ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-12-50000815
DATE: 20131017
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
GORDON THOMPSON
Carolyn Fineberg, for the Crown
David O’Conner, for the Accused
HEARD: September 17-20, and 23, 2013
Subject to any further Order of a court of competent jurisdiction, an Order has been made in this proceeding, pursuant to s. 486.4 of the Criminal Code, directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast or transmitted in any way.
K.L. Campbell J.
I
Overview
[1] The accused, Gordon Thompson, is charged with having sexually assaulted the complainant in Toronto on November 16, 2011. At the time of the alleged offence, the female complainant was 17 years old, while the accused was 42 years of age. They met on the internet. The young complainant ran away from home and came to stay briefly with the accused, who paid for her bus ticket to the city. It was during this brief stay at the accused’s Toronto residence that the alleged sexual assault took place.
[2] Essentially, the Crown contends that, at one point during her overnight stay with the accused, the complainant woke up to find the accused behind her in bed having sexual intercourse with her. He was not wearing a condom. The complainant told him to “stop,” but it was only after she repeated this demand twice more that the accused finally ceased.
[3] The accused admits that he had sexual intercourse with the complainant, but he contends that the complainant was awake and conscious at the time, and fully consented to the intercourse, just as she did to all of the sexual activity that took place between them that night.
II
The Governing Legal Principles
A. The Elements of the Offence of Sexual Assault
[4] The accused is charged with the offence of sexual assault contrary to s. 271 of the Criminal Code, R.S.C. 1985, c. C-46. In order to establish this offence, the Crown must prove all of the following essential elements of the crime beyond a reasonable doubt: (1) that the accused intentionally touched the complainant in circumstances of a sexual nature that compromised the sexual integrity of the complainant; (2) that the complainant did not consent to this touching; and (3) that the accused knew that the complainant was not consenting to the sexual touching, or was reckless or wilfully blind in relation to whether the complainant was consenting.
B. The Issue of Consent
- Introduction
[5] There is no doubt that on the night in question the complainant and the accused engaged in an act of sexual intercourse. But their evidence diverges sharply as to how this act of intercourse took place. They agree that, earlier in the evening, they engaged in a variety of fully consensual sexual activities together. It is only with respect to the act of sexual intercourse that they disagree.
[6] The complainant testified that, while she would have willingly had sexual intercourse with the accused if he had worn a condom, she refused to have intercourse with him without a condom. The complainant explained that, at that time in her life, she was concerned about the possibility of pregnancy and sexually transmitted diseases, and she would not engage in unprotected sexual intercourse. According to the complainant, after she fell asleep the accused seized the opportunity to begin to have sexual intercourse with her, without a condom and without her consent.
[7] Upon his arrest, the accused provided a detailed videotaped statement to the police, and the Crown tendered this admittedly voluntary statement into evidence. In this statement the accused explained how their consensual sexual activities were such as to cause them to become so aroused and passionate that they engaged in sexual intercourse without the use of a condom.
[8] The main issue in this case, accordingly, is whether or not the Crown has established with the requisite degree of certainty that the complainant did not consent to the sexual intercourse that took place between them.
- The Applicable Legal Principles Concerning the Issue of Consent
[9] While there is no serious issue between the parties as to the applicable legal principles concerning consent, it will nevertheless be useful, at the outset, to briefly articulate those governing principles.
[10] According to s. 273.1(1) of the Criminal Code, subject to s. 273.1(2) and s. 265(3), the term “consent,” for the purposes of s. 271, means “the voluntary agreement of the complainant to engage in the sexual activity in question.” This provision makes it clear that a complainant may consent to some types of sexual activity but not others. Consent to some types of sexual conduct is not consent to all. In short, without the voluntary agreement of a complainant, any type of sexual activity is non-consensual and unlawful.
[11] According to s. 273.1(2) of the Code, no consent is obtained, for the purposes of s. 271, where: (a) the agreement is expressed by the words or conduct of a person other than the complainant; (b) the complainant is incapable of consenting to the activity; (c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority; (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 sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity. By virtue of s. 273.1(3), this statutory expression of the circumstances in which there is “no consent” is not meant to limit the circumstances in which no consent is obtained.
[12] According to s. 273.2 of the Code, it is not a defence to a charge under s. 271 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where: (a) the accused’s belief arose from the accused’s self-induced intoxication, or recklessness or wilful blindness; or (b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting. As noted by Abella J.A., in delivering the judgment of the Court of Appeal for Ontario in R. v. Cornejo (2003), 2003 26893 (ON CA), 68 O.R. (3d) 117, at para. 21, leave denied: [2004] S.C.C.A. No. 32, the purpose underlying the enactment of this provision was to ensure “there is clarity on the part of the participants to the consent of the other partner to sexual activity,” and to replace the inappropriate, traditional assumptions that had been made about the legal role of mere “passivity and silence” on the part of a complainant.
[13] According to s. 265(3) of the Code, no consent is obtained where the complainant submits or does not resist by reason of: (a) the application of force to the complainant or to a person other than the complainant; (b) threats or fear of the application of force to the complainant or to a person other than the complainant; (c) fraud; or (d) the exercise of authority.
[14] Importantly, in R. v. A.(J.), 2011 SCC 28, [2011] 2 S.C.R. 440, at paras. 3, 31-50, 65-66, the Supreme Court of Canada concluded that these statutory provisions require that, in order to provide legally effective consent, the complainant must provide present, active, ongoing, conscious consent throughout the course of the sexual activity in question. In short, consent can flow only from a conscious, operating mind. Accordingly, as McLachlin C.J.C. concluded, at para. 66, in delivering the judgment of the majority of the court, “[a]ny sexual activity with an individual who is incapable of consciously evaluating whether she is consenting is therefore not consensual within the meaning of the Criminal Code.” See also: R. v. Ashlee, 2006 ABCA 244, 391 A.R. 62, at para. 40, leave denied: [2006] S.C.C.A. No. 415.
[15] Further, in alleged cases of sexual assault there is no defence of “implied consent.” As Major J. stated, in delivering the judgment of the majority of the court in R. v. Ewanchuk, 1999 711 (SCC), [1999] 1 S.C.R. 330, at para. 31, a trier of fact may come to only one of two possible conclusions – either the complainant consented or not. There is no other option. If the trier of fact accepts the complainant’s testimony that she did not consent, then the Crown has established the necessary absence of consent, no matter how strongly the complainant’s conduct might contradict that claim. While the doctrine of implied consent has been judicially recognized in a variety of other contexts, it has no place in the law regarding the offence of sexual assault. Accordingly, there is “no defence of implied consent to sexual assault in Canadian law.” As Major J. stated, at para. 51, any belief that the accused may harbour that “silence, passivity or ambiguous conduct” on the part of the complainant constitutes consent, is a mistake of law and provides no defence to a charge of sexual assault.
C. The Presumption of Innocence and the Burden of Proof on the Crown
[16] As constitutionally guaranteed by s. 11(d) of the Canadian Charter of Rights and Freedoms, the accused is presumed to be innocent. That presumption of innocence remains with the accused unless and until the Crown establishes his guilt beyond a reasonable doubt. That heavy burden of proof never shifts. The accused has no obligation to establish his innocence.
[17] An exculpatory out-of-court statement by an accused, tendered by the Crown into evidence, may itself raise a reasonable doubt as to the alleged guilt of the accused and result in the acquittal of the accused. Moreover, to the extent that the evidentiary weight to be accorded such a statement depends upon the credibility of the accused, the three important principles articulated by the Supreme Court of Canada in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, are applicable. In other words: (1) if I believe the exculpatory statement of the accused that he did not commit this offence, I must find him not guilty; (2) even if I do not believe the exculpatory statement of the accused, if his denial of the offence leaves me with a reasonable doubt as to his guilt, I must find him not guilty; and (3) even if the exculpatory statement of the accused does not leave me with any reasonable doubt as to his guilt, I may only properly find him guilty of the alleged offence if, based on the evidence that I do accept, I am satisfied beyond a reasonable doubt of his guilt regarding the offence. See: R. v. L.(R.S.), 2006 NBCA 64, 209 C.C.C. (3d) 1, at paras. 83-104; R. v. Harrison, 2001 BCCA 272, 156 C.C.C. (3d) 117, at para. 44; R. v. Campbell (1995), 1995 656 (ON CA), 24 O.R. (3d) 537 (C.A.); R. v. Brass, 2007 SKCA 94, 226 C.C.C. (3d) 216, at paras. 68-75; R. v. Thomas, 2008 MBCA 75, 234 C.C.C. (3d) 520, at paras. 78-87; R. v. Bucik, 2011 ONCA 546, 274 C.C.C. (3d) 421, at paras. 24-39; R. v. Randall, 2012 NBCA 25, 393 N.B.R. (2d) 217, at paras. 21-35.
[18] The application of these principles ensures that reaching a verdict does not turn into a credibility contest between the evidence of the two main witnesses, and ensures that the presumption of innocence and the Crown’s burden of establishing the guilt of the accused beyond a reasonable doubt properly operate. See also: R. v. Y.(C.L.), 2008 SCC 2, [2008] 1 S.C.R. 5; R. v. P.(A.), 2013 ONCA 344, 297 C.C.C. (3d) 560, at paras. 38-45, 59; R. v. Vuradin, 2013 SCC 38, 298 C.C.C. (3d) 139, at paras. 21, 26.
III
Analysis
A. Introduction
[19] Applying these important principles in the circumstances of the present case, I am obliged to find the accused not guilty with respect to the allegation of sexual assault. I reach this conclusion for, essentially, two reasons.
[20] First, I cannot accept the testimony of the complainant that the accused began engaging in sexual intercourse with her while she was asleep and refrained from immediately ceasing this activity when she awoke and told him to stop. The complainant was simply not a reliable and trustworthy witness, and her key testimony was not supported or confirmed by any other evidence in the case. Accordingly, even before considering the exculpatory statement from the accused, her testimony, viewed against the case as a whole, just does not convince me of the guilt of the accused beyond a reasonable doubt.
[21] Second, the exculpatory out-of-court statement of the accused, that the complainant consented to all of the sexual activity that took place between them, including the unprotected sexual intercourse, leaves me with at least a reasonable doubt as to his alleged guilt. There is nothing about his version of events, including his express denial that the act of sexual intercourse took place while the complainant was asleep, that makes it any less credible or reliable than the testimony of the complainant. Moreover, in making his statement to the police, the accused was at least as credible as the complainant.
[22] I will endeavour to explain each of these conclusions in greater detail. But each of these conclusions leads to the same result, namely, that the accused must be acquitted of this charge.
IV
Conclusion
[69] In the result, the accused must be found not guilty of the alleged offence of sexual assault. The acquittal will be recorded on the indictment.
Kenneth L. Campbell J.
Released: October 17, 2013
COURT FILE NO.: CR-12-50000815
DATE: 20131017
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
GORDON THOMPSON
REASONS FOR JUDGMENT
K.L. Campbell J.
Released: October 17, 2013