ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 819/12
DATE: 20130130

BETWEEN:

HER MAJESTY THE QUEEN

B. Linley, for the Crown

• and -

G.A.

H. Thompson, for the Defendant

DEFENDANT

HEARD: January 21, 2013

REASONS FOR JUDGMENT

Conlan J.

Introduction

1The Royal Canadian Legion is one of this country’s finest and best known institutions.

2According to K.C., its branch in Kincardine, Ontario was the site of a sexual assault committed by a long-time member of the Legion and Canadian Forces veteran against her, an employee and member.

3G.A. stands charged with one count of sexual assault.

4The Indictment, as amended, reads as follows:

G.A. stands charged that on or about the 20th day of January, 2012 at the Municipality of Kincardine in the said region did commit a sexual assault on K.C., contrary to section 271 of the Criminal Code of Canada.

5This trial took place in Walkerton over less than one full day including closing submissions by counsel. There were four witnesses total including the complainant and the accused.

6A publication ban has been issued regarding the name and identity of the complainant.

Elements of the Charge

7For the Court to find G.A. guilty of sexual assault, I must find that the Crown has proven each of these essential elements beyond a reasonable doubt.

a. that G.A. intentionally applied force to K.C.;

b. that K.C. did not consent to the force that G.A. intentionally applied;

c. that G.A. knew that K.C. did not consent to the force that G.A. intentionally applied; and

d. that the force that G.A. intentionally applied took place in circumstances of a sexual nature.

8If Crown counsel has not satisfied the Court beyond a reasonable doubt of each of these essential elements, I must find G.A. not guilty of sexual assault.

9If Crown counsel has satisfied the Court beyond a reasonable doubt of each of these essential elements, I must find G.A. guilty of sexual assault.

Fundamental Principles

10The burden of proof is on the Crown. The Crown must prove, beyond a reasonable doubt, each essential element of the charge against G.A. Evidence amounting to likely or probable guilt is not enough.

11G.A. is presumed to be innocent of the charge. He has no burden of proof.

12There is no question that G.A. intentionally applied force to K.C. – both the complainant and the accused agree on that. That has been proven beyond a reasonable doubt.

13There is no question that the force that G.A. intentionally applied to K.C., specifically that force which both the complainant and the accused agree about - the “French kiss” and the touching of the breast, took place in circumstances of a sexual nature. That has been proven beyond a reasonable doubt.

14The normal W.(D.) instruction must be modified in this case because of the fact that G.A.’s evidence at trial, even if accepted, may still result in a finding of guilt.

15G.A.’s evidence at trial was that K.C. consented to the sexual touching, or alternatively, that he believed that K.C. consented. If I accept that evidence of G.A., then I must find him not guilty on the basis that the Crown has failed to prove the second or third elements of the charge. If I do not accept that evidence of G.A., I must find him not guilty if that evidence leaves me in a reasonable doubt as to the second or third elements of the charge. If the evidence of G.A. does not leave me in a reasonable doubt, I must find him not guilty unless the evidence that I do accept persuades me of his guilt beyond a reasonable doubt.

A Brief Summary of the Evidence

16Because this trial was so short and these Reasons for Judgment are being delivered less than 48 hours after the conclusion of closing submissions by counsel, what follows is only a brief summary of the most essential evidence at trial.

K.C., the Complainant

17K.C. testified that, while at work cleaning the Legion building in Kincardine during the morning of Friday January 20, 2012, G.A. arrived at the premises.

18After a brief exchange between the two of them, G.A. made what K.C. perceived to be a sexual comment, “as long as it keeps ticking I keep licking”. After moving close to her, G.A. wished her a happy new year. She was holding a mop. His left hand went up the bottom of her t-shirt and up under her bra and touched her right breast. His other hand touched her crotch area outside of her jeans. He kissed her with his tongue in her mouth.

Barbara Forrest

19Ms. Forrest is the Treasurer of the Legion Branch in Kincardine and a member.

20At the Legion premises on the Monday morning following the alleged incident between K.C. and G.A., K.C. told Ms. Forrest what happened. K.C. was crying and upset.

21Ms. Forrest recommended that K.C. speak with the police and the Legion Branch President, Maureen Couture.

Maureen Couture

22Six days after the alleged incident between K.C. and G.A., while at the home of Ms. Couture which K.C. cleaned on a regular basis as part of her own cleaning business, K.C. told Ms. Couture what happened. K.C. was upset and crying.

23Ms. Couture soon after advised K.C. to contact the police.

The Accused, G.A.

24G.A. testified that the first contact between him and K.C. on the date in question was a greeting at the Legion premises that morning, followed by him wishing her a happy new year, followed by him giving her a friendly kiss on the lips.

25Later that morning, there was another physical exchange between the two of them as he was about to leave the building. He approached her. He gave her a kiss with an open mouth and his tongue. She made a groan which suggested to him her pleasure. He had his hand on her breast over top of her clothing, which clothing he said was different on top than what K.C. had described. She said something like “that’s just my bra”. He then put his hand down her shirt from the top while she was holding a mop. He placed his hand underneath her bra and on her breast. That lasted about 5 to 7 seconds. He left very shortly thereafter as he had an appointment at a travel agency with his common law wife.

A Brief Summary of the Positions of Counsel

The Defence

26The issue raised by the Defence is honest but mistaken belief in consent on the part of G.A.

27The Defence argues that K.C. was not a credible witness in that several things are strange about her evidence including her lack of complaint that day even though other persons were present at the Legion building; her continued work cleaning the premises throughout the morning after the alleged sexual assault; her continued contact with G.A. at the premises after the alleged sexual assault; and her testimony that she wondered why G.A. had done what he did immediately afterwards.

The Crown

28The Crown says that there is no evidence of consent or honest but mistaken belief in consent, even on the testimony of G.A.

29And the Crown submits that K.C. was a credible and reliable witness whose reaction to what happened was not at all unusual.

30The Crown filed and relies on two Court decisions with regard to issues of consent and honest but mistaken belief in consent: Regina v. Ewanchuk, 1999 711 (SCC), [1999] S.C.J. No. 10 (Supreme Court of Canada) and Regina v. J.A., 2011 SCC 28, [2011] S.C.J. No. 28 (Supreme Court of Canada). I have read and considered those decisions. They are leading authorities from this country’s highest Court. They are binding on me, and I have followed them with regard to the law.

Analysis and Conclusion

31Even considering the evidence of G.A., there is no issue about whether G.A. intentionally applied force to K.C. (element number one) in circumstances of a sexual nature (element number four). He admits those things. Those elements of the charge have been proven beyond a reasonable doubt.

32This case does not turn on credibility. It does not depend on a resolution of the conflict in the testimony between K.C. and G.A. Having said that, because it was raised by counsel for the Defence, I will comment on the evidence of the complainant and the accused.

33The complainant struck me as a credible and reliable witness. Her demeanour in the witness box was confident though she was upset at times when describing the sexual touching. Her answers to the questions were sharp, direct and responsive. Her evidence did not contain any material inconsistencies or contradictions. She did not embellish the incident described. She was detailed in her account of what happened at the Legion that morning. Nothing about her evidence was fanciful or contrary to common sense.

34G.A.’s demeanour in the witness box was rather flat and disinterested, although I place little weight on that. His memory was not stellar but sufficient. Where his evidence differs from that of the complainant, I am prepared to give G.A. the benefit of the doubt and accept his evidence.

35In cross-examination by the Crown, G.A. made a series of very important admissions. First, that after the friendly happy new year kiss which he says he gave to K.C. earlier in the morning, he “figured” that she would not mind another kiss. Second, that he never asked K.C. whether she wanted or was consenting to another kiss. He took no active steps in that regard. Third, that he “assumed” K.C. would be okay with another kiss. He “thought so”. Fourth, that he had no prior knowledge at all that K.C. would in fact agree or consent to the second kiss. And fifth, with regard to K.C.’s comment “that’s just my bra”, he considered that to be an invitation to go further and feel her breast.

36In cases of an alleged sexual assault, honest but mistaken belief in consent deals with the state of mind of the accused. The Crown may prove that an accused knew that the complainant did not consent to the sexual touching (i) by evidence that the accused was actually aware of the fact that the complainant did not consent; or (ii) recklessness on the part of the accused; or (iii) willful blindness on the part of the accused.

37The question is whether there is on the evidence something which shows that the accused believed that the complainant communicated consent to engage in the sexual activity in question. There is no burden of proof on the accused. And the accused need not testify or call any evidence. The evidence that the complainant communicated consent does not have to be words on the part of the complainant; it could be actions of some sort on the part of the complainant.

38The defence of honest but mistaken belief in consent is simply a denial of mens rea.

39The testimony of K.C., by implication, was that she did not consent to the “French kiss” and the touching of her breast and crotch area. I say by implication because K.C. was not asked specifically whether she consented. Her evidence clearly points to that conclusion, however. She said that it happened suddenly and unexpectedly. She was shocked. She froze. She was stunned and upset.

40There is nothing in the evidence of G.A. which leaves me with a reasonable doubt as to whether K.C. consented to the “French kiss” or him touching her breast.

41Even on the testimony of G.A., the only possible evidence of consent on the part of K.C. to the “French kiss” is the earlier friendly happy new year kiss shared between them. Even accepting that as having happened, it is unreasonable to suggest that a friendly happy new year kiss amounts to consent to a “French kiss” later in the morning. These two persons were near strangers who hardly knew each other and had barely spoken. The former is not contact of a sexual nature. The latter surely is.

42I am satisfied that the Crown has proven beyond a reasonable doubt that K.C. did not consent to the “French kiss”.

43On the testimony of G.A., the only possible evidence of consent on the part of K.C. to the touching of her breast is the earlier friendly happy new year kiss shared between them, her alleged moan or groan during the “French kiss” and her comment to G.A. to the effect “that’s just my bra”.

44Even accepting that evidence, it is unreasonable to suggest that a friendly happy new year kiss amounts to consent to the groping or fondling of one’s breast later in the morning. The former is not contact of a sexual nature. The latter surely is.

45It is equally unreasonable to suggest that a groan or moan by K.C. during the “French kiss” amounts to her consent to the groping or fondling of her breast. The groan or moan was, at its highest in favour of G.A., equivocal.

46Finally, it is unreasonable to suggest that a comment “that’s just my bra” amounts to consent to the groping or fondling of K.C.’s breast. Again, that is equivocal.

47None of these things, individually or collectively, gives me any reasonable doubt as to whether K.C. consented to the groping or fondling of her breast. She did not consent. The Crown has proven that beyond a reasonable doubt.

48The Crown has similarly proven beyond a reasonable doubt that G.A. knew that K.C. did not consent to the “French kiss” or the touching of her breast. Even on the evidence of G.A. and ignoring the alleged rebuke of him earlier that morning testified to by K.C., his supposed honest but mistaken belief that K.C. consented to the sexual contact is based merely on his assumptions in the face of what he admits was nil knowledge on his part that K.C. would agree or consent to the “French kiss”.

49G.A.’s assumption; his “figuring” of what K.C. wanted – that cannot provide any defence. The accused’s speculation provides no defence in these circumstances: Ewanchuk, supra.

50I agree with counsel for G.A. that brief sexual encounters are not to be assessed like business contracts between two persons. The question is whether there is on the evidence something which shows that the accused believed that the complainant communicated consent to engage in the sexual activity in question. There is not.

51The Crown has proven beyond a reasonable doubt that G.A., through recklessness or willful blindness, knew that K.C. did not consent to the “French kiss” or the touching of her breast.

52In summary, the “French kiss” and the touching of the breast amount to intentional force applied by G.A. to K.C., in circumstances of a sexual nature, without her consent, and in the absence of any honest but mistaken belief in consent on the part of G.A. The four essential elements of the charge of sexual assault have been proven by the Crown beyond a reasonable doubt.

53I find G.A. guilty of the charge before the Court.

Conlan J.

Released: January 30, 2013