SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-30000577-0000

DATE: 20120726

BETWEEN:

HER MAJESTY THE QUEEN

• and -

NEIL FRAZER

REASONS FOR JUDGMENT

--- Before the Honourable Madam Justice Molloy,

at the Metropolitan Toronto Court House, on July 26th, 2012.

A P E A R A N C E S:

Jones, D. for the Crown

Stanleigh, J. for the Accused

-------------------- Reasons for Judgment

Molloy, J. (Orally)

A. The Nature of the Offence

Neil Frazer is charged with sexually assaulting R.V. on March 5th, 2010. He elected to be tried by judge alone and the trial proceeded before me on June 25th and 26th , 2012. At the outset of the trial, I made an order protecting the identity of the complainant. I will refer to her in these reasons as “R.”

The assault is alleged to have occurred in the home of R’s uncle and his wife, both of whom were called as witnesses by the defence. I will refer to them in these Reasons as “R’s uncle” and “R’s aunt.”

For the reasons that follow, I found the testimony of R to be both credible and reliable. I believe that the incident occurred essentially as she described it and that it constitutes sexual assault. I did not believe the testimony of Mr. Frazer that R consented to the sexual intercourse that occurred. His evidence does not support the defence of honest but mistaken belief in consent. Further, all of the defence evidence together does not cause me to have a reasonable doubt with respect to either the consent issue or the mistaken belief issue. My detailed reasons for these conclusions follow.

B. The Evidence

1. R’s Testimony

On March 5th, 2010, R was 20 years old and had a three-month-old baby. Prior to that time she also had a dog. She had difficulty looking after the dog and her aunt and uncle agreed to take him. R lived in Mississauga. R’s aunt and uncle lived in Scarborough with their daughters, aged 10 and 15, but R’s uncle worked in Mississauga.

On March 4th, R spoke to her uncle about missing her dog, and it was arranged that her uncle would pick her up after work and drive her to his home in Scarborough, where she would visit with her dog. R testified that when she arrived at her uncle’s home, she learned for the first time that Mr. Frazer was living with them for a period of time while helping them with some renovation work. She said she had met Mr. Frazer briefly on one prior occasion when he and R’s aunt had been helping to paint R’s father’s apartment in Mississauga.

R’s father’s apartment was in the same building as R’s apartment, and R had also been assisting with the painting project by taping the borders of areas to be painted, getting it ready for painting. She said she did most of the taping before her aunt and Mr. Frazer arrived and that she was only there for a few minutes while Mr. Frazer was there. She knew him to be a close friend of her aunt’s. R was asked on cross-examination if she invited her aunt and Mr. Frazer to stay at her apartment that night and she testified that she did not think she would have done so because she had no extra beds in her apartment.

R testified that upon arriving at the home of her uncle and aunt on March 4th, they had dinner. She recalled Mr. Frazer showing her how to cook plantain. She said that afterwards they sat around talking about life in general. Her aunt and Mr. Frazer were drinking but R was not. R said that Mr. Frazer had been drinking beer and whiskey and had also smoked some marijuana. R did not drink any alcohol, nor did she have any marijuana.

On cross-examination, R could not recall if there was any discussion of breastfeeding that evening in front of Mr. Frazer. When asked by defence counsel if she showed her breasts that evening, she said no, but that she might have been breastfeeding her baby. She specifically denied opening her blouse and showing Mr. Frazer her breasts and specifically denied flirting with him.

[REASONS ARE HELD DOWN TO DEAL WITH ANOTHER MATTER]

[REASONS ARE RESUMED.]

At about 11 o’clock p.m., R’s aunt left for work. She was a security guard and her shift started at midnight. Mr. Frazer drove R’s aunt to work and R’s two nieces had gone to bed already upstairs. Mr. Frazer had been living in a room in the basement. R settled in to sleep on the large living room couch. She had her three-month-old baby in front of her, between her and the back of the couch. Her dog climbed up on the couch and snuggled in between R’s legs. R testified that she woke up when Mr. Frazer came in but pretended to be still asleep. He was walking around the kitchen and dining room area, talking on the phone. She said his telephone discussion included “dirty comments” and that he sounded like he was intoxicated.

After a while, Mr. Frazer came into the living room and began petting the dog, who was lying between R’s legs. R still pretended to be asleep. She said that as he stroked the dog, his hand sometimes rubbed along her leg but that she ignored it, hoping that he would just go away. She was fully clothed still, wearing black stretch pants and a black muscle shirt.

R testified that Mr. Frazer then switched to rubbing her legs rather than the dog and was saying things about how strong her legs were. He started to pull down her pants but she pulled them back up. During this time the baby was still asleep.

Next, she said, Mr. Frazer moved in behind her legs and put his hands down her pants. He was rubbing her vaginal area, scratching it, which she said really hurt. She said at this point she started to tear up and the baby began to cry. Also, up to this point, R maintained that she had said absolutely nothing. When she had pulled her pants back up, Mr. Frazer said, “No?” in a questioning tone of voice but she had not responded. R said she simply froze during this encounter and was worried about waking up her uncle and her nieces. She did not want her nieces to see what was going on. In an attempt to soothe the baby, she tried to breastfeed her. She was afraid that if she did anything her baby might get hurt or her nieces would find out what was happening in their home, where they were supposed to be safe.

She said that Mr. Frazer next went to where her face was and took his pants down. She said his penis was beside her face and that it touched her “just a little bit” and that she turned her head away. He then was nibbling on her right breast. Again he was saying “No?” in a questioning tone and again she said nothing.

Finally she said Mr. Frazer climbed on top of her and pulled down her pants and inserted his penis in her. She said that as he was doing this, she said, “No, no, no”, but he kept on going. She had been crying through most of this but now was crying harder. Suddenly, she said, Mr. Frazer slowed down and asked her why she was crying. She said she told him, “Because I said no.”

According to R, as soon as he heard that, Mr. Frazer stopped. He put his hands to his head and said, “Oh my God. I can’t believe I did that. I did not believe no meant no.”

She described Mr. Frazer as being very distraught. He even said he was going to jump off a bridge. She said it was a “complete 360 switch” from his earlier behaviour. She was desperately trying to calm him down. He apologized to her and she told him it would be okay but that he must never do such a thing again. She said in order to calm him down she told him that maybe she had given him “mixed messages”, that he seemed “really nice” and that maybe he could come and see her in Mississauga sometime after everything had calmed down.

R said it was now starting to get light outside. She said eventually Mr. Frazer passed out beside the couch and was still asleep there when her elder niece came downstairs to get ready for school. A short while later her uncle and other niece came down. She said she pretended nothing happened. She left in the car with her uncle and said nothing until he had dropped his daughters off at school. The plan was that he would drop R off at her apartment in Mississauga on his way to work, which was also in Mississauga. R testified that after her nieces were out of the car she started to cry and asked her uncle to pull over. He pulled into the parking lot of a mall and she then told him what had happened. Her uncle then drove to where her aunt worked and R told her aunt what had happened. She said her aunt said that she was very disappointed and that perhaps Mr. Frazer needed counselling.

R went to the hospital and had a rape kit done. She wanted to be sure she was okay. At this point, R still didn’t know what she wanted to do in terms of pressing charges. She was conscious of the fact that this was her aunt’s best friend. She said her father called her on the phone, having been told by her uncle about the assault. When she spoke to her father on the phone, he told her she should make up her own mind and not be influenced by what her aunt thought. She then decided to report the assault to the police. Ultimately, R said, the determining factor was her concern for her cousins, the oldest of which had her same body type: tall and blonde, with long legs.

2. Testimony of R’s Aunt

The defence called R’s aunt as a witness. She testified that she had known Neil Frazer for about five years, having first met him in a bar. She got him a job doing security with the same company where she is employed. She said that about a year before the alleged assault Mr. Frazer had separated with his long-time spouse, with whom he had a 15-year-old daughter, and she had told him he could stay with her family for awhile until he got settled.

In March 2010 Mr. Frazer had been staying with R’s aunt and her family since about late October or early November. He was doing some renovations and maintenance on the house during that time. R’s aunt recalled the occasion upon which R and Mr. Frazer had met during the painting of R’s father’s apartment. She said that R was there in Mr. Frazer’s presence for about half an hour. She said that R had left the baby with them for awhile when she was meeting in her own apartment with someone from the Mormon community who was helping her with household budgeting. She said the baby woke up and was fussy so she brought her back to R to be fed.

According to R’s aunt, this is when R asked if she and Mr. Frazer wanted to spend the night at her apartment. R’s aunt testified that she could tell that R and Mr. Frazer had seemed interested in each other. She said that she thought that this was not a good idea because R “had problems” and was “a little damaged.” She said that she told R that Mr. Frazer would not stay in the apartment because the dog was there and the dog had worms. Therefore she and Mr. Frazer stayed up all night in R’s father’s apartment and finished the painting (I note at this point that this detail about the dog’s worms was not put to R during her cross-examination.)

R’s aunt further testified that it was shortly after this that she and her husband took in R’s dog. Then, she said, it was about one week later that R called and said she wanted to come and visit the dog. R’s aunt maintained that R asked her on this occasion about Mr. Frazer and that she told her he had separated from his wife but was trying to work it out. According to R’s aunt she told R that she would discuss the matter with R’s uncle and let her know. However, the next thing she knew her husband showed up on March 4th, 2010 with R and the baby. She testified that she felt R had “bypassed her” by speaking to her uncle and that she thought this was “sneaky.” She also testified that she thought the real reason R was coming was so that she could see Mr. Frazer.

After R arrived on March 4th, R’s aunt said they discussed the fact that R had not eaten all day, had lost her breast milk, and was unable to breastfeed her baby (again, I note that this detail was not put to R when she was cross-examined.) R’s aunt testified that R was flirting with Mr. Frazer. She was asked if Mr. Frazer could see when R was attempting to breastfeed her baby, and she answered that he could see it as he was there and cooking plantain for her at the time. R’s aunt said that she and R and Mr. Frazer sat around talking. She recalled that R said she felt isolated and that she had not had sex for a year. However, she did not think much of it at the time (this is another detail not put to R on cross-examination.)

R’s aunt confirmed that she and Mr. Frazer had been drinking beer and whiskey that night. She said that over the course of the evening she had two beers and two shots of whiskey before leaving for work. She said this was “perfectly normal” for her. She denied that Mr. Frazer was intoxicated at that point and said she would not have allowed him to drive if he was intoxicated.

Initially R’s aunt denied at trial that she could smell alcohol on Mr. Frazer’s breath when she spoke to him the next morning about the sexual assault allegation made by R. However, she was then confronted with her videotaped statement to the police in which she told them the opposite. R’s aunt then said that she “could have” smelled alcohol on Mr. Frazer that morning but that “it wasn’t super strong in the morning.” However, she still maintained that Mr. Frazer was not drunk when he dropped her off at work at midnight, although acknowledging that she had no idea what he had done after midnight.

R’s aunt said that she has not spoken to her niece since this whole incident happened. When asked if this incident strained their relationship, R’s aunt said, “It ended it. She’s not allowed at my house ever.”

R’s aunt acknowledged that she discussed the matter with Mr. Frazer on the morning of March 5th after hearing what her niece had alleged. Her initial question to Mr. Frazer was something like “What have you done? This is my niece.” His initial response is that he did not consider this to be a big deal. She considered that response “understandable” if her niece had consented to having sex with Mr. Frazer. She said that when Mr. Frazer learned that R was alleging he assaulted her he was very upset and crying. R’s aunt testified that she told Mr. Frazer he could no longer live at their house because her husband wanted him out, which she felt was understandable.

On cross-examination, R’s aunt admitted that prior to March 5th, 2010, she had been in a “romantic” relationship with Mr. Frazer, which continued up to that day. However, she maintained they were just “friends” and said she thought at that time he might go back to his wife. When asked if she was upset that Mr. Frazer had then had sex with her twenty- year-old niece, R’s aunt said she would not have had a problem “if they had kept their mouths shut about it.” She said, “I have a huge problem when they bring this into my house.”

3. Testimony of R’s Uncle

R’s uncle corroborated much of R’s story but had no direct knowledge of the assault itself. He confirmed that he had come downstairs on the morning of March 5th, 2010 at about 7:00 or 7:30 a.m. and was out the door with his daughters, R, and R’s baby within about half an hour. He dropped his daughters off at school and was planning to drive R to her apartment in Mississauga. He said he did not notice anything amiss during this period of time. However, after his daughters were out of the car, R became quite distraught. She told him that Mr. Frazer needed to leave his house. When he asked her why, she said that he had forced himself on her.

R’s uncle confirmed the calls to R’s aunt and to R’s father. R’s uncle maintained that he considered Mr. Frazer to be a “friend of the family” and that he had no fears about him being around his daughters, then or now. Since the incident he has only seen R “on occasion.”

4. Testimony of Neil Frazer

Neil Frazer testified on his own behalf. He admitted to having initiated and proceeded with sexual intercourse with R on the couch in her uncle’s home in the early morning hours of March 5th, 2010. However, he said this sexual contact was fully consensual. Indeed, he said that he had actually asked R if she wanted him to continue and that she said, “Yeah.” According to Mr. Frazer, he stopped in the middle of full intercourse because the baby woke up and started crying. He denied that R was upset or crying at any point before, during, or after this sexual encounter. He said that after the baby woke up, he went out and had a cigarette and that when he came back, he and R just sat and talked about life in general for about an hour.

The oldest daughter then came downstairs to get ready for school. He thought this would have been about five o’clock a.m. Mr. Frazer remembered talking to her briefly but that he then fell asleep. He did not see R’s uncle that morning, apparently because he was asleep.

Mr. Frazer testified that this was the third time he had met R. He said the first time was a brief encounter at the home of R’s aunt and uncle. R had been on a camping trip with her father and siblings and they stopped at R’s uncle’s home in Scarborough for a brief visit on their way to their home in Mississauga. Mr. Frazer said that this was in September, 2009, and that R was pregnant at the time. No other witness mentioned this meeting, but all of them testified prior to Mr. Frazer and none of them were specifically asked about it. Nothing of any consequence is said to have occurred on this occasion.

Mr. Frazer also recalled meeting R when he and R’s aunt were painting R’s father’s apartment. He said R was there for about an hour while he was there and that they chatted. He also said that R made pizza for them, which they ate in her apartment. He said that R asked them if they wanted to stay over in her apartment but that R’s aunt did not want to. Mr. Frazer explained that whereas he was single at that time, it might have been harder for R’s aunt to explain staying over, even if it was at her own niece’s apartment.

Mr. Frazer testified that on March 4th, 2010, the whole family was socializing together along with R during the evening. Then R’s uncle and his two daughters went to bed, leaving R’s aunt, Mr. Frazer and R. He said they talked about life in general until the children went to bed and then the conversation became “more adult.” He and R’s aunt were drinking beer and whiskey. He said he had one or two beers and one or two whiskeys and a small amount of marijuana. He denied being intoxicated even slightly and denied that his judgment was impaired in any way. Indeed, he denied ever having enough alcohol in his life to even know what that might feel like.

According to Mr. Frazer, on at least three occasions during this time R lifted her tank top and displayed her bare breasts to show how having had a baby had affected them. He said she did this once while her aunt was in the washroom but also on more than one occasion in the presence of her aunt. He denied that R ever breastfed the baby. He said she had no breast milk because she had not been eating properly.

On cross-examination Mr. Frazer was asked if this breast-bearing conduct struck him as unusual. He said “a little bit” but he was not shocked because she had been flirtatious with him before. According to Mr. Frazer he had picked up on “feelings” from before at the apartment painting encounter based on the nature of their eye contact and the fact that R said she would come to Scarborough.

At first, in cross-examination, Mr. Frazer denied thinking that a sexual encounter with R would be inappropriate because of his prior relationship with her aunt. He explained that “a long time had gone by” since his sexual relationship with R’s aunt and it was no longer an issue. However, when asked if R’s aunt would be upset or hurt if she found out, he said it was “definitely a possibility.”

According to Mr. Frazer, he first met R’s aunt in July 2007 at a local bar. He said they were “going through similar things” in their lives and that he heard R’s aunt discussing her situation with a waitress. He said they had an “affinity for one another” because of their “similar life circumstances.” They had a sexual affair after that meeting, which Mr. Frazer said was “very short.” In cross-examination, he denied being intimate with R’s aunt up to the time of March 2010. He said that aspect of their relationship had been a year or so before, after which he became “like part of the family.” Indeed, he suggested in examination in-chief that the affair “helped keep her marriage together.”

C. Analyis

1. General Approach

Essentially this case depends entirely on the credibility of the complainant. She testified that she did not consent to having sex with Mr. Frazer. The sexual conduct is admitted. The onus remains on the Crown throughout to establish beyond a reasonable doubt that R did not consent to this sexual contact. Mr. Frazer testified in his own defence, and the principles established in R. v. W.D. therefore apply. This cannot simply be reduced to a credibility battle as between Mr. Frazer and R. It is not a matter of which evidence I prefer but whether the Crown has proven each essential element beyond a reasonable doubt. Obviously if I believe Mr. Frazer, he is not guilty. He testified that he asked R if he should proceed and that he said “yeah.”

Further, even if I did not fully believe him, if his evidence, along with the other defence evidence, causes me to have a reasonable doubt, he is entitled to the benefit of that doubt and to a verdict of not guilty.

Finally, even if the defence evidence does not cause me to have a reasonable doubt, I must look at the whole of the evidence, including that of the defence, and determine whether I am satisfied beyond a reasonable doubt that R did not consent to having sex with Mr. Frazer.

2. Evidence of R’s Aunt and Uncle

The testimony of R’s uncle does not have any bearing on the issue of consent. R’s aunt was not present for the incident itself, but her testimony does have some impact on my assessment of credibility. The hostility of R’s aunt towards her niece was palpable. It was apparent not only in what she said but in her tone of voice and demeanour when speaking about her niece. It was abundantly clear to me that R blames her niece for this whole incident and that the thing that upsets her most is that she did not “keep her mouth shut” about it.

R’s aunt continues to be favourably disposed to Mr. Frazer. Her gratuitous comments about her niece’s character or history of “problems” are irrelevant to anything I have to decide. I have ignored them, both because they appear to me to stem from the aunt’s clear animus towards her niece and also because they are not relevant.

2. Credibility of Mr. Frazer

I have significant difficulties with Mr. Frazer’s evidence. His chronology of events makes no sense. There is a large, unexplained time gap. Mr. Frazer said he dropped R’s aunt off at work. Her shift started at midnight. There was general consensus in the evidence that he left at about 11 p.m. He said it was about a one-hour round trip. Even assuming that he dropped R’s aunt off at the stroke of midnight, that would put him back at about 12:30. He testified that he “might” have stopped for a coffee on the way back. Even if he had, that would not account for more than 15 minutes. That would make it 12:45. He also testified that he had stopped by his ex-wife’s apartment at her request to check on their 16-year-old daughter, who was home alone that night. According to Mr. Frazer, he called his daughter on the phone and knocked on the door but got no response. He therefore assumed she was asleep. He testified that he just wanted to be sure there were no lights on and no party going on and he was satisfied by what he found. I must confess, I find that to be bizarre, as it is easily consistent with his daughter not being home at all. However, even if I accept it as true, it cannot have added more than about half an hour to his return time.

Mr. Frazer testified he arrived back at R’s aunt’s home at between 1:30 and two o’clock. That seems late given the limited amount of activity he described from 11 p.m. However, it is not wholly impossible and I will accept it as true.

According to Mr. Frazer, the oldest daughter of R’s aunt and uncle came downstairs at about five a.m. to get ready for school. Again, I find it hard to believe that a teenager would get up at that hour to get ready for school, given that her father drove her to school no earlier than about 7:30 a.m.

However, even if I accept that the daughter was up at five o’clock a.m., Mr. Frazer’s account of his activities between 1:30 or two o’clock and five o’clock does not add up. He said he went to the kitchen briefly, then went into the living room to see R. He said that encounter was two to two-and-a-half minutes. R said it was ten minutes.

Mr. Frazer said he then went out for a cigarette and came back and talked to R for about one hour. At most, this would be a total of an hour-and-a-half after he returned to the house, whereas there are three-and-a-half hours unaccounted for. Later in his cross-examination, Mr. Frazer said he and R may have been talking for half an hour or one-and-a-half hours or more. That still does not add up.

I also found Mr. Frazer to be evasive about his drinking. He said he had only one to two beers and one to two whiskeys and had nothing after he left to take R’s aunt to work at 11 p.m. R testified that she was asleep when Mr. Frazer came in and that he woke her up and was talking to someone on the phone and making dirty comments. She said he was walking around in the kitchen and dining room area while doing that and from the way he was talking he sounded intoxicated. He also said that as he was rubbing her legs and trying to pull down her pants he seemed “zoned out” and “not all there.” She equated it to the way people sometimes act in a bar. She also noted that the next morning the whiskey bottle in the kitchen was empty but she was not able to say who drank how much of it or when.

However, she was adamant in her evidence that Mr. Frazer was intoxicated. According to R, Mr. Frazer passed out on the floor shortly after her cousin came downstairs, which was as it was getting light outside. It is apparent that Mr. Frazer did not stir when R’s uncle and the other daughter came downstairs or when everybody, including R and the baby, departed. That conduct is at least consistent with Mr. Frazer having passed out while under the influence of alcohol as opposed to having merely fallen asleep.

Finally, R’s aunt testified that when she spoke to Mr. Frazer in the morning, which was sometime after eight o’clock a.m., she could smell alcohol on his breath. Although R’s aunt initially denied this at trial she admitted it when confronted with her prior inconsistent statement on the issue. I find Mr. Frazer to be untruthful about his drinking. Either he had far more to drink before 11 p.m. than he has admitted, or -- and this is more likely -- he continued to drink upon returning to the house and before he went into the living room, where R was sleeping.

I also find Mr. Frazer exaggerated the extent of the contact between him and R at the time of the apartment painting. R said she was only in the apartment for “a few minutes” while Mr. Frazer was there. R’s aunt, who was certainly not seeking to bolster her niece’s case in any way, testified that R was present while Mr. Frazer was there for about half an hour. Mr. Frazer, on the other hand, testified they were together for an hour in the apartment and were also together to have pizza in R’s apartment, a detail not put to either R or her aunt.

Mr. Frazer claims to have been present when R invited both him and R’s aunt to spend the night. He said R’s aunt refused, as this would have been hard for her to explain to her husband. R’s aunt did not corroborate that evidence. She said that she was alone with R when the offer was made and that she told her niece that Mr. Frazer would never stay at an apartment with a dog that had worms. This detail was not put to R.

On balance, I find that Mr. Frazer exaggerated the extent of the contact between him and R on that occasion. Even if the contact was more than the few minutes recalled by R, it was not as long, nor as extensive, as described by Mr. Frazer.

I also reject Mr. Frazer’s evidence that on at least three occasions during the evening of March 4th R pulled up her shirt and displayed her bare breasts to him, ostensibly to illustrate the changes in her body since she had the baby. On his own evidence, two of these displays were in front of R’s aunt. R’s aunt, who was only too willing to recount any detail of her niece being flirtatious, failed to mention this activity. She said that R was attempting to breastfeed the baby, but Mr. Frazer denied that this was the activity he was describing. R recalled breastfeeding the baby but was not asked if she was having any difficulty doing so. Either way, the conduct described by Mr. Frazer was clearly not breastfeeding. If it had been seen by R’s aunt, she would have been eager to tell the Court about it. I conclude that it did not happen. It is another example of Mr. Frazer exaggerating R’s conduct towards him in order to paint a picture of a young woman happy to receive his sexual advances.

Mr. Frazer’s testimony was not always internally consistent with respect to the evolution of the sexual encounter itself. The first time he described the incident, he said that when he heard R was awake in the living room, he went to the couch, said hello, and rubbed her leg. He said he was petting the dog too but said that more as an afterthought. He then said that he rubbed R’s leg further and said, “No or yes?” and that she didn’t respond other than to say, “Yeah.”

On cross-examination, however, Mr. Frazer said that he was petting the dog and inadvertently touched R’s leg. He said he then continued touching her leg and said, “No or yes?” and that R “just sighed.” He then explained in words to the effect of “I basically said, ‘Can I continue?’ and she basically said, ‘Yeah.’” It was only after further cross-examination that he said that R was looking at him and said one word: “Yeah.”

This is a very crucial piece of evidence and Mr. Frazer’s evidence on the issue was extremely vague and not fully consistent.

Finally, R’s aunt testified that when she told Mr. Frazer that her niece was accusing him of sexual assault, he was very upset and crying. Mr. Frazer denied this. He said his only emotion was to be confused and surprised. He also implied in his evidence in-chief that he was unconcerned about the allegation. He said he called the police and said he would come in, explaining “I didn’t believe they could hold me on someone’s hearsay.” I do not believe Mr. Frazer’s evidence on this point. I believe R’s aunt that Mr. Frazer was upset and crying.

That does not mean I consider this to be an indication of guilt. Being upset and crying is also consistent with being confronted with a false accusation of sexual assault. However, it is an indication that Mr. Frazer is quite willing to lie under oath when he thinks it is likely to serve his purposes to do so. He is not a truthful witness. I do not believe his account of the event. Further, there are too many gaps, incongruities and inconsistencies to give rise to a reasonable doubt based solely on his evidence. There was also no other defence evidence to give rise to a reasonable doubt on this issue.

That is, of course, not the end of the exercise. I must still step back and examine the evidence as a whole to determine if I am satisfied beyond a reasonable doubt that R did not consent to having sex with Mr. Frazer. On this point, the issue is not what Mr. Frazer believed reasonably, honestly, or otherwise. The issue is whether the complainant in her own mind was consenting to the sexual activity at each step of the process. As was stated by Justice Major in R. v. Ewanchuk, “The absence of consent…is subjective and determined by reference to the complainant’s subjective internal state of mind towards the touching at the time it occurred”: R v. Ewanchuk 1999 [1999] 1 SCR 330 at para 26 (see also R. v. J.A. 2011 SCC 28, [2011] SCC 28 [2011] 2 SCR 440, in which these principles were recently reaffirmed.)

What the complainant said and did at the time of the touching may be some indication of her subjective state of mind but is not always determinative. In J.A., Chief Justice McLachlin, writing for the majority, emphasized the difference in approach to an actus reus defence (that is, whether there was consent) and a mens rea defence (i.e. whether the accused believed there was consent), the Chief Justice held at paragraph 37:

“The provisions of the Criminal Code that relate to the mens rea of sexual assault confirm that individuals must be conscious throughout the sexual activity. Before considering these provisions, however, it is important to keep in mind the differences between the meaning of consent under the actus reus and under the mens rea: Ewanchuk, at paras. 48-49. Under the mens rea defence, the issue is whether the accused believed that the complainant communicated consent. Conversely, the only question for the actus reus is whether the complainant was subjectively consenting in her mind. The complainant is not required to express her lack of consent or her revocation of consent for the actus reus to be established.”

I believe the complainant’s testimony that she did not want to have sex with Mr. Frazer and did not consent to it. I found her evidence to be coherent, consistent and compelling. R testified that her first reaction was to simply freeze when Mr. Frazer was stroking her leg. She said she pretended to be asleep, hoping he would go away. She also acknowledged that she did not say “no” to Mr. Frazer until the actual point at which he pulled down her pants and entered her vagina. Quite simply, I believe her evidence on this. If she was inventing a story about being sexually assaulted, I am confident she would have also have invented a refusal by her at an early stage, not just at the very point of penetration. I also doubt that she would have willingly engaged in sex with a virtual stranger while her baby was right next to her, particularly since the baby carrier was right next to the couch and easily available. R’s description of Mr. Frazer’s abrupt change of behaviour when she started crying harder is also compelling. Again, this does not strike me as a detail she would invent if she was making up a story about sexual assault.

The defence pointed to R’s failure to cry out for help or to make a fuss to attract the attention of her uncle and cousin’s upstairs. In my view, R adequately explained her actions. She was shocked and confused and did not want her young cousins to see what was happening. The whole thing was only a matter of a few minutes. Her baby was lying right next to her. I do not take R’s failure to struggle or cry out to be any indication of her willing consent to the sexual contact initiated by Mr. Frazer.

Likewise, I am not troubled by R’s failure to report the matter to her uncle as soon as he came downstairs that morning. By that time, Mr. Frazer had passed out and R’s two young cousins were around. What is striking to me, however, is that as soon as her young cousins were out of the car and R was alone with her uncle, she told him what happened. Also instructive is R’s uncle’s evidence that the first thing R was concerned about was that Mr. Frazer should not be in the house with her young cousins. He noted as well that she was upset and crying.

No two people react exactly the same way at the time of a sexual assault, nor in its aftermath (see R. v. D.D.). However, I find R’s conduct at the time and afterwards to be quite consistent. She was concerned throughout to safeguard her young cousins. I also find her actions to be fully consistent with her evidence that she did not consent to the sexual touching by Mr. Frazer. I am satisfied beyond a reasonable doubt that R did not in her own mind consent to sexual contact with Mr. Frazer. Subjectively she did not consent.

I am therefore satisfied beyond a reasonable doubt that there was no actual consent and that the test for the actus reus of sexual assault is met.

D. Analysis: Reasonable but Mistaken Belief in Consent

The defence argues in the alternative that Mr. Frazer had an honest but mistaken belief that R was consenting to the sexual activity that took place. Essentially this is a defence akin to mistake of fact: Pappajohn v. the Queen 1980, [1980] 2 SCR 120. It involves the mens rea of the accused as opposed to the actus reus of the offence. Both the common law and the Criminal Code impose some restrictions on the extent to which an accused can rely on his own belief as to the complainant’s consent to sexual activity. In particular, s. 273.1(2)(d) and (e) of the Criminal Code stipulate that there is no consent where:

(d) the complainant expresses by words or conduct a lack of agreement to engage in the activity; or

(e) the complainant, having consented to engage in activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.

Further, s. 273.2 provides that the honest but mistaken belief in consent defence is not available where:

(a) the accused’s belief arose from the accused’s (i) self-induced intoxication or (ii) recklessness or wilful blindness; or

(b) the accused did not take reasonable steps in the circumstances known at the time to ascertain that the complainant was consenting.

Accordingly, it is not sufficient for the accused to have subjectively believed the complainant is consenting.

The Supreme Court of Canada described this test this way at paragraph 48 of R. v. J.A.:

“The cases on the mens rea defence of honest but mistaken belief in consent take the same view. At common law, this was a standard defence of mistake of fact: the accused was not guilty if he honestly believed a state of facts, which, if true, would have rendered his conduct lawful: Pappajohn v. The Queen, 1980 CanLII 13 (SCC), [1980] 2 S.C.R. 120, at pp. 134 and 139. In Ewanchuk, this Court held that it is not sufficient for the accused to have believed that the complainant was subjectively consenting in her mind: ‘In order to cloak the accused’s actions in moral innocence, the evidence must show that he believed that the complainant communicated consent to engage in the sexual activity in question.’ (para. 46)

See also Park, at para. 39 (per L’Heureux-Dubé, J.) It thus is 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. This is impossible if the complainant is unconscious.”

The principle is also well-stated by Justice Harris in R. v. Campbell [2012] ONCJ 86 at paras 45 and 46:

“As with the actus reus of the offence, consent is an integral component of the mens rea, only this time it is considered from the perspective of the accused. Speaking of the mens rea of sexual assault in Park supra at par 39, L’Heureux-Dubé, J. (in her concurring Reasons) stated that:

‘…the mens rea of sexual assault is not only satisfied when it is shown that the accused knew that the complainant was essentially saying no but is also satisfied when it is shown that the accused knew that the complainant was essentially not saying yes.’

In order to cloak the accused’s actions in moral innocence, the evidence must show that he believed that the complainant communicated consent to engage in the sexual activity in question. A belief by the accused that the complainant in her own mind wanted him to touch her but did not express that desire is not a defence. The accused’s speculation as to what was going on in the complainant’s mind provides no defence.”

Although this defence involves the state of mind of the accused, it does not shift the burden to the accused to prove anything. The burden remains on the Crown to prove the offence beyond a reasonable doubt. The principles established in W.D. are also directly applicable. I have already reviewed my difficulties with the credibility of Mr. Frazer’s evidence and will not repeat that here. I found Mr. Frazer to be untruthful in several material respects. His testimony does not satisfy me of anything and does not give rise to a reasonable doubt.

For purposes of this defence, however, I will deal specifically with three critical issues of fact:

1. Mr. Frazer testified that before he started any touching he had eye contact with R and was speaking to her;

2. He testified that he asked her if he could proceed, by saying, “Yes or no?”;

3. He testified that she responded, “Yeah”.

I believe that Mr. Frazer asked the question, “No or yes?” at an early stage of the physical contact between him and R. It may just have been the word “No?” in a questioning voice, as described by R, or it may have been both the words “Yes or no?” in that same tone of voice. Either way, the question was asked.

I do not believe Mr. Frazer’s evidence that he was speaking to R before he started touching her legs. Whether his initial touching was inadvertent, as part of touching the dog, or deliberate, I accept R’s evidence that at this point she was feigning that she was asleep, hoping Mr. Frazer would go away. It was only after Mr. Frazer had already initiated the sexual touching that he asked the question.

I also do not believe Mr. Frazer’s evidence that R said “Yeah” to the question he asked. It may well be that R made some sound that he interpreted to be a “sigh”, indicating a sign of approval. His own evidence at one point supports such a finding. However, I do not believe R gave an affirmative answer to his question. On the contrary, I believe R’s evidence that she was crying during this encounter, that she turned her head away when Mr. Frazer took down his pants and put his penis near her face, and that she specifically said, “No, no, no” when Mr. Frazer penetrated her.

I found R’s evidence about her concern for her crying baby to be extremely convincing, a detail that clearly was remembered and not fabricated. I also found her evidence about Mr. Frazer’s sudden change of heart to be extremely persuasive.

If I had accepted Mr. Frazer’s evidence that R told him “Yeah” when he asked if he could proceed and that R never retracted that consent up until the time Mr. Frazer stopped on his own because of the baby crying, I would find him not guilty of sexual assault. However, I do not believe him and I do not have a reasonable doubt based on his evidence.

Notwithstanding Mr. Frazer’s evidence to the contrary, I find as a fact that he suddenly realized during the act of intercourse that R was not consenting and that he immediately stopped and that he was immediately remorseful. I believe the evidence of R on these points. Her evidence makes sense and fits with the timeline. I am sure that this event unfolded as she has described.

While I do believe R’s evidence that she was crying and that she said, “No, no, no” as Mr. Frazer was penetrating her, it does not necessarily follow that Mr. Frazer heard the word “No” or understood that what R was saying was “No.” She was crying and she was trying not to make too much noise. He was drunk, or at the very least had been drinking to the point where his judgement was impaired. I also note that on R’s own evidence she did not fight with Mr. Frazer and did not say “No” right up to the point of penetration.

Although this was not Mr. Frazer’s own version of events, I have considered whether on the evidence of R there might still be a defence of honest but mistaken belief in consent. I am satisfied that the defence does not apply. Whatever might have been Mr. Frazer’s subjective belief, it was not reasonable in the circumstances. R may not have said “No” clearly, but she most definitely did not communicate a consent. On the contrary, she was uncooperative (pulling her pants up when Mr. Frazer pulled them down and turning her face away from him when he approached her.) Further, she was weeping. Most importantly, she did not communicate her consent and Mr. Frazer did not take reasonable steps to ascertain he had her consent before proceeding.

I therefore find that the defence of reasonable but mistaken belief in consent has not been made out.

E) Conclusion

Mr. Frazer initiated sexual activity with R and proceeded all the way through to actual intercourse. The complainant R did not consent to this contact. Further, Mr. Frazer failed to take reasonable steps to ascertain whether she was consenting. He asked only one question, to which the complainant either made no response or a response that could not reasonably be interpreted as “yes”.

In these circumstances, the defence of honest but mistaken belief in consent does not apply. Accordingly, I find Mr. Frazer guilty of sexual assault, as charged.

I, Alana Trumpy, certify that this document is a true and accurate recording, made out to the best of my ability, with judicial edits, of R v. Neil Frazer, taken from Recording No. 007, 008 at the Superior Court of Justice, 361 University Ave.

Date ________________________

Signature ___________________

Copies of this transcript bearing photostatic signatures are not certified and have not been paid for. Unless transcripts bear the original signature of Alana Trumpy, IN BLUE PEN, they are not valid, and accordingly, are in direct violation of Ontario Regulations 587/91, Court of Justice Act, January 1, 1990.