent is defined in s. 273.1(1) of the Code as “the voluntary agreement of the complainant to engage in the sexual activity in question”. Consent must be given at the time of the sexual activity, and it can be revoked at any time: Code at s. 273.1(2)(e); J.A. at paras. 34, and 40–43. Consent must relate to the specific sex act, its sexual nature, and the partner’s identity: Hutchinson at para. 5.
[52] Consent is relevant to both the actus reus and the mens rea of sexual assault. However, consent at the actus reus stage is assessed from the point of view of the complainant, whereas at the mens rea stage, the focus shifts to the accused and his steps to ascertain consent: R. v. Barton, 2019 SCC 33 at paras. 89–90.
[53] The actus reus of sexual assault is met if the accused “touche[d] another person in a sexual way without her consent”: J.A. at para. 23. Therefore, the Crown must prove these three elements: (i) touching, (ii) the sexual nature of the contact, and (iii) the absence of consent: Ewanchuk at para. 25. The first two elements are objective; it is sufficient for the Crown to prove that the accused’s actions were voluntary: Ewanchuk at para. 25. However, non-consent is subjective from the complainant’s point of view, as set out in Barton at para. 89:
Consent is treated differently at each stage of the analysis. For purposes of the actus reus, “consent” means “that the complainant in her mind wanted the sexual touching to take place” (Ewanchuk, at para. 48). Thus, at this stage, the focus is placed squarely on the complainant’s state of mind, and the accused’s perception of that state of mind is irrelevant. Accordingly, if the complainant testifies that she did not consent, and the trier of fact accepts this evidence, then there was no consent — plain and simple (see Ewanchuk, at para. 31). At this point, the actus reus is complete. The complainant need not express her lack of consent, or revocation of consent, for the actus reus to be established (see A. (J.), at para. 37).
[54] It bears emphasizing that at the actus reus stage, the complainant’s state of mind is determinative in establishing non-consent. The accused’s perception of the complainant’s state of mind is irrelevant, and only arises when a defence of honest but mistaken belief in communicated consent is raised at the mens rea stage: Ewanchuk at para. 173.
[55] The mens rea of sexual assault is met if the accused had the “intention to touch and knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched”: Ewanchuk at para. 42. The Supreme Court of Canada in Barton at para. 90 set out the role of consent at the mens rea stage as follows:
For purposes of the mens rea, and specifically for purposes of the defence of honest but mistaken belief in communicated consent, “consent” means “that the complainant had affirmatively communicated by words or conduct her agreement to engage in [the] sexual activity with the accused” (Ewanchuk, at para. 49). Hence, the focus at this stage shifts to the mental state of the accused, and the question becomes whether the accused honestly believed “the complainant effectively said, ‘yes’ through her words and/or actions” (ibid., at para. 47).
[30] It is not in dispute that sexual activity occurred involving the complainant, defendant and a third party in a shed at the matrimonial home in late summer or early autumn 2020 and that the complainant has no memory of how these events began and developed. That the complainant suddenly awoke and bolted from the scene in a state of shock and distress was not seriously or successfully challenged. At issue is whether the Crown has proven she did not consent to the sexual activity given her lack of memory about it. In this regard, the Crown did not assert the complainant lacked the capacity to consent. Moreover, notwithstanding the defendant’s comments in the online conversation and the complainant’s trial testimony that he subsequently told her she appeared to enjoy the threesome, this case was not argued on the basis that the defendant had an honest but mistaken belief in communicated consent. The Defence position is that I cannot conclude, based on all the evidence, that the Crown has proven an essential element of the offence, non-consent.
[31] The credibility of the complainant is not a pressing concern in this case. In any event, I am not concerned. She did not argue with counsel or evade questions, however uncomfortable they might be. For example, she conceded she has blacked out before on two occasions and then, without prompting, pointed to a third such incident. She agreed to suddenly exposing her buttocks to others in private gatherings, attributing this to a weird sense of humour. Perhaps, most uncomfortably, the complainant volunteered that after the events in question, which she insists was a sexual assault, consensual sexual activity with her husband increased, offering the explanation, “I don’t know what happened to my brain”. Also, although there is no obligation on the Defence to show a motive to lie, the fact is there is no evidence of this. Indeed, the complainant did not want to report the matter because the defendant is the father of their children and did not do so, even after the online conversation in which she spoke of her hatred of him. This report arose indirectly in a police interview about a separate matter. I am confident the complainant was truthful. Reliability is the issue. An honest witness can be mistaken. This arises because the complainant has no memory of how it came to be that she had one man’s penis in her mouth while the defendant inserted his into her anus.
[32] In R v J.R., [2006] O.J. No. 2698 (Ont. S.C.J) it was held that the only significance of memory loss, without more, is that the complainant cannot give direct evidence as to whether or not she consented to the sexual contact or whether she had the capacity to do so. This does not mean that memory loss or blackout is unimportant. Circumstantial evidence may permit inferences to be drawn about consent and capacity. In R. v. Kishayinew, 2020 SCC 34, [2020] 3 SCR 502, Justice Moldaver held as follows:
A majority of the Court is of the view that, when read in context, the trial judge’s reasons make it clear that he was satisfied, beyond a reasonable doubt, that the complainant did not subjectively consent to any sexual activity with Mr. Kishayinew. On this point, we are in agreement with the reasons of Justice Tholl in dissent, at paras. 52-78 of his judgment. The trial judge correctly recognized that, as a result of the complainant’s memory blackouts, the only evidence available on the issue of subjective consent was the circumstantial evidence — that the complainant was crying and disoriented, that she did not want to go with Mr. Kishayinew, that she did not consent to his attempts to kiss or touch her, that she attempted to leave the house several times, and that, upon recovering from her blackout, she felt frightened, “weird down below”, and wanted to escape. In our view, as the trial judge’s reasons at paras. 94, 96 and 97 (2027 SKQB 177) make apparent, this evidence reasonably permits only one inference: that the complainant did not consent to any touching from Mr. Kishayinew. This finding is sufficient to support the conviction for sexual assault.
[33] There is no question the complainant was intoxicated. That she awoke means at some point she fell asleep or passed out and I conclude from this that she was severely intoxicated. Her first memory upon awakening is vivid and compelling; a strong and disgusting odour, immediately followed by the sensation of a penis in her mouth, hearing the words, “no teeth, no teeth”, and the awareness of being anally penetrated. The complainant quickly ran out into the night, without pants, and without any words being spoken. I agree with the Crown that this emotional and physical response is relevant to the issue of consent. Significantly, the parties had discussed a threesome – at least to the extent that the defendant revealed he would enjoy watching his wife have sex with other men – early in their relationship and the complainant had refused to participate. Moreover, after the events in question at this trial, when the parties engaged in sexual activity, the defendant suggested it be repeated. Again, the complainant rejected this. The Defence suggestion that the fact the complainant knew her husband always wanted this experience and, therefore, she might have changed her mind about a threesome is speculation. To have a doubt based upon this would not be one based on reason and common sense that is logically based on the evidence or lack of evidence.
[34] The complainant’s adamant refusal to participate in this type of sexual activity, expressed before and after it occurred, and her palpable reaction after awakening from her stupor is compelling proof and permits an inference to be drawn with respect to the issue of consent. This mostly uncontested circumstantial evidence persuades me that the complainant did not voluntarily agree to the sexual activity. In this regard, the fact that the complainant has had other incidents of memory gaps, including not remembering several people present in the shed on September 6, 2020, a possible date for the events in question, does not cause me to doubt my conclusion. Moreover, while Defence counsel suggested she does strange things while intoxicated the only evidence on point is that she would sometimes reveal her buttocks in private places. The complainant attributed this to her weird sense of humour. This does not trouble me and is not relevant to the issue of consent. I now consider two final pieces of evidence, one of which, as already noted, is relied upon by the Defence in support of the submission that, at very least, it should raise a reasonable doubt about a finding of non-consent.
[35] In considering the online conversation, as well as the doctor’s note, certain basic principles are in play: Prior statements by a witness inconsistent with the witness’s testimony are generally admissible to impeach credibility. Prior statements by a witness consistent with the witness’s testimony are generally inadmissible. The “common sense” inference that repetition confirms truthfulness is prohibited. Most statements by accused persons, when tendered by the Crown, are admissible for their truth as admissions. Where the accused’s statements are part of an online conversation, the statements of the other person can be admitted providing context for the accused’s admissions.
[36] The law with respect to prior consistent statements is discussed by [the now] Justice Paciocco in The Perils and Potential of Prior Consistent Statements: Let’s Get it Right, (2013) 17 C.C.L.R. 181-215. Among his comments are these:
In sum, when prior consistent statements are proved as admissible hearsay evidence where the declarant offers the same testimony in court, it is not the “hearsay part” that actually adds weight to the scales. That hearsay claim is redundant to the claim made in the testimony. What adds weight, if anything, is the “declaration part” of the statement block. While there is no weight in the simple fact of repetition and no independent corroboration in repetition, the circumstances in which the hearsay statement was made — its indicia of reliability — can and should add weight to the correlative in-court testimony.
The law relating to prior consistent statements is complex. In R. v. Simpson at the Manitoba Court of Appeal, Seaton J.A. interpreted the law in simpler terms in a passage cited without critical comment when the Supreme Court of Canada dismissed the appeal. Seaton J.A. said:
There is no rule excluding previous consistent statements. They are rejected simply because they are valueless. If for some reason they become valuable they become admissible.
Conceiving of the law this way would save on having to determine whether black-letter fixed exceptions apply. The sole inquiry would be “is the prior consistent statement relevant in any way?” Provided judges do not put prior consistent statements to irrelevant use or treat such statements as corroboration or rely upon the discreditable theory that repetition on its own enhances credibility, such a law would serve the requisite needs in a simpler, less encumbered, and arguably preferable way. Indeed, if the sole gateway to admission was relevance, even a failure to exclude irrelevant prior consistent statements would be a harmless outcome unless the trial judge was to rely upon such statements improperly in coming to a decision.
[37] A prior consistent statement may be admissible as original evidence of the speaker’s state of mind, where relevant to an issue at trial; see R v Mathisen, 2008 ONCA 47. Like all exceptions to the rule excluding prior consistent statements, admission under this exception does not make the statement admissible for its truth – rather, the statement is admissible for the fact it was made and the circumstances in which it was made, from which inferences about the speaker’s state of mind can be drawn. As Justice Doherty explained in [R. v. P(R), (1990) 58 CCC (3d) 334 (Ont. HCJ)]:
If the statements are explicit statements of a state of mind, they are admitted as exceptions to the hearsay rule. If those statements permit an inference as to the speaker’s state of mind, they are regarded as original testimonial evidence from which a state of mind can be inferred.
[38] Statements made by a person as part of a conversation with an accused are also admissible to provide context. R. v. Sandham, [2009] O.J. No. 4527 (Ont. S.C.J.) held as follows:
[34] As indicated above, all of these e-mails are admissible as against the accused Sandham as admissions. Many of those e-mails are between Sandham and some of the deceased. The portions written by the deceased would be admissible under the principled approach, as outlined above. As to the portions of those e-mails authored by third parties, such as Bandido Pervert in Texas, they may be used by the jury in two ways. The first way is to give context to the statements made by Sandham. An exchange of e-mails is very much an electronic conversation. As in any conversation, it is essential to hear what both parties are saying in order to understand the meaning of either side of the conversation. The other way is under the state of mind exception, where the state of mind of the third parties is relevant to an issue in this proceeding….
[39] The doctor’s note records, among other things, that the complainant reported being sexually assaulted in August 2020 and one of her husband’s friends assaulted her with her husband’s knowledge. These notes are without value in determining if the Crown has proven its case. The notes are hearsay and simply repeat part of trial testimony. Their only relevance is in showing that the complainant was concerned about STI. However, this concern has no necessary implications with respect to the issue of consent.
[40] The statements made by the defendant in the online conversation confirms that he was present while Quinton engaged in sexual activity with the complainant and that he knows she believes it was rape. These admissions are accompanied by his claim not to understand her anger at seeing Quinton several months later since he would not know she had a problem with him. The defendant emphasizes that he does not know what the problem is because her belief would mean that he stood by and let him rape her and that regret and rape are not the same thing.
[41] To parse the text messages, such that anything said by the complainant that is consistent with trial testimony must be ignored while taking into account statements by the defendant would transform a heated discussion into an artificial and singular declaration of innocence. The defendant’s statements must be considered like any other piece of evidence – along with the entire case. The complainant’s response to these statements, expressed in strong language, is the context that gives meaning to the conversation and is relevant in interpreting the defendant’s words. In this regard, the defendant’s protestation that he would not stand by and simply watch another man engage in sexual activity with his wife, must be assessed against the fact that before and after this incident, he conveyed his desire to have just such an experience. Given the context provided by the conversation and other evidence, the Crown is correct to characterize the defendant’s statements as a post facto analysis. A better description is that provided by the complainant, namely, that he was gaslighting her. The online conversation also has value because the circumstances in which the complainant’s prior statement is made – her shock at seeing Quinton and outrage at the defendant’s remarks – is an indicium of reliability and adds weight to her trial testimony. This bolsters the conclusion I reached about consent based on other circumstantial evidence.
Conclusion
[42] The defendant penetrated the complainant’s anus with his penis while another man put his penis in her mouth. That these acts occurred was never seriously in question. The circumstantial evidence proves, as asserted by the complainant in trial testimony, that she did not consent to what either man did to her. The online conversation does not raise a reasonable doubt this. The Crown has discharged its burden of proving that the defendant directly, and as a party, engaged in sexual activity with the complainant knowing of, or being reckless of or wilfully blind to, a lack of consent on her part.
Released: January 13, 2025
Signed: Justice J. De Filippis
[1] I have not been told how old the defendant is. However, he looks to be similar in age to the complainant.