ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-13-356-0000
DATE: 2015/07/02
B E T W E E N:
HER MAJESTY THE QUEEN
Richard G. Floyd, for the Crown
- and -
Bradley Cross
Accused
Ruth Roberts, for the Accused
HEARD: April 13-16 , 2015 (Napanee)
REASON FOR JUDGMENT
HACKLAND J.
[1] The accused is charged with one count of sexual assault contrary to s. 271of the Criminal Code, RSC 1985, c. C-46 and one count of choking to assist sexual assault, contrary to s. 246(a) of the Criminal Code.
Overview:
[2] The complainant is 28 years of age and at the relevant time was living with her five year old daughter in a walk-up apartment above a commercial establishment. Her teenage niece was also staying with her temporarily, although she was absent on the evening in question. The accused, aged 29 was a security guard at a hospital, having recently completed a community college program on policing.
[3] The complainant and the accused met on an internet dating website known as “Plenty of Fish”. They texted each other over a period of about five days and then decided to get together. The accused drove to the complainant’s apartment from his home in a nearby town about one half hour away, arriving at about 8 pm. I find that there had been no agreement as to whether he should stay over or whether they would have sex. Copies of the text messages sent between this couple prior to meeting were not available to the Court. As matters transpired, they had what the complainant admitted was consensual sex about an hour and a half after his arrival. However, as the evening wore on and into the early hours of the following morning, the accused’s behaviour deteriorated in tandem with his consumption of alcohol and ended with a sexual encounter in the complainant’s bedroom, at the conclusion of which the accused “passed out”, as he described it. When he awoke the next morning, he was ordered out of the apartment by the complainant.
[4] The factual issue before the Court is whether the final sexual encounter in the complainant’s bedroom was consensual or whether it was a sexual assault perpetrated by the accused. In addition there is an issue of whether the complainant was choked to facilitate a sexual assault.
[5] The accused and the complainant were alone in the apartment throughout these events, except for the complainant’s five year old daughter who was asleep in one of the bedrooms. However, the complainant was in contact, via her cell phone, with her cousin, as well as a male friend residing in the area and another family member, at various points in the evening. Some of the text messaging was useful to the Court in assessing the credibility of the evidence of the accused and the complainant.
[6] The Crown’s theory is that the accused wanted to engage in sexual activity with the complainant and over the course of the evening and early morning hours became intoxicated to the point where he did not care if the complainant was consenting. It is argued that due to heavy drinking, the accused has little reliable memory of what went on. The accused enjoyed “rough sex” including spanking, rough contact and vulgar sexual dialogue and roll playing, as he acknowledged in his statement to the police.
[7] The defence theory is that by the end of the encounter between these two people, the complainant had decided she did not like the accused, was displeased with their sexual encounters and regretted the whole evening. Defence counsel emphasizes that at no time throughout the evening did the complainant ask the accused to leave. Moreover, she was in contact via text messaging with her friends and family members and could easily have summoned help, called 911 or asked her friends to intervene. She did none of these things. The defence argues that in the circumstances the Court must have a reasonable doubt about whether the sexual activity was consensual.
The Facts
[8] The evidence of the complainant and the accused is quite similar with respect to the early part of the evening. The accused arrived about 8 pm. He was annoyed about what he regarded as poor directions given by the complainant. He told her he was “F---g pissed”. Things improved once inside her apartment. The accused brought with him a full 40oz bottle of whiskey and 2 litres of Coke. I find that he drank at least half of this bottle over the course of the evening – he was free pouring it into a coffee mug. I find that the complainant drank vodka and orange juice in a modest amount and was never intoxicated.
[9] Following his arrival, they sat at the kitchen table and talked and then moved to the living room and watched television. They began kissing and ultimately, the accused picked up the complainant, carried her into her bedroom and they had what the complainant admitted was consensual sex, for about 20 minutes. This occurred about one and one half hours after the accused’s arrival.
[10] Following this sexual encounter, they moved into the kitchen. At that point, the accused made some remarks about the complainant’s 17 year old cousin while he handled some of her clothing which was in an open suitcase on the floor. He suggested her cousin should be invited over for three-way sex and he spoke of what he wanted to do with her in crude terms. The complainant testified that this “creeped her” a bit and she told him so.
[11] She noticed that the accused was appearing a bit intoxicated and was playfully slapping her on her arm and referring to himself as Uncle Bradley. She felt his conversation was “gross” and she told him that his slapping was “annoying”.
[12] Shortly after that point, the accused left the apartment and walked over to a nearby convenience store to buy snacks and then returned to the complainant’s apartment some 20 minutes later. The complainant had told him how to prop the front door open so that he could get back in. While he was gone, the complainant was texting on her phone with her friend Amy, observing that she was “not sure” how the evening was going.
[13] Upon his return, the accused continued to mix drinks of whiskey for himself. He confided in the complainant that he had fantasies of “raping girls and robbing banks”. He watched videos on the computer, some of which were pornographic. The complainant said she reluctantly went along with this. His sexually aggressive behaviour escalated. He kissed her hard on the lips with his hand pressing on her throat. He slapped her cheek and squeezed her thighs. When she went into the bathroom, he followed her and snatched her cell phone and queried her about who she had been texting. At one point he grabbed her right arm and pulled her face to face with him and was biting her arms, shoulders and both breasts, while commenting on how “hot” she was.
[14] The rough sexual play continued as he demanded to know what she liked about the way he had sex with her. He put her in an arm lock around her neck which prevented her from breathing. He did this several times. He put his fingers into her vagina and told her she was “wet” as he pinned her against the wall. He said “do what I say or your daughter will wake up without a mother”.
[15] The conduct described above was mixed up with periods of watching videos on the computer. He insisted that she sit down beside him during the viewing. The complainant admits she reluctantly went along with this.
[16] When pressed by the defence as to what she did to put a stop to this conduct, the complainant explained that she did what she was told because she did not want to cause a raucous out of concern for her daughter sleeping in a nearby bedroom. At another point, she said that she did not ask the accused to leave because he had been drinking and she did not want to get sued if he had an accident. Still another answer to this line of questioning was that the accused had police connections and would be believed over her.
[17] Around midnight the complainant texted her cousin to say to not come home under any circumstances.
[18] For several more hours the complainant and the accused watched videos, some were pornographic, as he continued to drink. The slapping, throat grabbing and finger jabbing continued. She recalls the accused saying “I own you, do what I tell you to do”. “I knew when I walked in the door, you were going to be a good f--- ”.
[19] When the complainant finally decided to bring the evening to an end, she told the accused he could sleep on the couch. She then went into her bedroom and undressed. She testified that the accused followed her into the bedroom, pulled her onto the bed and had forcible sex with her. His right hand pinned her arms and his left hand was pressing on her throat. He put his fingers in her vagina which was very painful. He said “do what a good whore would do and f--- me”. The complainant describes being ordered to talk dirty and to assume sexual positions, which she largely went along with to avoid a confrontation which she felt could involve her daughter. At one point she hit her head on the wall as he was aggressively manhandling her. She testified that the accused eventually stopped forcing himself on her and “passed out”. She then went out of her bedroom and slept on the couch after engaging in further text messaging exchange with a male friend in the area: The complete text messaging exchange was as follows:
• Complainant – OMG LOL Hes drunk
• 12:54 am - Friend – want help getting rid of him?
• 1:05 am – Complainant – I don’t know
• 1:09 am – Friend – well let me know
• 2:40 am – Friend – hope your ok?
• 3:43 am – Complainant – No im not. If only he weren’t a form of law enforcement I would call and have him removed
• 3:44 am – Friend – Have you told him to leave?
• 3:48 am – Complainant – Hes too drunk and hes passed out now. Don’t say anything please….Ive never been hit before ever…. Til today
I made a huge mistake
• 3:49 am – Friend – Are you serious?
• 3:50 am – Complainant – Im not kidding….ive been choked punched bit and not in a good way
Im on my couch crying…..this sucks
• 3:58 am– Complainant – Im gonna try and stay awake. Jasmine will be home tomorrow. He said do u think police will believe u or me? He tried to f*** me and I saif (sic) no then he started throwing me around so I gave in …..omg
• 4:00 am – Friend – Just because he’s a cop doesn’t mean he’ll get away with it!! Do you have any marks?
• 4:01 am – Complainant – Ya a few….where he pubched (sic) me and choked me and beat on my chest
• 4:02 am – Friend – Ya GO to the cops!! Ill bring my phone to the police station if I have to!
[20] The next morning, the complainant woke up with her neck sore and swollen and her arms and hands sore. Her thighs were tender and bruised on the inside near the knee and her genital area was sore. She said that she had bite marks on her cleavage. She walked into the bedroom and ordered the accused to get out of her house, which he did. Shortly after leaving, the accused texted the complainant saying:
• 10:05 am January 31 – I killed that 40 and you act like I was sober…I’m not askin for much. Just tell me… lol… what happened just tell me… I was blackout drunk, so please shed some light on it.
[21] The complainant was examined the following day by a nurse belonging to the Sexual Assault and Domestic Violence Team at the local hospital. The nurse identified two small bruises on her inner thigh and some small markings on her neck consistent with bruising. No marks or bite marks on the complainant’s breasts were observed. While these are minor injuries, I consider them to be corroborative of the rough physical conduct of the accused. The bruises to her inner thigh are consistent with the manoeuvers she said were forced on her at the time she lost her temper with the accused while in her bedroom.
POLICE INTERVIEW
[22] The accused attended an interview with a Police Detective on February 6th, 2013, five days after the incident. This took place at Belleville police station. The accused was unrepresented, however, he was provided with the appropriate warnings and the voluntariness of the statement was admitted by counsel.
[23] In my view, the accused’s statements to the detective provide substantial support for the complainant’s description of the accused’s conduct throughout the evening and as it related to their final sexual encounter before he “passed out” (the accused’s own description). I quote certain remarks of the accused from the police interview:
• P.17 – “some girls like to be spanked…choked…grabbed hair pulled stuff like that so we were doing that kind of stuff.”
• P.18 – “so we were having oral sex and then I remember the “69” position and then I remember I said something like …I know I pissed her off somewhat like I knew she was mad and I passed out…”
• P.31 – “I’m sure I spanked her butt I don’t know like I forget exactly and the second time she were obviously drinking more and then it was just more wild I guess you’d say.”
• P.32 – “I don’t know if I choked her but I’m saying some like to be choked…like I know I pulled her hair I know I spanked her…I told her like I wanted her to do oral to me while I do it to her…at that point she I remember got mad…I thought it was something I said”
• P.45 – Q – … “at any point…did you put your arms around her neck?”
A – … “around her neck. I don’t know … I might have done … one of those hugs … when joking around.”
• P.46 – … “I might have like I always kind of headlock like not violent like a hug headlock like hug at the side and kiss them.”
• P.50 – Q – … “at any point in that night did you grab her by the throat and with your arm in a headlock or with your hands over her throat…?”
A – … “no I don’t believe so.”
• P.75 – Q … “do you remember ever putting your hands on her neck?”
A – … “I don’t remember no I don’t remember choking her like that’s what I mean like I remember pulling her hair…I might…I don’t remember choking or going out of my way to put all my weight on her...”
• P.89 – “I might have said take it like a good whore I don’t know…”
ALCOHOL CONSUMPTION
[24] Although the accused texted the complainant shortly after his departure, saying that he had been “blackout drunk”, the statements given by the accused to the Detective at the police interview differed somewhat. However, they support the complainant’s evidence that the accused was intoxicated:
• P.27 – “I brought Wiser’s whiskey… it was a 26er… I think I had 3 or 4 drinks like she kept making them for me…”
• P.33 – “I probably had 6 drinks (rye and coke)... in coffee cups”
• P.40 – “I’d say I was more drunk than her during most of the night…”
• P.70 – “I wasn’t blackout drunk I was six(6) or seven(7), I guess “one(1) being sober and ten(10) being pissed drunk…”
• P.80 – “okay so forty(40) my mistake it was a 40… I know I screwed myself saying that…I wanted to know what happened like just tell me… I wasn’t blackout drunk…I remember everything that happened…”
LAW AND ANALYSIS
[25] The Crown must prove beyond a reasonable doubt the sexual contact occurred without the complainant’s consent. The defence argues that there must be a reasonable doubt on this evidence. The accused was invited over and a sexual encounter was, I find, a very real possibility in the minds of both the complainant and the accused. After an hour and half they had sex in the complainant’s bedroom and she readily conceded in her testimony that this was consensual. Shortly after he left the apartment to buy snacks and the evidence establishes that the complainant made sure that he was able to regain entry and she did not want any form of intervention. Her texting while he was gone for snacks suggests she was not sure she liked the accused. Nevertheless, she did not ask him to leave and it would seem that she was quite willing to have him stay over.
[26] I find that the accused’s answers to the Detective’s questions at the police station strongly support the complainant’s version of events ie that his behaviour became aggressive and assaultive later in the evening. In particular, as the time went by, the accused became increasingly intoxicated – on his own evidence he was a 6, or 7 on a scale of 10 (ten being “pissed drunk”). He admits to slapping the complainant, grabbing her hair and spanking her. He called her a whore and other vulgar names and was attempting to force her into a submissive role. He seemed to imply to the detective that this was a type of sexual role playing that he enjoyed and was in the habit of doing with women.
[27] I find the complainant to be generally credible, notwithstanding that she was grasping for explanations as to how she could have allowed the accused to stay in her apartment through these events. I accept her evidence that she hoped throughout most of the evening that she could get tolerate the accused’s behaviour and have him leave the next morning, without having to create a bad situation that could potentially involve her daughter who was sleeping in a nearby bedroom. In retrospect, this was unrealistic but I find that it was only in the early morning hours that the accused became heavily intoxicated and then much more aggressive in playing out his rough sex fantasies. I accept the complainant’s evidence that she was tolerating this behaviour for most of the evening while certainly not liking it. I accept her evidence that the encounter in her bedroom as she tried to close off the evening and go to bed by herself was a sexual attack which the accused had no reason to believe was consented to.
[28] In my opinion, viewing the evidence as a whole, the complainant’s testimony was much more credible. She was essentially sober throughout the evening and because her testimony is supported to a considerable degree by the accused’s statement to police and by his own evidence and by the content of the complainant’s text messages. In contrast, the accused was heavily intoxicated by the time of the events in the bedroom, as he admitted, and as evidenced by him “passing out”. He claimed to have no memory of events the next morning, which I do not accept. However, I have no doubt his memory was impaired by his intoxication and such recollections as he does have are unreliable. One of his recollections is that at the end of the second encounter in the bedroom, the complainant was very annoyed with him. He claims not to know or remember why.
[29] Significantly, I find that the accused made no real effort to determine if the complainant agreed to the slapping, hair pulling and the headlocks, actions to which he himself admitted. I find that as the accused became progressively more intoxicated, his rough sex game playing escalated and he was by the end of the evening simply using the complainant for his own fantasies and sexual pleasure.
[30] Further, I find that the complainant was indeed choked as the bruising on her neck would suggest and as the accused essentially admitted in his statement to the police. He placed his hand on her neck and put her in a headlock. All of this was done to facilitate his sexual assaults.
HONEST BUT MISTAKEN BELIEF
[31] As noted, the defence submitted that the Crown failed to prove beyond a reasonable doubt that the complainant did not consent to having sex with the accused in her bedroom at the conclusion of the evening. For the reasons stated previously, I am of the opinion that the Crown has met that burden.
[32] While this was not raised by the defence, I am of the view that there is a sufficient air of reality to consider the defence that the accused had an honest, but mistaken belief in the victim’s consent. I am therefore required to consider whether I have a reasonable doubt on this basis, see R. v. Butler [1998] O.J. No. 392 (C.A.)
[33] The principal reason why the accused may have believed or more accurately assumed that the complainant was consenting to his sexual advances was his level of intoxication. This does not constitute a defence to the present charges.
[34] Section 273.2 of the Criminal Code provides:
It is not a defence to a charge under section 271, 272 or 273 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
(i) self-induced intoxication, or
(ii) 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
[35] Another reason that the accused may have believed the complainant was consenting to the sexual acts in her bedroom at the conclusion of the evening was that she had willingly participated earlier in the evening. On the complainant’s version of events, she was willing in the first few hours to engage in sexual activity, but over the course of the evening simply tolerated the accused’s conduct and at the end was angry and actively opposing his sexual advances. In my opinion, if the accused was unaware of the complainant’s lack of consent when the acts were committed, it was due to recklessness on his part. I refer to several observations made by Hill J. in R. v. Wylie, 2012 ONSC 1077 at para. 91:
an accused may raise the defence of honest but mistaken belief in consent if he believed that the complainant communicated consent to engage in the sexual acitivity: J.A., at para. 24; Code, s. 265.4 – “[c]onsideration of communication of consent has always implicitly informed our approach to how knowledge of absence of consent relates to mens rea of the offence of sexual assault”: Park, at para. 43.
While it has been observed that “a previous relationship of intimacy coupled with no reason to suspect a change of heart” may constitute a circumstance capable of contributing to an air of reality to the defence: (Livermore, at para. 20), caution is necessary not to import a notion of “continuing” consent simply on account of such a relationship: R. v. R.V., [2004] O.J. No. 5136 (C.A.)(QL), at par. 1: M. Randall, “Sexual Assault in Spousal Relationships, “Continuous Consent”, and the Law: Honest But Mistaken Judicial Beliefs” (2008), 32 Man. L.J. 144.
in considering this defence, on review of the whole trial record, the key is the evidence said to communicate the complainant’s consent:
Non-consensual sexual touching is criminal unless, at the least, the accused honestly believes that consent has been communicated with respect to that touching. Thus, as a practical matter, the mens rea of the offence does not relate so much to the complainant’s frame of mind as it does to the complainant’s communication of that frame of mind and to the accused’s perception of that communication. Furthermore, although consent may exist in the mind of the woman without being communicated in any form, it cannot be accepted by a reasonable finder of fact as having been honestly perceived by the accused without first identifying the behaviour that led the accused ostensibly to hold this perception. If the accused is unable to point to evidence tending to show that the complainant’s consent was communicated, then he risks a jury concluding that he was aware of, or reckless or wilfully blind to, the complainant’s absence of consent.
(Park, at para. 45)
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.
For the purposes of the mens rea analysis, the question is whether the accused believed that he had obtained consent. What matters is whether the accused believed that the complainant effectively said “yes” through her words and/or actions.
(Ewanchuk, at paras. 46-47)
…the absence of conduct or language on the part of the complainant negativing consent is no longer sufficient to make out a defence for honest but mistaken belief. Rather, the respondent must honestly believe that by her words or conduct the complainant was communicating her consent to engage in sexual activity.
(R. v. M.O. (1999), 138 C.C.C. (3d) 476 (Ont.C.A.), at para. 14 per Finlayson J.A. (rev’d on different basis, 2000 SCC 49, [2000] 2 S.C.R. 594))
The accused’s belief must relate to consent of the complainant communicated at the time of the sexual activity and accordingly the defence cannot operate on some notion of “broad advance consent” (J.A., at para 34) or rely on an assumption that the complainant “would consent” rather than a belief that “she does, in fact, consent”: Park, at paras. 22, 24
the requirement of evidence of clear communication of consent defeats an accused’s asserted misperception where the complainant is silent or her conduct equivocal or ambiguous: Ewanchuk, at paras. 51-2; M.O. at paras. 58-9, 67 per Rosenberg J.A. in dissent (dissent aff’d, [2000] 2 S.C.R> 594) – passivity or lack of resistance to physical sexual advances does not connote consent: Esau, at para 20; R. v. M.L.M., 1994 77 (SCC), [1994] 2 S.C.R. 3, at p. 4; Park, at para 23; Dippel, at para 21 – in other words, a complainant is not “required to forcefully make “no” obvious”: R. v. Pittiman (2005), 198 C.C.C> (3d) 308 (OntC.A.), at para 49 (aff’d, [2006] 1 S.C.R> 381) or to demonstrate “some minimal word or gesture of objection” (Park, at paras. 38, 45, 47) or “to express her lack of consent”: J.A., at para. 37 (emphasis of original)
[36] I am satisfied beyond a reasonable doubt that any belief the accused may have had that the complainant had agreed to his sexual advances over the course of the late evening and early morning hours, was due to pure recklessness on his part fuelled by heavy drinking. I find that he simply did not care whether she was consenting to the activity or not and carried on out of a misplaced sense of entitlement.
[37] I find the accused guilty on both counts on the indictment.
“Justice Charles T. Hackland”
Mr. Justice Charles T. Hackland
Released orally, July 2, 2015
COURT FILE NO.: CR-13-356-0000
DATE: 2015/07/02
HER MAJESTY THE QUEEN
Respondent
- and -
Bradley Cross
Appellant
REASONS FOR JUDGMENT
Judge
Hackland J.
Released orally, July 2, 2015